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Rutgers law professor Sheila Foster remembers her first encounter with Chester, Pa., a city of close to 40,000 whose neighborhoods sit among oil refineries, waste processing plants and sewage treatment facilities. “What struck me,” she said, “was the toxic assault to my senses.” According to Foster, Chester is like other high-minority, low-income areas across the country that are saddled with an inordinate amount of waste facilities. Of the seven waste facility permits issued in Delaware County, Pa., over a 10-year period, she has noted, five were for sites in Chester. The high concentration of waste facilities has forced Chester’s predominantly African-American residents to contend with odors, dust, noise and, claim environmental justice advocates, a high incidence of cancer and respiratory disease. The term that Foster and environmental justice advocates use to describe this problem is environmental racism. These advocates view the disproportionate number of waste treatment plants in low-income and minority areas as the product of the same complicated social and economic forces that have resulted in racial segregation. Foster and co-author Luke Cole have chronicled the problems in Chester and discuss the movement against environmental racism in a new book, “From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement.” Since 1994, Foster has been a professor at Rutgers University School of Law-Camden, N.J., where she teaches torts, environmental law and anti-discrimination law. The book is the result of more than five years of research on environmental racism, said Foster. Having read many academic examinations of the movement, Foster said she became interested in looking at environmental racism from the perspective of the individuals whose neighborhoods and lives have been affected by it. She and Cole, director of the California Rural Legal Assistance Foundation’s Center on Race, Poverty and the Environment, set out to write an account of the movement that would “reflect the voices of the people who made the movement what it is,” Foster said. The environmental justice movement stems from efforts by communities like Chester throughout the country that have begun to resist attempts to put environmental hazards in their neighborhoods. They take on both private industry and governmental agencies. The movement has its share of critics. Christopher Foreman, a professor at the University of Maryland’s School of Public Affairs and a senior fellow in governmental studies at the Brookings Institution, is the author of “The Promise and Peril of Environmental Justice.” In his opinion, the movement rests on shaky foundations. He said there is a lack of evidence to support the movement’s claims that minority and low-income communities are subjected to a disproportionate amount of environmental risk or that they suffer from an unusually high number of environmentally linked health problems. And Foreman worries about the movement’s effect on the public: “The strong focus on unsubstantiated environmental risks takes us farther from where we need to be in a health sense,” he said in an interview. “The most insidious thing about environmental justice advocacy may be that it takes up the space in citizens’ minds that they [could] devote to … other things that are far more important from a health standpoint.” Yet supporters and critics alike have noted the tremendous growth the environmental justice movement has undergone in the last 10 years. During that time, the bulk of its battles has been carried out at the local level in rural and urban areas across the country. But the effects of community groups’ efforts to protect their neighborhoods and their health from environmental hazards, argue Foster and Cole, have also worked their way into national policy. THE MOVEMENT’S ROOTS According to Foster and Cole, the environmental justice movement has varied roots, among them, the anti-toxics movement that developed in the 1970s in the wake of environmental disasters such as Love Canal, and the traditional environmental movement represented by groups such as the Sierra Club. But its closest connections are to the civil rights movement. As a result of the civil rights movement, explain Foster and Cole, environmental justice advocates have understood the hazards imposed on their communities as part of broader discriminatory trends. And, observe the authors, the movement has adopted the tools used in civil rights struggles — protest, legal action and policy-level change. One of the most active environmental justice groups in the country is the Chester Residents Concerned for Quality Living. Aggravated by noise, smells and health risks generated by the influx of waste facilities into the city in the late 1980s and offended by what they perceived as the local government’s efforts to insulate permitting decisions from community input, Chester’s citizens formed CRCQL in the early 1990s. Since 1992, when the local group began meeting, it has consistently opposed the expansion of existing waste facilities and has attempted to thwart the granting of permits for new ones. The victories have been slow but steady. The group’s efforts have resulted in the defeat of permit applications filed by large national companies and in a zoning amendment that makes it harder for waste facilities to move to Chester. The group has also made some legal gains — receiving a settlement in a suit brought against one of the city’s largest waste facilities. But, as two recent cases indicate, litigation has been less successful than CRCQL had hoped. In CRCQL v. the Pennsylvania Department of Environmental Resources, the citizens group appealed the DER’s decision to grant a permit for an infectious waste sterilization plant. Though the Commonwealth Court held the permit invalid, concluding that its issuance violated state environmental legislation, the Pennsylvania Supreme Court disagreed. A year later, in 1996, CRCQL brought a civil rights suit against the same agency — now restructured and called the Department of Environmental Protection. The suit was brought after the department granted a permit to a company to build a facility that would treat contaminated soil in Chester. In CRCQL v. Seif, CRCQL alleged that the DEP’s permit decisions with regard to Delaware County had a racially discriminatory impact. DEP’s permitting practices, CRCQL claimed, violated the implementing regulations attached to Title VI of the Civil Rights Act of 1964. Title VI bars discrimination on the basis of race, color and national origin by programs or activities receiving federal funds, including state and local agencies. CRCQL brought the case under the regulations, which require only a showing of discriminatory effect, not a showing of discriminatory intent on the part of the agency as required under Title VI. According to Foster, it is extremely difficult to prove intentional discrimination. In fact, noted Foster, no environmental racism plaintiff has been able to meet the intent standard to date; as a result, environmental justice advocates have come to rely on the implementing regulations rather than the statute. But the U.S. District Court for the Eastern District of Pennsylvania closed this avenue. Dismissing the case, the court concluded that a private plaintiff cannot bring an action under Title VI’s regulations. After the 3rd U.S. Circuit Court of Appeals reversed, reinstating the case, the state appealed to the U.S. Supreme Court. The high court took the case, but in 1998, after the soil treatment facility decided not to pursue the project, the court held the case moot and vacated the 3rd Circuit’s ruling, leaving the status of litigation under Title VI regulations unclear. The court is currently revisiting the issue in Alexander v. Sandoval. For its part, the DEP has denied allegations of discrimination and says it evaluates permit applications in accordance with the existing laws and regulations. LITIGATION According to Foster, Chester’s experiences are not uncommon. Litigation, she said, has made only modest headway in the fight against environmental racism. Foster attributes the slow pace of progress in this area to “the failure of existing law to address a very complex social situation.” “How is it that low-income communities end up with so much exposure to environmental hazards?” The answer, said Foster, “is a mix of political, economic and social factors.” But our environmental laws, she explained, take “a myopic approach to what is an environmentally safe decision.” Regulations, said Foster, consider a proposed facility “in a vacuum,” asking whether it meets chemical emissions standards and other technical requirements but ignoring broader factors such as the disproportionate number of waste facilities in the targeted community and the demographics in that area. Civil rights law, a second source of much environmental justice litigation, is similarly limited, Foster said. The “intent standard that permeates civil rights law,” explained Foster, “looks for a single bad actor.” Meanwhile, said Foster, environmental racism can rarely be traced to an individual culprit. POLICY STRIDES On the level of policy, however, the gains the environmental justice movement has made are striking, particularly over the last eight years. And Foster foresees continued success in this area. In 1994, President Clinton issued an “Executive Order on Environmental Justice.” In it, he directed each federal agency to determine whether its programs, policies and activities adversely affected communities of color or low-income groups. This “tremendously important” document, said Foster, “changed the way that decision-makers think.” Foster also points to important institutional changes that have taken place within the Environmental Protection Agency. Former EPA Administrator Carol Browner developed an Office of Environmental Justice and appointed a national council to advise the EPA on environmental justice issues. An administrative appeal process in which an appeals board reviews the impact a permit grant would have on the community and asks whether the local agency considered this impact was also put into place. While none of the eight to 10 permit challenges Foster estimates have undergone administrative review have succeeded, she sees victory in the fact that an inquiry into community impact was made part of the review process. At the local level, a growing number of states — Pennsylvania included — have set up environmental justice work groups. All of these developments, said Foster, indicate that “on a policy level, attention is being paid to environmental justice concerns.” THE BUSH ADMINISTRATION How these policies play out under the Bush administration remains to be seen. “Those who care about the environment,” said Foster, feel “some trepidation whether the policies of the last eight years will remain.” “Under the new administration, environmental justice will not weigh as heavily” as it did under Clinton, she predicted. But, Foster said, the recent policy strides the movement has made “are not completely out the window.” Newly appointed EPA head, Christine Todd Whitman, noted Foster, set up a state environmental justice task force while governor of New Jersey, indicating she will be “somewhat attentive” to environmental justice issues. Yet, regardless of how the political tides shift, according to Foster, the environmental justice movement has had an enduring impact on those involved in it. “People are realizing they can be important players in issues that materially affect their lives,” explained Foster. And with more and more environmental justice groups resorting to litigation and then settling, it is “increasingly common for [them] to come out of litigation with money.” CRCQL’s settlement of a lawsuit brought against a local sewage treatment facility, for example, brought the group funds that it has used to set up a community lead poisoning prevention program. Low-income groups don’t typically have these types of resources, said Foster. For the first time, she said, they are able to make choices about what programs to implement for the benefit of their communities. Locally, the accomplishments of environmental justice activists are no less impressive. Today, said Foster, in New Jersey and in Pennsylvania, environmental justice members sit on EPA task forces. “That’s tremendous,” said Foster. “People who most would call least empowered are now sitting on policy committees at the state level.” Related Links: Environmental Racism in Chester Chester Residents Concerned for Quality Living (CRCQL) Environmental Justice Resource Center Clark Atlanta University Environmental Justice Information Page The University of Michigan

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