The subject of 'environmental justice" has attracted considerable attention in recent years. Environmental justice advocates allege that due to 'environmental racism," locally undesirable environmental land uses (LULUS) such as hazardous waste facilities, solid waste disposal sites and contaminated industrial sites are disproportionately placed in minority communities.1 To remedy this perceived disproportionality, advocates have sued to prevent the siting of some environmental LULUS, formulated legal theories that promise more expansive relief to minority communities and suggested changes in the procedures by which LULU sites are chosen.2
The increased prominence of environmental justice is evidenced in several ways. Environmental Justice is "one of the fastest growing areas of legal scholarship."3 The Clinton Administration made environmental justice "a centerpiece of its environmental program"4 and promulgated an Executive Order requiring each with lower land values.5 In addition, although the assertion that "no one likes to live near a waste site"6 is probably correct, in some instances there has not been strong opposition from minority communities that have been or would be affected by a LULU siting.7 It is reasonable to conclude that lack of opposition has resulted from the same factors that have been cited in the cases of white communities which have solicited LULUS; as well as potential problems, LULUs can bring potential benefits to communities in jobs, revenues and direct provision of social services.8
In some cases, not only has there been a lack of local opposition to LULU sitings, but community leaders have actively sought out or welcomed such sitings. For example, the Campo Band of Mission Indians has supported the construction of a solid waste landfill on reservation land in San Diego County, Califomia.9 Permitting and environmental standards for the landfill would meet, at a minimum, applicable EPA standards.10 The landfill would bring great economic benefits to the Campo Band.11 Tribal sources estimated that the landfill would directly create at least fifty-five permanent jobs for at least thirty-five members of the Campo Band, almost eliminating tribal unemployment.12 Here, the most sustained and politically effective opposition to siting the landfill has come from several white neighbors of the Campo reservation.13
Unfortunately, LULUs have been sited despite considerable opposition from minority communities. Siting in the face of local opposition, however, is not limited to minority communities. A prominent example of LULU siting in spite of objections from non-minority communities is the decision to place a high-level radioactive waste repository in Nevada.14 Conversely, other communities with white majorities have lobbied to have facilities, which most people would consider to be LULUS, sited in thieir jurisdictions in order to gain jobs and other benefits during difficult economic times.15 In both situations, non-racial factors better explain the outcomes than intentional or societal racism.
Most sites contaminated with hazardous waste are associated with factories, gasoline stations, dry cleaners and other industrial or commercial land uses located in urban areas.16 Much of the hazardous waste produced by these sources was disposed of at the factories where it was generated, in these urban areas. When factories shut down, contaminated sites were often left behind.17 Blacks in particular are much more likely than Whites to live in these urban areas.18 It is plausible that Blacks came to urban neighborhoods at least in part because of the availability and proximity of jobs in industry.19 The minority population of urban neighborhoods may have grown even after the shutdown of factories because of the common tendency of people who move to different communities to migrate to areas already settled by relatives and fellow ethnic group members. Also, it is likely that the price of housing in these areas has been lower than in less impacted suburban neighborhoods, and economically depressed minority group members may have been unable to move to more affluent settings.
Some environmental justice advocates have asserted that minority residential areas have been preferentially designated for industrial and commercial uses.20 However, in some urban areas, such as Baltimore, heavy industrial uses are located to a greater extent in non-minority communities.21 Further, lower-income Blacks residing in Baltimore are concentrated in formerly middle-class neighborhoods where industry has never existed.22
Richmond, California has been described as exemplifying the lack of fair geographic distribution in the siting of facilities.23 According to one frequently cited study by Citizens for a Better Environment (CBE Report), "[a]ll of the lower income, minority neighborhoods are in the western and southern parts of Richmond where the highest concentration of petrochemical facilities are also located,"24 and "[t]his form of institutional discrimination has been called 'environmental racism' by some community leaders."25 Upon a closer examination, however, it is difficult to assess the relative importance of racially discriminatory practices versus nonracial factors when evaluating the proximity of minorities to contaminated sites in Richmond.
The CBE Report based its analysis on 1980 census data, and did not look at racial demographic trends over time. However, the industrial character of western and southern Richmond was established long before Blacks or other minority groups became a substantial presence in the city. The black population of Richmond numbered 29 out of approximately 6,800 in 1910, 33 out of approximately 16,000 in 1920, and 270 out of approximately 24,000 in 1940.26 In 1940, the highest proportion of total minorities to the total population within any Richmond census tract was 8.5 percent.27 Some of the most important industries in the city were established in western and southern Richmond before World War 11, when Richmond was still populated almost entirely by Whites.28 These included Santa Fe Railroad, Standard Oil and Pullman Coach, all of which opened their Richmond operations between 1900 and 1910, and Kaiser Shipyard, which opened in 1941.29
Beginning around 1941, large numbers of black laborers from the South came to the city to work at Kaiser and other industries.30 Due at least in part to segregation in housing, Blacks lived mostly in western (and southern) Richmond and North Richmond.31 Of these areas, most Blacks lived in North Richmond through at least 1945.32 In comparison with western and southern Richmond, this northern area was not heavily industrialized. Although some manufacturing facilities were located there prior to World War 11, North Richmond consisted mostly of open fields and truck gardens into the 1930s.33 Despite the arrival of many Blacks to the city, western and southern Richmond did not become predominantly black until the post-war years, when many Whites moved out of the city. Whites were still a majority in every Richmond census tract in 1950.34 Even in the 1960 census, Whites were a majority in eighteen out of twenty-two Richmond listings.35 In only one North Richmond tract and three western and southern Richmond tracts were Blacks in the majority; Whites constituted substantial minorities in the three western and southern Richmond tracts, of forty-three percent, forty percent, and thirty-nine percent, respectively.36
data indicate that the presence of industrial sites in areas of Richmond
that are predominately black is not due to industries being preferentially
located in black areas, but to their being preferentially located in industrial
areas. Given that industrial uses were already concentrated in western
and southern Richmond, it is not surprising that this area became the favored
location for additional industries during and after the war. Western and
southern Richmond also have geographic advantages for some types of industries.37
Sadly, it is also not surprising that these areas also are the location
of many contaminated sites, including several state and National Priority
List (Superfund) sites.38
1. See Richard T. Lazarus, Pursuing "Environmental Justice": The Distributional Effects of Environmental Protection, 87 Nw. U.L. REv. 787, 902 n.56 (1993) [hereinafter Lazarus, Pursuing Environmental Justice] (finding that "minorities may receive an unfair share of the environmental risks that are redistributed by environmental protection [laws]").
2. See generally Richard J. Lazarus, Environmental Justice and the Teaching of Environmental Law, 96 W. VA. L. Rev. 1025 (1994) [hereinafter Lazarus, Teaching Environmental Law] (discussing views of environmental justice scholars). For a further discussion of litigation pursuant to environmental justice claims, see infra notes 131-200 and accompanying text.
3. Nancy B. Collins & Andrea Hall, Nuclear Waste in Indian Country: A Paradoxical Trade, 12 LAw & INEQ. J. 267, 303 (1994).
4. G. Marc Whitehead, Toxic Tort Litigation: Developing Issues and Their Impact on Case Preparation and Presentation, C921 A.L.I.-A.BA. 525, 537 (1994).
5. See Maria Ramirez Fisher, On the Road On the Environmental Racism to Environmental justice, 5 VILL. ENVTL. L.J.. 449, 459 (1994) (stating that '[s]ince communities of color often have low property values, they will be considered for disposal sites more often than white communities having higher property values").
6. Collin, supra note 54, at 502.
7. Id. at 512. Even some environmental 'justice advocates concede that there often is low local opposition to LULU sitings from minority communities, or at least ]es from non-minority than there would be communities. Id.
8. The case of the Emelle site is again instructive, where a hazardous waste landfill has brought in jobs and millions of dollars in revenues to an economically depressed area.
11. Id. at 3-88. The reservation unemployment rate in 1990 was approximately sixty percent in a potential resident labor force of seventy people, versus a county wide unemployment rate of approximately four percent. Id. Of tribal members employed, less than half earned over $7,000 per fear. Id. at 3-89. These figures were thought to have improved in 1991, although hard data were not available. Id. A rise in tribal revenues was attributable to funds from the corporate sponsor of the solid waste disposal facility, Mid-American Waste System, Inc. Id. at 3-88.
12. Id. at 4-78. The jobs would pay $15,000 - $20,000 for unskilled labor, and more for skilled labor. Projected tribal income from disposal fees charged to users was estimated as being approximately $50 million over a thirty year project lifetime. Id. At maximum use, this amount could double. Fifty percent of these revenues would go to the tribal general fund for such purposes as housing, education, health care, while the other fifty percent would go to economic development projects. Id.
13. Interview with Muriel Waller, co-author of FEIS and attendee at public meetings discussing the proposed project, (Mar. 10, 1995).
14. Foster Church, Can Nevada Keep America's Sizzling Nuclear Waste Out of Its Backyard? governing;, Apr. 1990, at 21-24 (noting political weakness of Nevada's Congressional delegation as key factor in state's designation as sole prospective location for high-level radioactive waste repository over state objections).
15. E.g.., Kenneth J. Garcia & David Perlman, Fighting for Lethal Leftovers, S.F. CHRON., April 13, 1995, at A-1, A-10 to A-1 I (discussing siting of plutonium storage facilities).
16. See Gerrard, supra note 72, at 1090-91.
17. One source found that towns with economic bases oriented toward industry are far more likely to have numerous dumpsites. MICHAEL, R. GREENBERG & RICHARD F. ANDERSON, HAZARDOUS WASTE SITES: THE CREDIBILITY GAP 158 (1984); see also Gerrard, supra note 72, at 1128 n.527. Prior to environmental regulation, many industrial and commercial facilities may have disposed of waste on-site or nearby because of the lower cost of doing so. Collin, supra note 54, at 509.
18. Lydia B. Duff, Beyond Environmmtal LULUs: Thoughts of an URban Environmental Lawyer, 5 MD.J. CONTEMP. LEGAL ISSUES 49, 56 (1993-94) (citations omitted).
20. See, e.g., Collin, supra note 54, at 509 (stating that "[b]efore environmental regulation, many industrial and commercial facilities located in minority areas. . .").
21. Duff, supra note 110, at 56.
23. Tsao, supra note 29, at 372. See also Donna Gareis-Smith, Environmental Racism: The Failure offqual Protection to Provide a Judicial Rrmedy and the Potential of Title VI of the 1964 Civil Rights Act, 13 Temp. Envtl. L. & Tech. J. 57, 64 (1994)(comparing current racial composition of Richmond as whole (fifty percent black and ten percent latino) with composition of neighborhoods closest to "the heaviest industrial zone" (seventy-two percent to ninety-four percent black)).
24. Michael Belliveau et. al., Richmond at Risk: Community Demographics and Toxic Hazards from Industrial Polluters 121 (1989) [hereinafter CBE REPORT].
25. Id. at 2.
26. Shirley Ann Moore, THF. BLACK COMMUNITY IN RICHMOND, CALIFORNIA 1910-1987 1, 3 (1989) (monograph on file with Richmond Public Library); SANBORN MAP Co., RICHMOND, CONTRA COSTA COUNTY, CAL. (1916).
27. U.S. DEP'T OF COMMERCE, POPULATION AND HOUSING STAT. FOR CENSUS TRACTS, OAKLAND-BERKELEY, CAL. AND ADJACENT AREAS 57 (1940).
28. See Moore, supra note 118, at 3.
29. Id. at 35. Many other large and small industrial operations, including foundries and chemical manufacturing concerns, also were located in southern and western Fichmond prior to 1920, and early fire insurance maps show few if any major industrial facilities in other parts of the city. SANBORN MAP CO., RICHMOND, CONTRA COSTA COUNTY, CAL. (1916). Industrial facilities located in west and south Richmond as of june 1916 included the Union Super Phosphate Company, Stauffer Chemical Company, Santa Fe Foundry, Berkeley Steel Company, Western Pipe and Steel Company, the Richmond Machine and Boiler Works and the Atchison, Topeka & Santa Fe Railroad shops and yards. Id.
30. Moore, supra note 118, at 35-36. Blacks were actively recruited by Kaiser directly and by the Richmond Chamber of Commerce, as well as being drawn to Richmond by personal networks. Id. Moreover, the city hosted fifty-five other war industries besides Kaiser. Id. at 44.
31. Id. at 22, 60-61. Moore, following common local practice, uses "west Richmond" to encompass the southern portions of the city as well; thus, I have placed the words "and southern" in parentheses in the text. Although technically not within the city limits of Richmond proper, North Richmond was considered to be part of Richmond by black residents of Richmond and North Richmond alike during this period. Id. at 6, 36. North Richmond census tracts were included under the heading 'Richmond" in 1960 U.S. Census results, the first census to show North Richmond tract data. U.S. DEP'T OF COMMERCE, POPUIATION AND HOUSING STAT. FOR CENSUS TRACTS, SAN FRANCISCO-OAKLAND, CAL. AND ADJACENT AREAS 46-48 (1960).
32. Moore, supra note 118, at 24, 36.
33. Id. at 6-7; SANBORN MAP Co., FICHMOND, CONTRA COSTA COUNTY, CAL. (1916). Companies located in North Richmond before the war included the Certainteed Manufacturing Company, which manufactured roofing and mattress products; Standard Sanitary, a company that made porcelain fixtures and which was the biggest employer of Blacks in Richmond; and the Republic Steel Package Company. Moore, supm note 118, at 9; SANBORN MAP Co., RICHMOND, CONTRA COSTA COUNTY, CAL. (1916).
34. U.S. DEP'T OF COMMERCE, POPUIATION AND HOUSING STATISTICS FOR CENSUS TRACTS, SAN FRANCISCO-OAKLAND, CALIF. AND ADJACENT AREAS 22 (1950).
35. DEP'T OF COMMERCE, 1960 CENSUS, supra note 123, at 46-48. By 1970, Whites were a much smaller presence in these tracts (twenty-five percent, nine percent, and six percent, respectively). U.S. DEP'T OF COMMERCE, POPULATION AND HOUSINC. FOR CENSUS TRACTS, SAN FRANCISCO-OAKIAND, @. AND @ACENT AREAS. 28-30 (1972).
36. DEP'T OF COMMERCE, 1960 CENSUS, supra note 123, at 46-48.
37. As shown in maps in the CBE Report, almost all bulk petrochemical and hazardous waste storage facilities in the city are located close to waterways used for transportation: the Richmond Harbor Channel, Santa Fe Channel, San Pablo Bay Channel, Lauritzen Channel, San Francisco Bay, all of which border west or south Richmond. CBE REPORT, supra note, 116, at 58. The Santa Fe and Lauritzen Channels in particular are major industrial locations. These locations are not labeled on the CBE map.
38. It is worth
noting that the community of Point Richmond, which is largely white, is
closer to some of the major industrial facilities of Richmond (e.g. Standard
Oil Refinery) than are many Richmond minority neighborhoods.