Not in My Backyard: Executive Order 12,898 and Title VI as Tools for Achieving Environmental Justice
Statement of Chairperson Mary Frances Berry, Vice Chairperson Cruz Reynoso, and Commissioners Christopher Edley, Jr., and Elsie Meeks
This carefully researched report sheds light on the continuing environmental inequities faced by low-income communities and communities of color. The executive order signed by President Clinton in 1994 recognized the disproportionate exposure of poor and minority populations to hazardous environments and mandated federal agencies to incorporate environmental justice principles into their work and programs. Not in My Backyard: Executive Order 12,898 and Title VI as Tools for Achieving Environmental Justice methodically analyzes and substantiates the failure of EPA, HUD, DOT, and DOI to fully implement that order. The report furthers the Commission’s commitment to the ideals of environmental justice and to its position that environmental statutes and regulations must be carefully implemented to protect communities of color and low-income neighborhoods in the environmental decision-making process.
The report benefited from hearings held by the Commission in January and February 2002. Experts at the hearings presented evidence that communities of color and the poor suffer disproportionately from environmentally related diseases, and from greater exposure to toxic chemicals released by the hazardous waste sites and facilities in their neighborhoods. It represents a culmination of testimony and contributions by advocates, researchers and scientists, community representatives, business and industry representatives, policy analysts and academics, as well as officials from the four federal agencies under review. Although the report observes progress in environmental justice, it also documents the failure of federal agencies to incorporate the principles of environmental justice into their core missions, to establish accountability and performance outcomes for programs and activities, and to provide solid leadership in these areas. The report raises concerns about the federal government’s commitment to identifying and addressing the role of race and socioeconomic status in decisions affecting the health and safety of whole communities.
Not in My Backyard comes to the unfortunate conclusion that more than 10 years after the first environmental justice cases brought in Texas and North Carolina, race still plays a significant role in the siting of polluting facilities such as landfills and toxic dumps. Low-income residents, and people of color to an even greater extent, continue to endure disproportionate exposure to a variety of environmental toxins in their neighborhoods, schools, homes, and workplaces. The report adds to the list of at least “76–80 studies” cited by the EPA, “that have consistently said that minorities and low-income communities are disproportionately exposed to environmental harms and risks.” It corroborates an early study by the U.S. General Accounting Office, which found people of color are burdened with a disproportionate amount of environmental risk. The findings and conclusions of Not in My Backyard are carefully cited and documented throughout, crediting almost 20 years—from the early 1980s to the present time—worth of reliable studies on the distribution of environmental risks. The report’s recommendations flow directly from its findings and conclusions.
In addition, the report persuasively rebuts the market dynamics theory that people of color and low-income individuals routinely locate near hazardous and toxic facilities for economic benefit, specifically, cheap housing and the expectation of jobs. It notes zoning practices that on their face appear race neutral, but which routinely and disproportionately allow the neighborhoods of people of color and the poor to be zoned for industrial use. These communities then suffer increased exposure to health risks as heavy industry moves down the street from their homes.
Degraded environments cause increased rates of environmentally related disease, such as asthma and childhood lead poisoning. Yet the report also finds that the burden of locating waste and toxic facilities in low-income neighborhoods and communities of color is not counterbalanced by economic benefit, since many facilities fail to hire local residents. The report illustrates the devastating position of these communities, which are forced to choose between good health and the dim hope of economic opportunity. For many, it is in effect a Hobson’s choice, because their options for relocating are inhibited by racism, housing discrimination, and limited resources.
Not in My Backyard thoroughly analyzes the issues and documents the problems that make enforcement of environmental justice almost nonexistent. Executive Order 12,898, which created a right to environmental justice, has yet to be fully realized or enforced. As a result of judicial decisions limiting the ability of individuals to file disparate impact cases under § 602 of Title VI and § 1983 of the Civil Rights Act, communities have been forced to rely even more on what should be—but often is not—vigorous agency enforcement to remedy environmental justice complaints. In view of this reality, the report recommends that Congress and federal agencies provide the means for private plaintiffs to achieve relief in environmental justice cases. The report urges the following: congressional passage of a Civil Rights Restoration Act to conclusively provide for a private right of action for disparate impact claims under § 602 of Title VI and § 1983; vigorous enforcement of existing state and local agency nondiscrimination regulations through greater federal oversight; implementation of effective policy and guidelines for administrative enforcement of Title VI violations by federal agencies; and federal agency imposition of appropriate penalties for Title VI violations.
We endorse those recommendations and the findings on which they are based. For the above reasons, we believe this report will further the important civil rights goals of environmental justice, and we thank the staff for their professional and conscientious work.
Statement of Commissioners Jennifer C. Braceras, Peter N. Kirsanow, Russell G. Redenbaugh, and Abigail Thernstrom
We write separately to explain why we cannot sign on to this report, Not in My Backyard: Executive Order 12,898 and Title VI as Tools for Achieving Environmental Justice. To begin with, this report and its recommendations are based upon a misguided application of federal antidiscrimination law to complex environmental and public health problems. In addition, this report fails to meet the standards of balance and academic rigor that taxpayers expect from an ostensibly independent federal agency. For these reasons, and the reasons outlined more fully below, we do not think that this report should be permitted to bear the seal of government approval.
The terms “environmental justice” and “environmental racism” refer to the belief that poor and minority communities shoulder an unfair portion of environmental burdens and that the law should seek to rectify this imbalance. More specifically, “environmental racism” refers to the belief that environmental and public health risks faced by minority communities are the result of discriminatory public policies, while “environmental justice” refers to efforts to reallocate the risks more equitably.
Community leaders are right to be concerned about the health and safety of those who reside near environmental hazards. These concerns are the province of environmental law and policy-making. In addition, our federal civil rights laws appropriately forbid policy-makers and other recipients of federal funds from considering the ethnic or racial composition of a neighborhood when making siting, permitting, or environmental enforcement decisions. Environmental justice activists, however, are not content to let environmental law sort out problems of risk assessment and to let federal civil rights law prevent and punish intentional environmental discrimination. To the contrary, environmental justice activists seek to create a federal civil rights claim every time an environmental or public health problem affects minorities.
Although we recognize that there are times when environmental problems raise important civil rights questions, generally the two issues are—and should remain—conceptually distinct. This report purposefully conflates the two, and it relies upon three fundamentally flawed premises to do so.
First, this report takes at face value claims that industrial and public waste management facilities are disproportionately sited in minority neighborhoods and that such siting decisions necessarily impact these communities negatively.
Second, this report accepts, without critical analysis, arguments that racial discrimination can be blamed for concentrations of environmental and public health risks in poor and minority communities.
Third, the conclusions and recommendations contained in this report assume that federal antidiscrimination law provides a useful tool for weighing the costs and benefits of economic development and for allocating environmental and public health risks.
We explain in turn why each of these assumptions lacks merit.
II. There Is Insufficient Evidence of Disparate Negative Impact.
A. The evidence of disproportionate impact is mixed.
To begin with, this report fails to undertake a fair and balanced review of the literature on the demographic impact of industrial and environmental decisions. For example, it credits without critical analysis the results of studies conducted in the 1980s that purportedly demonstrate the racially disproportionate impact of facility siting decisions. Yet the report virtually ignores studies conducted in the 1990s that contradict these findings outright, as well as those studies that demonstrate mixed results. Similarly, this report credits claims that minorities are disproportionately affected by air pollution while ignoring studies that find no correlation between various types of pollutants and race.
In truth, the evidence of any correlation between environmental hazards and race is mixed. Results inevitably depend upon numerous variables, including, inter alia: the size of the study, the definition of “minority community,” the aggregation or disaggregation of urban and rural communities, and controls for income level. Yet, despite the complex web of evidence that exists with respect to the question of disparate environmental impact, this report presents the statistical data as if it were crystal clear. Indeed, this report does not even attempt to explain why it credits certain studies over others. As such, it fails to lay an intellectual predicate for all that follows.
B. Disproportionate impact is not synonymous with negative impact.
This report not only uses data selectively, it also makes an intellectual leap that cannot withstand scrutiny: it assumes that all disproportionate impacts are negative impacts. This is not always the case. A particular policy or decision may affect one demographic group more than others, but that does not necessarily mean that it creates a danger for that group. Even where a policy increases the risk to a particular community, that risk may be accompanied by certain economic benefits to the community—benefits such as increased employment opportunities, increased social services made possible by a larger tax base, and lower housing costs and real estate prices.
Thus, even assuming arguendo that industrial facilities are (for whatever reason) disproportionately located in communities of color, such a presumption standing alone points nowhere. It tells us nothing about the level of danger posed by such decisions—levels that can range from insignificant to major; it tells us nothing about the level of economic benefit that results from such development; and it tells us nothing about whether the costs outweigh the benefits. In short, it tells us nothing about risk assessment.
III. Environmental and Public Health Problems in Minority Communities Are Generally Not the Result of Racist Decision-making.
The Commission’s report views the existence of environmental hazards in minority communities as proof positive that the hazards were placed in those communities because of their racial or ethnic composition. In truth, the decision to locate a facility in a particular neighborhood often occurs long before significant numbers of racial and ethnic minorities become residents of that community. As environmental expert Christopher Foreman has noted, “the current demographic pattern in a given area may be misleading; the local ethnic mix at the time a facility was constructed may have differed considerably, undermining the argument that racism underlay the original siting decision.” Indeed, studies have revealed that poor and minority populations sometimes cluster around existing industrial facilities, possibly due to lower property values. In other words, it is often the housing market itself—and not intentional discrimination—that creates a concentration of poor or minority residents in environmentally undesirable locations. Although the Commission’s report acknowledges that market dynamics help to define the demographic makeup of communities, it nevertheless reflexively assumes that the market is motivated by racism.
Similarly, this report blames discrimination for the many public health problems facing communities of color, including asthma and lead paint exposure. The report ignores evidence which suggests that the higher incidence of disease and other medical problems in heavily minority communities is the result, not of racism, but of a multitude of factors, including poverty, substance abuse, family instability, poor nutrition, and low participation rates in preventative care programs. By assuming, rather than proving, that discrimination is the cause of this particular set of public ills, the report deflects attention away from the real public policy issue—improving the health and safety of all communities—and thus does a disservice to people of all races who are affected by environmental hazards.
IV. Antidiscrimination Law Is an Improper Vehicle for Reducing Environmental and Public Health Disparities.
Title VI rightly prohibits intentional discrimination in the siting, permitting, and enforcement process. But the Commission’s report goes further, urging the use of federal antidiscrimination law as a means of addressing complex environmental problems, even in the absence of discriminatory intent. This report thus adopts the view that disparate impact analysis—born of Title VII as a means of rooting out covert employment discrimination—should be applied to all environmental and public health decisions.
The disparate impact model seeks to block decisions and eliminate policies that, while neutral on their face, affect minorities disproportionately. Under a disparate impact analysis, motive is irrelevant—policies are considered “discriminatory” simply because they have a disproportionate adverse impact on a protected group. Although the disparate impact model may provide a useful mode of analysis in some areas of the law, the Supreme Court has cautioned that disparate impact should not be applied reflexively to all areas of antidiscrimination law. Unfortunately, this report makes no attempt to explain why the disparate impact model proves meaningful in the environmental and public health context. It, therefore, provides no intellectual support for its recommendations.
Unlike the authors of this report, we reject the use of disparate impact theory for resolving environmental and public health problems. We believe that in this context the disparate impact model needlessly pits two vital needs of disadvantaged communities—health and economic prosperity—against each other. That is because in the environmental arena, notions of harm and benefit are less clear-cut than in other areas of the law that utilize the disparate impact approach. For example, in the employment context one can plausibly argue that the use of a screening criteria which eliminates a disproportionate number of minority applicants serves to entrench societal inequality. Employment discrimination law thus prohibits the use of such devices unless an employer can demonstrate that the challenged criterion is relevant to the job in question and necessary to the successful operation of the business. The environmental context is clearly different. Unlike private employment, where a policy with a disparate racial impact can reasonably be said to disadvantage the minority group as a whole, environmental problems may impact different segments of a minority group differently. Thus, the decision to site a waste treatment facility in a majority black neighborhood might be harmful to those residents who live right next to the facility, but it might benefit other members of the community who do not live close enough to the facility to experience an increased health risk, but who will benefit from an increase in job opportunities, the increased tax base, and/or the lower housing costs. Indeed, environmental decisions might simultaneously impact the same people both positively and negatively. In other words, it is possible for the same resident to suffer increased risk of danger while at the same time reaping the economic benefits of the siting decision. Thus, in contrast with the employment context, the notion that a particular environmental decision will inevitably entrench social inequality is by no means obvious or universally accepted.
In the environmental context, any determination as to whether the costs of development outweigh the benefits necessarily involves both empirical predictions and value judgments. The empirical analysis involves measuring the type and extent of the dangers posed by development as well as the type and extent of any benefits that might flow to the community from development. The value judgment involves deciding which negative externality—the increased health and safety risk of living in a community exposed to certain levels of pollution or the forbearance of the economic benefits that flow from the development of an industrial facility—constitutes the greater evil. Such determinations form the basis of all environmental policy-making. Absent evidence of intentional discrimination, the racial composition of the affected community should not alter this analysis.
V. The Report’s Recommendations
Several of this report’s recommendations are particularly disturbing to us—in particular the recommendation that the federal government use the disparate impact model to determine whether or not to grant permits; the recommendation that the government utilize all available penalties, including termination of federal funding, when federal bureaucrats determine that minority communities have been disproportionately subjected to environmental burdens; and the recommendation that Congress clearly and unambiguously create a private right of action for disparate impact lawsuits under Title VI. If implemented, the effect of these recommendations will be to increase lawsuits, thwart plans to revitalize economically depressed areas, and deny each community the right to decide what is in its own best interest.
VI. Concluding Thoughts
We agree with this report in one respect: We believe that empowering local communities and involving residents in environmental decision-making is good public policy. But our agreement with this report ends there.
Although this report was more than a year and a half in the making, the final product is nevertheless incomplete, one-sided, and academically unsound. Indeed, if adopted, many of the recommendations contained in this report will undermine public and private efforts to revitalize economically depressed areas to the detriment of minority residents. For these reasons, and the reasons stated above, we cannot support the publication of this document.
 See, e.g., Michael Steinberg, Kate McGloon, and Heather Keith, Environmental Justice: No Easy Answers 1, 3 (September 2000) (defining the terms “environmental justice” and “environmental racism”).
 The report refers to a 1983 General Accounting Office study of the four offsite hazardous waste facilities in the EPA’s Region IV (the southeastern U.S.). See Report at 14. The 1983 study found that populations in three of the four surrounding areas were majority black. Id.; U.S. General Accounting Office, Siting of Hazardous Waste Landfills and Their Correlation with Racial and Economic Status of Surrounding Communities (1983). Similarly, the Commission’s report credits a 1987 United Church of Christ study that purports to reveal a correlation between the number of commercial waste facilities in a given community and the percentage of minority residents in that community. See Report at 14; see also Commission for Racial Justice of the United Church of Christ, Toxic Wastes and Race in the United States (1987). The Commission’s report cites both of these studies with approval without exploring the methodological weaknesses of these studies, which have been widely discussed in the academic literature. See, e.g., Thomas Lambert, Christopher Boerner, and Roger Clegg, A Critique of Environmental Justice, National Legal Center White Paper (1996) (explaining the technical problems with these and other studies purporting to demonstrate evidence of environmental racism).
 For example, in 1995 GAO released a new study that appears to contradict its earlier findings. The 1995 study reports that minority and low-income populations across the country are not subjected to disproportionately higher siting of municipal solid waste landfills. See U.S. General Accounting Office, Hazardous and Nonhazardous Waste: Demographics of People Living Near Waste Facilities (June 1995). See also Henry Payne, “Green Redlining,” Reason at 31 (October 1998) (discussing studies conducted in the 1990s by EPA of the communities surrounding 1,234 Superfund sites that turned up no evidence of disparate impact on minorities); Steinberg et al., supra note 1, at 1, 6 (discussing a study of hazardous waste treatment, storage, and disposal facilities by census tract conducted by the Social and Demographic Research Institute at the University of Massachusetts which found that such sites are located predominantly in white, working-class neighborhoods.)
 See Steinberg et al., supra note 1, at 7 (summarizing one of the more comprehensive studies of facility siting decisions which found no aggregate disparate impact, but which found disparate impact when rural communities were looked at in isolation).
 Studies demonstrate that residents of urban areas, regardless of race or income, are more likely to live with higher levels of pollutants than residents of rural areas with high concentrations of minority residents. See, e.g., Jim F. Couch, Peter M. Williams, Jon Halvorson, and Keith Malone, “Of Racism and Rubbish: The Geography of Race and Pollution in Mississippi,” The Independent Review, vol. 8, no. 2, 240 (Fall 2003) (reviewing the literature and finding that in Mississippi counties with higher black populations suffered less air pollution than those with majority white populations, and concluding that “charges of environmental racism are highly exaggerated).
 Several scholars have noted that studies define “minority community” in varied and, sometimes illogical, ways. See, e.g., Lambert et al., supra note 4, at 5.
 For example, the report states that race and ethnicity are the “most significant factors in deciding where to place waste facilities, landfills, and other environmental hazards.” See Report at 14; see also Report at 27 (“Clearly, race . . . play[s] a significant role in environmental decision-making”).
 Christopher H. Foreman, Jr., The Promise and Peril of Environmental Justice at 19 (1998).
 See Payne, supra note 5, at 31 (citing a study conducted by Washington University).
 See Report at 17.
 Id. (stating, without explanation, that market dynamics are themselves “influenced by race”).
 See Report at 20–22.
 See Foreman, supra note 10, at 70.
 See Washington v. Davis, 426 U.S. 229, 246–48 (1976); see also Jennifer C. Braceras, Killing the Messenger: The Misuse of Disparate Impact Theory to Challenge High-stakes Educational Tests, 55 Vand. L. Rev. 1111, 1142 (2002) (discussing the uses and misuses of disparate impact theory); Thomas A. Lambert, The Case Against Private Disparate Impact Suits, 34 Ga. L. Rev. 1155 (2000) (explaining why private lawsuits alleging discrimination on the basis of disparate impact are inappropriate in the environmental context); Todd B. Adams, Environmental Justice and the Limits of Disparate Impact Analysis, 16 T.M. Cooley L. Rev. 417 (1999) (similar).
 The precise statutory language is “job related for the position in question and consistent with business necessity.” See 42 U.S.C. § 2000e-2(k)(1)(A)(ii) (Title VII).
 See Report at 168–69 (Recommendations 1.1–1.12).
 See id. at 169 (Recommendation 2.1).