Hope Up in Smoke

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If you don’t live near one, the idea that garbage dumps seek particular neighborhoods might seem paranoid. But environmental justice advocates working amid the 35 waste transfer stations that dirty the South Bronx know better. Working with community groups, Congressman Jose Serrano filed a complaint with the EPA in 1998, charging that the intense volume of garbage trucks and dumpsters violated civil rights in a poor area rife with health problems.

This notion snapped the EPA and the media to attention, even prompting Staten Island Rep. Vito Fossella to claim the Fresh Kills landfill violated his constituents’ civil rights. “Our organizing was bolstered by the fact that this was considered a civil rights issue,” says Majora Carter, who runs the group Sustainable South Bronx and in 1997 initiated a successful campaign to stop a new waste plant.

But the EPA’s civil rights office still hasn’t ruled on Serrano’s complaint. Advocates have long wondered whether federal courts would act on environmental civil rights concerns more avidly than bureaucracies do. Now they know. In December, a panel of judges from the 3rd Circuit Court of Appeals ruled in a lawsuit seeking the shutdown of a new cement-slag factory in a low-income stretch of waterfront in South Camden, New Jersey, that citizens of a polluted minority neighborhood can’t use federal civil rights law to block new polluters. The judges deferred to a U.S. Supreme Court decision earlier last year that limits citizen suits under Title VI of the federal Civil Rights Act–which bans discrimination by any agency receiving federal funds–to cases involving rights Congress spelled out in the legislation. That appears to rule out environmental justice claims, because civil rights law took shape years before the prevalence of toxic facilities in minority neighborhoods was an issue of widespread concern.

The court decision turned back an unprecedented gambit. The plaintiff, South Camden Citizens in Action, had convinced a lower court that the factory had a discriminatory effect in its neighborhood, which already hosts several toxic waste sites as well as a sewage treatment plant and a trash incinerator. They presented statistical analysis showing that a neighborhood’s percentage of nonwhite residents almost certainly had some relationship to its concentration of polluting facilities. Using that statistic, the lower court decided that New Jersey had to make sure that new permits didn’t add to an unbalanced burden on minority communities. The Circuit Court, though, ruled that only the EPA could assign that responsibility.

The defeat of the highest-reaching environmental justice lawsuit yet sends a bleak signal to activists in New York City, who are all but giving up on using civil rights litigation to bring relief to neighborhoods plagued by waste dumps and power plants. New York is in the 2nd Circuit, not the 3rd. But even if New York’s courts rule differently in a future case, the Supreme Court would likely uphold the 3rd Circuit’s decision. “If the Circuit Court had upheld the District Court decision, we would have seen a sea change,” says Keri Powell, an environmental lawyer with the New York Public Interest Research Group. Civil rights cases would still have been rare, because proving a link between a neighborhood’s demographics and its level of pollution is time-consuming and arcane. But even a single landmark case, such as a class-action suit, could have made environmental justice concerns a more powerful political force.

Instead, the ruling banishes responsibility for urban environmental health to bureaucrats who have little incentive to probe them vigorously. EPA guidelines, which the agency updated in 2000 after public proclamations by President Clinton, encourage the agency to let the subject of a pollution complaint produce its own mitigation plan–and for the EPA to go away once it receives assurances that such a plan will go into effect.

In the fall of 2000, the Camden plaintiffs had filed an administrative complaint with the EPA, which funds the state agency; it hasn’t moved since. The group sued, said Sheila Foster, a visiting professor at Fordham Law School who consulted with the community group, in part because “there was a real sense of, what was there to lose?”

The appellate court decision, argues Foster, creates a “gap in the law.” The EPA, which funds state agencies that grant environmental permits, can make decisions about what is and isn’t discriminatory, but private citizens can’t appeal the agency’s decisions to a federal court. In theory, notes Foster, these bureaucracies can be “more aggressive and progressive” than courts in policing state agencies. But in practice, they tend to shelve inquiries that don’t compel a lot of political attention. In fact, EPA has completed only one environmental justice investigation since it adopted relevant standards in 1994–and found no need for redress.

On the state level, says Leslie Lowe, who until last month was executive director of the New York City Environmental Justice Alliance, a coalition of neighborhood groups, the use of government referees can be treacherous, because reviews are carried out by the same agencies that endorse projects. When a company wants to construct an environmentally sensitive project in New York, the state Department of Environmental Conservation produces its own assessment of likely impacts; community groups who want to protest its conclusions do so before an administrative law judge. Unlike civil rights arguments, which derive from the U.S. Constitution, the state process revolves around information that the state agency holds. Says Lowe: “It’s Dracula guarding the blood bank.”


The uneven access to environmental data raises the hackles of advocates in waterfront neighborhoods, which are seeing a surge in applications to build and expand power plants. The state says it needs backup plants to fend off energy crises. Community opponents, meanwhile, contend these plants exacerbate asthma and other illnesses for the sake of excess electricity. Last summer, the New York Power Authority authorized 10 temporary plants around town–all operating at one-tenth of a megawatt less than the level that would trigger an automatic public review. Because the facilities went into service without a detailed environmental vetting, local residents had to struggle to find out what they were up against. “If we had civil rights avenues open, we could have leverage with the applicant and state agencies,” says Victor Tafur, a lawyer with the Pace Energy Project, who works with power plant opponents in Williamsburg.

But there are other ways to have an impact. The Camden decision “puts us in our place as lawyers,” says Marianne Engelmann-Lado, general counsel to New York Lawyers for the Public Interest. Instead of moving to shut the plants down, attorneys are focusing on strategic moves to limit their harmful impact. The United Puerto Rican Organization of Sunset Park (UPROSE) and nine other groups won such a victory in November, when an administrative judge ordered the authority to analyze emissions of small particles, known as PM 2.5, that it had neglected to address in its rush to get the plants online. While this order didn’t stop the plants, it does set an important disclosure standard for future applications–including a pending Con Edison plant on East 14th Street in Manhattan, for which a judge demanded a 2.5 analysis in January. The EPA is now finalizing standards for caps on 2.5 emissions.

Local advocates, meanwhile, are also trying to use state public service law as a way to become more evenly matched against polluters. Applicants for large power plants must currently donate $1,000 per megawatt into an “intervenor fund” at the start of an environmental review. Groups can tap this fund to retain expert witnesses, who appear before administrative law judges at hearings for plant permits. But they can’t use the money to hire lawyers, which puts them at a disadvantage. “The quality of these hearings would have been vastly improved if there had been money for lawyers,” says a partner at a large firm who’s participated in administrative hearings. While New York is quite progressive in this area–only a few states have similar funds, and only Wisconsin’s gives groups money for attorneys–the Albany lobbying group Environmental Advocates still hopes to get lawyers’ fees covered when the measure comes up for renewal next January. Some lawyers in favor of the measure expect power plant operators to fight it with the longstanding argument that such funds promote frivolous lawsuits.

Meanwhile, the state Department of Environmental Conservation is developing new environmental justice guidelines, a process that has allowed for public comment. In that context, the Camden case’s legacy may be a heightened appreciation for old-fashioned community organizing. “Most residents don’t have means of controlling indoor air quality,” says Carlton Brown, vice president of marketing at Full Spectrum Development, a Harlem real estate firm that’s building an apartment complex with efficient heating and dedicated fresh air supply at Fifth Avenue and 116th Street. It took a local group, West Harlem Environmental Action (WE ACT), to get Harlem’s civic leaders to “think about [outdoor] air quality in a human-rights context.”

WE ACT’s recent history suggests both the potential and limitations of the politics of environmental civil rights. In November 2000, WE ACT complained to the federal Department of Transportation that the Metropolitan Transportation Authority was pursuing a racist policy in siting six of its eight Manhattan bus depots north of 96th Street, covering two neighborhoods with the city’s highest asthma-hospitalization rates. The federal agency is reviewing that complaint–with no deadline.

But WE ACT executive director Peggy Shepard believes that by mobilizing politically instead of filing a lawsuit, her group “can get the same kind of attention and still force the MTA to respond a lot sooner.”

The complaint sought to, in Shepard’s words, “force the MTA to negotiate” by alerting local politicians to the neighborhood’s well-organized outrage. According to Shepard, a postcard campaign helped persuade Governor Paraki to lean on the MTA to begin design work on a renovated depot in Manhattanville for buses that would run on clean natural gas.

Shepard and other environmental advocates express hope that Governor Pataki, eager to reinforce his green credentials as he seeks reelection, will continue to back ideas that make environmental justice enforcement part of the permitting process. But with the current Supreme Court likely to think much like the Third Circuit, environmental attorneys stuck in the administrative pipeline can’t hold their breath.

Alec Appelbaum writes about environmental, neighborhood and cultural issues.

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