May 25, 1999 Testimony of Paul Mohai, Ph.D.1

Environmental Justice Symposium
U.S. House of Representatives
Washington, D.C.

My perspective on environmental justice is principally as a researcher who has studied this issue for over a decade. My research and my review of the research of others has persuaded me that disparities in the distribution of various environmental hazards, such as hazardous waste sites, polluting industrial facilities, and air pollution generally, by race and income are significant. The significance of this evidence has, in turn, persuaded me that public awareness and proactive policies are needed to address problems associated with environmental injustices.

In the early 1990s I designed a study to examine the distribution of environmental hazards in the Detroit metropolitan area. One finding from that study was that minority residents are 4 times more likely to live within one mile of a commercial hazardous waste facility than white residents.2 Additionally, minorities are significantly more likely to live near abandoned hazardous waste sites and polluting industrial facilities.3

Also in the early 1990s I conducted one of the first reviews of existing empirical studies pertaining to the distribution of environmental hazards by race and income. This review was motivated by the striking findings of the 1987 United Church of Christ study4, which not only found a significant correlation between race and where commercial hazardous waste facilities are located, but further found from a multivariate statistical analysis that race is the best predictor of where such facilities are located from among a range of factors examined, including household income and housing values of the surrounding areas. I wanted to know whether or not other studies like it existed - i.e., studies employing quantitative, empirical data, analyzed in a systematic way - and whether the results of these studies corroborated those of the United Church of Christ study.

At the time, I discovered about 15 such studies. Indeed, all these studies found that the environmental hazards under investigation were distributed inequitably by race or by income or by both. Among those studies where it was possible to weigh the relative importance of race and income, most found that race rather than income tended to be the better predictor of where environmental hazards are concentrated.

Since the publication of my review, Dr. Benjamin Goldman uncovered 64 studies examining the distribution of environmental hazards by race and income.5 Dr. Goldman determined that virtually all the reviewed studies indicated that race, income disparities, or both were associated with the location of environmental hazards. And similar to my earlier findings, he found that in the majority of cases race tended to be a better predictor of where environmental hazards are concentrated than income.

People of color and poor communities being disproportionately burdened with environmental hazards raises quality of life questions. For example, residents in communities burdened with pollution often express concerns about health impacts, particularly on their children. Empirical studies linking birth defects with proximity to hazardous waste sites are emerging. In 1992, researchers examined congenital malformations around 590 hazardous waste sites in New York State and found increased rates of malformations within one mile of these sites.6 In a study published just this past summer in The Lancet, researchers found significantly raised risks in 5 European nations of congenital anomalies in babies whose mothers live within 3 km of hazardous waste landfill sites.7

Health researchers are beginning to pay more attention to environmental factors as possible explanations for racial and socioeconomic differences in health status. For example, a nation-wide study published last year in the Journal of the American Medical Association (Lantz et al, 1998: 1707) found that:

... despite the presence of significant socioeconomic differentials in health behaviors [smoking, drinking, overeating, a sedentary life-style], these differences account for only a modest proportion of social inequalities in mortality. Thus public health policies and interventions that exclusively focus on individual risk behaviors have limited potential for reducing socioeconomic disparities in mortality.8

The authors go on to state (Lantz et al, 1998: 1707) :

If health risk behaviors do not explain much of the relationship between socioeconomic factors and mortality, what else can account for this strong association? First, differences in exposure to occupational and environmental health hazards across social strata do exist and, thus, may be playing a role in mortality inequalities...

Clearly we run a significant risk of not rectifying social inequalities in mortality and health status if we overlook the role that environmental factors play.

Also of concern are other quality of life measures, such as noise, dust, odors, fear of accidents, traffic congestion, and blight. Property values around hazardous facilities and other "locally unwanted land uses" tend to be depressed. Nelson and his colleagues in an article published in the journal Land Economics reported that they were able to quantify that houses in mid-income areas within a one-mile radius of a landfill are depressed 12% and those within 2 miles are depressed 6% all relative to those houses beyond 2 miles.9 They go on to state that their work combined with other studies demonstrates that this is a "reasonably constant relationship" (Nelson et al., 1992: 247).

Positive economic benefits, such as jobs for local residents, are often given as the reason for determining the location of undesired land uses. However, residents in people of color and poor communities recurrently express doubts that members of their communities receive any of these benefits. Such doubts were expressed in hearings last year in St. James Parish, Lousiana, by residents skeptical that a proposed PVC facility would provide jobs or significantly improve the economic condition of local residents. A poll of area residents taken by the New Orleans Times-Picayune confirmed that the majority of people in St. James Parish believe that chemical companies fail to live up to their promises of jobs for local residents.10 In his ruling in NAACP vs. Michigan pertaining to the operation of a wood-burning incinerator in a predominantly African American area near Flint, Michigan, Judge Archie L. Hayman observed that:

... there was no testimony presented in this court that would indicate that any minorities were hired to construct this plant; that any monies were paid to any minorities in the building of this plant, and that any minorities were, in fact, working at this plant. And it's an eighty million dollar facility. It's going to be polluting an African-American community for the next 30 years or so.

And as best as I can tell, the owners all live in Dearborn or somewhere where they're not going to be polluted and they're going to be reaping the benefits, and I found that to be appalling and I think [it] ought to be a statement that this society ought to take into consideration when we're permitting these plants and we're polluting communities and at the same time the people that live in those communities get no benefit at all from those facilities in terms of employment.11

Indeed, economic benefits to local residents are often assumed but evidence demonstrating such benefits is certainly not prevalent. Studies providing data on the economic costs and benefits of polluting industrial facilities and other undesired land uses to local residents are very much needed.

In sum, the evidence accumulating over the past several decades demonstrates significant racial and income disparities in the distribution of environmental hazards. Evidence pertaining to the negative impacts of environmental hazards is mounting. Although researchers have not yet pinned down all the precise mechanisms as to why people of color and low-income communities are disproportionately burdened by pollution, racial discrimination, economic factors, and imbalances in political power are believed to all play a role. Given that problems associated with discrimination, poverty, and powerlessness will not likely be solved in the immediate future, public awareness about and proactive policies addressing environmental injustices are needed, and will continue to be needed, to reduce adverse impacts of environmental hazards on already overburdened communities.

Some reasonable steps that could taken include:

1) Place an affirmative obligation on those who want to build new industrial facilities or locate waste facilities to provide "off-sets" that would result in less pollution in the area.

2) Routinely conduct demographic analyses of proposed site locations as part of the environmental permitting and review processes.

3) Assure local residents early information and stakeholder standing in siting issues.

4) Shift the burden of proof about environmental and health harms back to the applicants, rather than opponents.

5) Require continual monitoring of emissions from sited plants and facilities.
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1 Paul Mohai is an Associate Professor in the School of Natural Resources & Environment, University of Michigan, Ann Arbor, Michigan 48109-1115.

2 Mohai, Paul, and Bunyan Bryant. 1992. "Environmental Racism: Reviewing the Evidence." Pages 163-176 in Bunyan Bryant and Paul Mohai, eds., Race and the Incidence of Environmental Hazards: A Time for Discourse. Boulder, CO: Westview Press.

3 Mohai, Paul, and Bunyan Bryant. 1998. "Is There a 'Race' Effect on Concern for Environmental Quality?" Public Opinion Quarterly 62(4): 475-505.

4 United Church of Christ. 1987. Toxic Wastes and Race in the United States. New York: Commission for Racial Justice, United Church of Christ.

5 Goldman, Benjamin. 1994. Not Just Prosperity: Achieving Sustainability with Environmental Justice. Washington, D.C.: National Wildlife Federation.

6 Geschwind, Sandra, Jan Stolwijk, Michael Bracken, Edward Fitzgerald, Alice Stark, Carolyn Olsen, and James Melius. 1992. "Risk of Congenital Malformations Associated with Proximity to Hazardous Waste Sites." American Journal of Epidemiology 135(11): 1197-1206.

7 Dolk, H., M. Vrijheid, B. Armstrong, L. Abramsky, F. Bianchi, E. Garne, V. Nelen, E. Robert, J. E. S. Scott, D. Stone, R. Tenconi. 1998. "Risk of Congenital Anomalies near Hazardous-Waste Landfill Sites in Europe: the EUROHAZCON Study." The Lancet 352: 423-427.

8 Lantz, Paula, James House, James Lepkowski, David Williams, Richard Mero, Jieming Chen. 1998. "Socioeconomic Factors, Health Behaviors, and Mortality." Journal of the American Medical Association 279(21): 1703-1708.

9 Nelson, Arthur, John Genereux, and Michelle Genereux. 1992. "Price Effects of Landfills on House Values." Land Economics 68(4): 359-365.

10 Times-Picayune. 1998. "Experts Say Shintech may not Deliver Jobs." Times Picayune, pages B-1 and B-3, January 25.

11 NAACP-Flint Chapter, Janice O'Neal, Lillian Robinson, Flint-Genesee Neighborhood Coalition (United for Action), Plaintiffs -VS- John Engler, Governor; Michigan Department of Natural Resources, Roland Harmes, Director, Defendants. Motion beofre the Honorable Archie L. Hayman, Circuit Judge, Flint, Michigan, May 29, 1997.

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May 25, 1999

Environmental Justice, Economic Progress, and Caring Community

[from working paper: AAn Economics of Caring Community@]
Oral and Written Testimony
Environmental Justice Symposium
Panel II: AStrategies and Models for Achieving Economic and
Sustainable Development through Environmental Justice@
Tuesday, May 25, 1999, 11:30 a.m. - 1:00 p.m.
Room 2226 Rayburn Building, Washington, DC

Jessica Gordon Nembhard, Ph.D.
Senior Economist, Institute for Urban Research
Morgan State University, Baltimore, MD

Consultant, The Preamble Center

Oral Testimony

Good afternoon. My name is Jessica Gordon Nembhard. I am Senior Economist at the Institute for Urban Research, Morgan State University, in Baltimore; and a consultant to The Preamble Center here in DC. I will talk about alternative economic models.

How do we define economic progress and what kind of progress will we create or accept in the 21st century? Meaningful economic progress will require that our economic values more closely reflect our humanitarian values as well as our ecological knowledge, priorities, and necessities. We can continue to make economic progress and maintain high living standards while we engage in economic activities that are equitable, efficient, and environmentally just.

Our greatest challenge lies NOT in the "way" but in the "will." However, I want to make three points about some ways to accomplish this:

1. Economic environmental justice requires universal economic justice and democratic participation.

2. Economic justice and democratic participation require changing many of our economic values and therefore some of our economic methods, relationships, and organizational structures.

3. Cooperative strategies and the development of cooperative enterprises are especially promising as alternative economic models, particularly because they require democratic participation, pooling of resources and sharing of wealth, commitment to community development and sensitivity to environmental preservation.

Cooperative economic development transforms traditional economic relationships, particularly governance, organizational, and distributional structures; and utilizes humane values to create sustainable and profitable enterprises. These are innovative, competitive businesses that operate according to principles such as: one person one vote, open membership, surplus controlled by members, cooperation among cooperatives, and continuous education. [I can give more details during Q&A.]

Part of the wealth and productivity of an economic system based on caring community depends upon treating all members as assets who must be nurtured, protected and empowered for the long run. Such a system would recognize "social energy," "sweat equity," "learning by doing," and environmental conservation and protection as economic assets. The accounting principles would factor public costs and long term consequences into cost-benefit analyses, and accurately reflect the total costs of doing certain kinds of business.

As a nation we lack the political and economic will to choose this economic "high road." That high road, however, is achievable, particularly if we protect our human and natural resources, nurture the harmonies, and create and accumulate wealth based on the values of caring community.

Thank you.

Environmental Justice, Economic Progress, and Caring Community
-Jessica Gordon Nembhard, Ph.D.

Significant economic progress in the twenty-first century will require that our economic values more closely reflect our humanitarian or moral values as well as our ecological knowledge, priorities, and necessities. Can we continue to make economic progress and maintain high living standards while engaging in economic activities that are environmentally just? We can and we must. Our greatest challenge lies NOT in the "way" but in the "will."

We know a lot about the ways to do this. My work on alternative economic development strategies provides some direction.1 Environmentally- and economically-just community economic development will require comprehensive strategies that empower people to control more resources, engage in a wider variety of productive and collaborative activities, and learn more in order to participate meaningfully. It will also require more strategies that allow community members to combine their energy and willingness to work together with unconventional and alternative resources, and to pool those resources, so that they can dream of, as well as implement and manage, needed programs and economic activities. We must begin to recognize "social energy," sweat equity, learning by doing, and environmental conservation and protection as assets and added value. Public costs and long term consequences must be factored into our equations so that cost curves accurately reflect the total costs of doing certain kinds of business.

In my own research I explore a variety of community economic development strategies that are sustainable, profitable, democratic and economically just. Cooperative strategies and the development of cooperative enterprises, though ignored by many, are especially promising as alternative models, for example, particularly because they require democratic participation, pooling of resources and sharing of wealth, commitment to community development and sensitivity to environmental preservation. There are many successes, great and small, of cooperative enterprises and financial institutions.

Many communities have made strides with alternative, viable and profitable strategies for sustainable and environmentally just economic activity. There are good examples of wonderful successes with the implementation of sustainable economic policies and the development of businesses based on ecological principles. Money has been made and will be made from "green" businesses such as organic farming; aquaculture and hydroponics; sustainable forestry; recycling; detoxifying homes and "brownfields"; alternative construction materials; production and distribution of nontoxic home cleaning materials, furniture and household goods, clothes. The space constraint does not allow me to provide more detail.

The problem is that, while we know a lot about the methods and strategies to accomplish economic sustainability and economic democracy, there is not enough of a collective will to do what needs to be done. Those of us who are willing do not have the power. Those in power do not want to share the privilege. As a nation we lack the political and economic will to choose the economic "high road." We lack the will to align our economic activities to the values of (what I call) caring community.

I will use the remainder of my space to discuss caring community and why I believe we need to infuse our economic principles with humanitarian values. Caring communities are democratic, just and fair. Members treat each other with respect and dignity. They empower themselves and each other to be productive and nurturing. Caring communities cooperate and share. Caring communities understand that they are as strong as their weakest link, that we all sink or swim together, and therefore expect and enable each member to be as strong as the strongest among them.

Chancellor Williams advocates for an economic system that "demonstrates its care for all." He writes in The Rebirth of African Civilization3:

...it should be clear that all that we have been saying about economic development through organized cooperative programs has the single purpose of a fuller, happier life. These are things of the spirit. Our various enterprises would be pushed to increase the wealth of the community in order to increase the happiness and well-being of all its members.

Caring community, with meaningful economic participation and wealth creation at all levels, is an ideal we can no longer afford to ignore. Why? Tom Atlee, founder and president of The Co-Intelligence Institute, warns that the interdependence with our neighbors and nature C which he suggests is the essence of economics -- "is now out of balance, ill and dangerous."4 You have already heard testimony about our ecological health or ill-health; and the disproportionate effects of ecological disasters and negligence on communities of color and poor communities. Also, there is increasing evidence that (as one study states) "environmental contamination of urban property ... acts as a new force in widening inequalities between central cities and the rest of the nation."5 Indeed, the decades of the 1980s and 1990s in the U.S. have generally been a retrenchment from the economic progress made in the 1950s through the early 1970s for the majority of people, even though basic economic indicators look better today (at the peak of what appears to be a sustained economic "recovery") than they did earlier in the decade (at the beginning of the "recovery"). Social and economic inequalities have increased as real wages have decreased in the past 20 years. For many workers of color the last two and one half decades have been too much a history of lost jobs, re-employment in the low wage and unstable service sector, disproportionate displacement and unemployment levels. Many families of color show an increased susceptibility to trade related job loss and a heightened vulnerability to economic slumps, job instability, reduced pay and downward mobility. Currently, unemployment levels remain between two and two and one half times higher for Blacks than for whites, even though unemployment rates are at a record low level for every group. Moreover, a large wealth gap persists between African Americans and white Americans, even when matched for similar income levels, occupational status and educational attainment. As a group, white Americans possess nearly twelve times as much median net worth as African Americans ($43,800 compared with $3,700).6

If we continue to model subsistence wages and marginal existence along side ostentatious presentations of wealth, and disregard for human and natural resources and balance, we will get what we have. If we want, however, affluent communities of dignity, people living dignified, happy lives, and creating sustainable wealth for all, then we need a re-valuation of our economic principles and goals. It is becoming clearer that a commitment to economic empowerment and economic justice is essential to the long term revitalization of depressed areas and the protection of our biosphere.

Traditional economic models have focused on individual needs and wants, and individual profit making. I want to remind you, however, that wealth creation is always a collective activity, a group effort. Individuals and corporations do not make money on their own, someone and/or something always helps. Individuals and corporations use the earth's water and air often without paying for it or without paying for having to clean it up after they pollute it. Collective money, our taxes pay for the roads and electricity and other amenities they use. Taxes also pay for the subsidies given not to plant something, or to sell overseas, or to hire welfare recipients, and the other corporate welfare our public policies support and promote. Wealth creators also use society's collective knowledge, our military's R&D, our public education system, and the hard work of employees and co-workers. No one pays all the mothers or parents for raising good workers and good inventors. ... Wealth creation is a collective activity and should be valued and remunerated in our economy as such. Such a perspective on wealth can help us to accept a vision of the good society (caring community) that will guide the needed economic changes.

When engaged in economic analysis, we traditionally abandon our human values and our morality, and decide that the "dog-eat-dog" world is the most real and the best method for determining who gets economically rewarded. We are afraid that humane economics and economic justice mean economic inefficiency and low standards of living. We want to believe in a meritocracy because then those of us who do have something can feel justified in not sharing, and those of us who don=t have much can feel both that it is our own fault and that we still have a chance. Therefore in the market place we abandon our values and suppress our humanity. Space does not allow me to give details about the limitations of the assumptions behind traditional economic models, the shortsightedness, and the neglect of public costs and social optimality. If we address these limitations and apply humane values, we can design economic models which serve the needs of all the people and our natural world.

In conclusion, I suggest that we cannot continue much longer to promote and invest in unsustainable economic activities that sap the life out of both human beings and our ecosystem, depleting all our most precious resources -- human and natural. The 19th and 20th centuries were periods of great expansion and development, on all fronts. They were also periods that took us further and further from our humanitarian values and ecological harmony. I believe that we are beginning to understand the limitations and the consequences of both human exploitation and the exploitation of our natural resources. If the 20th century was an era whereby rapid economic progress occurred at the expense of human and natural resources, the 21st century will be an era whereby rapid economic progress can only continue if we protect those resources, nurture the harmonies, and create and accumulate wealth based on the principles of caring community.

Thank you.

NOTES

1. See Jessica Gordon Nembhard, "Community Economic Development: Alternative Visions for the 21st Century," forthcoming in Readings in Black Political Economy, edited by Colby Kwasi Harris and John Whitehead, Dubuque, Iowa: Kendall/Hunt Publishing Company; for example.

2. Social energy is a term used by Curtis Haynes, Jr. (Associate Professor of Economics and Finance at Buffalo State College) to describe a "non-material resource stimulated by the strategic use of cooperative action and consensus seeking." Haynes categorizes social energy as an economic resource, similar to W.E.B. Du Bois's conception of transforming the "cooperative spirit" into an economic resource. See Curtis Haynes, Jr., "An Essay in the Art of Economic Cooperation: Cooperative Enterprise and Economic Development in Black America." Unpublished Ph.D. dissertation. University of Massachusetts, Amherst, 1993.

3. See The Rebirth of African Civilization, Chicago: Third World Press, 1993, pp. 181 and 173.

4. See "Y2K and Sustainability," Co-op America Quarterly, No. 47 (Spring 1999), pp.22.

5. See Nancy Green Leigh and Robert Gradeck, "Urban Neighborhood Demographics Associated with Environmentally Suspect, Tax-Delinquent Properties: Equity and Redevelopment Implications," The Review of Black Political Economy, Vol. 25, No. 1 (Summer 1996), pp. 61-81.

6. See Melvin Oliver and Thomas Shapiro, Black Wealth/White Wealth: A New Perspective on Racial Inequality, New York: Routledge, 1995.

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May 25, 1999
Washington, D.C.

NATIONAL CONGRESSIONAL ENVIRONMENTAL JUSTICE SYMPOSIUM

Applying Legal & Regulatory Tools To Achieve Environmental Justice: A Case in Point
Citizens Against Nuclear Trash ("CANT") vs. Louisiana Energy Services ("LES")

Nathalie Walker
Managing Attorney
Earthjustice Legal Defense Fund
400 Magazine Street Suite 401
New Orleans, LA 70130
(504) 522-1394

 

ENVIRONMENTAL JUSTICE: A CASE IN POINT

The fight by people of color for clean and healthy communities is one of the most important civil rights battles being waged in this country today. That fight began long before President Clinton's Executive Order on Environmental Justice1, and it will continue long after. But the Executive Order has proven to be an asset in this struggle; set forth below is a brief history of one citizen group's battle and how they used the Executive Order to stop a project that would have destroyed their community. This landmark victory is the first favorable ruling by any court or agency in this country on an environmental justice claim.

In June of 1989 an international consortium of companies, disingenuously called Louisiana Energy Services ("LES"), announced plans to construct a uranium enrichment plant in northern Louisiana. Uranium enrichment is one of the steps involved in the conversion of natural uranium into fuel for nuclear power reactors. The LES facility would have produced over 100,000 tons of toxic, radioactive waste that has a hazardous life of hundreds of thousands of years, and this waste would have been stored on site for at least fifteen years, virtually in neighbors' backyards. LES was required to apply to the Nuclear Regulatory Commission ("NRC") to obtain a license to construct and operate this facility.2

The LES facility was to be built in between the communities of Forest Grove and Center Springs. These two communities are physically linked together by a road which parish (county) officials agreed to close and relocate in order to accommodate the LES plant. The community of Forest Grove was founded by freed slaves at the close of the Civil War and has a population of about 150. Center Springs was founded around the turn of the century and has a population of about 100. Many of the residents of these communities are descendants of the original settlers, and a large portion of the landholdings remain with the same families that founded the communities. From kindergarten through high school, the children of these communities attend schools that are largely racially segregated.

Forest Grove and Center Springs are among the poorest and most disadvantaged communities in the United States. Over 69% of the African-American population of Claiborne Parish earns less than $15,000 annually, 50% earn less than $10,000 and 30% earn less than $5,000. Over 31% of the African-American households in the parish have no motor vehicles, and over 10% live in households that lack complete plumbing. Approximately 58% of this population has less than a high school education, including almost 33% over the age of 24 years who have not attained a ninth grade education.

Nearly all of the roads in Forest Grove and Center Springs are either unpaved or poorly maintained. There are no stores, schools, medical clinics, or businesses in these communities. Many of the residents are not connected to the public water supply. Some of these residents rely on groundwater wells, while others must actually carry their water because they have no potable water supply.

The citizens of Forest Grove, Center Springs, and the surrounding areas organized as "Citizens Against Nuclear Trash" ("CANT") and hired Earthjustice Legal Defense Fund3 to represent them in the NRC licensing proceeding. At the NRC proceeding, CANT presented substantial documentary evidence and testimony, including the testimony of Dr. Robert D. Bullard -- a leading expert on environmental justice demonstrating that the Final Environmental Impact Statement ("FEIS") for the project failed to adequately assess the negative impacts of the proposed facility, and that the site selection process for the proposed facility was biased. In short, CANT was able to demonstrate that, contrary to mandates of the Executive Order, their community was treated in a biased manner and was not afforded equal protection under the law.

With respect to the deficient FEIS, it was demonstrated that the FEIS incorrectly concluded that the impacts of closing and relocating the road connecting Forest Grove and Center Springs would be very small and not pose unacceptable impacts. In fact, the evidence showed that no one even bothered to consult with any of the residents of Forest Grove and Center Springs before reaching a conclusion of "no significant impacts" in the FEIS. If they had, they would have found that the road is a vital and frequently used link between the two communities, with regular pedestrian traffic. The NRC Judges found that "the record is clear that the FEIS did not analyze the impacts on the communities of Forest Grove and Center Springs of closing and/or relocating Parish Road 39." 45 NRC at 405. Specifically, the NRC Judges held that the FEIS failed to discuss the road's "status as a pedestrian link between Forest Grove and Center Springs and the impacts of relocation on those who must walk the distance between the communities on this road." Id. Instead, the FEIS merely discussed some impacts that would be imposed on people driving the new route. Id. at 405. Noting the record evidence that over 31% of African American households in the parish have no motor vehicles, the NRC Judges found that "the FEIS has not considered the impacts that the relocation of Forest Grove Road will have upon those residents who must walk." Id. at 406. "Permanently adding . . . distance to the . . . walk between these communities for those who must regularly make the trip on foot may be more than a 'very small' impact, especially if they are old, ill, or otherwise infirm." Id.

The NRC Judges also found the FEIS deficient with respect to its discussion of the LES facility's impact on property values in Forest Grove and Center Springs. The FEIS did acknowledge that some property values would be negatively impacted by the proposed plant, but the FEIS failed to identify the location, extent, or significance of this effect. As Dr. Bullard testified, the negative impacts of depressed property values would disproportionately affect the minority communities next to the proposed facility.4 He noted that conditions of race and poverty would exacerbate these effects: because of the housing barriers faced by African Americans, the residents of Forest Grove and Center Springs would not have the same opportunities to relocate as would whites living in the parish; and because the residents of these two minority communities are among the poorest in the parish, they would be less likely to be able to absorb the diminution in property values than other, wealthier, more mobile residents of Claiborne Parish.

The NRC Judges found Dr. Bullard's "testimony on the negative economic impact of the [proposed facility] on property values in these minority communities reasonable and persuasive," and that he was a "credible and convincing" witness. 45 NRC at 409-410.

Dr. Bullard is a recognized expert on the subject of environmental justice who for years has conducted research, lectured, and written extensively in the areas of housing and community development. He has presented a reasoned, persuasive, and unchallenged explanation why the CEC will negatively impact property values in these minority communities. Additionally, even a cursory look at the references cited by Dr. Bullard in his prefiled direct testimony show there has been substantial research indicating the negative impacts on minority communities in analogous circumstances.

45 NRC at 410.
Furthermore, the NRC Judges noted that the opposing "witnesses made no attempt to explain how or why Dr. Bullard might be mistaken." Id. at 410. Chastising LES for its generalized and conclusory statements that "there is no way to determine if a specific individual or area will benefit or be adversely impacted," and that "impacts on property values would be distributed throughout the region" so that the impacts would not be expected to disproportionately or adversely impact any particular area, the NRC Judges determined that "the testimony of these . . . witnesses in this regard is neither persuasive nor reasonable in this instance." Id.

The NRC's decision regarding the flawed FEIS fully comports with the mandate of the Executive Order on Environmental Justice. That Order specifically references the need to ensure that negative impacts on poor and minority communities are fully considered when taking a "hard look" at potential impacts of a proposed project -- a requirement which the National Environmental Policy Act ("NEPA") has always imposed, but which has historically not been consistently implemented with respect to communities of color and the poor. Such a hard look was never taken by LES, who did not even bother to talk to people in the most directly affected community about the significant negative impacts of property devaluation and the relocation of the road connecting Forest Grove and Center Springs.

With respect to the site selection process, extensive evidence was presented to show that race played a part in that process, in various ways. This evidence principally consisted of:

• statistical data showing that at each progressively narrower stage of the process, the level of poverty and African Americans in the local population rose dramatically, until it culminated in the selection of a site with a local population that is extremely poor and 97% African American.
• sworn statements by an LES site selection official demonstrating that LES used improper racial and economic quality-of-life considerations to judge the ostensibly objective and technical criterion of "low population within a two-mile zone."
• testimony showing the potential racial bias inherent in the siting criterion requiring a 5-mile distance from the nearest institution, because minority and poor communities like Forest Grove and Center Springs generally lack such amenities.
• testimony and documentary evidence showing that LES's application of other site selection criteria, such as the importance of community support for the project, were applied in a biased manner.
• testimony and documentary evidence demonstrating that contrary to LES's claims, the site selection process was neither "systematic" nor "methodical;" nor were its results logical and consistent. In particular, the Forest Grove and Center Springs site was chosen in spite of the fact that it did not meet some of LES's fundamental site selection criteria, and site selection documents appeared to have been backdated in order to justify the preconceived choice of the Forest Grove and Center Springs site.
• testimony and documentary evidence demonstrating such significant gaps and inconsistencies in LES's site selection records that it is impossible to determine what actually occurred during the site selection process, or to evaluate the objectivity and reliability of the technical judgments that LES allegedly made in the course of the process.

In short, the testimony revealed that LES's site selection process was at best biased, self-contradictory, and poorly documented, and at worst a sham concocted to justify the preconceived choice of the Forest Grove and Center Springs site.

Based on a thorough review of the record, the NRC found that CANT had presented "[s]ubstantial evidence," the "most significant portions of which are largely unrebutted or ineffectively rebutted," sufficient to raise a "reasonable inference that racial considerations played some part in the site selection process."5 In particular, the NRC concluded that CANT's unrebutted statistical evidence regarding bias in the site selection process "very strongly suggests" that racial considerations influenced the site selection process. 45 NRC at 392.

The NRC's decision in this matter is fully authorized by and consistent with Executive Order 12898 and NEPA, although it is the first attempt by litigants to redress racial bias pursuant to NEPA. The NRC decision simply affirms the fundamental principle that an agency's evaluation of environmental impacts under NEPA, and a license applicant's environmental impact analysis on which an agency relies and of which the agency approves, must be conducted in a fair and unbiased manner. To suggest that the NRC cannot and should not address bias as part of its NEPA review would be repugnant to the fundamental principles of NEPA.

As the NRC determined, "whether the decisions made and the actions taken during [the site selection] process demonstrate an appropriate objective consideration of the impacts of the proposed facility . . ." is an appropriate consideration under NEPA"6 Indeed, LES itself acknowledged that the potential impacts of its proposed facility were considered during the site selection process: "Socioeconomic impacts the CEC may have on the candidate communities were considered during the site evaluation process . . . ." LES Environmental Report at 7.0-2.1 ("ER").7

Thus, although the NRC may have rendered an historic decision in the LES case, that decision is fully in accordance with NEPA. The Executive Order on Environmental Justice, which serves only as a reminder that all communities must be afforded the protections of NEPA, may have breathed new life into the entire NEPA process. On appeal, the full NRC Commission agreed that the negative impacts on the communities of Forest Grove and Center Springs were not adequately considered, but did not address the issue of racial bias in the site selection process.8 Accordingly, rather than exclusively relying on the initial LES decision for future environmental justice cases, prudence may well dictate that NEPA itself be amended to unequivocally reaffirm that every aspect of an agency's evaluation under NEPA must be conducted in a fair and racially unbiased manner.
_______________________________________

1 E.O. 12898, 3 C.F.R. 859 (1995).

2 In the Matter of Louisiana Energy Services, L.P., Nuclear Regulatory Commission Docket No. 70-3070-ML. A copy of all documents in this proceeding can be obtained by contacting the NRC's Public Documents Room at (202) 634-3273.

3 Earthjustice Legal Defense Fund is a nonprofit environmental law firm with offices in San Francisco, CA; Seattle WA; Juneau AK; Honolulu, HI; Denver, CO; Bozeman, MT; New Orleans, LA; Washington, DC; and Tallahassee, FL. Earthjustice does not charge its clients attorneys fees.

4 As Dr. Bullard also testified, in the foreseeable event that the site becomes a long-term nuclear waste storage site, property values will further decline. This possibility is very real since, in an earlier decision (In the Matter of Louisiana Energy Services, L.P., LBP-97-3, 45 NRC 99 (1997)), the NRC determined that LES's cost estimate for disposing of its waste is short by about $115 million, thus confirming CANT's allegations that the waste will remain on site, perhaps forever.

5 In the Matter of Louisiana Energy Services, L.P., 45 NRC 367, 391, LBP-97-8 (May 1, 1997). This decision is available on the Internet at http://www.nrc.gov/OPA/reports/
lesfnl.htm, and may also be obtained by contacting the NRC's Public Documents Room at (202) 634-3273.

6 Memorandum and Order (Ruling on Intervenor's October 5, 1994 Motion to Compel) at 6 (November 9, 1994) (available at the NRC's Public Documents Room).

7 Available at the NRC's Public Documents Room.

8 See In the Matter of Louisiana Energy Services, L.P., http://www.nrc.gov/ OPA/reports/ lesorder.htm.

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May 25, 1999

HARMONIZING ENVIRONMENTAL JUSTICE WITHIN THE ADMINISTRATION'S LIVABILITY AGENDA

By Mathy V. Stanislaus1

Environmental Justice Symposium
US House of Representatives

The Clinton-Gore Administration recently announced its Livability Agenda and included key components in its FY 2000 Budget - it calls for "the strengthening of the federal government's role as a partner . . . to build livable communities for the 21st century." In implementing the agenda the Administration reaffirmed its commitment to "work with and learn from communities" in developing strategies and tools to make communities livable.

Concurrently the Executive Order on Environmental Justice, 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations , requires "[Federal Agencies] ... to make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects [within all programs, policies and activities] on minority populations and low-income populations."

Achieving Livable Air Quality through Transportation Transition

Administration's Livability Goal #2 calls for addressing "traffic congestion by improving road planning, strengthening existing transportation systems, and expanding the use of alternative transportation."

Urban environmental justice communities are impacted from the confluence of transportation infrastructure - they live in mixed zones and non-conforming residential uses in industrial zones, are inundated by diesel vehicles through their neighborhood and have high-density highways bisecting their communities. These vehicles represent continuous sources of particulate, carbon monoxide emissions - both of which have the effect of concentrating locally - and hazardous volatile organic compounds. These communities, not so coincidentally, suffer from the highest incidence of asthma and other upper respiratory illness.

The current manner of collecting air quality data does not provide any information regarding localized concentrations and hot spots of these pollutants. The Administration' proposed budget contains $1.8 billion dollars for Congestion Mitigation and Air Quality Improvements and $2.2 billion to aggressively implement innovative community-based programs in the Transportation Equity Act.

The following activities are necessary to begin identifying livability goals for communities in close proximity to existing Transportation Infrastructure:

1) Funding be made available to collect data of localized air quality associated with transportation infrastructure, and hot spots of pollutants associated with vehicular transportation.

2) Such data, as well as other air quality data associated with small stationary sources of hazardous air pollutants must be considered by EPA in revising its urban air toxics strategy based on the health risks posed by the total hazardous air pollutant loading on urban environment justice communities. The current program fails to adequately consider all sources of hazardous air pollutant loading.

3) Data of concentrations of particulates must be used to design a continuous air monitoring network of PM-2.5 to ensure that communities in closest proximity to transportation infrastructure - and potentially at greatest risk - have the same level of protection , as established in EPA's PM 2.5 rule, as other communities.

RETIREMENT, REALIGNMENT AND ENCLOSING/UNDERGROUNDING (With Air Quality Controls) of transportation infrastructure must be studied and become part of federal transportation planning methodology.

In many communities, livability - from the perspective of health and access to waterfront - may not ever be achieved because of the proximity of residences to the current transportation infrastructures. Desseldorf, Germany recently undergrounded a major highway based on the opportunities presented from the use of properties as well as the increase in property value adjacent to the highway. Communities living adjacent to major transportation infrastructure have proposed that economic and health benefits associated with undergrounding, enclosing, realigning or retiring of such justify federal expenditures for such purpose.

We must recognize the racist legacy of Robert Moses' siting of transportation infrastructure, and remedy the continuing discriminatory consequence of the denial of recreational and waterfront access to communities of color, if we are going to make all communities fully livable.

URBAN SMART TRANSITION STRATEGY - THE PARTNER TO SMART GROWTH

I propose an "Urban Smart Transition Strategy." Urban communities cannot become livable without addressing the need for small business transitioning towards sustainable practices without economic harm. Otherwise, urban environmental justice communities stand the risk of all smart growth initiatives leaving them behind and further divide between the environmental quality of environmental justice communities and suburban America. Small businesses provide the greatest collective employment in urban environmental justice communities and also tend to have the least sustainable practices.

I propose the following elements of an Urban Smart Transition Strategy for existing businesses:

• Grants and low-interest loans for small business to implement operational changes, switching to less harmful chemicals, and pollution prevention activities (The initial targeted group should be those small business that are identified in the EPA's revised urban toxics strategy.)
• Tax Incentives and credits for business to implement environmental improvements (both on of off-site), and total waste reduction.
• Eliminate the incentive for the use of virgin materials in processes in favor of recycled feed stock

I propose the following elements of an Urban Smart Transition Strategy for new business: 

• Provide investment tax credits for new business locating or relocating onto brownfield sites
• Target brownfields sites in impoverished environmental justice communities for institutions and businesses established pursuant to the Administration's Livability Agenda (Research and Development or Technology Institutions)
• provide expedited depreciation for new business that commit to sustainable practices
• incentivize the siting of facilities in close proximity to public transportation

Educational Institutions must also play an important role in the achieving livability by including in their curricula pollution prevention, and sustainable practices. In addition, they can play a direct role by provide technical assistance to communities. The federal government can incentivize this through its Department of Education funding assistance.

LEVERAGING FEDERAL ASSISTANCE TO ACHIEVE COMMUNITY REVITALIZATION, AND ENVIRONMENTAL RESTORATION

The Administration has proposed numerous programs that must be integrated to accomplish the vision of community revitalization through brownfields reuse. These include: $9.5 Billion dollars in Better America Bonds, $65 million for Community-Based Technology Centers, $965 million for skills gap program of adult education, and employment initiatives, $600 million for after school program, $10 million for community-centered school, $400 million for fixing failing schools, tax credits and loan guarantee incentives to create $15 billion dollars of new private capital and Research and Technology initiatives. The vision of community revitalization and sustainable reuses of brownfields will only occur in environmental justice communities if these programs are properly integrated and targeted to meet the aims of being a catalyst for community revitalization and environmental restoration.

Community based organizations in environmental justice communities around the country have identified the clustering of brownfields properties and the need for a neighborhood-wide approach to achieve revitalization. This needs to begin with the funding being made available for neighborhood-wide planning activities.

Many Brownfields sites in environmental justice communities are perceived by financiers, private capital, and governmental economic development agencies as not being economically viable - therefore, public projects must be the target of the federal government to act as a catalyst for other brownfield sites. I propose that one component of an integrated federal brownfield programs be to target the creation of anchor community facilities to house the programs identified in the Administration's Community Reinvestment Agenda. These community facilities will serve as a catalyst for the business community and economic development agencies to see the opportunities, rather than redlined perceptions, in each community.

Many States around the country have adopted short sighted brownfield programs that ignore wide-spread contamination and risks posed by such, disincentivizes complete cleanup and fails to address sustainable reuse issues in order to expedite the quick redevelopment of a few brownfield sites. The federal government has a rare opportunity to influence upwards local decisions in brownfield projects by conditioning all federal dollars on environmental restoration goals and community based planning to determine acceptable new uses.

All of the federal programs must be examined for having an unintended bias towards greenfield development and urban sprawl. For example, in examining NYS economic development programs - the cost of infrastructure investment in greenfield properties is, in part or whole, being borne by the federal government (because of the manner of federal funding of transportation investment.). This results in economic analysis favoring greenfield development and urban sprawl.

I propose the following considerations in brownfield programs:

1) realigning federal programs to, at a minimum equalize brownfield and greenfield properties, and, where there should be preference for brownfields reuse;

2) conditioning and influencing federal dollars on sustainable reuses, community-based planning, and environmental restoration goals;

3) facilitating community-based planning through grants and technical assistance; and

4) integrating federal programs to serve as catalyst for neighborhood wide brownfield restoration for environmental justice communities impacted by multiple brownfield sites.

Achieving Environmental Justice and Livability within the Lands Legacy Initiative
Administration Livability Goal #1 is to "preserve Green spaces that promote clean air and clean water and provide families with places to walk, play and relax." This goal must include the creation of Green Space, in addition to preservation of existing green space. Urban environmental justice communities are currently deprived of open space, and access to the waterfront.

Historically federal and state open space preservation funding have disproportionately been targeted to rural areas - the human benefits associated with open space have not been a focus of past funding initiatives. The Administration's $1 billion dollar Lands Legacy Initiative must be implemented in a manner that targets urban communities that have the least available open space and live adjacent to multiple brownfield sites. I propose a mantra of "IF YOU GREEN IT - THEY WILL COME" based on a philosophy that the greening of the urban core is inextricably linked to revitalizing urban America. In developing this program, the implementing federal agency must ensure that a local community-based organization is a partner in managing the open space - this would enhance the capacity of local organizations and create a direct link between local communities and open space.

REGIONAL CONNECTIONS INITIATIVE

The Administration's budget proposal includes $50 Million dollars to HUD to pursue smarter growth strategies across jurisdiction lines with local partners. These are intended to promote the establishment of regional compacts to manage development. I propose that one funded activity be targeted towards the Northeast's solid waste export problem - New York, New Jersey, Pennsylvania, Virginia and DC are in the midst of borders wars regarding the export, transport, siting of waste transfer facilities and disposal of solid waste. Funding a multi-State, multi-community process with the goal of a regional solid waste compact is immediately necessary to prevent the border wars from resulting in exacerbating the already overburdened circumstance of waste being processed in environmental justice communities.
___________________________________________

1 Mathy Stanislaus is the Director of Environmental Compliance for Enviro-Sciences, Inc., President of the Board of the New York City Environmental Justice Alliance and Co-Chair of the Minority Environmental Lawyers Association. He can be contacted at: 199 Arlington Place, Staten Island, NY 10303; (718) 448-7916, (718) 448-8666, e-mail: mstanisl@concentric.net

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May 25, 1999

Testimony of Vernice Miller-Travis on
S. 1090 the "Superfund Program Completion Act of 1999"

Introduction

Good morning. My name is Vernice Miller-Travis, previously I served as the Director of the Environmental Justice Initiative of the Natural Resources Defense Council. I am a member of the National Environmental Justice Advisory Council (the NEJAC), and I chair the Waste and Facility Siting subcommittee of this FACA. This subcommittee works closely with EPA's Office of Solid Wastes and Emergency Response on a variety of policy issues including: Superfund and federal relocation policy, Brownfields redevelopment, the regulation of solid waste transfer stations, hazardous waste facility sitings and operations, hazardous wastes clean-up and remediation activity, EPA hazardous waste enforcement activities, and a host of other issues. I come before you today to present the thinking of the environmental justice community on CERCLA amendments and Superfund reform. Thank you for the opportunity to present my views on S. 1090, the "Superfund Program Completion Act of 1999."

The primary focus of the environmental justice community in Superfund reform is the creation of a program that will position protection of public health and the environment as the centerpiece of the nations Comprehensive Environmental Response, Compensation, and Liability Act of 1980 and 1986 amendments. We also believe that the role of communities who live or work at or near a Superfund site must be expanded to allow for substantive involvement of these critical stakeholders in Superfund site decision-making.

The paramount concern of the environmental justice community is achieving fairness in communities experiencing disproportionate environmental impacts and preventing unfairness in the future.

The history of Superfund application in environmental justice communities

Communities of color are exposed to environmental hazards disproportionately, and have been inadequately protected from environmental degradation by Superfund in the past. According to the National Law Journal, in its report Unequal Protection, the Racial Divide and Environmental Law, published in September of 1992, communities of color wait up to four years longer than white communities in getting Superfund sites cleaned up. Moreover, not only has Superfund been disproportionately ineffective, it has also been discriminatorily implemented. According to this report, permanent treatment remedies were selected twenty-two percent more frequently than mere containment technologies at sites surrounded by white communities. In contrast, containment technologies were selected more frequently than permanent treatment at sites surrounded by communities of color.

Other national studies have replicated these findings that government agencies have engaged in disparate treatment of communities of color and low income communities in the implementation and enforcement of both Federal and state environmental laws and regulations. In 1983 the GAO documented similar finding with respect to hazardous waste landfills. Recent studies found that the percentage of African-Americans and Latinos in communities with NPL sites is greater than the national average. Communities with relatively high percentages of people of color have fewer clean-up plans or signed RODs than other NPL sites in majority white middle class communities.

Additionally there are significant deficiencies in the provisions of CERCLA to address native American tribal and sovereignty issues with respect to Superfund implementation and enforcement on native and tribal lands.

Environmental justice communities want a comprehensive Superfund reauthorization plan that encompasses: revisions to the Hazardous Ranking System and how sites are ranked and listed on the NPL; minimum clean-up standards; the selection of permanent treatment technologies over containment; remedial activity that is based on human and ecological exposure pathways and health risk assessments; assuring that responsible parties are held liable for clean-up costs; and an expanded defined role for public participation in Superfund site clean-up and re-use decision-making.

General concerns with the "Superfund Program Completion Act of 1999"

The following aspects of S. 1090 are problematic from an environmental justice perspective. 

• Waivers of the Federal safety net (Sec. 201, page 33)
  • -this provision could eliminate all enforcement actions under
    Superfund, including the citizen suit provision

    -creates less protective framework by the absence of minimum
    state program criteria, and allowing self certification without EPA
    program review and approval of adequacy of state programs

    -sets unrealistic requirements for EPA to receive state concurrence on EPA enforcement actions (Sec. 201, page 35)

• New NPL listings prohibited unless requested by the Governor (Sec. 202, page 38)
  • -this is a new provision which is extremely problematic to environmental justice groups. In many states the Governors and Commissioners of State environmental agencies have expressed open hostility to environmental justice communities and their concerns, openly refusing to implement state or Federal environmental laws and statutes fairly and vigorously in all communities. Many Governors and State agencies are in active litigation with ej groups over a range of environmental problems.

    -It is not likely that these same Governors are going to recommend new sites for clean up in the very communities that they have ignored in the past, or litigated against in the present.

    -Past recommendations have allowed EPA to add sites to the list as it sees fit, with Gubernatorial concurrence. This new construct could effectively prevent the listing of any NPL sites in communities of color and low income communities in the future.

• Shifts clean-up costs to states and municipalities and tax payers, places a cap (30 per year) on additions to the NPL (Sec. 202, page 38)
  • -this is a new provision which we find unworkable

    -no provision is made for states who are unable to clean-up sites

    -New York State DEC (1996) and the NGA are on record opposing this concept

    -EPA estimates it would be adding only 30 to 40 new sites a year

• "Small Business" exemption is overbroad and could drain the fund (Sec. 301(b), page 46)
  • -this provision goes beyond exemptions/limitations for small contributors of hazardous wastes, contributors of municipal solid wastes and parties who are financially unable

    -this provision would also exempt contributors of very large amounts of hazardous waste who are financially solvent, and the owners and operators of sites

• "Allocation" scheme could slow cleanups and require paying the polluter (Sec. 303, page 77)
  • -the elimination of strict, joint and several we view as undermining of the original intent of Superfund

    -the new allocation review process outlined here is cumbersome, time consuming and wasteful of EPA resources, and does not lead to expedited site clean-ups

    -requiring this kind of allocation review for each NPL site and proposed site would slow the program down to a halt

    -statutory orphan share for all exempted parties is shifted to the fund and must be paid out before any settlement for final clean-up. This could tap the fund dry by prioritizing payment of orphan share and reimbursement of PRP's as more important that money for clean-ups or conducting site clean-ups. This is contrary to the original intent of Superfund.

    -If EPA can't pay the orphan share they can't issue order to do cost recovery against identified liable parties

    -establishes a favorable framework for uncooperative litigants versus those who voluntarily complied with Superfund

• This bill shuts the program down and provides no stop gap Federal system inn place to address unlisted sites (Sec. 401)
  • -the ramp down of appropriated dollars over the next five fiscal years is unworkable

    -the decrease in authorized spending for Superfund clean-ups means many sites will go unaddressed, and some sites may not be able to complete clean-up activities

    -the recommended appropriations start at levels that are lower than current levels and decrease from there

• The bill does not provide sufficient monies for DOJ and ATSDR activities (Sec. 401)
  • -the bill shifts all non-EPA (DOJ, ATSDR, NIEHS) costs from Superfund and HUD/VA budget, this is the equivalent of another reduction in Superfund appropriations and spending on clean-ups and remedial activity

    -additional funds would have to be taken from general revenue/taxpayers

• Shifts funding of the program from industries to the Taxpayers
  • -this bill does not reauthorize the Superfund tax on polluting industries

    -all Superfund program costs and clean-ups would now come out of the general revenue after the fund runs out of money in FY 2001.

• Despite reduced funding many new obligations are created that drive up the costs of the program not related to clean-ups
  • -EPA performance allocations

    -site by site evaluations on all CERCLIS sites over the next two years

    -new rule making requirements for determining the origin of original hazardous release on a site by site basis

    -changing state cost share to a flat 10%

    -these changes will slow clean-ups down and shift resources from clean-ups

From an environmental justice perspective the substantive changes proposed in 1990 portend disastrous consequences for the hundreds of communities who have sought relief from hazardous wastes contamination in their communities under Superfund. This bill provides no relief for them, but rather increases their potential for exposure and harm, shifts the burden of clean-up costs from polluters to tax payers, and removes EPA and the Federal government as a instrument of protection.

Finally, the notion of devolving the entire Superfund program to the states will only magnify the environmental injustices already visited on too many communities by the very agencies that presently ignore the disproportionate pollution burden borne by communities of color and low income communities across this nation.

This bill is not a mechanism for achieving environmental justice in the context of the Superfund program, but rather for compounding an already difficult situation.

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