The Role of Communities in Environmental Decisions: Communities Speaking for Themselves
By:
ROBERT W. COLLIN: Associate Professor of Environmental Studies, Adjunct Associate Professor of Law, University of Oregon. J.D., Albany Law School; LL.M., University of Missouri, Masters of Science of Urban Planning, Columbia University School of Architecture, Preservation, and Planning; Masters of Science of Social Work (Community Organization), Columbia University School of Social Work. Environmental Justice representative to Common Sense Initiative of the United States Environmental Protection Agency. Ex-officio member of the Oregon Governor's Environmental Justice Advisory Board.
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ROBIN MORRIS COLLIN:   Associate Professor of Law, University of Oregon. J.D., Arizona State University; post graduate studies in African Literature and Language, University of Wisconsin at Madison. Environmental Justice representative to Common Sense Initiative of the United States Environmental Protection Agency. Member of the Environmental Justice Action group in Portland, Oregon.

SUMMARY:

... The pervasive use of chemicals, and the hazardous waste and pollution they generate, have a human face in terms of human health and the environment, and are not limited to impacts on land, air, and water. ... Because of con cerns about the cumulative impact on public health, more and more communities are demanding meaningful participation in the decisions that they perceive affect them. ... The ATSDR promises that such a consultation may lead to specific actions, such as restricting use of or replacing water supplies; intensifying environmental sampling; restricting site access; removing the contaminated material; additional public health actions, such as conducting health surveillance activities to evaluate exposure or trends in adverse health outcomes; conducting biological indicators of exposure studies to assess exposure; and providing health education for health care providers and community members. ... New sources of information must be developed and included in other measures in order to understand how multiple chemical exposures affect human health and the environment, now and over time. ... An examination of Title VI complaints to the EPA reveals three trends related to environmental justice. ... Environmental justice advocates and community residents view the delegation of the public health, safety, and welfare protection to scientists as an infringement of their rights to meaningful participation in the decisions of their government that most affect them and their families. ... B. Resident Monitoring: A Fundamental Role in Environmental Decision-Making ...

TEXT:

While environmentalists have traditionally battled to protect endangered species, such as the spotted owl, the blue whale, and the California condor, nontraditional environmentalists have struggled to protect and preserve a different endangered species: people of color and low socioeconomic status. n1

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n1. Clarice E. Gaylord & Geraldine W. Twitty, Protecting Endangered Communities, 21 Fordham Urb. L.J. 771 (1994). Dr. Gaylord was the founding director of the Office of Environmental Justice at the United States Environmental Protection Agency.

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The pervasive use of chemicals, and the hazardous waste and pollution they generate, have a human face in terms of human health and the environment, and are not limited to impacts on land, air, and water. But like the blind men describing the elephant, lawyers and scientists have studied and described these impacts from their limited disciplinary domains. Law has developed a media by media approach. Public health policy has avoided complex questions of environmental causation, while the impacts on labor are further isolated from both public health and environmental concerns.

Communities are where public health, the environment, and labor are inseparable: where people live, work, and play. In communities, the interaction of the environment and human health are inextricably, inescapably intertwined. Yet communities and their residents are often the least involved in making environmental decisions that affect their immediate well-being.

In Part One of this Article, we begin with an examination of the problem of community disenfranchisement in environmental decisions. In particular, we examine the disconnection of public health and environmental indicators and the problem of cumulative and synergistic exposures of communities to multiple emissions. In Part Two, we examine administrative and judicial responses to the concerns of communities about these issues. In Part Three, we discuss the role of science in communities that want a more active role in making environmental decisions for themselves. In conclusion, we discuss how these environmental dynamics are truly inescapable, especially if communities and their economies aim at sustainability as a societal goal.

I Disconnection between Residents n2 and EnvironmentalDecisions

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n2. We prefer the term "residents" to "citizens" because residents is a more inclusive term. Also, in terms of impacts, the environment makes no political distinction between citizens and residents. There is no difference in terms of impacts on and from the environment.

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A. Background

The lack of resident involvement in decisions about their environment, or the environment generally, is nothing new. The fact that residents are separated from environmental decisions in a democracy has been noted for some time. In 1971, one year after the formation of the Environmental Protection Agency (EPA), Professor Joseph Sax, a prominent environmental law scholar and litigator, stated:

We are a peculiar people. Though committed to the idea of democracy, as private citizens we have withdrawn from the governmental process and sent in our place a surrogate to implement the public interest. This substitute - the administrative agency - stands between the people and those whose daily business is the devouring of [the] natural environments for private gain. n3

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n3. Joseph L. Sax, Defending the Environment: A Strategy for Citizen Action at xvii (1971).

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All environmental problems are local in some sense. They can be local in terms of the cause, source, or impact of the waste stream (including all emissions, discharges, and pollution). As the waste stream increases, and wastes are accumulating, these environmental problems have begun to affect areas outside of an immediate locale. Traditionally, environmental concern is narrowly conceptualized by mainstream environmental activists, public policy officials, and researchers. It is further limited by the news media, which ignores public health indicators. This has contributed to the contemporary weaknesses of compliance measures to adequately protect the public health, safety, and welfare. Research shows that "when we restrict the boundary conditions of 'environmental concern' to [include] only environmental impacts related to the air, water, land, ... we tend to ignore critical impacts to sociostructural and cultural systems." n4 Because of con cerns about the cumulative impact on public health, more and more communities are demanding meaningful participation in the decisions that they perceive affect them. Urban environments in particular have been ignored in both the United States environmental movement and in environmental government policy development. n5

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n4. Robert Emmet Jones & Lewis F. Carter, Concern for the Environment among Black Americans: An Assessment of Common Assumptions, 75 Soc. Sci. Q. 560, 575-76 (1994).

n5. See Robert W. Collin & Robin Morris Collin, Urban Environmentalism and Race, in Urban Planning and the African American Community: In the Shadows 220 (June Manning Thomas & Marsha Ritzdorf eds., 1997). See generally Robert Gottlieb, Forcing the Spring: The Transformation of the American Environmental Movement (1993); Proceedings, City Care: A National Conference on the Urban Environment, (Nat'l Urb. League, Inc., Sierra Club, Urb. Env't Conf. and Found., Detroit, MI), Apr. 8-11, 1979.

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Urban environments are complex. They are intertwined with issues of economic development, community development, and racial politics. n6 They have been the sites of industrialism years before any governmental regulation, and the sites for human habitat years before knowledge about the human health risks. They also incorporate important aspects of ecosystems and bioregions. As wastes, emissions, discharges, and pollution have accumulated in our cities, they have begun to affect airsheds and watersheds of ecosystems far removed from the source of the pollution. As wastes and human population increase, they are brought closer together, increasing conflict over environmental decisions.

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n6. For a discussion of these issues see, Robert W. Collin, et al., Environmental Racism: A Challenge to Community Development, 25 J. Black Stud. 354 (1995).

For a discussion of the leadership pattern of grassroots environmental justice advocates see Celene Krauss, Women of Color on the Front Line, in Unequal Protection: Environmental Justice and Communities of Color 256 (Robert D. Bullard ed., 1994); Robert R.M. Verchick, In a Greener Voice: Feminist Theory and Environmental Justice, 19 Harv. Women's L.J. 23 (1996).

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In addition, urban dwellers are increasingly people of African descent who define environment and environmental concern much more holistically to include quality of life indicators wherever they live, work, and play. n7 This broader approach to environmentalism is at odds with the approaches of mainstream environmental groups which evolved out of a political agenda to conserve wilderness. n8 This mainstream sensibility has operated to exclude the concerns of urban dwellers and people of color from the environmental movement and from the traditional posts within government devoted to environmental concerns. n9

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n7. For a discussion of African American perspectives on the environment see Sheila Foster, Justice From the Ground Up: Distributive Inequities, Grassroots Resistance, and the Transformative Politics of the Environmental Justice Movement, 86 Cal. L. Rev. 775 (1998) (examination of environmental justice from the perspective of predominantly poor, African American residents of Chester, PA); Carl Anthony, Why African Americans Should be Environmentalists, Race, Poverty, and the Environment 5-6 (Apr. 1990); Rachel Kaplan & Janet Frey Talbot, Ethnicity and Preference for Natural Settings: A Review and Recent Findings, J. of Landscape Architecture and Urb. Plan. 15, 112 (1988).

n8. See generally George Perkins Marsh, The Earth as Modified by Human Action (1877); Roderick Nash, Wilderness and the American Mind (3d ed. 1982) for examples of these viewpoints.

n9. Philip Shabecoff states: "Unfortunately, it is true that the leadership of national environmental groups is largely white, male, and well educated, with incomes above the national average." A Fierce Green Fire: The American Environmental Movement 281-82 (1993).

In 1991, The Wilderness Society had no people of color on its board, and minorities occupied only four of the eighty professional positions. The Sierra Club had one minority out of fifteen directors, and the Audubon Society had two minorities out of thirty-three directors. Peter Steinhart, What Can We Do About Environmental Racism?, Audubon Magazine, May 1991, at 18-20.

See also, Dorceta Taylor, Can the Environmental Movement Attract and Maintain the Support of Minorities?, in Race and the Incidence of Environmental Hazards (Bunyan Bryant & Paul Mohai eds., 1992).

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As government, particularly the EPA, seeks to prevent pollution and to clean up the environment, they are brought into the city. Cities are characterized by many communities of people who reside there, generally in closer proximity to each other than in suburban or rural settings. n10 These communities can be quickly organized and mobilized around environmental and public health concerns. The increasing accumulation of wastes and chemicals, combined with increasing cancer and asthma rates in cities, provides the necessary self-interest for community organizing and mobilization. This self-interest is spreading to majoritarian communities in terms of sperm count and early onset of menses. n11 More and more communities want their meaningful participation in the environmental decisions that affect them.

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n10. There is a growing literature on the relationship between land use law and environmental protection. See, e.g., Michael Allan Wolf, Fruits of the "Impenetrable Jungle": Navigating the Boundary Between Land-Use Planning and Environmental Law, 50 Wash. U. J. Urb. & Contemp. L. 5 (1996); Marc R. Poirer, Property, Environment, Community, 12 J. Envtl. L. & Litig. 43 (1997).

See Robert W. Collin, Environmental Equity: A Law and Planning Approach to Environmental Racism, 11 Va. Envtl L.J. 495, 507-16 (1992), reprinted and discussed in Law and the Environment: A Multidisciplinary Reader 111-17 (Robert V. Percival & Dorothy C. Alevizatos eds., 1997) (discussing the relationship of land use law and environmental regulations on minority communities).

n11. Theo Colburn et al., Our Stolen Future (1996).

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The law has probably worsened this disconnection. Another prominent environmental law scholar has recently noted: "Environmental law is itself part of the problem. By not adequately accounting for distributional equity, environmental law has promoted inequity." n12 The legislative histories of the early federal environmental laws, beginning with the National Environmental Policy Act, n13 the Clean Air Act, n14 and the Clean Water Act n15 show a media by media development of environmental law rather than an approach based upon biosystems, bioregions, or alternatively, facility by facility impacts. Indeed, at the same time that the environmental laws were being enacted, the nation was separately committing itself through separate legislation to closer monitoring of worker health and safety under the Occupational Safety and Health Act, n16 and public health under the Agency for Toxic Substances and Disease Registry (ATSDR) n17 Division of the United States Department of Health and Human Services. Commitment of public health, labor health and welfare, and environmental indicators to different federal agencies greatly limited the government's ability to look at the picture of environmental and community health indicators together in concert. These regulatory distributions introduced agency turf distinctions and competition into the basic activities of gathering data and making risk management decisions regarding this fragmented data. This same disconnection between public health and environmental indicators is repeated at all levels of government, federal, state, and local. n18

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n12. Richard J. Lazarus, Fairness in Environmental Law, 27 Envtl. L. 705, 712 (1997).

n13. The National Environmental Policy Act of 1969, 42 U.S.C. 4321 (1994).

n14. The Clean Air Act Amendments of 1970 (previous iterations of the Clean Air Act were not seriously protective of the environment), 42 U.S.C. 7403.

n15. The Clean Water Act of 1977, 33 U.S.C. 1251.

n16. The Occupational Safety and Health Act of 1970, 29 U.S.C. 651.

n17. Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. 9604(i).

n18. See Collin, supra note 6 (discussing how community development and environmental planning developed separately). In some ways, this disconnection between governmental agencies reflects early Christian theology that separate humans from the government. See generally Lynn White, Jr., The Historical Roots of Our Ecologic Crisis, 155 Science 1203 (1967).

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B. The Environmental Justice Movement: Connecting Community Health and EnvironmentalHealth

The quality of life in the actual environment of peoples' homes, schools, neighborhoods, workplaces, playgrounds, and roads are major concerns to the Environmental Justice Movement. n19 These concerns are overlooked or seen as illegitimate by some leaders within the mainstream environmental movement. n20 However, these concerns have been institutionalized at the EPA with the formation of the Office of Environmental Justice (OEJ). OEJ defines environmental justice as:

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n19. Robert D. Bullard, People of Color Environmental Groups 1994-1995 Directory (Atlanta: Environmental Justice Resource Center, Clark Atlanta University); Robert W. Collin, Review of the Legal Literature on Environmental Racism, Environmental Equity, and Environmental Justice, 9 J. Envtl. L. & Litig. 121 (1994); Robert W. Collin, Environmental Equity: A Law and Planning Approach to Environmental Racism, 11 Va. Envtl. L.J. 495 (1992).

n20. See generally, Confronting Environmental Racism: Voices from the Grassroots (Robert D. Bullard ed., 1993); Dorceta E. Taylor, Blacks and the Environment: Toward an Explanation of the Concern Gap Between Blacks and Whites, 21 Env't & Behav. 75 (1989).

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Equal protection from environmental hazards for individuals, groups, or communities regardless of race, ethnicity, or economic status. This applies to the development, implementation, and enforcement of environmental laws, regulations, and policies, and implies that no population of people should be forced to shoulder a disproportionate share of negative environmental impacts. n21

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n21. U.S. EPA, Terms of Environment: Glossary, Abbreviations, and Acronyms (April 1994).

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The goals of the environmental justice movement are: (1) public policies without discrimination or bias; (2) an environmentally sustainable economy; (3) protection from pollution and hazardous waste; (4) the right of all peoples to political, economic, and environmental self-determination; (5) stopping or limiting the production of toxins, hazardous waste, and radioactive materials; and, (6) the right to participate as equal partners at every level of environmental decision-making. n22 The use of traditional tools of regulatory decisions about the environment, such as risk assessment and traditional environmental enforcement, affects each and every one of these goals. These goals underscore the emerging role for communities in environmental decision-making.

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n22. The First People of Color Environmental Leadership Summit, Principles of Environmental Justice (Oct. 27, 1991).

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C. New Environmental Decision-Making Dynamics

More than any other group or stakeholder, community residents feel the first impacts of the failure to adequately enforce environmental laws, which themselves may not adequately protect the environment over time. n23 One of the first reactions of a community when environmental concerns are raised is to seek enforcement of existing laws. The EPA Office of Enforcement and Compliance Assistance (OECA) is responsible, along with state environmental agencies, for enforcing the nation's environmental laws. n24 OECA conducts about 18,000 inspections of regulated facilities and entities, refers about 400 civil and 250 criminal enforcement cases to the United States Department of Justice, issues about 1,200 administrative penalties, and assesses about $ 250 million in penalties per year. n25 These measures have been used as the sole output measures of governmental enforcement.

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n23. D.R. Wernette & L.A. Nieves, Breathing Polluted Air, E.P.A. J., Mar.-Apr. 1992, at 16. See National Environmental Justice Advisory Committee, Increased Enforcement Recommended in Minority, Low- Income Communities, 26 Env't Rep. (BNA) 1554 (Dec. 22, 1995) (discussing the need for the EPA to place environmental justice at the top of their enforcement priorities).

n24. U.S. EPA, Measuring the Performance of EPA's Enforcement and Compliance Assurance Program 1 (Dec. 22, 1997).

n25. National Performance Measures Strategy, U.S. EPA, pg. 1, n.2 (Dec. 22, 1997) <http://www.earth2.epa.gov/oeca/perfmeas/npmsfinal.html> [hereinafter Performance Measures].

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A key question for community residents is: how effective is this type of enforcement? In 1996, OECA completed enforcement cases with the following outcomes: 291 instances of emissions reductions; 150 instances of remediation or restoration; 132 removals of hazardous substances; 82 instances of industrial process changes; 86 environmental audits at facilities; and 122 instances of required reporting chemical emissions to the public. n26 In a country with about 29,284 municipalities, a number of unincorporated areas, about 125,000 industrial facilities, about 375,000 environmentally contaminated sites n27 and a number of other emitting business and governmental operations (like colleges and universities), this level of enforcement may not be adequate to protect either people or the environment. n28 In 1979, the National Law Journal reported a significant difference between enforcement and penalties for environmental law violations in white areas, and those in communities of color. n29

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n26. See generally Measuring the Performance of EPA's Enforcement and Compliance Assurance Program, supra note 24.

n27. Performance Measures, supra note 25, at 27.

n28. We have discussed alternatives to the command and control type of environmental enforcement. See Robin Morris Collin & Robert W. Collin, Where Did All the Blue Skies Go? Sustainability and Equity: The New Paradigm, 9 J. Envtl. L. & Litg. 399, 413-35 (1994).

n29. Marcia Coyle & Marianne Lavelle, Unequal Protection: The Racial Divide in Environmental Law, 15 Nat'l L.J. 52 (1992).

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Communities have a vested interest in compliance performance, and it is very important that communities speak for themselves. For residents to be involved in compliance matters they must be informed of the effects of real life exposure. Community knowledge and resident monitoring will provide clues, and may help to answer the perennial "shortage of resources" issues rife in state and federal environmental protection agencies. n30 New environmental enforcement performance measures recognize a trend in a more sophisticated model of environmental decision-making which integrates incentive-based methods and traditional regulatory approaches, empowers the public with more information about environmental problems and industry performance, and provides actual notice to residents of industrial site selection and expansion.

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n30. See National Coalition of Hispanic Health and Human Service Organizations, Meeting the Health Promotion Needs of Hispanic Communities, 9 Am. J. Health Promotion 300 (1995) (discussing the necessity of incorporating the community in health related program development).

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These indicators of performance of environmental agencies are extremely important measures of how well our government does in protecting the public health, safety, and welfare. Environmental justice representatives, including Robert Collin, strongly advocated for measures that track cumulative emissions and impacts, and for measures that demonstrate actual contact with the impacted communities. This is another example of how environmental justice is, in one sense, truly environmental protection for all people. All communities will now have a measure of how well the government is protecting their health and the health of the environment in which they live, work, and play. It is difficult for communities to approach government or industry when issues of compliance performance are raised. n31 At times, these communities have taken to the courts, as is their right. n32 Issues of com pliance performance may be very important in environmental justice cases where concern exists regarding possible disproportionate impacts of an environmental decision and the enforcement of that decision. n33 It is very difficult for residents to find out information about the state of their local environment, and how to participate in environmental decisions. Lengthy and costly requests through the Freedom of Information Act (FOIA) tend to require professional assistance, and may not always produce the necessary information. FOIA requests may also begin the initial inquiry for more information in an adversarial context. Some residents may feel fear of retaliation from an employer, and they may not want to proceed in such an adversarial context. Nonetheless, the public's interest in environmental information, for their own safety and welfare, has prompted continued expansion of community right-to-know laws.

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n31. See Performance Measures, supra note 25, at n.2.

n32. NAACP-Flint Chapter, Janice O'Neal v. John Engler 564 N.W.2d 38 (1997). Carol Marie Cropper, Jury in CSX Case Sent Angry Message with a $ 3.4 Billion Stamp, N.Y. Times, Sept. 15, 1997 at D.

n33. James L. Regens & Robert W. Rycroft, Measuring Equity in Regulatory Policy Implementation, 46 Pub. Admin. Rev. 423 (1986) (procedural equity requires equal access and equal treatment).

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Community right-to-know laws were enacted in the 1970s to help local fire and police officials respond safely to emergencies involving hazardous chemicals in their communities. n34 The primary federal community right-to-know law is the Emergency Planning and Community Right to Know Act of 1988. n35 This law requires disclosure of quantity and types of specific hazardous chemicals stored or used in communities. n36 A part of the federal law is the Toxic Release Inventory (TRI), enacted in 1986. n37 The TRI is a collection of data on specified chemicals in industrial or commercial use. It is different from other traditional, environmental regulations because it does not control how businesses manage their waste or rely on market incentives to attempt to reduce pollution. It is simply an accounting system requiring major industrial plants to publicly disclose the levels of pollutants that they have discharged into the air, water, and land or transferred to other sites for incineration, recycling, and disposal each year. n38 This information is available on the Internet and through the EPA, and thus it is more available than any other information of this type. However, only residents who have access to computers equipped with connection to the Internet will be able to use this data effectively and in a timely way.

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n34. Collin, supra note 5, at 223.

n35. 42 U.S.C. 11021, 11044.

n36. 42 U.S.C. 11021.

n37. 42 U.S.C. 11023.

n38. TRI only collects information on what comes out of the smokestack, is discharged into the sewer, or is buried in landfills. This "end-of-the-pipe" approach does not measure changes that are made upstream to reduce toxic chemical use of the generation of pollution. If TRI did make use of materials accounting (full accounting of all the toxic chemicals that flowed through an industrial facility) the complete effects of pollution prevention efforts could be measured. Expanding the TRI to include materials accounting data would give the residents of a community access to greater information about toxic chemicals used in consumer products, chemicals that are routinely transported through neighborhoods and are part of the work environment. Amendments in 1992 and 1996 have expanded coverage of TRI chemicals to approximately 500; however, this is but a fraction of the chemicals currently produced. The National Academy of Science estimates that there are about 64,000 chemicals currently in production, 12,000 in substantial amounts. See Robert Kuehn, The Environmental Justice Implications of Quantitative Risk Assessment, 1996 U. Ill. L. Rev. 103 (1996).

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Right-to-know laws can also be state or local. Their number and coverage have expanded rapidly, and they are very important to grassroots, resident-based, environmental empowerment. But it is important to remember that these laws are reporting laws only, and only report large quantities of hazardous materials. They do not reduce the amounts of hazardous materials emitted which is the express legislative mission of the EPA, nor do they capture and report small emissions which may accumulate over time. However, it is through these laws that many residents learn about perceived risks to themselves and their families where they live, work, and play.

D. The Current Connection Between Public Health and theEnvironment

In the past, governmental approaches to connecting public health with environmental indicators have suffered two major problems. First, they are "inconclusive by design." n39 The two government agencies most responsible for investigating this connection, the Centers for Disease Control and the ATSDR, err on the side of false negatives rather than false positives. n40 Between 1970 and 1990 these agencies did not uncover one causal link in over one hundred cancer cluster investigations where the cancer rates were two to four times higher than the general popula tion. n41 These agencies were considered hostile to community complaints and resident self-monitoring. n42 The high confidence levels required for conclusions regarding causation also contributes to inconclusive research design. For example, conclusions about causation may require the use of sample sizes larger than any one cancer cluster; thus a principle of erring on the side of false negatives will lead to the conclusion that no causal relationship exists even though a causal relationship cannot be ruled out conclusively. n43 Further, the scientific method will often lead to inconclusive results even when the sample size is adequate. Often, the result of a scientific inquiry is that one cannot confirm or deny causation. State agencies and news media tend to report only that no cause and effect was proven, not the complete results of the scientific inquiry, which would include information about how the cause was not proven to not have a particular effect.

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n39. Dick Russell et al., Inconclusive by Design: Waste, Fraud and Abuse in Federal Environmental Health Research (1992) (available from the Environmental Health Network or the National Toxics Campaign Fund).

n40. Id.

n41. Chemical Alert!: A Community Action Handbook (M. Legator & S. Strawn eds., 1993).

n42. Peter Montague, What Has Gone Wrong? - Part 1, Congress Creates a Monster: The ASTDR, Rachel's Hazardous Waste News No. 292 (July 1, 1992) <http://www.enviroweb.org/publications/rachel/rhwn292.htm>. See also, Part I.D.1., infra, discussing the Petitioned Health Consultation of Altveld Gardens, the "Toxic Donut."

n43. See note 56, and related text infra.

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This leads to the second major problem; these dynamics shift the burden of proving that harm is caused by a particular chemical to impacted communities, while communities ask why the burden of proof is not the other way. Why do those who emit dangerous and unwanted chemicals into the air, land, and water not have the burden of proving that they are not dangerous? n44 If the goal is public safety, which is one of the legislatively dictated missions of these agencies, then why not err on the side of public safety and protect the public's health against potential environmental health hazards? Should not these agencies, including the EPA, commit to risk avoidance rather than acceptable risk assignment, especially since such risk assignment is likely to be predicated upon risk assessments that ignore public health data, special sensitivities, and cumulative or synergistic chemical effects? n45 Communities may also argue that risk management de cisions by agencies that are not answerable to the democratic process are fundamentally undemocratic and illegitimate in our system of government.

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n44. Collin, supra note 28, at 455-56.

n45. Mary O'Brien, A Proposal to Address, Rather than Rank, Environmental Problems, in Worst Things First?: The Debate Over Risk Based National Environmental Priorities 87 (Adam M. Finkel & Dominic Golding eds., 1994).

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Communities are quickly becoming aware that the burden of proof in politics is much different than that in science, or in law, and are seeking meaningful roles to more fully address the problems of their own public health. n46 This may lead to more confrontational debates than in the past. An emphasis on risk avoidance, which is quite natural to many residents, offers more constructive roles for the community because residents can help identify known risks, identify exposure routes, and list ways to decrease exposure.

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n46. Lois Gibbs, Join Together: Organizing Your Community, in Chemical Alert!: A Community Action Handbook 7 (Marvin S. Legator & Sabrina F. Shawn eds., 1993). See also Nina Wallerstein & Nicholas Freudenberg, Linking Health Promotion and Social Justice: A Rationale and Two Case Studies, 13 Health Educ. Res. 451, no. 3 (1998) (discussing connections between health promotion and communities).

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1. The Public Health Service and People for Community Recovery

The ATSDR is a division of the Federal Department of Health and Human Services. The ATSDR offers a health consultation to communities in response "to a specific request for information about health risks related to a specific site, chemical release or the presence of hazardous material." n47 The ATSDR promises that such a consultation may lead to specific actions, such as restricting use of or replacing water supplies; intensifying environmental sampling; restricting site access; removing the contaminated material; additional public health actions, such as conducting health surveillance activities to evaluate exposure or trends in adverse health outcomes; conducting biological indicators of exposure studies to assess exposure; and providing health education for health care providers and community members. n48 This is an appealing service for communities concerned with the health effects of pollution discharged or stored within their communities.

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n47. U.S. Department of Health and Human Services, Health Outcome Data Evaluation, Southeast Chicago Study, Chicago, Cook County, Illinois, Public Comment (petitioned Health Consultation, May 28, 1997) [hereinafter Health Outcome].

n48. Id.

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People for Community Recovery (PCR) is a grass roots community action group located in Altgeld Gardens, a public housing community in the metropolitan area of Chicago, Illinois. n49 This community is surrounded on all sides by highly polluting industrial activities, including petroleum refining, metal finishing, steel production, hazardous waste incineration, chemical production and manufacturing, landfills, dumpsites (legal and illegal), and waste transfer stations. This led the group's founder, Ms. Hazel Johnson, to label her community's condition a "toxic donut." n50 Though situated precariously in the midst of heavy industrial uses which surrounded this public housing unit after it was built, n51 and despite the evacuation of surrounding white communities after an industrial incident, this community has not established evacuation assistance in the event of emergencies.

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n49. People for Community Recovery, 13116 S. Ellis Ave., Chicago, IL 60627, (773) 468-1645 (telephone), (773) 468-8105 (fax).

n50. Carolyn M. Mitchell, Environmental Racism: Race as a Primary Factor in the Selection of Hazardous Waste Sites, 12 Nat'l Black L.J. 176, 179 (1993).

n51. See generally Robert W. Collin & Robin A. Morris, Racial Inequality in American Cities: An Interdisciplinary Critique, 11 Nat'l Black L.J. 177, 179-83 (1989); Robin Morris Collin & Robert William Collin, Are The Poor Entitled to Privacy?, 8 Harv. Black Letter J. 181, 191-93, 206-11, 214-15 (1991); Christopher Silver, The Racial Origins of Zoning in American Cities, in Urban Planning and the African American Community: In the Shadows (June Manning Thomas & Marsha Ritzdorf eds., 1997).

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The community requested a health consultation from the ATSDR based upon adverse public health information for community members on asthma mortality, low birthweight and adverse reproductive outcomes, and cancer incidence. n52 In response, the ATSDR's study relied on public health data from the Illinois Department of Public Health; information which combined zipcodes outside the "toxic donut" of Altgeld Gardens with Altgeld Gardens, thus inhibiting consideration of localized differences among outcomes which prevented conclusions about the relationship of birth defects, very low birthweight, and low birthweight data. n53 As to asthma mortality rates, using the same informational source, the study concluded that the rate of asthma mortality among African Americans was greater than among whites, but could not conclude that this was statistically elevated for any of the community areas, based upon state asthma mortality rates. n54 Finally, as to elevated cancer rates, the ATSDR wrote: "Although environmental pollution cannot be excluded as a possible causative agent, environmental pollution is not strongly associated with many cancers." n55 The agency found elevated incidences of prostate, colon, lung, breast, cervical, bladder, and liver cancers in affected community areas, but concluded:

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n52. See generally Health Outcomes, supra note 47.

n53. Health Outcome, supra note 47, at 3.

n54. Health Outcome, supra note 47, at 3.

n55. Health Outcome, supra note 47, at 3.

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Elevated rates were detected for certain cancer types in various community areas, but based on the fact that the data were not elevated across groups for specific cancers within individual community areas is [sic] an indication that environmental pollution is not likely to be a significant etiological factor. Overall, except for liver cancer, statistically low cancer incidence rates were identified for each type of cancer that showed elevated rates. In several instances, statistically low and elevated rates were identified for the same cancer within individual community areas. n56

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n56. Health Outcome, supra note 47, at 3.

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These conclusions paradoxically supported an agency finding of no adverse health outcomes, and a recommendation that the state department of public health adjust its data collection to look at race, socioeconomic status, and other information.

This study demonstrates some fundamental flaws in the scientific method and its neutrality when applied to complex issues of community environmental health. First, data which obscures race and income differentials between communities will obscure differential impacts; a result that is inexcusable in light of a recent history of intentional race discrimination in the composition of those very communities. n57 Secondly, a philosophical proposition, stated at the outset of the study, that pollution is not related to public health effects clearly influences the willingness or ability of the scientists involved to look for possible causal relationships. n58 These flaws become the basis for denying a community an active role in monitoring its own health and receiving assistance from government charged with this responsibility. Unfortunately, this dynamic must force community groups, like PCR, into more confrontational and adversarial forums in order to obtain protection and recognition of their substantial environmental health concerns. This further erodes any connection between the public's health and environmental decisions of the past and present. n59

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n57. See note 51, supra.

n58. See Understanding Risk: Informing Decisions in a Democratic Society 111-17 (Paul C. Stern & Harvey V. Fineberg eds., 1996) (discussing the limits of expertise and summarizing the studies on expert bias).

n59. See Howard Ellis, The Compliance Assurance Monitoring Rule: A Summary, Env. Mgmt. 18 (Nov. 1997) (discussing new rules that would allow citizens to submit evidence of monitoring results).

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E. Cumulative and Synergistic Exposures of Communities to Multiple Emissions

It is essential that cumulative impacts on humans from multiple exposures to chemicals start to be measured. The most obvious reason that we have not done so in the past is that almost all science requires some type of baseline or inventory in order to measure and evaluate any longitudinal information. This requires periodic measurement of all impacts on the environment because some emissions, discharges, and pollution accumulate over time in various parts of a particular ecosystem. For example, heavy metals bio-accumulate in human tissues over time. Also, some chemicals emitted into the environment may react synergistically with others with a more pernicious effect on the environment (including humans). Chemical synergism is the simultaneous action of separate chemicals which together have greater total effect than the sum of their individual effects. This phenomenon is commonly recognized in terms of drug interactions, but never even mentioned in the interaction of chemicals in common use in the workplace, for example on Material Safety Data Sheets (MSDS). n60

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n60. One population that this would effect is adolescents, whose endocrine system (regulating growth, sexual maturation, and homeostasis) is developing. Adolescents begin work at lower levels, where the probability of exposure is greater. Committee on Environmental Health, The Hazards of Child Labor, 95 Pediatrics 311 (1995).

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Moving beyond the problems of causality into the realms of community concern, the EPA recently summoned cancer researchers together to discuss a research strategy on environmental causes of childhood cancer because of shocking data about recent increases in childhood cancers. n61 While the death rate from childhood cancer is lower, more children are getting cancer. About 8,000 children under age fifteen are diagnosed with cancer each year, and cancer is the second leading cause of death in children. n62 Testicular cancer is up by almost 68%, acute lymphoblas tic leukemia is up 27% since 1973, tumors in the kidney up 46%, and brain tumors up 40%. n63 Some treatments for cancer may also cause a second generation of cancer. Chronic and low level, long term exposure to chemicals accumulating in the environment are suspected as causes. n64 In announcing the formation of the Office of Children's Health Protection, Carol Browner, EPA Administrator, said it was important to "'mov(e) beyond the chemical-by-chemical approaches of the past' and instead examine children's total cumulative risk from all exposures to toxic chemicals." n65 The EPA's Office of Children's Health Protection will coordinate establishing health and safety standards to protect children who because of their smaller body size, face higher exposures to pesticides and other environmental toxins where they live and play. n66

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n61. John H. Cushman, Jr., U.S. Reshaping Cancer Strategy As Incidence in Children Rise, N.Y. Times, Sept. 29, 1997, at A1.

n62. Id.

n63. Id.

n64. Cushman, supra note 61.

n65. Children-Env't-Cancer Link Shapes Research Priorities, Greenwire, Sept. 29, 1997.

n66. As noted by the ATSDR:

Developing human beings in the womb and through puberty can be uniquely vulnerable to environmental toxicants, depending upon the substance and exposure situation .... Before birth, children are forming the body organs that need to last a lifetime. This is the time when chemical injury leads to its greatest effects. Injury during this period of growth may lead to malformation (teratogenesis) of organs and disruption of function, and premature death. Exposure occurs via the placenta; exposure of the mother usually leads to exposure of the child.

After birth, children may have greater exposures to environmental toxicants than adults. Pound for pound of body weight, children drink more water, eat more food, and breathe more air than adults. For example, children in the first six months of life drink 7 times as much water per pound as average American adults. Children 1 through 5 years of age eat 3 to 4 (or more) times as much food per pound body weight as average American adults. The air intake of a resting infant is twice that of an adult. Two characteristics of children further magnify their exposures to toxicants in ... dust and soil as well as to any toxicants that form low-lying layers in the air, such as certain pesticide vapors.

Child Health Workgroup, Agency for Toxic Substances and Disease Registry, Healthy Children-Toxic Environments (Apr. 28, 1997) <http://atsdr1.atsdr.cdc.gov:8080/child/chw497.html>.

For discussion of pesticides and the problems of misleading "inert" chemicals see previous testimony of Robert Collin to the National Performance Measures Strategy. Robert W. Collin, Environmental Justice & National Performance Measures (Mar. 17, 1997) <http://es.epa.gov/oeca/perfmeas/march17/justice.html>.

In the workplace, federal law requires manufacturers to maintain MSDS identifying the acute symptoms and immediate first aid treatment for an overdose exposure to chemicals used in in dustry as well as household products. n67 However, symptoms caused by chronic or low level, long term exposures are rarely mentioned in a MSDS, and warnings about interactions between chemicals are not provided at all. New sources of information must be developed and included in other measures in order to understand how multiple chemical exposures affect human health and the environment, now and over time.

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n67. Occupational Safety and Health Act of 1970, 29 U.S.C. 655; 29 C.F.R. 1910.1200 (Hazard Communication). See, e.g., Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. 11021.

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Traditional science is making breakthroughs in understanding chemical synergy that may change scientific thinking about chemical synergies in humans. Researchers at Duke University Medical Center and Texas Southwestern Medical School reported that the simultaneous exposure to topical insecticides, DEET (diethyl-m-toluamide), permethrin, and pyrido-stigmine bromide (a drug taken prophylactically to counteract toxic gas warfare agents) causes nervous system damage in chickens. n68

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n68. Richard Alexander, Chemically Induced Diseases: Synergetic Effects and Cumulative Injuries Caused by Toxic Chemicals - Understanding the Gulf War Syndrome and Multiple Chemical Sensitivity [MCS] (last modified June 20, 1997) <http://consumerlawpage.com>.

Synergistic effects occur with other chemicals in the human environment. Hormone-disrupting chemicals known to cause mild effects produce significantly dramatic hormonal effects when used in combination. n69 Combinations of two or three pesticides, commonly found in the environment at low levels, become up to 1,600 times more powerful in their impact on hormones when in the presence of either of the other two chemicals than alone. Studies done on chlordane, which does not disrupt hormones individually, show that it tremendously magnifies the ability of other chemicals to disrupt hormones. n70 This study focused on endosulfan, chlordane, toxaphene, and dieldrin, all of which impact a gene making estrogen in animals. n71 Estrogen controls the formation and development of female organs and is strongly associated with both breast cancer and causing male sex organs to be deformed. Another study recently concluded that when ten estrogenic agents were combined at doses one-tenth of that required to produce a minimal adverse response, the combination produced an adverse effect. n72 Chemical synergy also occurs with chemicals in the air. The potency of the air pollutants benzo(a)pyrene and benzo(a)anthrocene (both carcinogenic) potency increases one-thousand-fold in the presence of n-dodecane, a noncarcinogen. n73

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n69. Steve F. Arnold et al., Synergistic Activation of Estrogen Receptor with Combinations of Environmental Chemicals, 272 Science 1489 (1996).

n70. Id.

n71. Id.

n72. Paul Cotton, Environmental Estrogenic Agents Area of Concern, 271 JAMA 414, 415 (1994).

n73. R. Michael M'Gonigle et al., Taking Uncertainty Seriously: From Permissive Regulation to Preventive Design in Environmental Decision Making, 32 Osgoode Hall L.J. 99, 110 (1994).

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If these discoveries are correct then prudent public policy will require all manufacturers of commercial and household chemicals test for the synergistic effects of their products, and if synergistic then some type of notice to the consumer is necessary.

The EPA acknowledges that cumulative and synergistic effects of pollution are more likely to affect people of color and lower incomes, n74 but asserts that a lack of exposure and health effects data combined with the difficulties of analyzing cumulative and synergistic effects prevent risk assessments from addressing such risks. n75 Even if data were developed on such exposures and health effects, the single chemical focus of risk assessment toxicology and the failure of the process to characterize baseline and cumulative risk raises questions about the applicability of this model to real life situations. Also, there is a high degree of variability in human response to different levels of pollution. n76 Factors such as age, lifestyle, genetic background, sex, ethnicity, and race are also involved in how susceptible one is to environmentally related disease. n77 Research indicates that human variability of more than a one-thousand fold in drug metabolism and between 3 and 150 fold in the carcinogenic metabolism of various chemicals. n78 For all these reasons, we must begin to keep track of accumulating chemicals in our community, and must let communities speak for themselves. The best "expert" when compiling all the factors, and human variability in response, are those who live, work, and play in the areas where chemicals are emitted.

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n74. U.S. EPA, Environmental Equity: Reducing Risks For All Communities 1-2, 10 (June 1992).

n75. Id.

n76. Barbara D. Beck et al., The Use of Toxicology in the Regulatory Process, in Principles and Methods of Toxicology 19, 48 (A. Wallace Hayes ed., 1994); R. Rios et al., Susceptibility to Environmental Pollutants Among Minorities, 9 Toxicology and Indus. Health 797 (1993); Robert Kuehn, Remedying the Unequal Enforcement of Environmental Laws, 9 St. John's J. Legal Commentary 625 (1994).

n77. Committee on Risk Assessment of Hazardous Air Pollutants, National Research Council, Science and Judgment in Risk Assessment 35 (1994).

n78. Frederica P. Perera, Quantitative Risk Assessment and Cost- Benefit Analysis for Carcinogens at EPA: A Critique, 8 J. Public Health Pol'y 202, 210 (1987).

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Communities of color are very concerned that they have access to accurate and timely data on the emissions in their community. Compliance measures, and the compliance histories, need to meet these three criteria: accessible, accurate, and timely. As emissions accumulate, communities are carefully scrutinizing prospective industries and demanding that state agencies fulfill their legislative mandate to protect the public health, safety, and welfare. If they cannot find out how well a particular industry or facility complies with the law, there is a strong measure of distrust that develops. If it is a community that has been marginalized and dumped on, they will assume noncompliance with environmental laws by industry.

Minorities and some low income communities face greater exposures to environmental contaminants, n79 and it is, therefore, reasonable to conclude that the failure of past and current risk assessments to account for multiple and cumulative exposures impacts these subpopulations more adversely than other population groups. People with the greatest exposures suffer the most when risk assessment does not take into account all the effects of exposure. Although the EPA's narrowly defined risk assessment paradigm might not be intentionally biased against people of color or low income people, the higher exposures experienced by these communities mean that the failure of risk assessments to take into account cumulative and multiple exposures, and its failure to aggregate different risks, results in a characterization of risk that is less accurate and less conservative than the estimated risk in other, less exposed communities. n80

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n79. See generally, United Church of Christ Commission for Racial Justice, Toxic Wastes and Race in the United States (1989); Robert D. Bullard, Dumping in Dixie: Race, Class, and Environmental Quality (1990); Race and the Incidence of Environmental Hazards: A Time for Discourse (Bunyan Bryant & Paul Mohai eds., 1992); U.S. EPA, Environmental Equity: Reducing Risk for All Communities Vol. 1, Workgroup Report to the Administration (1992); Coyle, supra note 29; Confronting Environmental Racism: Voices From the Grassroots (Robert Bullard ed., 1993); Susan Perlin et al., Distribution of Industrial Air Emissions by Income and Race in the United States: An Approach Using the Toxic Release Inventory, 29 Envtl. Sci. & Tech. 69 (1995).

n80. See Michael K. Heiman, Waste Management and Risk Assessment: Environmental Discrimination Through Regulation, 17 Urb. Geography 400 (1996) (discussing how quantitative risk assessment contributes to disproportionate social impact).

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Although scientists do recognize these differences in the population distribution of biological and socioeconomic characteristics, they do not yet understand the degree to which these agents contribute to increased susceptibility to environmental agents. This is because research in this area n81 has not existed until fairly recent concerns about cumulative impacts affecting ecosystems were raised. Even today, the testing of single chemicals is woefully incomplete. Less than 2% of the approximately 65,000 chemicals in commerce have been fully tested for health effects and no data whatsoever is available for most commercial chemicals. n82

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n81. Only 2% of occupational cancer epidemiologic studies had any analyses of the effects on nonwhite women and only 7% addressed effects on nonwhite men. Shelia H. Zahm et al., Inclusion of Women and Minorities in Occupational Cancer Epidemiologic Research, 36 J. Occupational Med. 842, 843 (1994).

n82. Sanford J. Lewis, The Good Neighbor Handbook 1-4, 1-5 (2d ed. 1993).

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In reality, people are exposed to many pollutants from many sources. The EPA's Toxic Release Inventory covers about 600 chemicals that are commonly released into the environment, and this limited report concluded that in 1993, 23,000 facilities released over 2.8 billion pounds of these pollutants. n83 As the TRI expands, and as the 29,282 municipalities consider their own right-to-know laws, we will be able to measure cumulative and synergistic impacts better. n84 Right now there are toxic and hazardous chemicals accumulating in communities, and these communities are disproportionately people of color and low income people.

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n83. U.S. EPA, 1995 Toxics Release Inventory Public Data Release (1997) [hereinafter TRI Release].

n84. See, e.g., Perlin, supra note 79.

Communities have litigated and settled issues relating to the right-to-know about what industry is emitting in their midst. These have often resulted in Good Neighbor Agreements. See, e.g., Lewis, supra note 82; Harvard Business School, Negotiating the Right To Know: Rhone-Poulenc and Manchester, Texas, N9-895-062 (May 22, 1995).

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II Administrative and Judicial Responses

Communities have sought environmental justice in the traditional forums available to all people. They have pursued justice in the courts, the legislature, n85 and in the administrative agencies. We do not propose to review all these efforts here, but do wish to draw the readers attention to several portentous and promising developments in the field.

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n85. See Carolyn Graham & Jennifer B. Grills, Environmental Justice: A Survey of Federal and State Responses, 8 Vill. Envtl L.J. 237 (1997) (summarizing state and federal responses to environmental justice concerns).

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States are generally very concerned about the implications of Title VI enforcement because one complaint could force them to change the permit, justify the permit to the EPA, or face the loss of federal money. Many states rely on revenue from the EPA for state environmental agencies to enforce environmental laws. States also issue permits to facilities for emissions into air and water. As the primary focus of Title VI complaints to the EPA is with permitting, states are at the forefront of the controversy. The question of how to use pollution permits as a tool to redress environmental injustice has evoked a strong protest from business and industry groups. n86 States have reacted defensively and proactively with regard to environmental justice. n87 The term "environnmental justice" is still relatively new in many state legislatures and agencies.

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n86. David Warner & James Worsham, The EPA's New Reach, Nation's Bus. 12 (Oct. 1998) (published by the U.S. Chamber of Commerce).

n87. See Graham, supra note 85, at 250-58.

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A. NAACP v. Engler n88

While there is some case law on environmental justice, n89 the case law on the role of communities and cumulative impacts is slim. NAACP v. Engler involves the siting of a hazardous waste incinerator in an African American community in Flint, Michigan. The permit provided for the construction of an eighty million dollar facility, including a thirty-five megawatt wood waste fired steam electric generation plant, with seven million dollars spent for air pollution control equipment, primarily a multi-clone collector and an electrostatic precipatator. n90 Actual and potential environmental hazards, including but not limited to, hazardous waste generation facilities, solid waste disposal facilities, hazardous treatment, and storage and disposal facilities are concentrated in the area near the site. The soil in the area contains levels of lead substantially above statewide background levels. n91 About 90% of those referred to the County Health Agency due to elevated blood lead levels between 1988 and 1994 reside near the site. n92 African Americans comprise about 19.6% of the county population, and 13.9% of the population of Michigan. n93 The population living within three miles of any of the top fifteen polluters in the county, in terms of pounds of pollutants per year per person, is 39.1% African American. n94 Seventy-eight point two percent of African Americans living in the County reside within one mile of any permitted stationary source, while only 60% of the nonwhite population does so. n95 At least 50% of the children near the site exceed the maximum level of lead exposure. The most significant source of lead is lead based paint found in older homes, which would comprise the waste stream for the incinerator. n96 The court noted:

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n88. Transcript of Ruling, NAACP-Flint Chapter v. Engler, No. 95-38228-CV (Mich. Cir. Ct. 1997).

n89. See Collin, Review of the Legal Literature, supra note 19, at 134-41 (discussing court cases involving environmental justice); Denis Binder, Environmental Justice Cases 27 Urb. Law. 163 (1995) (summarizing environmental justice cases).

Recently, there have been between fifty and one hundred environmental justice claims brought under Title VI of the 1964 Civil Rights Act (42 U.S.C.A. 2000d (West 1994)). See generally James H. Colopy, The Road Less Travelled: Pursuing Environmental Justice Through Title VI of the Civil Rights Act of 1964, 13 Stan. Envtl. L.J. 125 (1994); Luke Cole, Civil Rights, Environmental Justice and the EPA: The Brief History of Administrative Complaints Under Title VI of the Civil Rights Act of 1964, 9 J. Envtl. L. & Litig. 309 (1994).

Title VI prohibits discrimination in federally funded programs and requires only a showing of disparate impact, not a showing of an intent to discriminate against a protected class. Currently, there are over eighty Title VI complaints at the EPA awaiting resolution. See Steven A. Light & Kathryn R.L. Rand, Is Title VI a Magic Bullet? Environmental Racism in the Context of Political-Economic Processes and Imperatives, 2 Mich. J. Race & L. 1 (1996) (discussing the need for grassroots community empowerment before litigation under Title VI).

n90. Transcript, supra note 88.

n91. Transcript, supra note 88, at 20.

n92. Michigan Permit Process Halted Unless Assessment of Pollution is Conducted, [Lead 4] 6 No. 20 Mealey's Litig. Rep. (1997).

n93. Id.

n94. Transcript, supra note 88, at 34.

n95. Transcript, supra note 88, at 34.

n96. Transcript, supra note 88, at 17.

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Although ambient air lead exposure is low in comparison to pathways for lead exposure, when you combine the ambient air lead exposure with soil lead exposure it accounts for at least 15 percent of the lead exposure for children. Soil lead is increased due to the ambient air lead depositing in the soil. n97

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n97. Transcript, supra note 88, at 17.

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The court held that although no racism was proven, the state denied the plaintiffs procedural due process because the public participation did not include any discussion of cumulative impacts on the plaintiffs. n98

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n98. Proving intent to discriminate by a governmental body is a substantial hurdle for plaintiffs. The main case is Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1976). This case discussed the type of evidence necessary to prove that there was illegal discriminatory intent in the governmental procedures. The court suggested, but did not require, consideration of five factors. These are: (1) the impact of the official action falls more heavily on one race than another and cannot be explained on any other grounds besides race; (2) the historical background of the decision uncovers a series of actions taken for invidious purposes; (3) the sequence of events preceding the decision; (4) any substantive or procedural departure from the normal decision-making process; and (5) the legislative and administrative history, contemporary statements, minutes, and reports. Id. at 266-68.

See Charles R. Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317 (1987) (discussing race, culture, and intent); Leslie Ann Coleman, It's the Thought that Counts: The Intent Requirement in Environmental Racism Claims, 25 St. Mary's L.J. 447 (1993) (discussing how proving intent is particularly difficult in environmental racism cases).

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The issue in this case is not whether the Genesee Power Plant complies with the NAAQ [National Ambient Air Quality] Standards for safe ambient air. The issue is not about the race of the people where a permit is located. The real issue in this case is whether the Michigan Department of Environmental Quality should be required to consider the total environmental condition of the area that will be impacted by the facility before granting a permit to increase the pollution in the ambient air and soil. n99

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n99. Transcript, supra note 88, at 32-33.

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The court held that the Michigan Department of Environmental Quality (DEQ) had not considered cumulative impacts in a way that gave residents a meaningful opportunity to voice their concerns and that there was no adequate remedy at law. The court granted a six-month injunction against the DEQ preventing it from granting permits to any major pollution sources until a risk assessment is performed and those interested parties and governmental units that will be impacted are notified and given an opportunity to be heard before the DEQ. n100 We believe this held up about 480-500 Title V Air permit applications, primarily from non-parties. The court also held that the facility should pay for the risk assessment and the notice. n101

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n100. Transcript, supra note 88, at 45.

n101. Transcript, supra note 88, at 46.

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What the plaintiffs actually won in this case is a "do over." This time the plaintiffs must actually notify the impacted populations, and listen to their concerns about risk and cumulative impact. Technically, once the defendants comply with the terms of the injunction, they could come to the same legal conclusions and grant the permit. Politically, the community would be empowered by the knowledge of the possible public health impacts. The burden of proof in politics is much different than in law or science. The court actually discussed the need to apply the "precautionary principle" when dealing with human health and cumulative emissions. n102 The authors have recommended the application of this international environmental principle to domestic decisions in other publications. n103

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n102. Transcript, supra note 88, at 21.

n103. Collin, supra note 28, at 457-58.

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B. Title VI and Chester Residents Concerned for Quality Living v. Seif n104

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n104. Chester Residents for Quality Living v. Seif, 132 F.3d 925 (3d Cir. 1997).

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1. Title VI of the Civil Rights Act of 1964

Title VI of the Civil Rights Act of 1964 prohibits discrimination in the expenditure of federal funds. "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." n105 This provision has offered communities of color the promise of significant leverage in their struggles against environmental racism because, as implemented by the EPA, it permits federal funding to state agencies to be terminated based upon disparate environmental impacts without the requirement of proving intentional discrimination by the recipient of federal funds. EPA regulations implementing Title VI provide that actions that result in disparate impacts on people of color violate the Act unless the action is justifiable and no less discriminatory alternatives exist. n106 When such impacts are found, EPA is then required to institute procedures to deny, suspend, or terminate funding. n107 Much has been written about the potential use of administrative complaints and the EPA regulations under Title VI to redress environmental justice concerns. n108

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n105. 42 U.S.C. 2000d.

n106. 40 C.F.R. 7.80 (1997).

n107. 40 C.F.R. 7.100, 7.115(e), 7.130(b).

n108. Cole, supra note 89.

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Title VI codifies legislation, called the "Powell Amendment," proposed by Representative Adam Clayton Powell throughout his long, tumultuous, and highly effective legislative career. The Powell Amendment was first offered in 1956; it provided that federal money could only be given to recipients that operated in a non-discriminatory manner. n109 Over the next six years, Powell served as chair of the House Education and Labor Committees, passing sixty pieces of major legislation including the critical pieces of the War on Poverty. The Powell Amendment was relentlessly attached to all House spending legislation, earning him the enmity of liberals and segregationists alike. n110 When the Kennedy administration proposed the legislation that subsequently became the Civil Rights Act of 1964, Powell's infamous amendment had become codified as Title VI, earning him a place in the forefront of this latest civil rights struggle.

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n109. See Benjamin Lieber & Patrick Brown, On Supermajorities and the Constitution, 83 Geo. L.J. 2347, 2359 (1995).

n110. Adam Clayton Powell was one of the most productive and efficient legislators in American history. See Videotape: Adam Clayton Powell (Richard Kilberg & Yvonne Smith, Direct Cinema Ltd., Los Angeles CA 1989). He served in the House of Representatives, representing Harlem for over 16 years. During that time he was an outspoken critic of racial discrimination, and he worked tirelessly to end segregation of the armed forces, and in all federal facilities. One of his most famous (or infamous) legislative accomplishments was the Powell Amendment, which he attached to all appropriations bills passing the House. This amendment would deny federal funds to any project where racial discrimination existed. Remarks of Congressman Carl Stokes of Ohio, Feb. 24, 1993. 139 Cong. Rec. H846-03, H859-860. The Civil Rights Act of 1964 adopted this provision in its Title VI which prohibits discrimination under federally assisted programs. The Civil Rights Act of 1964, 42 U.S.C. 2000d.

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2. The Case

Living v. Seif is a recent case with great potential impact for environmental justice plaintiffs in judicial forums on selected issues. The plaintiffs, Chester Residents Concerned for Quality Living (CRCQL), sought to challenge the discriminatory effects resulting from the issuance of pollution control permits by state and local governmental agencies that received EPA funding. n111 CRCQL contended that the issuance of a permit by the Pennsylvania Department of Environmental Protection (PADEP) to Soil Remediation Services, Inc. to operate a facility in the City of Chester violated their rights under EPA's regulations implementing Title VI. n112 Chester is a predominantly African American community with a population of about 42,000, which is 65% African American and 32% white; Delaware County, excluding Chester, has a population of 502,000, which is 6.2% African American and 91% white. n113 PADEP allegedly granted five waste facility permits for sites in Chester since 1987, and only two permits for sites in the rest of Delaware County. n114 CRCQL also contended that the total permit capacity of Chester was 2.1 million tons of waste per year, and the rest of Delaware County facilities had a total permit capacity of 1,400 tons of waste per year. n115 The residents of Chester received about forty pounds per year of waste for every man, woman, and child, and the residents of Delaware County received about 5.4 pounds per year of waste for every man, woman, and child.

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n111. Chester Residents, 132 F.3d at 927.

n112. Title VI provides: "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." 42 U.S.C. 2000d-2000d-7.

n113. Chester Residents, 132 F.3d at 927 n.1.

n114. Chester Residents, 132 F.3d at 927 n.1.

n115. Chester Residents, 132 F.3d at 927 n.1.

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The district court dismissed Count One of the complaint without prejudice. n116 Count One alleged that PADEP's grant of the permit violated Section 601 of Title VI. n117 The district court reasoned that CRCQL failed to allege intentional discrimination by PADEP. n118 The district court did grant leave to amend the complaint to insert an allegation regarding intentional discrimination, but the plaintiffs refused to amend the complaint. The district court then dismissed both Counts Two and Three of the complaint with prejudice. n119 Count Two alleged that the granting of the permit by PADEF violated the EPA's civil rights regula tions. n120 Count Three alleged that PADEF violated its own assurances that it would not violate the EPA's regulations. n121 The Third Circuit Court of Appeals reversed, explicitly holding that a private right of action exists under section 602 of Title VI and its implementing regulations. n122

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n116. Chester Residents Concerned for Quality Living v. Seif, 944 F. Supp. 413 (E.D. Pa. 1996).

n117. Chester Residents, 944 F. Supp. at 414.

n118. See id. at 415.

n119. Chester Residents, 944 F. Supp. at 418.

n120. See 40 C.F.R. 7.10-.135 (promulgated pursuant to Title VI Civil Rights Act of 1964 602, as amended by 42 U.S.C. 2000d).

n121. Chester Residents, 944 F. Supp. at 414.

n122. Chester Residents, 132 F.3d at 937.

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In a carefully worded opinion, the Third Circuit distinguished between two sections of Title VI. n123

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n123. Chester Residents, 132 F.3d at 927 nn.2-3.

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It is important to distinguish at the outset between section 601 of Title VI, which was the basis of Count One of CRCQL's complaint, and section 602, which was the basis of Count Two. A private right of action exists under section 601, but this right only reaches instances of intentional discrimination as opposed to instances of discriminatory effect or disparate impact. See Alexander v. Choate (citation omitted)....

In contrast, section 602 merely authorizes agencies that distribute federal funds to promulgate regulations implementing section 601. The EPA promulgated such regulations, which provide in relevant part: "A recipient shall not use criteria or methods of administering its program which have the effect of subjecting individuals to discrimination because of their race, color, national origin, or sex." 40 CFR 7.35(b). This regulation clearly incorporates a discriminatory effect standard. The Supreme Court subsequently held that the promulgation of regulations incorporating this standard is a valid exercise of agency authority. See Alexander, 469 U.S. at 292-94, 105 S. Ct. at 716. CRCQL seeks the right to proceed against PADEP under this standard, rather than the more stringent standard required under section 601. n124

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n124. Chester Residents, 132 F.3d at 929.

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The court then reviewed relevant precedent, focusing on the Alexander v. Choate n125 and Guardians Association v. Civil Service Commission N.Y.C. n126 decisions finding them inapplicable. "The applicable Supreme Court precedent is not dispositive." n127 After examining the precedent in its own circuit, the court determined that:

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n125. 469 U.S. at 292-94.

n126. 463 U.S. 582 (1983).

n127. Chester Residents, 132 F.3d at 932.

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Our own precedent does not resolve the matter, we must now determine whether to imply a private right of action.... [Then considering the legislative history, the court found] that there is some indication in the legislative history, here uncontroverted, of an intent to create a private right of action. n128

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n128. Chester Residents, 132 F.3d at 933-34.

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The Third Circuit then looked to the decisions of other circuits and concluded that while none of them had rendered a holding on this precise issue, some other decisions supported their reasoning. n129 Based upon their analysis of the purpose of the requirements, the court decided that there is a private right of action under section 602. "[The] dual purposes of Title VI ... are to: (1) combat discrimination by entities who receive federal funds; and (2) provide citizens with effective protection against discrimination." n130 Based on this, they found that implying a private right of action would be consistent with the legislative scheme of Title VI, and that implying a private right of action would further the purpose of the enabling statute. n131

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n129. Chester Residents, 132 F.3d at 933. See, e.g., Latinos Unidos de Chelsea v. Secretary of Hous. & Urban Dev., 799 F.2d 774, 774 n.20 (1st Cir. 1986) ("Under the statute itself, [the] plaintiffs must make a showing of discriminatory intent; under the regulations, [the] plaintiffs simply must show a discriminatory impact.") (citation omitted); New York Urban League, Inc. v. New York, 71 F.3d 1031, 1036 (2d Cir. 1995) ("Courts considering claims under analogous Title VI regulations have looked to Title VII disparate impact cases for guidance. A Plaintiff alleging a violation of the DOT [Department of Transportation] regulations must make a prima facie showing that the alleged conduct has a disparate impact.") (citations omitted); Castaneda v. Pickard, 781 F.2d 456, 465 n.11 (5th Cir. 1986); Buchanan v. City of Bolivar, 99 F.3d 1352, 1356 n.5 (6th Cir. 1996); David K. v. Lane, 839 F.2d 1265, 1274 (7th Cir. 1988); Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1044-45 (7th Cir. 1987); Larry P. by Lucille P. v. Riles, 793 F.2d 969, 981-82 (9th Cir. 1984); Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1406 (11th Cir. 1993); Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985).

n130. Chester Residents, 132 F.3d at 936.

n131. Chester Residents, 132 F.3d at 936.

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While the Third Circuit did not address the issue of remedies in this decision, it did note: "Should relief prove warranted in this case, we leave the determination of the appropriate remedy to the district court in the first instance." n132 On August 17, 1998, the Supreme Court dismissed this case as moot under the name Seif v. Chester Residents Concerned for Quality Living. n133 The dismissal came at the request of the plaintiffs. They asked the Supreme Court to end the case after learning that the state agency recently had revoked the permit for the proposed facility at the request of the permittee. In their last filing, the plaintiffs requested that the Court dismiss the case as moot and suspend the briefing schedule while it considered the mootness question. They also argued that, if the Court dismissed the case, it should not vacate the appeals court's decision because the case became moot after that decision but before the Court had accepted the case for review. One day before the state agency's opening brief was due, the Court suspended the briefing schedule. Less than two weeks later, it summarily dismissed the case as moot and remanded it to the appeals court with instructions for its dismissal. In doing so, the Court followed its usual practice of vacating the judgment below to preserve the rights of the parties in future litigation. n134

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n132. Chester Residents, 132 F.3d at 936 n.15.

n133. 1998 WL 477242.

n134. Tony Guadagno, U.S. EPA Office of General Counsel, Cross-Cutting Issues Law Office.

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EPA's Cross-Cutting Issues Law Office in the Office of General Counsel has provided this comment about the Chester case.

It is well settled that Title VI creates an implied right for a private party to sue a recipient for intentional discrimination. However, the Supreme Court has not squarely addressed the question of whether a private party may sue to enforce an agency's Title VI regulation that prohibits discriminatory effects - a proposition that is widely accepted among the federal courts of appeals. This leaves to a future case the Court's views on the important legal issue raised in this case. n135

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n135. Id.

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Both this case and the whole issue of expanding private rights of action under Title VI merit close observation by the EPA's Office of Civil Rights (OCR) and the private bar. It is possible that communities could bring a cause of action before exhausting administrative remedies at the EPA, as is now required.

3. Interim EPA Guidance For Investigating Title VI Administrative Complaints Challenging Permits n136

The OCR has a backload of Title VI complaints, partly due to a deliberate strategy to press environmental justice claims in administrative forums. n137 As issues of racism, justice, and equity were raised in mainstream environmental forums, the EPA's reg ulations implementing Title VI of the Civil Rights Act of 1964 n138 logically became the regulatory vehicle used to challenge unjust state and local environmental practices. An examination of Title VI complaints to the EPA reveals three trends related to environmental justice. First, the number of environmental justice complaints has increased in the last few years. Second, according to the EPA, the "vast majority of complaints allege flaws in the public participation process associated with the issuance of a permit." n139 Fifty-five of the sixty Title VI complaints alleged permitting violations. n140 Twenty-one of the permit complaints were air permits, twenty-seven were waste permits, and seven were water permits. n141 A public participation process that does not engage the burdened community will exacerbate the substantive injustice of increased exposure to pollution and toxins generated with governmental permission. A third trend in these complaints is that just over half of them were dismissed by the EPA. This information does not indicate whether these complaints were voluntarily withdrawn, or whether mitigation measures resolved the environmental justice issues. Specifically, out of the sixty complaints the EPA acknowledges receiving, eighteen have been accepted for investigation, twenty-nine were rejected, two were dismissed after acceptance, two are held in abeyance pending state action, and nine await a decision as to acceptance or rejection. n142 It is interesting to note that these types of complaints have developed as the EPA has developed an urban agenda, recognizing the basic legitimacy of environmental justice concerns, and advancing community based environmental planning. All three policy trends engage many urban communities overburdened by pollution.

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n136. U.S. EPA, Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits, Internal Memorandum (1998) (on file with authors) [hereinafter Interim Guidance].

n137. See generally Cole, supra note 89.

n138. Title VI of the Civil Rights Act of 1964, 42 U.S.C.A. 2000d; EPA's Implementing Regulations of the Statute, 40 C.F.R. 7 (1973).

n139. U.S. EPA, Office of Civil Rights, Fact Sheet: Title VI Complaints (Nov. 17, 1998).

n140. Id.

n141. Id.

n142. Id.

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After the conclusion of EPA decisionmaking about a particular case, a dissatisfied complainant can pursue her rights in judicial forums. n143 However, judicial forums are expensive and many communities perceive judicial forums as inherently hostile to claims of civil and environmental justice. In addition, community activists are ambivalent about lawyers taking control of community organizing and mobilizing efforts fearing that a loss in court may end the organizing effort for a community, leaving no positive gains in the community when the lawyers leave. When communities do decide to pursue their rights in judicial forums, the question then becomes whether it is necessary to exhaust administrative remedies through the EPA before proceeding to court. The answer to this question lies, in part, in the Interim Guidance to Title VI.

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n143. See infra note 176 and related text.

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The Chester and Engler cases have raised many questions about how to invoke Title VI. To this end, the EPA has developed interim guidance on how to investigate Title VI administrative complaints challenging permits issued by state and local governmental agencies that receive EPA funding. n144

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n144. The statements in this document are intended solely as guidance. This document is not intended, nor can it be relied upon, to create any rights enforceable by any party in litigation with the United States. EPA may decide to follow the guidance provided in this document, or to act at variance with the guidance, based on its analysis of specific facts presented. This guidance may be revised without public notice. Interim Guidance, supra note 136, at 21.

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The overall thrust of this guidance is to encourage informal resolution with "robust stakeholder input." n145 The relevant stakeholders are described as the recipient of the funding, the affected community, and the permit applicant. n146

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n145. Interim Guidance, supra note 136, at 1.

n146. Interim Guidance, supra note 136, at 1.

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EPA's Title VI regulations define "recipient" as: "Any state or its political subdivision, any instrumentality of a state or its political subdivision, any public or private agency, institution, organization, or other entity, or any person to which Federal financial assistance is extended directly or through another recipient." n147

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n147. 40 C.F.R. 7.25.

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The Interim Guidance points out that under the amendments made to Title VI by the Civil Rights Restoration Act of 1987, n148 "program" or "activity" is given an expansive definition, including all of the operations of a "department, agency, special purpose district, or other instrumentality of a state or of a local government." n149 All programs and activities of any department or agency that receives EPA funds are subject to Title VI, including those programs and activities that are not EPA funded. n150 If EPA does find discrimination in a recipient's permitting program, and there is no voluntary compliance, the EPA is required by its own Title VI regulations to begin procedures to deny, annul, suspend, or terminate EPA funding. n151 Title VI now connects state agencies to concerns about environmental justice in a clear and undeniable manner.

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n148. Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28 (1988); S. Rep. No. 100-64, at 2, 11-16, reprinted in 1988 U.S. Code Cong. & Admin. News at 3-4, 13-18.

n149. 42 U.S.C. 2000d-4a(1)(A).

n150. For a list of programs and activities subject to Title VI, see 42 U.S.C. 2000d- 4a.

n151. 40 C.F.R. 7.115(e), 7.130(b).

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The agency responsible for processing Title VI complaints alleging either discriminatory intent and/or discriminatory effect is the OCR. The framework for processing complaints under the Interim Guidance is as follows:

a. Acceptance of the Complaint

This step is to ensure that the OCR receives a complaint that states a valid claim. A complete or properly pleaded complaint meets four requirements: (1) it must first be in writing, signed, and provide an avenue for contacting the signatory; (2) it must describe the discriminatory act(s) that violates EPA's Title VI regulation; (3) it must be filed within 180 calendar days of the discriminatory action; n152 and (4) must identify the EPA recipient who took the complained of acts. n153 OCR will investigate all administrative complaints that "have apparent merit" and are complete or properly pleaded. n154

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n152. Although OCR may waive the 180 day limit for good cause. 40 C.F.R. 7.120(b)(2).

n153. Interim Guidance, supra note 136, at 11.

n154. The Interim Guidance gives examples of complaints with no apparent merit, namely "those which are so insubstantial or incoherent that they cannot be considered to be grounded in fact." Interim Guidance, supra note 136, at 10.

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If complaints are filed prior to the issuance of the permit, OCR policy will not "automatically reject" these complaints. Instead, the OCR should give the information contained in the complaint to the recipient. n155 The OCR may also notify the complainant that the complaint is premature, and that the OCR will keep the complaint on file until the issuance of the final permit. n156 If the permit is issued, either the OCR or the complainant could initiate an investigation if the final permit is discriminatory. n157

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n155. Interim Guidance, supra note 136, at 12-13.

n156. Interim Guidance, supra note 136, at 13.

n157. Interim Guidance, supra note 136, at 13.

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b. Investigation/Disparate Impact Assessment

After the complaint is accepted, "OCR will conduct a factual investigation to determine whether the permit [ ] at issue will create a disparate impact, or add to an existing disparate impact, on a racial or ethnic population." n158 The disparate impact must concern the types of impacts that are relevant under the recipient's permitting program. The disparate impacts must be specifically associated with the modification, which puts all permitted and unpermitted emissions as part of a pollutant loading baseline. Permit renewals are to be treated as if they were new permits. n159 The OCR will use Title VI to measure impacts by discriminatory permitting patterns and/or cumulative burden, and will do so in a way that cuts across state and local laws.

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n158. Interim Guidance, supra note 136, at 7.

n159. Interim Guidance, supra note 136, at 14.

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Title VI, separate from and in addition to the strictures of state and local law, both authorizes and requires recipients to manage their programs in a way that avoids discriminatory cumulative burdens and distributional patterns. Thus, while Title VI does not alter the substantive requirements of a recipient's permitting program, it obligates recipients to implement those requirements in a nondiscriminatory manner as a condition of receiving Federal funds. n160

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n160. Interim Guidance, supra note 136, at 15, n.12.

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The disparate impact analysis will identify the affected population, determine the demographics of the affected population, determine the universe of facilities and total affected population, perform a case-by-case disparate impact analysis, and then determine the significance of any disparity. n161 The Interim Guidance recommends dismissing Title VI administrative complaints that challenge permit modifications after "an examination of the circumstances to determine the nature of the modification." n162 If there is no finding of disparate impact, the OCR will dismiss the complaint. n163

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n161. Interim Guidance, supra note 136, at 15-19.

n162. Interim Guidance, supra note 136, at 13.

n163. OCR may "under appropriate circumstances" discuss preliminary data analyses before making any finding regarding disparate impacts. Interim Guidance, supra note 136, at 7.

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c. Rebuttal and Mitigation

If the OCR finds disparate impact, then the OCR will send an official notice of its initial finding of disparate impact to the recipient. n164 The recipient may rebut the complaint and/or analyses, propose a mitigation plan, or justify the disparate impact. n165 If the recipient submits a plan that mitigates the disparate impact enough for the EPA, the complaint will be dropped. n166 EPA will consider "supplemental mitigation projects" (SMPs) which can respond to facility specific concerns, and to concerns normally outside the range of considerations relevant to a permitting agency. n167 The EPA expects mitigation to be an important focus in this process, and will consider SMPs as ways to address disparate impact. n168 These projects open up possible solutions outside considerations ordinarily considered by the permitting authorities. For example, residents may wish to begin a neighborhood Watchperson's Office for neighborhood environmental monitoring and research as an acceptable means of addressing the disparate impact. This was done under a similar program in the Greenpoint/Williamsburg area of New York City. n169

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n164. See generally Interim Guidance, supra note 136.

n165. Interim Guidance, supra note 136, at 19-21.

n166. Interim Guidance, supra note 136, at 19.

n167. Interim Guidance, supra note 136, at 19.

n168. Interim Guidance, supra note 136, at 19.

n169. International Council for Local Environmental Initiatives, Community-Based Environmental Management, Case Study # 14. (Contact ICLEI, City Hall East Tower, 8th Floor, Toronto, Canada, M5H 2N2, Fax: (416)392- 1478) [hereinafter ICLEI Case Study].

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If the rebuttal is successful, the complaint will be dropped. n170

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n170. Interim Guidance, supra note 136, at 7.

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d. Justification

If the recipient cannot rebut the finding or come up with an acceptable mitigation plan, it may attempt to justify the disparate impact. The Interim Guidance clearly warns that merely demonstrating compliance with all applicable environmental regulations will not be justification. n171 However, even when a legitimate justification is presented, the OCR must consider whether a less discriminatory alternative exists: "Even where a substantial, legitimate justification is proffered, OCR will need to consider whether it can be shown that there is an alternative that would satisfy the stated interest while eliminating or mitigating the disparate impact." n172

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n171. Interim Guidance, supra note 136, at 20.

n172. Interim Guidance, supra note 136, at 8.

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e. Findings of Noncompliance

If the complaint proceeds, the recipient is sent a preliminary notice of noncompliance, in writing with copies to the grant award official and the Assistant Attorney General for Civil Rights. n173 The recipient is still encouraged to voluntarily comply. If the recipient does not respond to the preliminary finding within fifty calendar days, either by stating that the preliminary finding is incorrect or that voluntary compliance can be achieved through other ways, then the preliminary finding is made formal, and notices sent to the same people. n174

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n173. Interim Guidance, supra note 136, at 8.

n174. Interim Guidance, supra note 136, at 9.

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f. Voluntary Compliance

Yet again, the recipient can come into voluntary compliance. If they do so within ten days, then the complaint is dropped. n175 If the recipient still refuses to comply, the OCR will start procedures to deny, annul, suspend, or terminate EPA assistance. n176

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n175. Interim Guidance, supra note 136, at 9.

n176. 40 C.F.R. 7.130(b). OCR may also refer the case to the Department of Justice for litigation. 42 U.S.C. 2000d-1; 40 C.F.R. 7.130(a).

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g. Informal Resolution

The OCR will seek informal resolution of administrative complaints at almost any time in the process. n177 While this may reduce litigation, meaningful community involvement takes time, especially if actual notice of important decisions and meetings is given in a way that ensures meaningful participation. Seeking informal resolutions at any possible juncture may allow those with more resources to wait out any community opposition by extending negotiations. However, the Interim Guidance states that: "Therefore, OCR will discuss, at any point during the process outlined above, offers by recipients to reach informal resolution, and will, to the extent appropriate, endeavor to facilitate the informal resolution process and involvement of affected stakeholders." n178 The EPA will "encourage dialogue" at the beginning of the investigation of complaints accepted. n179

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n177. Interim Guidance, supra note 136, at 9.

n178. Interim Guidance, supra note 136, at 9.

n179. Interim Guidance, supra note 136, at 9-10.

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Overall, this new Interim Guidance goes far to develop processes that may pave the way for even greater community involvement in environmental decisions. It allows communities to focus on issues of importance to them, including cumulative impacts; it addresses the judicial concerns in Engler about community impacts; and by recognizing a private cause of action under Title VI, it also addresses judicial concerns in Chester. The Interim Guidance also recognizes the importance of all affected stakeholders, and explicitly includes communities. It remains to be seen whether the Interim Guidance becomes final, and whether communities are really involved in the actual decisions related to the environment.

C. Toxic Tort Litigation and Community EnvironmentalConcerns

In 1987 at around 1:50 a.m. in Gentilly, Louisiana, a tank car filled with about 30,000 gallons of butadiene, caught fire. Gentilly is a quiet, tidy, African American community of lower middle-class homes northeast of the French Quarter in New Orleans. n180 A cloud of butadiene, a petroleum product used to make the rubber backing on carpet, rolled over the neighborhood and ignited when it contacted the pilot light of an outdoor gas water heater. The fire burned for a day and a half, forcing the evacuation of over 200 city blocks and the closure of interstate highways. The leaky unattended rail car was the property of CSX Corporation (CSX). CSX refused to take responsibility for the fire and did nothing to help evacuate residents and refused to assist in bringing experts to fight the fire. CSX's rationale was that residents would be filing law suits against the company. n181 Former New Orleans mayor, Sidney Bartholemy who testified at trial in a class action law suit brought by residents, said that he was reduced to screaming and cursing in dealing with CSX. n182 Jurors awarded residents compensatory damages of almost $ 2 million, and punitive damages of $ 3.4 bil lion; about half the jurors suspected that race played a role in the siting of the tank car in the Gentilly neighborhood and in the company's response to the fire. n183 They said their objective was to send a message, and they did. n184

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n180. Carol Marie Cropper, Jury in CSX Case Sent Angry Message With a $ 3.4 Billion Stamp, N.Y. Times, Sept. 15, 1997, at D1.

n181. Id.

n182. Id.

n183. Id.

n184. Id.

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Such a message demanding attention and responsiveness to the public health concerns of community residents faced with hazardous materials is raised at its most contentious level in litigation awarding punitive damages. Nevertheless, the willingness of juries to heed residential concerns, whether validated by risk assessors and scientists or not, demonstrates that courts may well become another forum for the debate over responsibility for community and environmental health issues. This is a new and rapidly developing crinkle in the emerging jurisprudence of environmental justice. n185

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n185. See generally, Keith W. Lapeze, Recovery for Increased Risk of Disease in Louisiana, 58 La. L. Rev. 249 (1997) (discussing evolving issues of tort liability for environmental injustices in Louisiana).

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D. An Innovative Response from the EPA: The Common Sense Initiative

In 1993, EPA Administrator Carol Browner started The Common Sense Initiative (CSI). n186 Her express purpose was to "create a fundamentally different system." n187 CSI is a multi stakeholder (labor, environmental justice, environmental organizations, industry organizations, the EPA, and state environmental agencies), consensus driven, and sector based Federal Advisory Committee. n188 The industry sector approach is itself a radical departure in United States environmental policy because it replaces the pollutant by pollutant approaches of the past. The six industrial sectors are petroleum, printing, metal finishing, iron and steel, computers, and automobile manufacturers. n189

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n186. See Steve Weaver, Common Sense and Retrograde Reforms, 31 Ark. L. Rev. 16 (1996) (discussing how environmental law is not achieving environmental protection).

n187. U.S. EPA, Managing for Better Environmental Results 8 (March 1997).

n188. Federal Advisory Committee Act of 1972, 5 U.S.C. App. II 9(c). See Steven P. Croley & William F. Funk, The Federal Advisory Committee Act and Good Government, 14 Yale J. on Reg. 451, 537 (1997) (discussing the relationship of FACAs to public participation in administrative agencies and how that is good government).

n189. The authors are environmental justice representatives to the Printing Sector. Professor Robin Morris Collin is a member of the Full Council, representing all six industrial sectors. Professor Robert W. Collin is also a member of a workgroup formed to report directly to the Administrator on meaningful public involvement.

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The printing industry is one of the largest and most geographically diverse manufacturing industries in the United States. In 1996, the printing industry included over 50,000 businesses with over one million employees and $ 132 billion in sales. n190 However, the majority of those businesses were small businesses: 80% employed fewer than twenty people, and 50% employed fewer than five people. n191 In 1995, the printing industry generated more than forty-one million pounds of toxic compounds in the form of releases and transfers into the environment. n192 However, since most small businesses do not emit enough to trigger an air or water permit, it is likely that emissions are much greater than reported for the printing industry. In addition, printshops will often be located near other sources of pollution because printshops will often locate near their customers, and many customers' printshops are commercial and industrial operations. For example, in urban locations like New York where most of the printing business is located, printshops may be in close proximity to dry cleaning establishments and auto body shops. Both printshops and dry cleaners are notorious for the kinds of hazardous chemicals used in their manufacturing and commercial processes and hazardous wastes generated by these operations. This fact heightens the concern a community may have about the cumulative emissions from all these sources as they become site concentrated.

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n190. Institute for Local Self-Reliance, Biochemicals for the Printing Industry (1997) (citation omitted).

n191. Id. (citation omitted).

n192. TRI Release, supra note 83. The top ten polluting chemicals in the printing industry are all petroleum derivatives. They are Toluene, Mehtyl Ethyl Ketone, Glycol Ethers, Xylene (mixed isomers), Tetrachloroethylene, Methyl Isobutyl Ketone, Methanol, 1,1,1,-Trichloroethane, Dichloromethane, and Ethylene Glycol. Most of these chemicals are used in press cleaning operations, blanket washes, and as parts of ink formulations. Toluene is the most used chemical accounting for three-fourths of all toxic chemicals used by the printing businesses that reported emissions.

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The print sector has developed a multi-media permit with a strong emphasis on meaningful community involvement. This sector recently presented its ideas about a multi-media permit, with a strong public participation component based upon actual notice of new facility sites, expansions, and modifications. n193 The administrator expressed a strong interest in this project and is developing three to five pilot projects in three to five states.

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n193. Videotape of meeting on file with authors. See also Patrick J. Skelley II, Public Participation in Brownfield Remediation Systems: Putting the Community Back on the (Zoning) Map, 8 Fordham Envtl. L.J. 389, 406-407 (1997) (discussing how public participation in land use is used in brownfields cases).

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The two authors, as representative of environmental justice, agreed to the printshop project based on three conditions in the pilots. n194 First, they had to be in jurisdictions that have complete business licensure. This way at least the number of small facilities beneath the regulatory threshold could be counted, and some calculations could be modeled. While these calculations may be only slightly better than guessing, they may point to locations where residents and state agencies can target their monitoring resources. By incorporating these emissions in some fashion, we take a step closer to accountability. Second, some of the pilot projects had to be administered in locations that were already undertaking studies on cumulative emissions, impacts, or exposures. At a minimum, we may be able to share emission information, provide actual sources and a number of emissions (as opposed to potentials to emit), and improve the accuracy of the information. Third, they had to be "partnered" with the newly formed and aforementioned EPA Office of Children's Health, which studies the cumulative impacts on children as part of its mission. n195 The hope is that a multi-media permit will catch cross-media transfers, fugitive emissions, and shadow emissions. These emissions are difficult to track with the current system of permitting, but do add to the cumulative chemical loading in communities.

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n194. Francis Wilkins, CSI Print Sector on Verge of Major Multimedia Permit Reform, The Reinvention Report 34-33 (Oct. 1998).

n195. See Jennifer J. Rega, The EPA's National Agenda to Protect Children's Health From Environmental Threats: The Trend to Better Protect Our Nation's Children From Environmental Health Hazards, 7 Dick. J. Envtl. L. & Pol'y 119 (1998) (discussing EPA's Office of Children's Health).

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The printshop project also requires large emitting printers to give actual notice to the community, medium emitting printers general notice, and small printers to register with the state information repository. With actual notice, the community decides if it wants to participate. If not, public involvement ends. If the community needs technical assistance from the state they can get it. If the community does want to participate, then the industry can involve the community in a number of ways, including the development of a Community Involvement Plan.

This new system of environmental decision-making does not replace or tamper with the business planning of venture capital or take away the ultimate decision-making power of the particular state agency. It does give communities an expanded role in environmental decision-making.

III The Role of Science in Community Based Environmental Decision-Making

Many environmental justice representatives have a distrust of science and scientists. Some consider scientists as just another political constituency. This distrust of science is deeply embedded in all environmental laws. As noted by one scholar:

Science has been the thorn in the side of environmental policymakers since the dawn of environmental law. Sound environmental policy cannot be developed without some scientific basis; yet attempts to incorporate science into environmental regulations have met with failure. Reduced public participation, excessive regulatory delays, and the incomplete and inaccurate incorporation of science have plagued science-based environmental regulation for nearly three decades. n196

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n196. Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. 1613, 1614 (1995) (footnote omitted).

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Environmental justice advocates and community residents view the delegation of the public health, safety, and welfare protection to scientists as an infringement of their rights to meaningful participation in the decisions of their government that most affect them and their families. The same scholar notes:

Once toxic standards are delegated to scientists for resolution, interested citizenry, and often government officials themselves, are largely excluded from the decisionmaking or are forced to pay a high entry cost to discern at what point policy choices were made and what those choices were.... Judicially reviewable public comment procedures do little to involve interested parties in policy choices when those choices have been disguised as issues of scientific judgment. For all practical purposes, then, all but the best-funded organizations are foreclosed from participating in the development of science policy through the administrative process. n197

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n197. Id. at 1676-77 (footnotes omitted).

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Communities have rankled at these dynamics. As cumulative emissions and impacts add up to what many consider a toxic assault, they have sought solutions for their own protection.

A. A New Methodology for Cumulative Risk/Exposure: Greenpoint/Williamsburg (New York City) Community Case Study

Greenpoint/Williamsburg is an ethnically and racially diverse, low-income neighborhood in New York City, New York. Fifty- four percent of the neighborhood's population is comprised of people from Latin, African, and Asian backgrounds. n198 The community is also heavily industrialized and houses nearly one- half of the manufacturing facilities in the state of New York, which is one of the most populous and industrialized states in the Union. n199 "The neighborhood also contains the City's largest sewage treatment plant, several solid waste transfer stations, the only radioactive waste storage facility in New York City, and a decades-old solid waste incinerator." n200 Homes and schools are literally next door to polluting factories and facilities. The residents have long maintained that the neighborhood has a multitude of environmental and health problems related to the many sources of pollution in their community. n201 Under a court order, this community obtained funding for an environmental benefits program with the stated objective of involving community in environmental planning, risk assessment, and decision-making. n202 The program operates from the office of a Community Watchperson; it includes resident-based monitoring and research using residents to collect information to supplement an epidemiological study of pollution, disease, and mortality in the neighborhood. n203 Resident monitoring is an integral component of this research, as governmental agencies often lack the staff and equipment to collect water, soil, and air samples at multiple sites over an extended period of time. Residents learn to operate machinery, perform tests, and take samples. Residents have also produced studies for peer-reviewed scientific journals on the presence of lead in the community. n204 In their water-monitoring activities, local high school students perform actual sampling. n205

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n198. ICLEI Case Study, supra note 169.

n199. ICLEI Case Study, supra note 169.

n200. ICLEI Case Study, supra note 169.

n201. ICLEI Case Study, supra note 169.

n202. ICLEI Case Study, supra note 169.

n203. ICLEI Case Study, supra note 169.

n204. ICLEI Case Study, supra note 169.

n205. ICLEI Case Study, supra note 169.

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This community is keenly aware of its heightened health risks as the result of saturated, nearly ubiquitous presence of hazardous materials and waste in their community. Using their experience and training under the environmental benefits program, they have launched a community based experiment in cumulative environmental risk assessment. n206

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n206. Development of a Cumulative Risk/Exposure Methodology, Greenpoint/Williamsburg (NYC) Community Case Study (on file with authors).

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Operating under the supervision of the Community Watchperson, Samara Swanston, the first stage of the project emphasizes a national baseline study and a community case study aimed at collecting and aggregating available data to estimate baseline cumulative exposures from air, drinking water, and food. n207 Outdoor air will be monitored by census tract; drinking water contaminant exposures will be measured by the county; and food contaminant exposures will be measured in terms of demographic groups. n208 The community portion of the project will address local variations, for example, ethnic or regional dietary patterns such as backyard gardens and subsistence fishing; localized exposures such as Superfund sites, sandblasting, and heavy commuter traffic; and indoor air exposures such as lead, asbestos, pesticides, and mixed residential/commercial/industrial uses. n209 By identifying and aggregating these local details, the project hopes to characterize the cumulative exposure risk to the community. n210

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n207. Id.

n208. Id.

n209. Id.

n210. Id.

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The potential uses for this cumulative risk methodology, when completed, include its use in considering permits for new or existing facilities; zoning and redevelopment strategies that aim at diversification of community economic development with non- polluting alternatives; and targeting high risk activities with aggressive exposure reduction programs such as bilingual fish advisories.

The project is underway, with preliminary data in hand, and a comprehensive set of follow through steps. Among its most important procedural lessons to date is that a community must be an active participant in the development and implementation of this type of methodology. In addition to the resource limitations on public agencies, community members are better informed on certain high exposure/risk activities taking place in their neighborhood, including ethnic dietary patterns and behavioral activity patterns such as indoor pesticide use, lead paint exposure, and occupation-home exposures.

A similar type of methodology has been outlined by the ten- member Commission on Risk Assessment and Risk Management (Commission) for use in federal regulatory programs. The Commission recognized that the results of a risk assessment are integrated with political, social, legal, economic, and engineering considerations to make sound risk management decisions. n211

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n211. Peter Chiu et al., Commission on Risk Assessment and Risk Management, Framework for Environmental Risk-Management Decision Making (1995).

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The Commission proposed a framework for risk-management decisions that reflect this multifaceted process. The framework has five stages: (1) identification and scoping of the problem; (2) analysis of the risks; (3) analysis of alternative solutions; (4) decision-making; and (5) implementation, evaluation, and feedback of decided actions. n212 Affected parties, such as communities, environmental interest groups, and businesses begin participating at the first stage of the process by identifying the problem and setting remediation goals. n213 "Human health and ecologic risk assessment are then performed to characterize the potential impact of the problem." n214 "Cumulative risks, cultural and societal values, and environmental justice considerations are identified." n215 "The most feasible and acceptable solution is identified with involvement of affected parties." n216 The Commission's framework incorporated consideration of various media, contaminants, and sources of exposure, as well as values, costs, and benefits into a single process with direct input from interested and affected parties. "The aim is to increase the likelihood that the decision is technically sound and is sensitive to the needs, objections, and knowledge of all parties." n217

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n212. Id.

n213. Id.

n214. Id.

n215. Id.

n216. Id.

n217. Id.

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More work on a cumulative risk methodology is being done by a group called the Chicago Cumulative Risk Initiative (Initiative). Formed in response to a petition filed by eleven Chicago area environmental and environmental justice groups, n218 the Initiative will analyze the cumulative risk of exposure to all pollutant sources - point, area, and mobile - in Cook County, Illinois, and Lake County, Indiana. n219

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n218. The petitioners were "People for Community Recovery, [the] Lake Michigan Federation, [the] Grand Cal Task Force, [the] Center for Neighborhood Technology, Citizens for a Better Environment, [the] Southeast Environmental Task Force, South Cook County Environmental Action Coalition, [the] Human Action Community Organization, South Suburban Citizens Opposed to Polluting Our Environment, Lyons Incinerator Opponent Network, and [the] Westside Alliance for a Safe, Toxic-Free Environment." The Chicago Cumulative Risk Initiative (Chicago Legal Clinic, Chicago, Ill.), Mar. 1997, at 1, 1 n.1.

n219. See id. at 1. For more information on this undertaking, contact Keith Harley, Director, Environmental Program, Chicago Legal Clinic at (312) 731-1762.

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B. Resident Monitoring: A Fundamental Role in Environmental Decision-Making

As residents have begun to face health threats and fears of environmentally related health threats, and as they learn about the scant amount of monitoring actually done by the government, they have begun to monitor environmental conditions. n220 Modern organized volunteer environmental monitoring began in the United States in 1890 when the National Weather Service began training volunteers to report daily measurements of air temperatures and rainfall, and today there are about 11,500 monitoring stations. n221 In the early 1900's, the Audubon Society began its annual Christmas bird count. n222 Using direct flora and fauna surveys, volunteer groups began to use the presence of indicator species as a measure of environmental disruption. n223 Most of the monitoring involved water quality. n224 In 1969 the Save Our Streams Program started, and in 1974 it was adopted by the Isaac Walton League. n225

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n220. In terms of governmental monitoring of air, in 1993 only 250 counties had at least one monitoring site for carbon monoxide, 187 counties had at least one monitoring site for lead, 213 counties had at least one monitoring site for nitrogen dioxide, 537 counties had at least one monitoring site for ozone, 647 counties had at least one monitoring site for particulate matter, and 359 counties had at least one monitoring site for sulfur dioxide. U.S. EPA, National Air Quality and Emissions Trends Report 98 (1993). Most monitoring stations are located near airports, or on the top of tall buildings, and therefore do not monitor the air people breathe.

See Robert R. Kuehn, Remedying the Unequal Enforcement of Environmental Laws, 9 St. John's J. Legal Comment. 625, 625-26 (1994) (discussing widespread violations of monitoring requirements and other noncompliance).

For a discussion of whether the use of citizen's information increases environmental compliance, see Harish G. Rao, Compliance Demonstration Implications Under the Credible Evidence Rule, Envtl. Mgmt. 22 (Dec. 1996). See generally John S. Applegate, Beyond the Usual Suspects: The Use of Citizens Advisory Boards in Environmental Decisionmaking, 73 Ind. L.J. 903 (1998).

n221. V. Lee, The Volunteer Monitoring Movement: A Brief History, Proceedings, Fourth National Citizen's Monitoring Conference, Apr. 10, 1994, Portland, OR EPA Office of Wetlands, Oceans, and Watersheds.

n222. Michael K. Heiman, Science by the People: Grassroots Environmental Monitoring and the Debate Over Scientific Expertise, 16 J. of Plan. Educ. & Res. 7 (Mar. 1997).

n223. Id.

n224. Id. This is still the case. Seventeen out of twenty-eight programs in the National Estuary Program have volunteer water quality monitoring programs. Leo M. Rebele, An Evaluation of Citizen Monitoring Initiatives in the National Estuary Program (1997) (student research paper submitted as part of the requirements for an MS degree, College of Oceanic & Atmospheric Sciences, Oregon State University).

n225. Heiman, supra note 222.

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Today there are hundreds of formal, volunteer water quality monitoring programs at the grassroots, community level. n226 Properly trained community residents can provide information that is as rigorous as data provided by paid professionals. n227 Data quality is strongest when the people collecting it are the first to use it. Professional monitors often do not collect enough representative data because they do not use it and because of the time and cost of collecting many samples in an area that may be unfamiliar to them. Volunteer resident monitors generally have a much denser spatial and temporal mix of sampling sites than is possible for public agencies struggling to bring industries into minimum compliance with environmental laws. n228

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n226. See, e.g., A National Directory of Environmental Monitoring Programs (M. Kerr et al. eds., 4th ed.).

n227. For example, water quality survey techniques use secchi disks for stream turbidity and fecal coliform testing for the presence of pathogens. Temperature, pH, dissolved oxygen, phosphates, and nitrates are measured. Benthic macroinvertebrates as indicator species for water quality are also tested.

n228. See, e.g., Washington State Department of Ecology, River and Lake Monitoring Stations (last updated May 7, 1997) <http://www.wa.gov/ecology/eils/fw-riv/rvlks.hmtl> (indicating areas monitored by Department of Ecology staff, and areas monitored by both ecology staff and citizen volunteers).

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Resident environmental monitors have a good record of quality control, and many states rely upon them to meet biennial water quality reporting requirements of section 305(b) of the Clean Water Act. n229 Since 1991, the EPA has actually notified the states that they may consider quality assured information provided by resident monitors as equal to that provided by professional monitors. n230 In 1988, fourteen states supported volunteer monitoring programs; in 1992, thirty-two states supported these programs. n231 It is likely that these numbers will continue to increase.

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n229. Cf. 33 U.S.C. 1251 (a)-(g) (promoting public participation to maintain the integrity of the nation's waters).

n230. Heiman, supra note 222.

n231. Heiman, supra note 222.

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Motivated and concerned residents participate in the discovery and analysis of their environmental conditions. They thereby generate information that they have a proprietious interest in and that can withstand the traditional canons of scientific research and analysis. This role for communities provides a background of routine environmental monitoring necessary for public agencies and industries to uncover environmental contamination, mismanagement of environmental resources, and threats to the natural system. Recent changes in federal environmental policies allow new forums for this enhanced community role.

C. National Environmental Justice Advisory Committee and Environmental Impact Statements: Expanding the Role of Communities

The National Environmental Policy Act (NEPA) of 1969 is the foundational environmental piece of national legislation for the United States. n232 The main purpose of NEPA is to ensure that federal agencies consider the environmental consequences of their actions and decisions as they implement their respective missions. n233 For all "major federal actions significantly affecting the quality of the human environment," the federal agency must prepare a detailed environmental impact statement (EIS) that not only assesses the proposed action, but must also examine all reasonable alternatives. n234 The mechanism for determining whether an agency's action is significant, and therefore requiring an EIS, is the environmental assessment (EA). EISs are required to be broad in scope in order to address the complete range of potential effects of the proposed action on human health and the environment. Both EAs and EISs require socioeconomic impacts associated with significant environmental impacts be addressed. n235 However, incorporation of socioeconomic impacts into either of these documents has been the exception rather than the rule.

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n232. 42 U.S.C. 4321-4370(d) (1994). The EPA is required to comply with NEPA in its research and development activities, facilities constructions, and wastewater treatment construction grants under Title II of the Clean Water Act and under appropriations bills, and EPA issued National Pollution Discharge Elimination System permits for new sources that are subject to new source performance standards. The Agency is exempted by statute for actions taken under the Clean Air Act and for most Clean Water Act programs. The Comprehensive Environmental Response, Compensation, and Liability Act, requires the EPA to comply only with the substantive, but not the procedural, requirements of other environmental laws for on-site responses. In the case of other EPA programs, the courts have found EPA procedures to be functionally equivalent to the NEPA process; therefore, these programs are exempt from NEPA procedural requirements. Also, the EPA voluntarily prepares EISs for a number of actions pursuant to statements of EPA policy.

n233. National Environmental Policy Act of 1969, 42 U.S.C. 4333, 4334, 4335.

n234. National Environmental Policy Act of 1969, 42 U.S.C. 4332.

n235. EISs and EAs must address indirect impacts. 40 C.F.R. 1502.16(b), 1508.8(b), 1508.9. Indirect impacts are defined as those that are caused by the action and are reasonably foreseeable, but that occur later in time and/or at a distance. 40 C.F.R. 1508.8(b). Indirect effects include growth effects related to induced changes in the pattern of land use, population density, and/or changes to infrastructures, growth rates, and related effects to the air, water, and surrounding ecosystems.

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With the increased concern for environmental justice two important changes occurred at the federal level that infused new life into EISs and EAs. First, the EPA formed the National Environmental Justice Advisory Committee (NEJAC). n236 This is a federal advisory committee to the EPA. n237 This particular committee has been one of the leading national forums for people of color interested in environmental issues. Second, President Clinton issued an executive order on Environmental Justice, Executive Order 12898. n238

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n236. NEJAC is a federal advisory committee that was established by charter on September 30, 1993, to provide independent advice, consultation, and recommendations to the EPA on matters related to environmental justice. NEJAC is made up of twenty-five members who serve on a parent council that has six subcommittees.

n237. Federal Advisory Committee Act, 5 U.S.C. app. II 9(c).

n238. Exec. Order No. 12,898, 59 Fed. Reg. 7,629 (1994). Federal Actions to Address Environmental Justice in Minority Populations and Low - Income Populations, February 11, 1994. Section 1-1. Implementation, reads as follows:

1 - 101. Agency Responsibilities To the greatest extent practicable and permitted by law, and consistent with the principles set forth in the report on the National Performance Review, 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.

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The purpose of this order is to ensure 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." n239 The executive order has specific directions for NEPA activities that directly increase the role of communities in environmental decision-making. n240 First, each federal agency must analyze environmental effects, including human health, economic, and social effects, of federal actions. This includes effects on minority populations and low income populations when such analysis is required by NEPA. n241 Second, mitigation measures outlined or analyzed in EAs, EISs, or Records of Decision should address significant and adverse environmental effects of proposed federal actions on minority communities and low income communities. n242 Third, each federal agency must provide opportunities for community input in the NEPA process. This includes identifying potential effects and mitigation measures in consultation with affected communities and improving the accessibility of public meetings, official documents, and notices to affected communities. n243

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n239. Id.

n240. Id.

n241. Id.

n242. Id.

n243. Id.

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Community involvement is especially important in cases of potential environmental justice issues. Early and sustained communications with the effected community throughout the NEPA process, including findings of no significant impact, are an essential aspect of environmental justice. They have the effect of forging a new and powerful role for communities. n244

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n244. See Stephen M. Johnson, NEPA and SEPA's in the Quest for Environmental Justice, 30 Loy. L. Rev. 565 (1997) (discussing the use of NEPA and State Environmental Protection Acts in furthering environmental justice).

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NEJAC consideration of NEPA has focused on the increased role of the community and on cumulative impacts. n245 NEJAC discussions about cumulative impacts in communities have also gone beyond the law. They include consideration of the concentration of point and nonpoint release sources (including both permitted and nonpermitted); the presence of listed or highly ranked toxic pollutants with high exposure potential; multiple exposure sources and/or paths for the same pollutant; and the potential for aggravated susceptibility due to existing air pollution, lead poisoning, and the existence of abandoned toxic sites. n246 Other variables must also be examined. These variables include: health information reflective of that exact community (abnormal cancer rates, infant and childhood mortality, low birth weight, blood lead levels); occupational exposures to environmental stressors which may exceed those experienced by the general population; and diets and/or differential consumption patterns of natural resources. n247 In all instances, input from the community is absolutely essential. Given that many of our current environmental dynamics are inescapable, like cumulative impacts, it is likely that all communities will seek an increased role in environmental decisionmaking. n248

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n245. Cumulative impacts are defined as "the incremental impact(s) of the action when added to other past, present, and reasonably foreseeable future actions." 40 C.F.R. 1508.7.

n246. Council on Environmental Quality, Environmental Justice: Guidance Under the National Environmental Policy Act (1997).

n247. Id.

n248. See Anne K. No, Environmental Justice: Concentration on Education and Public Participation as an Alternative Solution to Legislation, 20 Wm. & Mary Envtl. L. & Pol'y Rev. 373 (1996) (discussing increasing the role of the public in environmental decision-making).

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Conclusion: Inescapable Dynamics Drive Community Empowerment in Environmental Decision-Making

The questions and controversies of environmental justice are inescapable. It is becoming increasingly apparent that the old industrial paradigm of industry and environmentalists fighting about some vague issue of compliance in a long, dragged out court battle is fading. It is being replaced by one that includes the community in important aspects of environmental decision- making. In one sense environmental justice represents environmental protection with everyone equally protected from threats to their health, safety, and welfare. In fact, everyone is not equally protected, and it is in the interests of everyone that those unprotected and environmentally overburdened have a say about their environment.

Currently, environmental decison-making faces a gridlock. n249 Industry and government have squared off in a legislative, judicial, and administrative stalemate. Data is inadequate for government to protect residents and the environment. Values regarding economic growth and ecological preservation are in dispute. However, unlike most stalemates, the status quo is not preserved. Population, waste, and industrial expansion continue to increase in a lemming-like death march toward environmental nihilism. These dynamics continue in the face of bilateral gridlock in environmental decision-making. Communities are emerging as the new partner in decision-making, and may be the first real chance to break this gridlock.

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n249. Silvio Funtowicz & Jerome Ravetz, A New Scientific Methodology for Global Environmental Issues, in Ecological Economics 137, 139 (Robert Costanza ed., 1991).

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Environmental decisions affect people where they live, work, and play. They have concerns about public health, equal protection of environmental laws, aesthetics, and rampant industrial growth. There is a fundamental concern that government has disregarded the concerns of those who are impacted most by decisions to permit industrial emissions. The lack of regulatory oversight and the lack of full enforcement has allowed industrial emitters to add to the inventory of past emissions in already highly impacted communities. As a result, communities have demanded a greater role in environmental decision-making, and have done so in the courts, the legislatures, and in federal agencies.

Waste is increasing. From 1993 to 1996 air emissions increased 3.4%, energy use increased 3.2%, and the economy grew by 2.4%. n250 Waste accumulates. Population is increasing, which tends to increase waste. Increased population brings us all closer to waste; thus it increases community concern for public health implications of waste while demanding that those concerns be served by equal democratic rights among different communities (regardless of what science tells us). Lastly, the implications of environmental decisions are inescapable. One dynamic that we now face is that we must make environmental decisions in new, risky ways in order to avoid the accumulating effects of past, in complete environmental decisions. One of these ways is to include communities.

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n250. Jacqueline Novet, Climate Change: US Emissions Up Sharply In 1996, Greenwire, Oct. 20, 1997.

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As wastes, by-products, discharges, emissions, and pollutants accumulate in communities, increased concern by those communities is inevitable. As population and wastes continue to increase and accumulate, communities are becoming concerned that some of these wastes are bioaccumulating in their families. Unlike law and science, the burden of proof here is political. All levels of government are starting to respond to the people, which is the constitutional purpose of our democratic system of government.

 
 
 
Copyright (c) 1998 University of Oregon
Journal of Environmental Law and Litigation
1998
13 J. Envtl. L. & Litig. 37