Environmental Law

The field of Environmental Justice sprung from grassroots organizations formed to combat environmental racism. In the 1970s, groups of minorities organized to protest the disproportionate number of waste producing and polluting industries located in areas where minorities or poor people lived. These groups included African Americans, Latinos and Native Americans. This effort against environmental racism was viewed as outside the broader Environmental Movement, which had white middle to upper class backing.

In the 1980s, the environmental racism movement reorganized and became known as the Environmental Justice movement, which focused on the equitable distribution of environmental health and risk. At that time their efforts began to receive more mainstream attention and recognition. Since that time, the topic of Environmental Justice has been addressed by COLLEGES AND UNIVERSITIES, as well as environmental and religious groups. The field has begun to move beyond issues of equitable distribution to include concerns about reducing and stopping environmental risk. This later aspect may be called ecological justice and deems that the earth and the environment have intrinsic value.

Environmental Racism Environmental racism has been defined by environmentalists as the deliberate targeting of communities of color for discriminatory treatment in governmental policy and corporate practices. Placement of toxic waste facilities in low income neighborhoods and nuclear waste dumps in indigenous territory have been cited as examples of this practice. Community activists have challenged what they believe is inherent and explicit racism in corporate strategies and discriminatory treatment in enforcement of environmental regulations.

Private Title VI Lawsuits and Environmental Racism Title VI of the CIVIL RIGHTS ACT has been one of the most commonly used statutes in Environment Justice lawsuits in recent times. Some of this is due to the failures from other statutes and some of it is the uncertainty about the viability of Title VI as a remedy for environmental racism. Title VI has two main parts to it, section 601 and section 602. One of the main differences in the two sections is whether it gives a private right of action to plaintiffs. A private right of action determines whether ordinary citizens have the right to bring the case based on the statute before a court to determine the validity of the claims. Section 601 has been determined by the United States Supreme Court to hold a private right of action for lawsuits. Section 602 however has not been interpreted as to whether or not it holds a private right of action within it. The issue of intent is defined differently in the two sections. Section 601 has a model of proving intent based on the EQUAL PROTECTION CLAUSE of the FOURTEENTH AMENDMENT. This model is that of proving purposeful discriminatory intent by a government agency or other group who is discriminating. This very strict interpretation of the statute has served to quell any Environmental Justice lawsuits under section 601. For cases where discriminatory intent is obvious, section 601 is a good alternative since it allows for more punishment than section 602, which can only terminate funding. This allows corporate defendants to use reasons such as economic impacts and geographical situation to explain away unjust allocation of environmental burdens. Section 602, however, allows for disparate impacts to be used instead of intentional discrimination as a means of implicating defendants in the violations.

In February of 1994, President BILL CLINTON signed an EXECUTIVE ORDER which brought together several federal agencies and offices in a battle against discrimination. This order was an outline of what each agency was required to do to promote Environmental Justice in its policies and practices and what each agency needed to do to ensure the continued compliance with Title VI. The EPA has used this order as a staging point for their new wave of Environmental Justice focuses. An Environmental Justice Strategy has been formed by the EPA for the evaluation of Environmental Justice concerns brought to the EPA. The Executive Order is very limited in its scope and enforceability and has been widely criticized despite the fact that it facilitated the creation of the EPA Title VI policy.