EJ News

Before me, the undersigned authority, on this day personally appeared Robert D. Bullard who, after being sworn by me, stated as follows:

"My name is Robert D. Bullard. I am over eighteen (18) years of age, have never been convicted of a felony and am competent and capable of making this Affidavit. I have personal knowledge of the facts stated herein and they are true and correct.

I am Ware Professor of Sociology and Director of the Environmental Justice Resource Center at Clark Atlanta University. Prior to joining the faculty at Clark Atlanta University in 1994, I served as a professor of sociology at the University of California, Riverside and visiting professor in the Center for African American Studies at UCLA. I received my M.A. from Clark Atlanta University and Ph.D. in sociology from Iowa State University. I have worked on and conducted research in the areas of land use, community development, industrial facility siting, and environmental quality for nearly twenty years. I was one of the planners of the First National People of Color Environmental Leadership Summit. I served on President Clinton's Transition Team in the Natural Resources and Environment Cluster (i.e., Departments of Energy, Interior and Agriculture, and the Environmental Protection Agency). I also served on the U.S. EPA National Environmental Justice Advisory Council ( NEJAC ) and chaired the Health & Research Subcommittee. My Dumping in Dixie: Race, Class and Environmental Quality (Westview Press, 1994), has become a standard text in the environmental justice field. I am also the author of Confronting Environmental Racism: Voices from the Grassroots (South End Press, 1993), Unequal Protection: Environmental Justice and Communities of Color (Sierra Club Books, 1996), People of Color Environmental Groups Directory 1994-95 (Charles Stewart Mott Foundation, 1994), Residential Apartheid: The American Legacy (UCLA Center for African American Studies Publications, 1994), Just Transportation: Dismantling Race and Class Barriers to Mobility (New Society Publishers, 1997).

I am over the age of 21 and competent to make this affidavit. I present the following as an expert witness on land use, facility siting, social impact assessment, and environmental discrimination.

I have been asked to review the decision concerning the siting and construction of the Texas A&M University Animal Science Teaching Research and Extension Complex (ASTREC). The purpose of my review was to determine whether or not: (1) Texas A&M University (TAMU) officials failed to consider the inequitable distribution of costs and benefits of the ASTREC to the nearby communities; (2) Texas A&M University officials failed to adequately assess the impacts (i.e., costs and benefits) of the facility on the nearby community; (3) Texas A&M University officials failed to document a site evaluation, ranking, and selection process in which all communities were treated equally without regard to race; (4) Texas A&M University officials failed to adopt an objective, quantifiable, and nondiscriminatory evaluation criteria to assess community impact; (5) Texas A& M University officials failed to take into account the cumulative and additive impacts the ASTREC facility would have on the neighboring community; (6) Texas A&M University failed to give proper notice notification to home owners, property owners, and residents who live in the Brushy community; (7) Texas A&M University failed to protect the rights of residents who live in the Brush neighborhood (who are mostly African Americans) the same way they protected residents who lived near the alternate sites who are mostly whites; (8) the siting of the ASTREC facility in the Brushy community follows a national pattern in which institutionally biased decision making leads to the siting of locally unwanted land uses and industrial facilities, in this case the ASTREC facility, in low-income and minority communities (this pattern has been noted in several of my books and numerous articles); and (9) Texas A&M University site selection process discriminated against the residents of the Brushy neighborhood.

I conducted a personal examination and study of the area surrounding ASTREC. My conclusions are that all nine of the previous identified areas (1-9) Texas A & M University failed as follows: (1) Texas A&M University (TAMU) officials failed to consider the inequitable distribution of costs and benefits of the ASTREC to the nearby communities; (2) Texas A&M University officials failed to adequately assess the impacts (i.e., costs and benefits) of the facility on the nearby community; (3) Texas A&M University officials failed to document a site evaluation, ranking, and selection process in which all communities were treated equally without regard to race; (4) Texas A&M University officials failed to adopt an objective, quantifiable, and nondiscriminatory evaluation criteria to assess community impact; (5) Texas A& M University officials failed to take into account the cumulative and additive impacts the ASTREC facility would have on the neighboring community; (6) Texas A&M University failed to give proper notice notification to home owners, property owners, and residents who live in the Brushy community; (7) Texas A&M University failed to protect the rights of residents who live in the Brush neighborhood (who are mostly African Americans) the same way they protected residents who lived near the alternate sites who are mostly whites; (8) the siting of the ASTREC facility in the Brushy community follows a national pattern in which institutionally biased decision making leads to the siting of locally unwanted land uses and industrial facilities, in this case the ASTREC facility, in low-income and minority communities (this pattern has been noted in several of my books and numerous articles); and (9) Texas A&M University site selection process discriminated against the residents of the Brushy neighborhood.

In the summer of 1997, I visited the Brushy community, met with residents of the area, both black and white, spoke at a meeting of ROPL, toured the various sites University officials considered for ASTREC before purchasing the Varisco property, and took many photographs of all but one site, the former Conlee property now under development as River Run Estates.1

I visited the ASTREC facility, and took note of its terrain, various buildings, pole barns and sewage pond. I also have examined depositions provided by ROPL leaders, and many documents, including those TAMU officials provided during discovery and in response to open records requests. I analyzed this material in comparison with other cases with which I am familiar or worked on directly, including a recent case involving the Louisiana Energy Services (LES) application for a permit to operate a privately-owned uranium enrichment plant.2

In my analysis as provided herein, I considered the developing body of federal policy concerning the consideration of environmental justice in government decision making, including Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, (February 11, 1994). The Executive Order applies to recipients and subrecipients of federal funds. Executive Order 12898 reinforces Title VI of the Civil Rights Act of 1964, which prohibits discriminatory practices in programs receiving federal funds. The Order also focuses the spotlight back on the National Environmental Policy Act (NEPA), a law that set policy goals for the protection, maintenance, and enhancement of the environment. NEPA's goal is to ensure for all Americans a safe, healthful, productive, and aesthetically and culturally pleasing environment. NEPA requires federal agencies to prepare a detailed statement on the environmental effects of proposed federal actions that significantly effect the quality of human health.3

Finally, I applied well established criteria and principles that are used by social scientists for analysis of environmental justice and society equity issues.

Based upon my investigation, the Brushy neighborhood was established late in the 19th century, mainly by people seeking to escape the frequent flooding that took place in the Brazos River Bottom. Over the years, residents established two churches, Clayton Baptist and St. Marks Missionary Baptist Church, cemeteries, and community center. One cemetery is near Clayton Baptist Church, while an older cemetery is located east of Highway 60. The earliest headstone I was able to observe in the older cemetery during my site visit dates back to 1915. The cornerstone shows that Clayton Baptist Church was established in 1891. The church also serves as an election polling place for residents of the surrounding area.

For many years, until the early nineties, Mr. Dossie Foster, an African American resident, owned and operated a convenience store (that included a gas station) on Highway 60, less than a mile east of the current entrance to ASTREC, near Lightsey Lane. The remnant of the convenience store could still be found during my site visit during the Summer, 1997. During the site visit, I observed the land uses within the Brushy neighborhood. The neighborhood is comprised largely of small woodframe and some brick single-family homes. The neighborhood has two large gravel pits, an injection well, an asphalt and a cement plant, and the Brazos County Citizens Collection Station. All of these facilities are concentrated in a relatively small geographic area. The addition of ASTREC, across the highway from the Brushy community, is yet another nonresidential land use in this small community.

Building ASTREC in the Brushy area to accommodate initially up to four thousand animals, including pigs, goats and sheep, and several hundred cattle, with several large sewage ponds for the treatment of manure4, follows a pattern of land use that is widespread in the United States, whereby facilities that negatively impact the health and well being of nearby residents are placed in low-income and minority neighborhoods. The number of animals to be housed at the ASTREC was later reduced to 1,300 animals and one sewage pond.

Unincorporated communities are vulnerable to a "triple jeopardy" in that they are often rural, poor, and politically powerless against industrial interests. Low income and people of color communities (such as the Brushy community) are disproportionately impacted by the location of industrial facilities, "risky" technologies, and locally unwanted land uses (LULUs). In the United States, race has been found to be independent of class in the location of municipal landfills and incinerators,5 abandoned toxic waste dumps,6 and cleanup of Superfund sites.7

Recognition of these environmental inequities, while receiving more public attention in the past several years, is not new. The correlation of solid waste siting and the African American community was well documented and described in Houston, Texas in 1983;8 the United States General Accounting Office ("GAO") reviewed the correlation between hazardous waste landfills and racial and economic status of the surrounding communities in 1983;9 and the United Church of Christ completed a major study of commercial waste facility location and community makeup in 1987.10 Each of these studies identified race as a factor in environmentally risky waste disposal siting. Since this period, numerous studies over the years have indicated that some Americans have borne a disproportionate share of pollution burdens.11

A 1994 study found that close to 88 percent of whites in America compared to only 12 percent of minority peoples live in neighborhoods "completely free" of commercial hazardous waste treatment, storage or disposal facilities.12

The framework for evaluating environmental equity in facility siting consists of three different aspects: geographic, procedural and social equity.

Geographic equity refers to the location and spatial configuration of communities and their proximity to environmental hazards, noxious facilities, and locally unwanted land uses such as landfills, incinerators, sewage treatment plants, lead smelters, refineries, and facilities handling or disposing of radioactive materials. In part because of their geographic and spatial configuration, some communities (i.e., rural areas, sparsely populated areas, people of color communities, Native American reservations, the Southern United States, third world nations, etc.) are more vulnerable to environmental risks than others.13

Procedural equity refers to the "fairness" question: the extent to which governing rules, regulations, evaluation and selection criteria, and enforcement are applied uniformly and in a nondiscriminatory way. Procedural "inequities" might involve nonscientific, undemocratic, or arbitrary decision making, exclusionary practices, or nonrepresentativeness of samples, subjects and opinion leaders selected in community rating and site selection scoring systems. Procedural equity also subsumes the question of reliability and validity of the way in which data are collected and analyzed in support of a decision. Procedural inequities in the decision making process serve to perpetuate institutionalized bias and discrimination that result in the disproportionate siting of hazardous facilities in nonwhite and low-income communities.

As history has demonstrated, if a site selection process which entails the consideration of socioeconomic impacts is not procedurally equitable, then the ultimate assessment of the potential impacts of a proposed facility cannot be characterized as fair and equitable. For example, if impacts are to be assessed through contacts with community leaders, but the process for identifying such leaders is inequitable -- i.e., the leaders consulted are not, in fact, from the affected community -- then the assessment of the impacts cannot be considered fair, just or equitable.

Social equity refers to the role of sociological factors (race, ethnicity, class, culture, life styles, political power, organization, legal incorporation, etc.) on environmental decision making. Poor people and people of color often work in the most dangerous jobs, live in the most polluted neighborhoods, and their children are exposed to all kinds of environmental toxins on the playgrounds.14 This is generally the result of their lack of political and economic power in the governmental and economic structures of the larger communities in which they live.

All of the aspects of environmental equity described above are relevant to the evaluation of the ASTREC s site selection process.

Twelve past and current Regents stated in their affidavits that they did not intend to discriminate against black people in the purchase of the Varisco site and in subsequent votes to build the necessary animal facilities.15 The Regents state that:

No statements or other information concerning race or the racial composition of the individuals who reside in the general area of the ASTREC property was even discussed or before the Board of Regents during its decision-making process on this vote.

In disputes of this nature, those in authority usually declare that they had no intention to discriminate against any groups in making decisions. However, Congress in its wisdom addressed the idea of intent in addressing racial discrimination in the Civil Rights Act of 1964. Whether intended or unintended, some actions by public officials, including Regents, may have discriminatory effect. In a recent hearing concerning licensing of a uranium enrichment facility to be constructed between two black communities in Louisiana, a three-judge panel offered an observation concerning the effort to appear race neutral. The NRC panel stated:

As we have already observed, we would not expect instances of racial discrimination to be admitted. Instances of racial bias are often rationalized in ways that avoid the question, so that a person can state, with conviction, that he or she did not discriminate even when objective evidence suggests otherwise.16

If, for the sake of discussion, we accept the statements of the Regents that, in their decision-making processes, they had no intent to discriminate, then it is reasonable to expect that appropriate steps were taken during the site evaluation and selection process, and during the deliberations on constructing the ASTREC facility, to significantly reduce the likelihood or to prevent racial discrimination from taking place. If reasonable and feasible steps were not taken by TAMU officials, it can be assumed that declarations of racial neutrality in decision making have little or no substance, given the taboo against admitting the influence of an intent to discriminate.

To avoid discrimination in choosing a site for ASTREC, Regents could have instructed University officials to proceed in ways likely to reduce if not eliminate the possibility of discriminatory decisions, especially to identify the size and demographic characteristics of the population living in close proximity (i.e., one-mile radius) to each prospective site and the existing land use. The Regents could have directed University officials to make an environmental impact study and a socioeconomic impact assessment to determine how the ASTREC would affect the people living near the facility.

The availability of such information is indispensable for an accurate and objective evaluation of the alternative sites. Indeed, one would have expected that such an analysis would have been made as part of the routine site selection process and given the various University officials belief that the animal complex would cause problems for nearby population centers. In a 1987 letter, for example, Mr. Neville P. Clark, Interim Deputy Chancellor for Agriculture, states: As livestock facilities are placed, a major concern for environmental impact must be considered. 17 In the minutes from the November 15, 1987 meeting of the Committee for Service Unit of the TAMU Board of Regents, Director Clarke stated that it is anticipated that the siting of the Center will be in a 6 to 10-mile radius of the campus which would be far enough away to avoid environmental concerns and close enough to be able to work with the campus. 18

Robert Merrifield, Associate Director of the, Texas Agricultural Experiment Station, Texas A&M University, in a 1988 letter also expressed concerns about environmental impact of the livestock facility on land uses and property values on specific communities. He writes:

In considering the Cashion property as a site for the Consolidated Livestock Center facility, the most obvious limitation is the extremely high potential for negative environmental impacts on the surrounding ownerships. The sector of land from FM 60 to Highway 2818 is prime property for development, particularly with the planned construction of the highway to the Riverside Campus. Building a major livestock facility at that particular location would very likely be incompatible with adjoining land uses. We certainly could not justify the acquisition of the Cashion/Galinda property for a livestock center. We would just as well remain on University property if we cannot find something more distant that would avoid the immediate environmental problems that we anticipate at any location that close in. My recommendation is to ask Mr. Bond to continue to pursue the Varisco negotiations and if the property cannot be acquired, begin to look at the other alternatives that we surfaced during the initial search.19

University officials agree that the livestock Center would have negative impacts on the adjacent community. The University officials also voiced concern about the possible negative economic impact the animal Center would have on adjacent property values and future community economic development opportunities surrounding the Cashion/Galinda site. Ironically, University officials voiced no such concerns about the environmental impacts, economic impacts, and future development opportunities, or land use compatibility surrounding the Varisco property, an area located in the Brushy community.

Are University officials suggesting that the Brushy community (adjacent community is mostly black) is compatible with a livestock center and the Cashion/Galinda site (adjacent community is mostly whites) is not? Why is it that the University officials could not justify acquisition of the Cashion/Galinda property for a livestock center, but recommended its staff to pursue acquisition of the Varisco property for the livestock center? Why did the University officials express concerns about proximity impacts (i.e., negative impacts decrease with distance from the site) for its campus constituents (mostly whites), and not for the Brushy community (mostly blacks). Some of the Brushy neighborhood residents homes are less than 100 feet from the entrance to the ASTREC facility.

Some Brushy community residents feel that they are already negatively impacted by the ASTREC facility. Some of the impacts the residents expressed concern about include noise (from animals), dust, odors, flies, students making loud noise, traffic congestion, cars parked along the road, and feeling that their community is becoming an off-campus dumping ground for TAMU s animals. The residents were also concerned about the impact the ASTREC facility will have on their property values and overall quality of life.20 If the ASTREC facility will depress real estate values surrounding the Cashion/Galinda site, then is reasonable to assume that the animal center would have a similar impact on real estate surrounding the Varisco site.

In short, University officials did not use a uniform, objective, and unbias evaluation criteria to assess environmental and economic impacts and thereby gave less weight and protection to residents surrounding the Varisco site. Furthermore, one would expect that University officials would use a uniform set of criteria to evaluate all the sites.

Roderick C. Tubbs, a professor of veterinary medicine, and Joe Zulovich, a professor of agricultural engineering, in a Veterinary Medicine article, put forth guidelines for selecting a site for a swine center that indicate the need for a population and environmental impact study.21 The guidelines the authors put forth are both reasonable and straight-forward, applicable to the matter-at-hand, and relevant to the Varisco property, although published several years after the purchase of the property.

The challenge in new project designs is to find a site that is isolated yet accessible ... the site needs to be as isolated as possible to ensure biosecurity and to minimize chances for nuisance lawsuits. Areas that we have found to be particularly sensitive are: 1) built-up areas or clusters of homes; 2) public-use areas, including churches; and 3) private and public water supplies (aquifers). Although most states regulate the distance required between a swine facility and any non-owned residences (i.e., residences owned by people other than the swine centers), it is prudent to use guidelines more stringent than those required22

To adhere to these guidelines, decision makers would need information on the populations living near each prospective site and of the facility's likely impact on them. One could have expected compliance with these proposals since University officials demonstrated an awareness, at various times, of the environmental problems a consolidated animal complex could cause. On November 9, 1987, Dr. Neville P. Clarke, Interim Deputy Chancellor for Agriculture, sent to Dr. Perry L. Adkisson, Chancellor, a memorandum [8. 501] on a consolidated animal complex to use in "briefing Mr. Eller," Chairman of the Board of Regents, about the animal facility.23 The document contemplated construction of a beef center, swine center, dairy center, sheep center, and a physiology/nutrition facility. While no numbers of animals were specified, the concentration of these different species presumably would involve thousands of animals. The memo expressed concern for the facility's environmental impact in stating:

As livestock facilities are replaced, a major concern for environmental impact must be considered. Locating new facilities away from campus is inconvenient and time consuming for students and faculty, but may be necessary to avoid conflict with existing population centers and projected growth patterns. If off-campus location of teaching and research centers is necessary, there may be some major advantages in consolidating these facilities at one location for convenience of students and faculty.

Clearly, the people who prepared the document, and other officials who read it, including Chancellor Adkisson, expressed the view that a consolidated animal facility would cause problems and should not be placed near "existing population centers and projected growth patterns."

However, despite these explicit concerns that an animal center would cause problems for any nearby population center, the document states that, at the Board of Regents meeting of September 20-21, 1987, several members supported acquisition of "one attractive piece of property, located near the A&M Plantation, as the site for the consolidated centers." The memorandum later states that Mr. Bond, University general Counsel and Real Estate administrator, has investigated the availability of a piece of property favored by several Board members, the Varisco property, and that he will report on the status of his efforts at a later Board meeting.

At this early date, September, 1987 or before, Mr. Bond and several Regents had identified the Varisco site, close to the A&M plantation, west of the Brazos River, as a likely site for ASTREC. The document also reveals, as do others cited below, that several Regents had a strong interest in constructing a consolidated animal center, and University officials kept them informed of the steps taken to accomplish that purpose. University officials and Regents expressed no concern that interest in the Varisco site violated one of the guidelines set forth in this document, that the site for a consolidated animal complex avoid "conflict with existing population centers ..." since an established black neighborhood with approximately eighty families lived very close to the site.24

Dr. Merrifield's memorandum25 of May 10, 1988 through Dr. Clarke, Director of the Texas Agriculture Experiment Station, to Dr. Charles J Antzen, Deputy Chancellor and Dean of Agriculture, discussed Mr. Bond's efforts to purchase land for the consolidated center. The letter included a "graph" rating the Cashion property [ See Site Map] against six other sites [see Site Map], which presumably is the table discussed below. Dr. Merrifield states:

In considering the Cashion property as a site for the Consolidated Livestock Center facility, the most obvious limitation is the extremely high potential for negative environmental impacts on the surrounding ownerships. The sector of land from FM 60 to Highway 2818 is prime property for development, particularly with the planned construction of the highway to the Riverside Campus. Building a major livestock facility at that particular location would very likely be incompatible with adjoining land uses. We certainly could not justify the acquisition of the Cashion-Galindo property for a livestock center.26

Dr. Merrifield restates the concern, expressed in the previous document, and sent to Chancellor Adkisson, that a consolidated animal complex would cause problems for people living nearby, and would interfere if not prevent future development of adjacent property. In this instance, he is concerned that the animal complex would negate the improved development prospects of the Cashion-Galindo property, which would result from the impending construction of Highway 47. As in the previous memorandum sent to Chancellor Adkisson, Dr. Merrifield also recommends that Mr. Bond continue his efforts to obtain the Varisco property. He also failed to show concern for the well-being of the population at the Varisco site, including a large, established black neighborhood, which he displayed for the future development of the Cashion/Galindo property. He thereby expressed willingness to violate the principle of site selection stated in this and the previous communication.

What type of development might be suitable for the Cashion-Galindo property and the other sites along Highway 47? One possible answer to this question was offered in 1997 when the local newspaper revealed that the Bryan City Council was considering the feasibility of the construction of a hotel-18 hole golf course complex on a site west of Villa Maria, along Highway 47, including the Cashion/Galindo site.27. By not allowing the animal complex to be built on any of the sites near Highway 47 owned by a number of white leaders28 the Conlee property, and those of Hicks, Stasney and Spearman [see Site Map], University officials protected what they considered to be sites of high development potential, given the highway's impending construction.

Concern also was expressed about the negative impacts of using University land near the poultry farm, south of Easterwood airport, in a letter sent by Neville Clarke, Interim Deputy Chancellor for Agriculture, to Dr. Adkisson, Chancellor, on September 21, 1987.29 The letter informed the Chancellor of a meeting on the livestock center with Mr. Bond, several other University officials and six members of the Board of Regents. The site was rejected due to the belief that "Housing development nearby and reasons provided in our briefing limit the utility of this property with a larger volume of waste disposal."30 Given this explicit concern that the consolidated animal complex avoid existing population centers, areas close to campus and sites near or along Highway 47 which would have improved development prospects, did officials carry out an objective, empirical and systematic evaluation of the eleven possible sites for ASTREC?

Professor James W. Turner of the Animal Science Department, and chairperson of the faculty committee that helped plan the ASTREC facility, provided some answers to this question, during his deposition.31 Dr. turner prepared an evaluation of eight sites for a beef cattle center but not for a consolidated animal complex. He said that he was asked "to prepare a subjective evaluation report from my department head in these locations for the Beef Center."32 He later stated that he established "the scales 1, 2, 3, 4, 5 subjectively; therefore the evaluation of what each number means is subject to my opinion in terms of what I wrote down on that basis ...."33

Professor Turner also indicated that he made the site evaluation for the presence of cattle at the Varisco site. There is no indication that any additional studies of the various sites were made to assist in the decision to locate a consolidated animal complex, apart from a survey made by some members of the Texas A&M Real Estate Office, concerning likely cost of land acquisition. The letter, dated September 14, 1987, said land at Varisco would cost $1700 an acre while land near highway 21 would cost between $1300-$1400 an acre. 34

Professor Turner presumably carried out the subjective study35 in the fall of 1987, as indicated by the date on his evaluation sheet, more than a year before purchase of the Varisco site. He compared the suitability of the sites, including the Varisco property, on a variety of factors, in Appendix 1, each rated on a scale from one to five, with one most and five least attractive. However, two criteria, land development costs and fencing/watering costs, were not rated numerically, but as low, moderate or high. This diversity of rating systems raises questions as to how the various scores were combined to give an overall rating, representing the basis for ranking the sites as designated in the table.

The Riverside campus received the highest rating, the Varisco site the second most desirable and the Cashion/Galindo site, near the airport, least desirable.

Several features of Professor Turner s table should be noted. According to the second page, it was believed, at the time of the assessment, that the Varisco site would have more than 600 acres, either 683 or 623. The ratings apparently were based on a site with at least 623 acres, if not more. In actuality, the site had only 582 acres. There is nothing to suggest that the rating for the Varisco site later was lowered to take into account its small size.

Given the concerns discussed previously that top University officials voiced that the consolidated animal complex should not be located close to existing population centers, some care should have been taken to rank the sites on the size of the population living nearby. Despite the declaration in the twelve affidavits that officials did not intend to discriminate, University officials made little or no effort to obtain data on this key feature. None of the sites were rated on the size and characteristics of the people living nearby. Had such a rating been made, the Varisco site should have received as low a rating as presumably Dr. Merrifield gave to Cashion-Galindo, anticipating future development.

This contributed to two glaring errors. First, the Varisco site is described in the Turner document as having acceptable development costs due to "The tract isolation and shape ...." It is difficult to understand how any reasonable and unbiased person could consider the tract "isolated" since people lived on Kemp Road, which bounded the site on the south, and many black people lived directly across the road and to the east of the site. What Professor Turner s analysis does in real life is to render the residents and the Brushy community invisible. This rendering African American communities as invisible is a common characteristic of environmental racism.36

Second, this characterization as "isolated" may have contributed to Varisco's highest attractiveness rating on "impact on community" since it apparently did not take into account environmental impacts on neighboring population. The Varisco site received the same attractive rating as the properties which were more isolated from surrounding neighborhoods, that for the Riverside campus (BREC) and for the sites on the properties owned by Stasney, Conlee, Spearman and Hicks, and for the site near the University's dairy farm. Such a high attractiveness rating on environmental impacts strongly suggests that University officials and Regents had no interest in protecting the local Varisco site residents, mainly the black residents of Brushy, from the negative environmental impacts they believed, in the documents discussed above, ASTREC would cause. These facts mostly support the existence of an intent to discriminate, rather than its absence, as maintained by the Regents in their affidavits.

If Professor Turner is correct in stating that he alone assigned ratings subjectively for the various criteria for a beef cattle center, then University Regents and officials apparently made no additional effort to evaluate the impact of a large consolidated animal complex on neighboring populations. They did little or nothing to determine possible impacts such as flies, odors, water contamination, contaminating the Brushy Water System, property devaluation and the stress nearby residents would experience from living close to a livestock facility that produced noxious byproducts.

University officials made no effort to study the cumulative impact of these stressors and those caused by proximity to gravel pits, injection well, asphalt and cement plants. Again, the inadequate, biased, and flawed study methods led to a high rating for the Varisco property despite or because of the concerns high-ranking University officials had expressed over the problems the complex would cause if located at Cashion/Galindo, the poultry farm, BREC, and elsewhere. If no other site evaluation study was made, University officials and Regents took no deliberate and systematic steps to obtain the information that would greatly minimize if not eliminate the risk of discriminating in the placement of the consolidated animal complex.

It is unclear how officials studied the cost of developing each possible site for the animal complex. No figures are provided, nor the methods for arriving at the figures described. The Varisco site received a moderate rating, while three other sites, Conlee, Stasney and Spearman/Hicks, received the highest rating, requiring the lowest development costs. However, no figures were provided to support these conclusions.

This optimistic determination for Varisco proved erroneous. Dr. Jerry Gaston, Associate Provost, informed, a meeting of the campus facilities planning committee, May 10, 1990, that the infrastructure cost of the consolidated animal complex at the Varisco site would be $3.7 million General Peel, Vice Chancellor for Planning, Facilities and Construction, complained that the Varisco site required a significant expenditure for infrastructure costs, and that the costs of several other sites would have been less since several had power and some support services.37 Hence it can be concluded that the Varisco site's rating on development costs should have been high, not moderate, and thus far less suitable for use as an animal complex.

Furthermore, certain sites received protection not provided the people living near the Varisco site. Mr. Robert Smith, former Vice President for Finance and Administration, stated in his deposition in December, 1996, that at one University meeting he attended, those present gave as an additional reason for not locating the animal complex at the Cashion-Galindo site. Some were concerned over the negative impact on residents of Westwood Estates, a nearby subdivision, with mainly white residents. He heard no similar expressions of concern for people living near the Varisco site, who were predominantly black.38

Finally, Dr. Merrifield, in his memorandum of May 10, 1988, expressed concern for the center's negative impact on the Cashion-Galindo "ownerships." He was concerned over the future [6. 609] value of their properties, which public announcements said could include an upscale hotel and 18 hole golf course. But he did not express any concern for the well-being of the people living close to the Varisco site, most of whom were and are black.

The process for evaluating the eleven sites was biased in favor of the only site near which a large black community existed, by minimizing or ignoring the site's negative features, especially its small size, the large surrounding population cluster, the presence of several churches and the rural water system serving the area.39 Officials were more concerned not to place the facility in a location that could negatively affect a predominantly white neighborhood near the Cashion/Galindo site, and the site's future development for commercial or other high value purposes, and the housing areas thought to be near the poultry farm. To protect these more "strategic areas," University officials and the Board of Regents preferred building ASTREC in a populated area consisting of five registered rural subdivisions, across and down the road from black neighborhoods.

How can this site evaluation process be explained? One possibility is suggested by the date on the document showing the rating of the eleven sites, September 16, 1987. Presumably the evaluation process was taking place on or about that date. However, the memorandum Dr. Clarke sent to Chancellor Adkisson40, states that at the Board meeting of September 20-21, 1987, some Board members were interested in the Varisco property, whose availability Mr. Bond was already investigating. Given the proximity of these two dates, it seems reasonable to assume that some Regents and Mr. Bond had already indicated a preference for the Varisco site at the time that Dr. Turner was asked to evaluate the sites. Furthermore, the failure to conduct population and environmental impact studies and to make an accurate and objective study of development costs, suggests that the decisions to acquire the Varisco site and use it for a consolidated livestock center were made without benefit of any careful or systematic site evaluation study.

This possibility is supported by the letter Dr. Clarke sent to Chancellor Adkisson on September 21, 1987. In discussing the "pros" and "cons" of several sites, Dr. Clarke did not mention or discuss Professor Turner's chart analyzing the various sites.41 After Mr. Bond informed the group of the possible availability of the Varisco property, the letter states that "Mr. Weisenbaker was quite enthused about the location, pointing out the high visibility that will occur when Highway 60 becomes a four lane artery. He likes the shorter distance from the campus for student convenience. Other Board members seemed equally enthused about the possibility." No mention is made of findings of the site evaluation process as the basis for these judgments. Nor did the letter mention any of the six Regents present asked that a study of population and environmental impact be made to fulfill their intent not to discriminate on the basis of race.

University officials knew in the fall, 1993, if not before, years before a spade of earth was turned for ASTREC's construction, that a large number of people, including black Americans, lived near the Varisco property. To obtain a permit from the Texas Air Control Board (TACB), officials had to submit information on structures close to the Varisco property. They prepared a list of property owners, including most who had homes in the area, including residents of the Brushy neighborhood, across the road from the beef center.42

Officials obtained additional information on the surrounding population in the months following publication, at the end of December, 1993, of the legal notice for the swine center's impending construction. TNRCC held a public meeting on March 29, 1994 at the Beef Cattle Center.43

Dr. Edward A. Hiler, Vice Chancellor and Dean, Agriculture and Life Sciences, informed Regents of the large number of people living near Brushy in a memorandum, May 19, 1994,44 on the briefing he planned to give them on the planned construction of a swine center to accommodate 1,500 animals. He stated that "...an estimated 70 attendees from the community indicated intense and rigid opposition to moving an operation equivalent to our existing center (1,500 animals) to the Animal Science Teaching Research and Extension Complex." He made no mention in the memorandum of the fact that those present were both white and black. He also added that problems of odor would take place even if the best technology for odor control is used, thereby supporting the concerns University officials had previously expressed on the center's negative environmental impacts.

Regents knew in May, 1994, if not before, that going ahead with ASTREC's construction on the Varisco site at the very least gave the appearance, if not the reality of, "dumping" on a minority neighborhood, whose residents for years had contended with gravel pits, injection well, asphalt and cement plants. If Regents were sincere in the statements made in their depositions that they did not intend to discriminate against homeowners, the information Dr. Hiler provided should have generated concern. Regents and University officials had a "window of opportunity " for more than a year and a half to study environmental impacts before construction of ASTREC began, while officials and residents attempted to resolve their differences, in a court-ordered mediation and lengthy negotiation process. No such efforts were made. Instead, the Regents decided to begin ASTREC's construction, which led residents to seek a judicial remedy, in August, 1995.

Racial discrimination played an important role in selecting and building the animal complex on the Varisco property. Various high University and System officials expressed the view that a large animal complex would be incompatible with adjacent population centers, and would interfere with or prevent developments at or near the sites close to Highway 47, such as a hotel-golf course complex. Many Regents, as successful businessmen, have a keen understanding of the development potential created by highways which make previously remote areas more accessible to centers of economic activity. There is no reason not to believe that some if not all Regents wished to avoid a location that would cause problems for land owners, and residents, and thus for the University. Moreover, there is evidence that indicates some key University officials sought to protect the residents, predominantly white, of Westwood Estates.

If the Regents and top University officials were truly concerned not to discriminate, it would have been relatively easy to use the resources of the University's Texas Data Center, and the professors who are highly qualified demographers. The failure to obtain basic demographic and socioeconomic information in the site selection process enabled the Regents to claim that race never entered into their deliberations on the animal complex. This is a disappointing declaration from people responsible for the oversight of a land-grant university committed to the education and training of all qualified young people in Texas, regardless of race, creed or color.

One would have expected that the Regents, mindful of this responsibility, which is becoming of increasing importance as the state's minority population increases rapidly, would have taken the obvious steps to avoid building ASTREC next to a large black neighborhood. By ignoring this responsibility, University's Regents continued the dumping process which has beset the Brushy neighborhood for many years, and is all too common throughout the United States.

The University did not notify any residents about construction of the Beef Cattle Center. That omission is attributed to the fact that TNRCC (Texas Natural Resource Conservation Commission) did not require a permit since the number of cattle fell below the required threshold. Nor did officials notify any homeowners, white or black, living near the Beef Cattle Center, as to the impending expansion of the facility.

In the minutes of a meeting between University officials and TNRCC on October 27, 1993, it was stated, in regard to requirements for a water permit, that "Once the application is complete, public notice for comments will be made. The TNRCC will notify all adjacent landowners by certified mail (from the addresses we provide). A notice will also be advertised in a local newspaper." None of the residents I interviewed during my site visit in August, 1997 had received a letter from TNRCC, certified or otherwise.45

Since the number of pigs contemplated for the swine center, 1,500, required a permit from TNRCC (the TNRCC number was later raised to more than 2,500, the University had to publish in the local paper a notice on the permit request and inform readers as to whom to contact to comment. This notice was published on Christmas Eve, December 24 and Christmas Day, December 25, 1993.46

Posting a notice in the newspaper on Christmas Eve and Christmas Day does not constitute a good faith effort to inform the Brush community residents and land owners of the proposed animal center. Most people are preoccupied with the holiday festivities, family, and friends during this period. Moreover, even the University was closed for business during this holiday break. The timing of the notice did not allow for maximum coverage of the population most likely to be negatively impacted by the animal center.

Since neither an environmental impact statement or environmental assessment were performed at any stage of the permitting process for the animal center, it seems only fair that the impacted community of home owners and land owners be given adequate notification. Only the minimum notification was given the Brushy community.

As a public institution, the University receives millions of dollars in federal funds. The Texas Agricultural Experiment Station and College of Agriculture at TAMU are supported heavily by USDA education and research dollars. All of these and other University programs that receive federal funds and the University officials are subject to Title VI of the Civil Rights Act of 1964. This law prohibits discrimination in the use of federal funds. The evidence presented in this affidavit clearly shows a history and pattern in which the mostly African American Brushy community was treated differently from the white communities located near the alternative sites for the ASTREC. University officials acknowledged and weighed the potential environmental and economic impacts of an animal center on the white communities (and considered them to be unacceptable, incompatible, and difficult to justify). No such considerations were given to the potentially negative environmental and economic impacts of an animal center on the mostly black Brushy community. This is tantamount to environmental racism and racial discrimination.

 

Further Affiant saith not."

________________________________________

Robert D. Bullard, Affiant

 

SUBSCRIBED AND SWORN TO BEFORE ME, this ____ day of _____________, 1998.

 

________________________________________

Notary Public, State of _________

My Commission Expires: _______________

 

 

1 Brazos County map with location of eleven sites considered for ASTREC. #519 Map of Ten Sites: Reports on Several, September 6, 1987.

2 Based largely on the environmental justice analysis and prefiled testimony I provided on the site selection process, land use, socioeconomic impact assessment, the Nuclear Regulatory Commission (NRC) Atomic Licensing Board on May 1, 1997 denied LES a permit to build the facility. The NRC judges concluded that Race played a part in the selection process. See U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board, Final Initial Decision in the Matter of Louisiana Energy Services (Claiborne Enrichment Center), May 1, 1997.

3 Executive Order 12898 calls for improved methodologies for assessing and mitigating impacts, health effect from multiple and cumulative exposure, collection of data on low-income and minority populations who may be disproportionately at risk, and impacts on subsistence fishers and wildlife consumers. It also encourages participation of the impacted populations in the various phases of assessing impacts---including scoping, data gathering, alternatives, analysis, mitigation, and monitoring.

4 Texas A&M University, Development and Function of the Animal Science Teaching Research and Extension Complex (ASTREC), January, 1994.

5 Robert D. Bullard, "Solid Waste Sites and the Black Houston Community," Sociological Inquiry 53 (Spring 1983) at 273-288; Robert D. Bullard, Invisible Houston: The Black Experience in Boom and Bust, (College Station, TX: Texas A&M University Press, 1987), Chapter 6; Robert D. Bullard, "Environmental Racism and Land Use," Land Use Forum: A Journal of Law, Policy & Practice 2 (Spring, 1993): 6-11.

6 United Church of Christ Commission for Racial Justice, Toxic Wastes and Race; Paul Mohai and Bunyan Bryant, "Environmental Racism: Reviewing the Evidence," at 163-176.

7 Marianne Lavelle and Marcia Coyle, "Unequal Protection," National Law Journal (September 21, 1992) at S1-S2.

8 Bullard, "Solid Waste Sites and the Black Houston Community," supra.

9 U.S. General Accounting Office (GAO), "Siting of Hazardous Waste Landfills and Their Correlation with Racial and Economic Status of Surrounding Communities" (Washington, DC: 1983).

10 United Church of Christ, Toxic Wastes and Race, supra.

11 Bullard, Invisible Houston, supra; Robert D. Bullard, Dumping in Dixie: Race, Class and Environmental Quality, supra; Robert D. Bullard, "In Our Backyards: Minority Communities Get Most of the Dumps," EPA Journal 18 (March/April, 1992) at 11-12; Robert D. Bullard, "Unequal Environmental Protection: Incorporating Environmental Justice in Decision Making," supra, at 237-266; Adam M. Finkel and Dominic Golding, eds., Worst Things First: The Debate Over Risk-Based National Environmental Priorities (Resources for the Future: 1994); Bullard, Unequal Protection, supra; United Church of Christ, Toxic Wastes, supra; Benjamin A. Goldman and Lauri Fitton, Toxic Waste and Race Revisited, (Center for Policy Alternatives: 1994); Leslie A. Nieves, "Not in Whose Backyard? Minority Population Concentrations and Noxious Facility Sites," Paper presented at the Annual Meeting of the American Association for the Advancement of Science, Chicago, Il. (February, 1991); D.R. Wernette and L.A. Nieves, "Breathing Polluted Air: Minorities are Disproportionately Exposed," EPA Journal 18 (March/April, 1992) at 16-17; Bryant and Mohai, Race and the Incidence of Environmental Hazards, supra; Lavelle and Coyle, "Unequal Protection," supra; U.S. Environmental Protection Agency, Toxic Release Inventory & Emission Reductions 1987-1990 in the Lower Mississippi River Corridor, (1993); Louisiana Advisory Committee to the U.S. Commission on Civil Rights, The Battle for Environmental Justice in Louisiana ... Government, Industry, and the People (U.S. Commission on Civil Rights Regional Office, Kansas City: 1993).

12 Amanda Atkinson, Environmental Inequity: An Emerging Concern for Government, Maryland Journal of Contemporary Legal Issues (1994).

13 See R.D. Bullard, ed., Confronting Environmental Racism: Voices from the Grassroots, supra.

14 See, R.D. Bullard, ed., Unequal Protection: Environmental Justice and Communities of Color. San Francisco: Sierra Club Books, 1994.

15 Affidavits of Texas A&M University Regents.

16 U.S. Nuclear Regulatory Commission, Final Initial Decision, L.P., LBP-97-8, May 1, 1997, p. 23.

17 See letter from Neville P. Clarke, Interim Deputy Chancellor for Agriculture, Texas A&M University, November 9, 1987.

18 See minutes recorded by Bill Presnal, Executive Secretary, of the Committee for Service Units, Board of Regents Texas A&M University System, November 15, 1987.

19 Letter from Robert G. Merrifield, Associate Director, Texas Agricultural Experiment Station, Texas A&M University, May 10, 1988.

20 Interviews conducted with Brushy community residents, James A. Green, Audrey Mack, Etta Ruth Williams, Al Lister, Ora Walton, Cora Rogers, and Tommy Ellis (August 12-13, 1997).

21 See Roderick C. Tubbs and Joe Zulovich, Designing a Swine Facility: Site Selection and Environmental Requirements, Veterinary Medicine (August, 1995): 789-798.

22 Ibid., p. 790.

23 See Clarke letter to Adkinson, November 9, 1987.

24 Permitting Sequence and List of Adjacent Landowners, March 17, 1992; All Black Families Present at Five Sites Considered for ASTREC in 1987-1988 by Road; All Black Families Present in Five Sites Considered for ASTREC in 1987-88.

25 See Merrifield letter, May 10, 1988.

26 See Merrifield, May 10, 1998.

27 The Eagle, Study Hotel-Expo Center, August 23, 1997; The Eagle, Hotel-Resort Study Opens many Great Possibilities, August 24, 1997.

28 See Landowners with Sizable Acreage on Highway 47. Data retrieved from the Appraisal District.

29 Letter from Neville P. Clarke, Interim Deputy Chancellor for Agriculture, to Chancellor Perry L. Adkisson, September 21, 1987.

30 Ibid.

31 James Turner deposition taken on April 24, 1997.

32 Turner, p. 132.

33 Turner, p. 204, 205.

34 Letter from Gary Maler, Real Estate Center, Texas A&M University, to Bob Merrifield, September 14, 1987. The subject of the memorandum is inquiry on seven tracts of land in Brazos County.

35 James Turner evaluation and ranking for the Texas beef Cattle industry Center, September 15-16, 1987.

36 See Robert D. Bullard, Invisible Houston: The Black Experience in Boom and Bust. College Station, TX: Texas A&M University Press, 1987; R.D. Bullard, Race and Environmental Justice in the United States, The Yale Journal of International Law 18 (Winter, 1993): 319-335; R.D. Bullard, ed., Confronting Environmental Racism: Voices from the Grassroots. Boston: South End Press, 1993; R.D. Bullard, Environmental Justice for All: It s the Right Thing to Do, Journal of Environmental Law and Litigation 9 (1994): 281-308; R.D. Bullard, The Legacy of American Apartheid and Environmental Racism, St. John s Journal of Legal Commentary 9 (Spring 1994): 445-474; R.D. Bullard, Environmental Racism and Invisible Communities, West Virginia Law Review 96 (Summer 1994): 1037-1050.

37 ASTREC minutes of master Planning Committee, May 10, 1990.

38 Robert Smith deposition, p. 58-60.

39 See Brushy Water System Line Map.

40 See letter from Dr. Clarke to Chancellor Adkisson.

41 Ibid.

42 See Supplemental Information Sheet for Swine Feeding Applications, TACB, revised April 13, 1993. Material also includes map and list of Kemp Road residents and adjacent landowners.

43 TNRCC meeting agenda, March 29, 1994.

44 Letter from Edward A. Hiler, Vice Chancellor and Dean of Agriculture and Life Sciences, Texas Agricultural Experiment Station, to Interim President Dean Gage, May 19, 1994.

45 Supplemental Information Sheet for Swine Feeding Applications, revised April 13, 1993.

46 Legal Notice, Bryan-College Station Eagle, Friday, December 24-25, 1993.

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