Canaries in the Coal Mine

Canaries in the Coal Mine: S. Beaux Jones In the early days of coalmining, it was common practice for miners to bring a live canary into the mine to act as a sentinel. The miners would use the canary to provide an early warning for poor air quality. Canaries’ lungs have a lower tolerance to noxious fumes than humans, so when the canary stopped singing and died, the miners knew to evacuate the mine. In Louisiana and around the globe, minority and low-income communities are bearing an unequal burden of our environmental hazards. These communities have become modern day “canaries,” and the environmental justice movement has attempted to give them a loud and collective voice. Their sorrowful song is loud and clear. Will we do as the miners and wait for the silence, or will we listen to the song? Introduction The United States of America’s history is littered with accounts of racism. Whether it be from hate-filled isolated factions or from the very halls of Congress, the “perfect union” that the founders set out to create will forever be marred by the intolerance of their posterity. The history books show the inhumanity of slavery, they show the struggles of racial minorities and their supporters in the marches for equality, they show the embarrassment of Plessy1 and the triumph of Brown2, but the history books have failed to capture a subtler, even silent racism.

Environmental racism is rarely found on the tongues of oppressors, it does not project like the word “Colored ” painted on a water fountain, it does not stand behind the National Guard on the front steps of a school; rather environmental racism trickles in with the groundwater, it drifts in with the breeze, and it hides behind development in the name of industrial revolution. Dr. Robert

Bullard of Clark Atlanta University defines environmental racism as “any policy, practice, or directive that differentially affects or disadvantages (whether intended or unintended) individuals, groups, or communities based on race or color.”3

The many shocking examples of environmental racism that have come to light in the last 1 Plessy v. Ferguson, 163 US 537 (1896)

2 Brown v. Board of Education, 347 US 483

3 Dr.,Cheryl A. Calloway & John A. Decker, Environmental Justice in the United States—A Primer, 76 MICH. B.J. 62 (1997). 1 thirty years have launched a new movement for justice and equality. This movement is not for justice at the voting booth or in the classroom, but rather it seeks “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations, and policies.”4

Part I of this paper will discuss the history and scope of the environmental justice movement. Part II will explore the various avenues for a plaintiff to seek relief for environmental racism and the impediments to each. Part III will look to specific Louisiana examples of successful and unsuccessful claims for environmental justice. Part IV will survey possible solutions for the environmental justice movement beyond a case-by-case struggle.

I. History and Scope of the Environmental Justice Movement A. History The United States’ environmental justice movement began in the early 1980’s after the

General Accounting Office released a study of the racial and socio-economic profiles of four communities in North Carolina near hazardous waste landfills. The study5 found that African-

Americans make up the majority of the population in three of the four communities near landfills and as much as 42% of the population in the communities were living below the poverty line.6

Then, in 1987, the United Church of Christ Commission for Racial Justice (UCCCRJ), which found that approximately fifteen million, or 60% of the total African American population, lived

4 U.S. Environmental Protection Agency. Guidance for Incorporating Environmental Justice in EPA’s NEPA Compliance Analysis. Washington, DC: USEPA, 1998.

5 United States General Accounting Office, Siting of Hazardous Waste Landfills and Their Correlation with Racial and Economic Status of Surrounding Communities. June 1, 1983.

6 The study found that the African-American residents in the communities had a lower mean income than the mean income for all of the races combined and they represented the majority (95%) of those below the poverty line. The poverty line at the time was $7,412 as set by the 1980 Census. 2 in communities with at least one uncontrolled toxic waste site.7 The UCCCRJ study involved the locations of all 415 commercial hazardous waste facilities throughout the US,8 and not only did the study show that there was a connection between hazardous waste sites, but Dr. Benjamin

Chavis, Jr. the former director of the UCCCRJ asserted that the study “conclusively show[ed] that race has been the most discriminating factor of all those tested in the location of commercial hazardous waste facilities in the United States.”9

In February of 1994, then-President Bill Clinton issued Executive Order (EO) 12,898, which was both a recognition of the environmental justice movement, and the executive branch’s plan for studying and remedying environmental injustices. EO 12,898 (1) mandated that each

Federal agency “shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low- income populations in the United States and its territories and possessions…,” (2) created an

Interagency Working Group on Environmental Justice10 to provide guidance on identifying environmental injustices, assist in coordinating various Federal agencies’ research, and develop

7 United Church of Christ Commission for Racial Justice, Toxic Wastes and Race in the United States. Pg. 10 (1987).

8 As identified through the EPA’s Hazardous Waste Data Management System.

9 Suzanne Smith, Current Treatment of Environmental Justice Claims: Plaintiffs Face a Dead End in the Courtroom, 12 B.U. Pub. Int. L.J. 223 (2002).

10 Comprised of the heads of the following executive agencies and offices: Department of Defense; Department of Health and Human Services; Department of Housing and Urban Development; Department of Labor; Department of Agriculture; Department of Transportation; Department of Justice; Department of the Interior; Department of Commerce; Department of Energy; Environmental Protection Agency; Office of Management and Budget; Office of Science and Technology Policy; Office of the Deputy Assistant to the President for Environmental Policy; Office of the Assistant to the President for Domestic Policy; National Economic Council; Council of Economic Advisers; and other such officials designated by the President. 3 an interagency strategies against environmental injustices, and (3) required all Federal agencies to conduct their programs, policies and activities in a manner consistent with environmental justice.

Following these shocking findings of environmental injustices recognition from the

Federal government, the environmental justice movement had enough factual support to demand the “fair treatment and meaningful involvement” of all people; an opportunity that had obviously been denied. The EPA explains “fair treatment” in the context of environmental justice as “no group of people, including racial, ethnic, or socioeconomic group should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal and commercial operations or the execution of federal, state, local, and tribal programs and policies.”

According to this definition, the status quo in the early 1980’s and three decades later was and is unacceptable. It was also after these two studies that Dr. Chavis Jr. first coined and Dr. Robert

Bullard later refined the term “environmental racism,” and the terminology is fitting for the situations in both studies. However, the environmental justice movement, as it exists today, covers inequalities for all people regardless of race, color, national origin, or income. So although much of the literature surrounding the movement and a large portion of this paper are focused on environmental racism, environmental injustice is a more proper identifier of the problem.

B. Contributing Factors and Manifestations of Environmental Injustice

It is an unfortunate reality in the United States and around the world that minorities and low-income communities continue to bear a disproportionate burden of the environmental

4 hazards.11 These disproportionate burdens manifest themselves most frequently in three ways: (1) disparate siting and permitting of hazardous facilities; (2) disparate enforcement of environmental statutes and regulations; and (3) disparate remediation of contaminated sites.12 A constant struggle for the environmental justice movement is that the disparate burdens are not necessarily caused by a concerted effort of one group seeking to harm another, but by systemic and deep seeded societal problems. The most well know manifestation of these societal problems is what has become known as the “not in my back yard” (NIMBY) belief. The concept of

NIMBY is basically if a person or community has the power or knowledge to control the placement of an environmental or aesthetic nuisance they will always push for it to be “not in their back yard.” NIMBY-ism is a very natural and understandable mentality for a person/ community to have, but the world is a closed system and if a nuisance does not go in “your backyard,” then it will find its way to someone else’s. Thus, the end result of NIMBY-ism is that, those people/communities, who are able to ward off nuisances, drive those nuisances to the people/communities who cannot protect themselves. Unfortunately, due to the diminished resources and disenfranchisement of minority and low-income communities, the burdens are pushed into their “backyards.”13

Along with NIMBY-ism, there are a few unfortunate facts that contribute to minority and low-income communities being most affected by environmental injustices. Recent “advances” in technology have allowed citizens and industries to produce and consume more than their

11 Brian Crossman, Resurrecting Environmental Justice: Enforcement of EPA’s Disparate-Impact Regulations Through the Clean Air Act Citizen Suit. 32 B.C. Envtl. Aff. L. Rev. 599. (2005).

12 David J. Galalis, Environmental Justice and Title VI in the Wake of Alexander v. Sandoval: Disparate-Impact Regulations Still Under Chevron, 31 B.C. Envtl. Aff. L. Rev. 61, 63. (2004).

13 Supra, note 11. 5 immediate environment can sustain without a detriment. This creates more waste and has allowed our communities to overdevelop. As previously mentioned, the world is a closed system, so this excess must go somewhere. Studies have shown that minorities and low-income residents frequently populate land were the values are low14 and since municipalities and private entities will continue to deposit waste and build facilities at the lowest possible cost, these communities continue to suffer. In addition to costs, minority and low-income communities are less likely to have neighborhood organizations and zoning laws, which cause a significant annoyance if not complete bar for companies looking to place a facility near a higher-income community.

C. Scope of the Problem

Environmental injustice is a problem that is not limited to Louisiana or the United States.

Many of the same factors that lead to environmental injustices between these borders cause the same degradation around the world. In this increasingly globalized world, many of the poorest nations inhabited largely by indigenous peoples and people of color, are subjected to15 multinational corporations’ constant search for areas where they can draw profit from lax environmental regulations and cheap labor.16 The governments of these countries are faced with the tough decision of either losing a considerable amount of their economic potential by turning away the development or accepting the development and subjecting their citizens to the environmental consequence. Many individuals are also faced with the very same decision.

14 Robert D. Bullard, Environmental Justice in the 21st Century, available at http://www.ejrc.cau.edu/ejinthe21century.htm

15 Robert Bullard. “Confronting Environmental Racism in the 21st Century.” Paper prepared for the United Nations Research Institute for Social Development Conference on Racism and Public Policy, September 2001, Durban, South Africa. http://www.unrisd.org/racism/a-bullard.htm

16 See Robert D. Bullard. “Environmental Racism Shifts the Costs of Industry to the Poor.” Daily Mail & Guardian, August 27, 2001, http://www.mg.co.za/archive/2001aug/features/27aug-environmental.html 6 Should they take an underpaying dangerous job in order to put food on their family’s table or should they let them starve? Sadly, around the world, poverty and pollution are “inextricably linked”17 and each aggravates the other. Because of the cost effectiveness, poorer areas of the world bear a disproportionate amount of the pollution burden. This burden is then compounded by inadequate sanitation to make the people sick.18 Poverty then further aggravates the suffering, because a person’s access to health resources, adequate food, shelter, fuel, and air is directly linked to their economic status.19 It has been estimated that as many has 40 percent of the worlds deaths can now be attributed to various environmental factors, particularly organic and chemical pollutants.20 Thus, the problem of environmental injustice is serious and it is a global problem.

As evidenced by the opening paragraph of this paper, the United States of America is by no means perfect, but unlike many other countries, we oftentimes have the opportunity to serve as a model for the rest of the world. So, while this paper will focus on the situation in the United

States, it warrants noting that not only do environmental injustices occur around the globe, but also the success or failure for the U.S. environmental justice movement carries vast unintended consequences.

17 See Robert D. Bullard, Dumping in Dixie: Race, Class, and Environmental Quality. Boulder, CO: Westview Press, 2000.

18 More than 1.4 billion people in developing countries lack access to safe water, and more than 2.9 billion people have no access to adequate sanitation. Kirit S. Parikh. “Poverty and Environment Turning The Poor Into Agents of Environmental Regeneration.” (Working Paper Series). United Nations Development Programme Poverty Related Publications, October 1998. See http:www.undp.org/poverty/publications/wkpaper/wp1

19 Robert D. Bullard. “It’s not just pollution.” Our Planet, Vol. 12, No. 2, 2001: 22-24.

20 Second National People of Color Environmental Leadership Summit-Summit II, Environmental Justice in the United States Threats to Quality of Life: Fact Sheet. Available at http://www.ejrc.cau.edu/EJSUMMITwlecome.html. 7 The threats facing millions of Americans in the form of toxic pollution are very real and all too often ignored. Each year, the United States produces nearly six trillion pounds of the

80,000 commercially manufactured chemicals.21 Over 80% of these chemicals have yet to be tested for their effects on the human body, and the chemicals that have been tested are generally tested improperly. Most test on the commercial chemicals in the US are done in isolation, but when people are exposed to toxic chemicals in the environmental they are rarely faced with just one chemical, they are most often exposed to several chemicals and the effects may build off each other.22 Of these approximately 80,000 chemicals in use, ten percent are known carcinogens.23 Currently, over 8 million Americans have cancer24, and the cancer-related deaths have increased steadily from 331,000 in 1970, to 521,000 in 1992 with an estimated 30,000 of these deaths attributed to chemical exposure.25 These statistics are extremely disheartening, but the main focus of the environmental justice movement is not pollution control; rather it is disproportionate exposure control. Chemical pollution, in and of itself, is non-discriminatory; all those who come into contact with a pollutant are exposed regardless of their race, ethnicity, gender, age, or orientation. However, it is the source exposure, which can be significantly biased and discriminatory. For example, the number one environmental health threat to children in the

21 See http://www.twnside.org.sg/title/gary-cn.htm.

22 Id.

23 Environmental Pollution and Degradation Causes 40 percent of Deaths Worldwide, Cornell Study Finds.”Cornell News, September 30, 1998. See http://www.news.cornell.edu/releases/Sept98/ecodisease.hrs.html

24 National Institute of Environmental Health Sciences. Environmental Diseases from A to Z. NIH Publication No. 96-4145. http://www.nieehs.nih.gov

25 Id. 8 United States is lead poisoning.26 An estimated 1.7 million children aged 1 to 5 have elevated levels of lead in their blood.27 The numbers alone do not show evidence of discrimination, until they are broken down further. 28.4 percent of all low-income African American children have such elevated levels, whereas only 9.8 percent of low-income Caucasian children show comparable levels.28 Since pollution itself cannot discriminate, the disparity must be in the variables leading to exposure. These variables can include, access to clean water, distance from producers of lead, and exposure to lead in household items.

One of the most commonly discussed variables in environmental justice cases is the location of low-income and minority communities, and quite often it is found that they are more susceptible to exposure than other communities. An example is this disparity is the siting of public housing units. Pubic housing units are typically inhabited by poor, mostly minority families and in a study by The Morning News and the University of Texas-Dallas found that of

1.9 million public housing units, 46 percent of them were within a mile of factories that reported toxic emissions to the EPA.29 As is the nature with public housing units, most of the tenants are there by financial necessity and it may be impossible to move away from a toxic facility.

Furthermore, the government builds the units and the tenants have no control over their placement or the characteristics of their neighbors, thus NIMBY-ism is unlikely.

Pollution and exposure to harmful chemicals are unfortunately unavoidable in the United

26 Supra, note 24.

27 “Blood Lead Level Laboratory Reference System.” http://www.cdc.gov/nceh/lead/factsheets/bllrs.htm

28 Supra, note 24.

29 “Study: Public Housing is too Often Located Near Toxic Sites.” Dallas Morning News, October 3, 2000. See http://www.cnn.com/2000/NATURE/10/03/toxicneighbors.ap/. 9 States, but there are ways to insure that these effects are fairly distributed across society. The most efficient way of insuring an equal burden among all persons is to require an in-depth site analysis prior to the siting of facilities and activities that have residual harmful effects, but unequal burdens have been in existence for decades and retroactive remedies are far less effective and efficient. The next section of this paper will examine the problems arising when preventative or proactive steps have not been taken and there exists a disproportionate burden on low-income and racial minority communities.

II. Struggle for Relief

If the environmental justice movement’s sole motive was to raise awareness to the fact that racial minorities and low-income communities bear a disproportionate burden of environmental hazards, then the movement has been a success. However, the movement’s highest goal is to obtain relief for all affected persons, and merely showing that there is a heightened burden (injury) without proving causation is insufficient. A plaintiff or victim of environmental injustice must be able to show, that not only do they have an injury, but that the injury has been suffered because of the negligent or intentional actions of another. It is this causation analysis, which casts a shadow of doubt on private claims and environmental justice movement as a whole. Each case of environmental injustice is different and there are several theories as to why minorities and low-income communities face a disproportionate amount of environmental hazards, but property values are factor in each and every theory. One side may argue that, because racial minorities and low-income families typically live in areas where the property values are low, environmental hazards like landfills and factories move to those same areas simply to take advantage of the low property values. While another side may argue that the environmental hazards were in place, and because of the diminished property values, the

10 minority and low-income communities came to the area later. This second argument essentially claims that the affected groups “came to the nuisance” and thus the alleged polluter cannot be held liable. A third argument used as a common defense to environmental injustice claims is the

“white flight theory,” or the theory that when a hazardous facility is constructed, white and higher-income families flee the community at a faster rate. 30 In the myriad of environmental justice claims there are, without a doubt, examples of these three situations and more, which is why more holistic perspective should dominate the discussion. However, much of the environmental justice movement has been fought on a case-by-case basis, and as this section will show such a strategy is inefficient, ineffective, and often times the specifics of each case serve as a distraction from the global problem.

Historically, there have been four primary methods through which plaintiffs in environmental justice cases have sought relief: 1) by bringing an Equal Protection claim under the 14th Amendment of the Constitution; 2) bringing a claim under Title VI of the Civil Rights

Act of 1964; 3) by using 42 U.S.C. §1983 to enforce EPA regulations promulgated under Title

VI and; 4) by filing an administrative complaint with the EPA.31 Each pathway to relief has at times shown promise of adequately addressing environmental justice claims, but unfortunately there are significant obstacles standing between plaintiffs and relief.

A. Equal Protection claims under the 14th Amendment

The Equal Protection clause of the U.S. Constitution prohibits the government from denying “any person within its jurisdiction the equal protection of the laws.”32 In the context of

30 See. Environmental Law Practice Guide §12B.01(1)(e)(i)(2001).

31 Supra note 9 at 225.

32 U.S. Const. amend. XIV. 11 environmental justice claims, a common complaint is that through the repeated issuance of state or federal permits for polluting facilities in minority and low-income communities, those citizens suffer a denial of the equal protection of the laws.33 Although environmental justice claims seem to fit squarely under the scope of the Equal Protection clause, strict judicial interpretations have all but eliminated the success of such claims.

i. Requirements for an Equal Protection Claim

In order to be successful in an Equal Protection claim, a plaintiff must satisfy three main factors: 1) the action brought into question must be a government action, which can include a government furtherance of private actions, state and federal statutes, zoning ordinances, and state administrative actions; 2) compared to individuals in similarly situations, the action must unjustifiably and unreasonably discriminate against the plaintiff; and 3) there must be proof of an intent to discriminate.34 The first two requirements are relatively straightforward and easy to meet in environmental justice claims. The requirement of state action can be met by merely challenging the state’s issuance of a permit for a facility, and if the facility is placed in a minority or low-income neighborhood instead of another, the differential treatment requirement is met.35

Environmental justice plaintiffs also have a procedural advantage when filing and an Equal

Protection claim. As is was shown by Justice Stone in the case United States v. Carolene

Products Co., if a government action applies to particular religions, national or racial minorities, or interferes with fundamental rights, then the court should apply a strict scrutiny judicial

33 Bean v. Southwestern Waste Management, 482 F. Supp. 673 (S.D. Tex. 1979).

34 See Michael Gerrard Et. Al., The Law of Environmental Justice, Theories and PRoceudres to Address Disproportionate Risks (Michael Gerrard ed., 1999); see also Villiage of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 254 (1977).

35 Supra note 33 at 675. 12 standard.36 The strict scrutiny standard shifts the burden to the government to prove that the applicable statutes are narrowly tailored to serve a compelling state interest.37 As it was shown in the landmark case of Brown v. Board of Education,38 when a statue is facially discriminatory against a racial minority the strict scrutiny standard is a near insurmountable burden for the government, but with environmental justice claims the statutes are most likely discriminatory in action and facially neutral. Therefore, even with the benefit of the strict scrutiny standard, plaintiffs in Equal Protection claims face significant difficulties when they are required to prove that the action was done with a discriminatory intent.

ii. Proving Intentional Discrimination

In Village of Arlington Heights v. Metropolitan Housing Development Co., the U.S.

Supreme Court enumerated several ways to prove an intent to discriminate: discrimination in applying statutory criteria; shifts in agency procedure; statements showing an intent to discriminate; and circumstantial proof of intent to discriminate.39 Merely showing a government action imposes a greater burden on one group than another is not enough to satisfy the intent requirement for an Equal Protection claim.40

Discriminatory intent can be found when a government agency applies the same statutory criteria differently for different racial groups. For instance, in United States v. Yonkers Board of

Education, a case dealing with a city’s refusal to approve minority-housing units, the Court

36 304 U.S. 144,153 (1938).

37 See Gerrard Et. Al., Supra note 34.

38 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

39 429 US 252, 266-68 (1977)

40 Id. at 267. 13 found that the inconsistent application of housing statutes for a period of thirty years was sufficient to show an intent to discriminate.41 For environmental justice plaintiffs, showing a discriminatory application of statutes has been particularly difficult, because the geography of facilities and the environmental hazards is generally different enough to justify the placement in one area and opposing it in another. For example, in R.I.S.E. v. Kay, the court found that a decision to close a landfill in a white community and subsequently open another in a minority landfill was not based on race, but “on the relative environmental suitability of the sites.”42

Discriminatory intent may also be shown if there is a shift in procedure or incriminating statements from the agency. In Ammons v. Dade City, a discriminatory intent was found when city officials routinely paid for the paving of predominately white neighborhoods, but required

African-American neighborhoods that they advance the funds needed for paving.43 Likewise, statements indicating a discriminatory intent from agency officials would also be sufficient to satisfy the intent requirement, but it is unlikely that such statements would be made in a publicly accessible form, especially as government officials become more aware of environmental justice claims.

Due to the complications with the previous three methods of proving intent in an Equal

Protection claim, circumstantial proof of intent has become the most frequently used device in environmental justice cases claiming a denial of equal protection. In Yick Wo v. Hopkins, the

Court held that the decision to prosecute 150 of 240 laundries with Chinese owners and not

41 837 F. 2d 1181, 1221 (2d Cir. 1987) cert denied, 510 U.S. 1055 (1994).

42 768 F. Supp. 1144, 1150 (E.D. Va. 1991), aff’d without opinion, 977 F.2d 573 (4th Cir. 1992). The court emphasized that the original landfill was closed, because of its environmental impact and safety violations independent of any racial factors. Id. at 1149.

43 783 F. 2d 982, 987 (11th Cir. 1986). 14 prosecuting any of the 80 non Chinese-owned laundries for violations of a new ordinance against laundries in wooden building was a blatant example of selective enforcement and an intent to discriminate.44 Overwhelming statistics like those in Yick Wo are extremely unlikely in environmental justice cases because the number of similar situations may not be prevalent enough to establish a pattern based on race or income based factors. For example, the entire 1983

GAO study on hazardous waste facilities was focused on only four facilities.45 Although the facts of certain environmental justice cases do not allow for their use, cases such as Yick Wo established that circumstantial proof in the form of statistics may be used to show a discriminatory intent.

In fact, statistics were used to prove a discriminatory intent in the first significant environmental justice case litigated under the Equal Protection clause. In Bean v. Southwestern

Waste Management Corp., Houston residents sought an injunction to prevent Southwestern from building an operating a solid waste facility near a local high school with poor ventilation.46 The plaintiffs were able to establish seemingly convincing statistical evidence showing a trend for the placement of waste facilities in Houston’s predominantly minority communities, and while the court acknowledged the possibility of using such evidence, it held that the evidence was insufficient to establish an intent to discriminate. 47 The statistics may have shown that the decision to grant the permit was clearly objectionable and even wrong, but the court placed the burden on the plaintiffs to show that the statistics established an intent to discriminate of the

44 118 U.S. 356, 359 (1886).

45 Supra note 5.

46 Supra note 33.

47 Id. at 677-79. 15 basis of race.48 However, even if the plaintiffs were able to prove this intent, the government would in effect have a second opportunity to validate their action if they can establish that the same action would have been taken regardless of the intent to discriminate.49

Proving intent to discriminate in an environmental justice claim can also be difficult, because many times there is none, and as the Supreme Court in Washington v. Davis stated, if courts held a government action invalid because “in practice it benefits or burdens one race more than another would be far-reaching and would raise serious questions about, and perhaps invalidate a whole range of tax, welfare, public service, regulatory, and licensing statutes.”50

Hazardous facilities are frequently located in minority or low-income communities because lower land, labor, and development costs, or because of the communities lack of resources to fight proposed construction.51 Such situations without a discriminatory intent make relief through an Equal Protection claim impossible, but regardless of intent the environmental justice movement seeks to correct all situations where a person’s lack of money or resources subjects them to greater environmental health risks. Therefore, the requirements of an Equal Protection claim became such that environmental justice plaintiffs were forced to look elsewhere for relief.

B. Claims brought under Title VI of the Civil Rights Act of 1964

i. Section 601

In light the disappointing outcomes of most environmental justice claims through the

48 Id. at 677.

49 Supra note 34 at 264-68.

50 426 U.S. 229, 248 (1976).

51 Supra, note 14. 16 Equal Protection clause, many plaintiffs turned to Title VI of the Civil Rights Act of 196452 in their search for relief. Section 601 of Title VI states that “no person in the United States shall on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”53 The requirement that the questioned activity or program must receive

Federal assistance is generally a non-factor in environmental justice cases, because most activities influencing the human environment receive at least a portion of funding from the federal government.54 On its face, §601 seems to provide the perfect opportunity for a plaintiff in an environmental justice case, but just as with an Equal Protection claim, a plaintiff faces the burden of showing that the action or program was carried out with a discriminatory intent.

In the 1983 U.S. Supreme Court case of Guardians Ass’n v. Civil Service Commission, the Court ruled that under § 601, just as with the Equal Protection clause, disparate impacts of a program or policy were not enough and there must be a discriminatory intent.55 In 2000, the

Second Circuit case of New York City Environmental Justice Alliance v. Giuliani reiterated the

Supreme Court’s interpretation of §601. The plaintiffs claimed that a New York City decision to destroy and sell land, which held community gardens, would have a disproportionately adverse impact on the city’s minority population, but the court found that §601 only prohibits intentional

52 42 U.S.C. § 2000d (2010).

53 Id.

54 Richard J. Lazarus, Highways and Bi-ways for Environmental Justice, 31 Cumb. L. Rev. 569, 583 (2001/2001).

55 463 U.S. 582 (1983). 17 discrimination of which there was none.56 Thus, for the same reasons enumerated in the previous section on Equal Protection claims, plaintiffs filing suit under §601 are at a significant disadvantage by having to prove intentional discrimination.

ii. Section 602

The intent requirement of §601, however, does not completely rule out the possibility using Title VI of the Civil Rights Act of 1964 for environmental justice claims. In Guardians, the same case that ruled §601 requires a discriminatory intent; the Court also ruled that regulations promulgated under §602 of the Civil Rights Act only required proof of disparate impacts.57 Section 602 provides in pertinent part:

“Each Federal Department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract…is authorized and directed to effectuate the provisions of section 601 with respect to such program or activity by issuing rules, regulations or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.” In line with §602, federal agencies have promulgated regulations requiring that those receiving federal funds refrain from engaging in discriminatory practices or distributing funds in a discriminatory way. In particular, the EPA promulgated 40 C.F.R. §7.35 (2002) under Title VI

§602 requiring that the EPA or any program receiving its assistance not discriminate on the basis of race, color, national origin, or sex. Subsection (c) of the regulation states:

“A recipient shall not choose a site or location of a facility that has the purpose or effect of excluding individuals from, denying them benefits of, or subjecting them to discrimination under any program to which this part applies on the grounds of race, color, or national origin or sex.”58 In Guardians, the court explained that when plaintiffs sought enforcement of 40 C.F.R. §7.35, or

56 214 F.3d 65 (2nd Cir. 2000).

58 40 C.F.R. §7.35(c) (2002). 18 any other regulation promulgated under §602, they are only required to prove evidence of a disparate impact and not a discriminatory intent.59 This interpretation of rules promulgated under

§602 appeared to be a victory for environmental justice plaintiffs, but as is the trend, the courts further restricted the possibilities of suit.

iii. Alexander v. Sandoval60

While the above interpretation of regulations promulgated under §602 (such as 40 C.F.R.

§7.35) allows an action or program to be in violation by merely causing disparate impacts, such regulations do not explicitly contain a private right of action. Therefore, an environmental justice plaintiff would have to show that the law contemplated an implied private right of action.61

Plaintiffs and courts wrestled with this approach until 2001, when the case of Alexander v.

Sandoval removed any possibility of an implied private right of action.

Alexander directly addressed the issue of whether individual plaintiffs have an implied private right of action to enforce regulations promulgated under §602. In Alexander, plaintiffs asserted that the English-only driver’s test administered by the Alabama Department of Public

Safety violated §602 of the Civil Rights Act, because it discriminated against non-English speaking persons.62 The Supreme Court then stated this holding, which curtailed the possibility of environmental justice claims using §602; “neither as originally enacted nor as later amended

60 532 U.S. 275 (2001).

61 Cort v. Ash, 422 U.S. 66 (1975).

62 Alexander 532 U.S. at 293. 19 does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under Section 602. We therefore hold that no such right of action exists.”63 The majority conceded that a private right of action did exist under §601, prohibiting intentional discrimination, and regulations issued pursuant to §602 prohibited disparate impacts; but there is no such private right of action.64 Therefore, after the Alexander decision, the possibility of a successful environmental justice claim under either section of Title VI of Civil

Rights Act has been drastically reduced.

C. Using 42 U.S.C. 1983 in conjunction with Title VI

It is clear from Guardians that §601 of Title VI requires a showing of discriminatory intent, and Alexander established that §602 does not provide a private right of action; so one final avenue for environmental justice litigation is to 42 U.S.C. §1983 in conjunction with a regulation promulgated under §602. This option would allows a plaintiff to take use 40 C.F.R.

§7.35 to take advantage of the need to show only disparate impacts under §602 and 42 U.S.C.

§1983 would provide the private right of action. 42 U.S.C. §1983 provides:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.” Wright v. City of Roanoke Housing Authority65 provides the requirements for applying

§1983; once a federal right has been recognized and the plaintiff has been shown to be the 63 Id. at 288-289.

64 Id. at 524-26.

65 479 U.S. 418 (1987). See also Wilder v. Va. Hosp. Ass’n, 496 U.S. 498 (1990); Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981); Maine v. Thiboutot, 448 U.S. 1 (1980). 20 intended beneficiary of that right, §1983 then acts as the vehicle for the plaintiff to enforce that right. The defendant then has the burden to show that the law in question does not create an enforceable right within the meaning of §1983 or the Congress precluded a §1983 suit by creating a separate remedial scheme.66

Two significant cases have addressed the issue in such a way that governs environmental justice claims. The Third Circuit case of South Camden v. New Jersey Department of

Environmental Protection was the first case to examine whether regulations promulgated pursuant to §602 of Title VI, which did not contained a private right of action, could be enforced using 42 U.S.C. §1983.67 The court in Camden held that “an administrative regulation cannot create an interest enforceable under section 1982 unless the interest already is implicit in the statute authorizing the regulation.”68 The court then went on to explain that Title VI through

§601 only provides an enforceable right for intentional discrimination, and disparate impact regulations promulgated under §602 have no such right. Thus, without an enforceable right

§1983 is useless to a plaintiff.

In Gonzaga University v. Doe, the Supreme Court issued a ruling that did not directly address §§601-2 like Camden, but it had quite possibly a more damaging effect for environmental justice plaintiffs.69 In Gonzaga, a student was challenging the release of personal information potentially in violation of the Family Educational Rights and Privacy Act of 1974

66 Bradford C. Mank, Using §1982 to Enforce Title VI’s Section 602 Regulations, 49 Kan. L. Rev. 321,325 (2001).

67 274 F.3d. 771 (3d. Cir. 2001).

68 Id. at 774.

69 536 U.S. 273 (2002). 21 (FERPA), which prohibits schools who receive federal funding from instituting a policy or practice of releasing student’s education records without parental consent. The decision in

Gonzaga is controlling on environmental justice claims, because FERPA’s nondisclosure requirement and 40 C.F.R. §7.25 contain similar spending clause language.70 Both clauses allow

Congress to terminate funding as a negative incentive to prevent the undesirable actions.

Therefore, when the Supreme Court stated that it has “never before held, and decline[s] to do se here, that spending legislation drafted in terms resembling those of FERPA can confer enforceable rights,”71 it was a significant blow to the possibility of using 42 U.S.C §1983 in conjunction with §602 for an environmental justice claim. The Gonzaga court relied on

Alexander and discussed a need for “rights creating language critical to showing the requisite congressional intent to create new rights.”72 The Court sent a clear message to Congress, if it

“wishes to create new rights enforceable under §1983, it must do so in clear unambiguous terms- no less and no more than what is required for Congress to create new rights enforceable under an implied private right of action.”73 Congress has not yet created such a right.

The Supreme Court in Gonzaga effectively eliminated the final possibility for environmental justice litigation leaving plaintiffs with one more potential option: file an environmental justice administrative complaint.

70 FERPA states that “no funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records…of students without written consent of their parents to any individual, agency, or organization.” 20 U.S.C. §1332g(b)(1)(2000). 40 C.F.R. §7.35 states that a recipient of EPA assistance shall not locate facilities in such a way that it would create a disparate impact of surrounding residents.

72 Id. at 287(quoting Alexander, 532 U.S. at 288-89).

73 Id. at 290. 22 D. Administrative Complaints

Instead of filing a lawsuit, persons affected by environmental injustice may file an administrative complaint enticing the EPA to enforce regulations such as 40 C.F.R. §7.35. This option is always available but the success or failure of a complaint depends largely on the EPA’s discretion. Historically, the EPA has been hesitant to enforce regulations like 40 C.F.R. §7.35 because the available remedy is to discontinue funding.74 This remedy, however, can be a double-edged sword. The termination of funding could possibly end a program’s discriminatory effect, but oftentimes the original purpose of providing that funding was to promote pollution control or waste cleanup. For example, if a landfill or waste treatment facility is being challenged for having a disparate impact on a minority or low-income community, that same facility is likely intended for the benefit of the entire surrounding community. Therefore, if a decision is made to remove EPA funding from the facility, which was intended for the public benefit, the entire community may suffer regardless of race or socioeconomic status.75 Furthermore, the

EPA’s decision to revoke funding is not guaranteed to change the state or local government’s behavior. The state and local authorities may continue the same discriminatory practices only with less funding, which may lead to cost cutting strategies that aggravate the discriminatory practices and reduce the effectiveness of programs.76

Although the withdrawal of funding has not always been a popular remedy within the

EPA, the Clinton administration put immense pressure on the EPA to change its non-

74 Julia B. Latham Worsham, Disparate Impact Lawsuits under Title VI, Section 602: Can a Legal Tool Build Environmental Justice?, 27 B.C. Entl. Aff. L. Rev. 631, 646 (2000).

75 Supra, note 74, at 651.

76 Id. 23 enforcement policies. In 1993, President Clinton issued Executive order 12,898, which required federal agencies ensure that recipients of their funds are in compliance with the requirements of

§602 and Title VI.77 In response to this Executive Order, the EPA created the Office of Civil

Rights (OCR) to handle the environmental justice complaints.78

If a person wishes to file an administrative complaint against a program receiving federal funds, which has disparate environmental impacts, they must first give written notice to the EPA administrator. The OCR then has twenty days to decide whether to reject or accept the complaint, and the complaint must be recorded within 180 days.79 If the OCR decides to accept the complaint, it investigates whether there is a disparate impact and if it concludes that there has been a disparate impact, the recipient of funding is given an opportunity to rebut the finding, to offer a mitigation plan, or to justify the impact. The recipient can make a justification showing with proof that there is a substantial, legitimate state interest for the benefit of the whole community at stake, and there is no less discriminatory alternative.80 If the recipient is unable to justify the disparate impact, the OCR issues a finding of non-compliance with Title VI potentially resulting in termination of funding.

Filing administrative complaints through the EPA’s OCR allows an affected person an inexpensive and relatively simple opportunity to be heard, but there are several potential problems with using administrative complaints. The first problem is that, unlike litigation, the complainant does not get to take part in the investigative process such as participating in

77 Exec. Order No. 12,898, 3 C.F.R. §859 (1995), reprinted in 42 U.S.C. §4321 (2000).

78 Worsham, supra, note 74, at 647.

80 Worsham, supra, note 74, at 649. 24 discovery taking depositions, and document production.81 Also, with EPA administrative complaints, the only available relief is to remove funding from discriminatory agencies and programs. Not only does this type of relief give no direct relief to complainants, either through and injunction or compensatory damages, it does not even guarantee that the discrimination will cease.82 Furthermore, the EPA has admitted that it lacks the resources necessary to investigate all received Title VI environmental justice complaints.83

It is clear that with each of the aforementioned options there are significant hurdles standing in between an individual bringing a claim for environmental justice and the sought after relief. While there may be certain cases that fulfill all of the necessary requirements, the current options for case-by-case resolution of environmental injustices are ineffective and inefficient.

Claims under the Equal Protection clause and Title VI are hampered by either the need to prove a discriminatory intent or the lack of a private right of action, 42 U.S.C. §1983 cannot serve as a vehicle to assert a right in §602 because courts have held that such a right does not exist, and administrative complaints are neither uniformly investigated, nor do the complainants have sufficient procedural rights. These problems, along with the high costs of litigation, have weakened individual plaintiffs’ success in the environmental justice movement to such an extent that now, in order for a environmental justice claim to have any success, it is almost uniformly the case that help must come from outside of the courtroom and across disciplines. The next section will discuss specific examples from Louisiana that illustrate the complexity and

81 Supra note 34.

82 Worsham, supra, note 74, 646.

83 Maura Lynn Tierney, Environmental Justice and Title VI Challenges to Permit Decisions: The EPA’s Interim Guidance, 48 Cath. U. L. Rev. 1277, 1288 (1999). 25 interdisciplinary nature of environmental justice claims.

III. Louisiana Examples

Each environmental justice claim is different and within each claim, there can be several competing and complimenting motives. Take for instance the questions of what type of damages would be proper if a case were won. First of all, most claims are brought by a large group of people and although they are aligned against a single force, they may have very different perspectives and needs. Secondly, the type of claim pursued can dictate the type of relief available. There are essentially five types of relief that come into play with environmental justice claims: compensatory damages; injunctive relief;84 the removal of federal funding for a project; payment of administrative penalties; and relocation. These various remedies come with varying degrees of desire and difficulty depending on the individual claim. The problems with the removal of federal funding have already been mentioned earlier in the paper, but to reiterate, they are not the most effective remedy, because there is no guarantee that less discriminatory practices will follow the remedy. The same criticism may be directed towards requiring a violator to pay administrative penalties. While, it may serve a deterrent effect, it will in no way improve the conditions of the affected people. As for injunctive relief, the requirement to stop a discriminatory practice or compel a violator to adopt a mitigation device will likely improve the future of the affected person, but by the time the claims are settled the damage has been done.

Therefore, the payment of damages and relocation have emerged as the two most effective, yet still imperfect remedies.

A. Diamond and Mossville Attempting to find Diamond, LA on a map may prove to be a difficult task, because the

84 Both in the form of requiring an actor to cease a certain practice and ordering them to adopt a certain practice; like better technology. 26 community has two names, stemming from two very different histories; one black and one white.

If one were to follow the Mississippi River west from New Orleans, they would find the small town of Norco, LA. Within Norco lies the mostly African-American community of Diamond.

Both Norco and Diamond are home to the Royal Dutch Shell/Motiva oil-refining complex.

To understand Norco it requires no more than to look at the name of the town;

N.O.R.C.O, which stands for New Orleans Refining Company.85 The town is centered around and dedicated to the chemical and refining operations that call it home. Diamond is very similar in location to Norco, but to understand Diamond, one must understand a very long and painful history.

Nearly 200 years ago, what is now Diamond was at the center of the largest slave rebellion in U.S. History.86 Inspired by the successful slave revolt in Haiti, 500 slaves and runaways launched a revolt at the Andry Plantation on January 8, 1811.87 After taking Andry, the slaves marched to New Orleans overtaking plantations and gaining recruits as they marched. One of those plantations was the Trepagnier Plantation. The revolt was eventually halted by U.S.

Army troops in New Orleans and in a brutal show of force, the heads of executed slaves were placed on stakes along River Road all the way back to Trepagnier. The Trepagnier Plantation became the Myrtleland Plantation, which later became the community of Belltown.88 In 1953,

Shell Chemical purchased the land of Belltown for $109,000 and its’ residents, many of whom

85 Steve Lerner, Diamond: A Struggle for Environmental Justice in Louisiana’s Chemical Corridor, pg. 24. (2005)

86 Id at.13.

87 Located 36 miles up river from New Orleans. Id. at 15.

88 Id. at 16. 27 were descendants of former slaves, were evicted from their homes and relocated to the fence line of the chemical plant. This fenceline community was Diamond, LA.89

For a struggling rural Louisiana community, being so close to a booming industrial facility may be a welcomed investment, but on a summer day in 1973, the people of Diamond realized just how dangerous their neighbor was. On this day, eyewitnesses noticed a white cloud of gas spewing from a Shell pipeline, running parallel to a street in Diamond. At about that same time, a sixteen-year-old boy prepared to mow an elderly woman’s yard while she napped inside.

When the boy pulled the chord to start the lawnmower, a spark ignited the gas leak causing an explosion, killing both the boy and the woman.90 This tragedy was not the only the one that crossed the fence line. In 1988 a massive explosion killed seven Shell workers, did extensive damage throughout the Diamond community, spread 159 million pounds of toxins into the air, and required the evacuation of 4,500 people. In 1996 the roof of a chemical storage tank was blown out of the refinery, and landed on playground where kids were playing basketball.91 The threat of accidents like these caused the residents of Diamond to live in constant fear (some even sleeping with their shoes next to them so they could run when they heard sirens92), but it was what happened after the accidents that let the residents know they were being treated differently.

The mother of the sixteen-year-old who was killed in 1973 was reportedly given $500 for her loss, the family of the elderly woman who perished was given $3,000 for the loss of the house.

Immediately after the 1988 explosion, Shell officials gave $1000 checks in exchange for

89 Id. at 18.

90 Id. at 29.

91 Id. at 40.

92 Id. at 35. 28 immunity with 1,100 residents in Diamond, but eventually paid out over $172 million dollars, most of which was allegedly spent on the mostly-white, but less directly affected Norco residents.93 The story of Diamond, LA is also littered with accounts of toxic pollution in staggering levels. Between 1990 and 2000, there were over 341 unplanned releases from Shell’s

Norco facility, and an untold number of unauthorized flarings of petroleum; releasing millions of pounds of toxins into the air and racking up millions of dollars of EPA and LDEQ fines for the facility. The personal stories of exposure are too numerous to mention, but the point should be clear, through explosions, toxic releases and fear, the people of Diamond are bearing the heaviest of the burdens created by their neighbor, but receiving very little benefit. A logical argument may be made that all citizens benefit from the oil refining operations done in Diamond, and this may be true, but such a benefit is indirect at best for the people of Diamond. They are facing very real and direct burdens, but the benefits are clearly not reciprocal. In fact, fewer than 3% of the Diamond residents actually worked at the facilities.

This disproportionate burden held by the people of Diamond was real and from any possible perspective the people deserved relief. This relief however did not come from government regulation, it did not come from a Title VI, §1983, or administrative lawsuit, but it came from the tireless work of a citizen-led grassroots movement. Although the plight of

Diamond may have gone unnoticed outside of the community, the citizens affected were determined to take action. They did not have scientific data, they were not aware of the legal regimes surrounding environmental justice, and they did not have the money for expensive attorneys. All the people had were their personal experiences of pollution, tragedy, sickness, and

93 Id. at 47. 29 mistreatment. Armed with these, they set out to let people know their story and hope someone could help.

The problems associated with bringing a legal action for an environmental justice claim are numerous, but for the other option, a grass roots movement, the possibilities for failure can be even worse. The first problem is that the whole group of citizens does not have one voice when it comes to deciding exactly what they want. To some people, Diamond was their home and they were not going to leave no matter how bad the situation got. To others if they had the available funds, they would leave immediately from their dangerous neighborhood. Thus, the group had to decide if they wanted relocation, damages, or just better operating practices. The next problem was finding out to whom their message should be directed. In a perfect world, the operators of the plant next door would be sensitive to the concerns of their neighbors and they would do everything in their power to alleviate the suffering. Then again, if this were a perfect world there would be no need for an environmental justice movement. Finally, the movement faced the problem of proving to outsiders the extent of their situation.

These problems are often insurmountable for communities affected by environmental justice, but Diamond, LA is a success story. Led by a group of strong-willed, “churchgoing” women, the movement in Diamond solidified around a common goal; relocation. This was not an easy task as much of the population had intergenerational ties to the community, but everyone agreed that if they could obtain a buyout of their property for a price that would allow them to resettle, they would accept. As to the problem of proving their suffering, the group received help from the Louisiana Bucket Brigade. The Louisiana Bucket Brigade had developed a inexpensive user-friendly air quality monitoring system that allowed the residents of Diamond to take air samples when there were releases from the refinery. This allowed the residents to collect data

30 absent a catastrophic event like another explosion. Now armed with a common goal of relocation, and the science to back their claims, the people of Diamond just needed someone to listen. After repeated efforts to negotiate with the local facility proved to be fruitless, the group brought their story outside of Diamond. They were eventually heard by and gained the support of community organizers in New Orleans, local attorneys, national politicians, and international environmental organizations like Greenpeace and Sierra Club. With the help of all of these outside forces, the people of Diamond were able to bring their message to the very top of the international corporation Royal Dutch Shell and to the United Nations Commission on Human

Rights in Geneva. After receiving significant pressure from corporate executives (who feared a public affairs nightmare), the Shell plant in Diamond negotiated a mutually beneficial deal. The plant would buy all of the houses in the Diamond neighborhood, so long as it could be framed as creating a “buffer zone” rather than as evidence of fault.

In the end, the people of Diamond got relief, but their case cannot act as a model for environmental justice claims. There were too many variables in the Diamond situation that may not be repeatable in other communities. The process took almost fifteen years and neither law, contract, nor company policy guaranteed the end result. One unfortunate reminder of the particularity of the Diamond situation is the town of Mossville, LA just outside of Lake Charles in the Southwestern corner of LA. Mossville is a small, predominantly African-American community of 375 households, surrounded by 14 chemical plants, which emit over 4 million pounds of toxic and hazardous chemicals each year.94 The people of Mossville have demonstrated elevated levels of serious medical conditions along with a clear disparate impact

94 Petition No. P-242-05, Inter-Am. C.H.R. June 23, 2008. 31 on African-Americans. They have attempted to raise awareness around the world; they have filed domestic lawsuits, and even filed a petition to the Inter-American Commission on Human

Rights. Yet, the families are still in Mossville, and even with possibly more evidence of exposure-related disease than in Diamond the people have not obtained relief.

The similarities between the Diamond and Mossville situations, and the differences in their end results have made it clear that Louisiana needs a better option. Many in Louisiana felt that a better option had been found in the late 1990’s when Shintech, a subsidiary of the Japanese company Shin-Etsu, gave up on plans to build a chemical plan in Convent, Louisiana

B. Shintech

In 1996, Shintech announced plans to build a chemical manufacturing facility in Convent,

LA a predominantly African-American community about 30 miles west of Diamond. In May of the next year the Louisiana Department of Environmental Quality (LDEQ) granted all of the necessary permits for the plant that, if built, would be the second-largest Polyvinyl chloride

(PVC) plant in the nation.95 In response to this issuance of permits, the Tulane Environmental

Law Clinic, on behalf of numerous environmental and civic groups, filed an administrative complaint opposed to the siting of the chemical facility in Convent.96 The proposed site existed in what has become known as the “Chemical Corridor,”97 and Convent already ranked third in terms of toxic pollution in Louisiana.98 The complaint alleged that not only would the plant violation air emissions standards, but that the LDEQ’s decision was also in violation of Title VI

95 28 S. U. L. Rev.123, 125 (2001).

96 Id.

97 The area of land on both sides of the Mississippi River between Baton Rouge and New Orleans, which is home to hundreds of industrial plants include those in Diamond and Norco, LA.

98 28 S.U. L. Rev. at 141. 32 of the Civil Rights Act of 196499 In an unprecedented move, the federal EPA rejected the permits for the Shintech plant on the basis that they would violate air emissions standard, but they placed the burden on the LDEQ to address the environmental justice complaints.100

LDEQ sponsored two public meetings to address the environmental justice concerns, which were the first either on the national or state level to discuss whether a project could be rejected for being proposed in a predominantly African-American community.101 The meetings were very well attended by activists, academics, and community members who expressed their discontent with the proposed facility. However, the LDEQ was never able to make a final decision. In September of 1998, presumably because of the heavy pressure in Convent, Shintech announced that it was abandoning the proposed plan in anticipation of building a smaller facility further up the river in Iberville Parish.102

For those concerned with environmental justice, the case in Shintech was both a victory and a defeat. The Tulane Environmental Law Clinic (with the support of many others) took on the LDEQ and created enough support that Shintech abandoned its plan, which was clearly a victory for the people in Convent, LA. However, the fact that there was no final decision made by the LDEQ on the issue of using racial makeup as a factor in a siting decision, there was no precedent established for future use.

Soon after the resolution of the Shintech situation, the Louisiana Supreme Court dealt a heavy blow to the future of environmental justice claims. In 1999, the Court amended Rule XX

99 Id. at 126.

100 Id.

101 Id. at 127.

102Id. 33 of the Supreme Court rules, prohibiting the outreach powers of Law Clinics placing strict eligibility requirements on organizations that could be represented by such clinics.103 The Rule

XX amendments have undoubtedly interfered with the ability of law clinics to play a significant role in environmental justice claims like that of the Tulane Environmental Law Clinic in the

Shintech situation.

With all of the roadblocks plaguing environmental justice claims in Louisiana and the country as a whole, hope for a solution is understandably very low. Environmental injustices happen for many different reasons in different locations and all claims have a very particular set of facts. Thus, the focus on a solution to environmental injustices should shift to a more holistic approach to try and stifle the problems at every stage possible.

IV. Possible Solutions This paper has recognized problems with combating environmental injustice in many different areas, but in focusing on solutions there are two main areas of concern. The first is to find ways to prevent environmental injustice prior to its occurrence, or proactive measures. The second is to obtain relief for communities that have been affected by environmental injustices, or reactive measures. In order to address these two very broad areas, there first needs to be a regulatory structure that takes an honest look at the siting of industrial facilities; next, the polluting facilities in the country simply need to operate cleaner in order to reduce the harmful effects on all communities; and finally, there needs to be a fair and not overly burdensome legal option for victims of environmental justice to obtain relief.

As to particular regulatory changes, Louisiana has an option that could have a huge impact on the future of environmental justice in the state. Currently, when the LDEQ receives a

103 Rules of the Louisiana Supreme Court, Rule XX March 30, 1999. 34 permit application for a hazardous waste facility they have been instructed by the Louisiana

Supreme Court, in the case of Save Ourselves v. La. Environ. Control Comm., to use a list of factors in order to monitor the proposed projects’ impact on the environment.104 This list has become known as the IT factors105 and it consists of five questions that the LDEQ must ask when reviewing a permit application. It would be a relatively easy change to add into each question that the LDEQ must not only look to the environmental impacts, but they must also look to the societal impacts of the proposed facility. More specifically, the change could require an inquiry into the racial and socioeconomic makeup of the surrounding communities. This scheme could be extended beyond hazardous waste facilities to all polluters.

Also, the government and the general population should continue to demand cleaner industrial practices. The first step to demanding cleaner operations is to have accurate information about what is being released into our air and water. Organizations like the Louisiana

Bucket Brigade, which were very active in Diamond and Mossville, should be promoted and aided in carrying out the important task of empowering individual citizens to monitor their environment. The next step is for consumers to make decisions with their money that reward companies for conducting their operations in the cleanest and most efficient way possible. The final step is to encourage lawmakers to encourage cleaner industries by stricter regulation,

104 452 So. 2d 1152 (1984)

105 IT Factors:1) Have the potential real adverse environmental effects of the proposed facility been avoided to the maximum extent possible? 2) Does a cost benefit analysis of the environmental impact costs balanced against the social and economic benefits of the proposed facility demonstrate that the latter outweighs the former? 3) Are there alternative projects, which would offer more protection to the environment than the proposed facility with out unduly curtailing nonenvioronmental benefits? 4) Are there alternative sites, which would offer more protection to the environment than the proposed facility site without unduly curtailing nonenvironmental benefits? 5)Are there mitigating measures which would offer more protection to the environment then the facility as proposed without curtailing nonenvironmental benefits? 35 funding for research and development, and incentives for those companies who operate on the cutting edge of cleanliness. If industrial practices are conducted in a more environmentally friendly manner then the burdens placed on all communities will be reduced.

The most complicated element of any solution is creating a workable and accessible litigation devise for individuals who believe they are victims of environmental justice. The first two proactive elements of the solution are equally as important, but thousands of cases of environmental injustice already exist in Louisiana and around the world. There is no easy change for this element, but the failures of the previously mentioned litigation strategies can serve as guideposts.

A workable solution would provide plaintiffs with a private right of action to obtain relief when they have fallen victim to environmental injustices. Such a result could be obtained within the framework of Title VI of the Civil Rights Act of 1964. Environmental justice plaintiffs deserve a private right of action to sue when a recipient of federal funds has created disparate impacts. In effect, this would require combining §§601 and 602 of Title VI. This solution should also entail the procedural benefits of an administrative complaint, reducing the financial burden of hiring lawyers at the initial stages of environmental justice claims. These would be extremely large changes in the current legal regime surrounding environmental justice, but they can be made if government officials and courts alike recognize the magnitude of the burdens that have been placed on some of this country’s most fragile communities.

Even without the burdens of environmental injustices, minority and low-income communities face numerous challenges internally, from lack of education and indolence; and externally, from discrimination and disenfranchisement. Environmental injustices are no longer a secret, the time has come for this country to accept the realities of the situation and seek equality;

36 socially, economically, and environmentally.

Conclusion As the title suggests, minority and low-income communities have become today’s

“Canaries in the Coalmine,” but this analogy is not entirely accurate. The canaries’ songs had a captive audience who relied upon them, and when all was said and done, the lives of the canaries were expendable when compared to that of a miner. But with minority and low-income communities, their song has not been heard. Fellow human beings have caused the tragedy, those who are suffering are not expendable, and the songs of these communities are not a mere instinct but a desperate cry for help, reaching out to anyone who will listen. While many minority and low-income communities have only begun to sing, the effects environmental injustices have taken hold, which begs the question -- how loud must they sing before it falls on deaf ears no more?