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Section Review

Commonwealth makes strides in combating environmental injustice, but journey has just begun

Eugene B. Benson is staff attorney at Alternatives for Community & Environment (ACE) in Roxbury, where he provides legal counsel and representation for community groups and coalitions and ACE member committees fighting for environmental justice.
On Oct. 9, 2002, the Massachusetts Executive Office of Environmental Affairs (EOEA) adopted the Environmental Justice Policy, which made environmental justice an integral consideration in the implementation of all state environmental programs and promised to focus EOEA resources on communities of color and low-income neighborhoods. EOEA adopted the environmental justice policy in response to studies and reports showing that communities of color and lower-income communities across Massachusetts (and the country) suffer a disproportionate share of environmental burdens.1

This article places the Environmental Justice Policy in a historical and legal context and suggests what the state might do to promote environmental justice.

To be effective, environmental justice must ensure that: 1) community residents have meaningful input into issues that affect their neighborhoods; and 2) outcomes reduce or eliminate environmental burdens on communities that suffer a disproportionate share of environmental burdens and/or increase environmental benefits to communities with too few environmental benefits — but not in exchange for a greater environmental burden.

How does one support that proposition? One begins with the definition of environmental justice in the Massachusetts Environmental Justice Policy:

Environmental justice is based on the principle that all people have a right to be protected from environmental pollution and to live in and enjoy a clean and healthful environment. Environmental justice is the equal protection and meaningful involvement of all people with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies and the equitable distribution of environmental benefits.

That definition is grounded in Article 97 of the Massachusetts Constitution:

The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose.

If that is a public purpose, why is there an environmental justice policy and why are there community-based organizations such as Alternatives for Community & Environment (ACE) dedicated to environmental justice?

The answer is that the public purpose is not enjoyed equally or fairly by all. Lower-income communities and communities of color have traditionally suffered a disproportionate burden of environmental harms.

The leading study in Massachusetts showing environmental disparities based on race and class is “Unequal Exposure to Ecological Hazards 2005: Environmental Injustices in the Commonwealth of Massachusetts” by Professors Daniel Faber and Eric Krieg.2 The study found that in Massachusetts “not all communities in Massachusetts are polluted equally. Environmentally hazardous sites and facilities of all kinds are disproportionately located in working class towns and communities of color.”

Among the findings of the study are:

• High-minority communities (where 15 percent or more are people of color) face a cumulative exposure rate to environmentally hazardous facilities and sites that is more than 20 times greater than low minority communities.

• Low-income communities face a cumulative exposure rate to environmentally hazardous facilities and sites that is four times greater than high-income communities.

• Communities of color comprise 24 of the 30 most intensively overburdened communities in the state — what the authors consider the most environmentally hazardous cities and towns in the state. That is, 80 percent of the most intensively overburdened cities and towns are high minority communities even though communities of color comprise only 10 percent of the cities and towns.

Put another way, the study notes that people who live in a white community have a 1.8 percent chance of living in one of the most environmentally hazardous communities in the state; people who live in a community of color have a 70.6 percent chance of living in one of the most environmentally hazardous communities.

The work of Faber and Kreig is part of a history of advancing knowledge and awareness of environmental justice issues. It was in the 1980s that the connection between race and environmental burdens was recognized and highlighted. In the early 1980s, residents of a rural, mostly low-income African-American county in North Carolina fought and protested against a proposed hazardous waste landfill for PCB-contaminated soils, garnering national attention to their struggle. That struggle led to a study, released in 1987, that concluded race was the most significant indicator of where commercial hazardous waste facilities were located.3 Since then, numerous studies have shown a strong correlation between environmental burdens and race and class status.4

In 1990, more than 100 grassroots groups across the country signed a letter to mainstream environmental organizations, accusing the organizations of lacking accountability to communities of color and calling on them to work with those communities. In 1991, more than 600 persons met in Washington, D.C., for the People of Color Environmental Leadership Summit. Out of that summit came the Principles of Environmental Justice, which help inform environmental justice advocacy.5

What are the causes of environmental racism and classism? There are many explanations. Some are rooted in history, but some are current and ongoing. Faber and Kreig wrote in Unequal Exposure:

While the quality of life for all citizens of Massachusetts is currently compromised by the contamination of the air, land, and water with toxic chemicals and other pollutants, not all segments of the citizenry are impacted equally. In order to bolster profits and competitiveness, industry typically adopts pollution strategies which are not only more economically efficient but that also offer the path of least political resistance. The less political power a community possesses, the fewer resources a community has to defend itself; the lower the level of community awareness and mobilization against potential ecological threats, the more likely they are to experience arduous environmental and human health problems at the hands of business and government. As a result, poorer towns and communities of color suffer an unequal exposure to ecological hazards.

Where has an increasing recognition of environmental racism and classism led? Nationally, in 1994, President Clinton issued Executive Order 12898 “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” which requires each federal agency to make environmental justice part of its mission. Many of those agencies have adopted regulations and guidance to implement the executive order.6 In Massachusetts, EOEA published a map of environmental justice neighborhoods based on the race, economic status, national origin and lack of English language proficiency of their residents to implement the Environmental Justice Policy. Environmental racism is now considered a civil rights issue and environmental justice a civil right.

Unfortunately, our society is still at the beginning of the journey to achieve environmental justice and recent jurisprudence has made the journey more difficult. For example, on the federal level, Sandoval v. Alexander,7 while not ending environmental justice advocacy, certainly changed the terms of engagement. In Sandoval, the Supreme Court closed the federal courthouse door to plaintiffs wishing to allege, under Title VI of the Civil Rights Act, disparate impacts in federally assisted programs. Plaintiffs would have to show intentional discrimination — or perhaps bring action under Section 1983 — for disparate impact discrimination. But, the Section 1983 option seems to have been eliminated by Gonzaga University v. Doe,8 in which the Supreme Court narrowly construed the circumstances in which one could maintain a Section 1983 action based on a law creating a federal right. And, the Bush administration has taken the position that it cannot consider race in furthering environmental justice, effectively refusing to consider the predominant factor in environmental injustice.

Consequently, environmental justice advocates must rely on being able to show intentional discrimination if they wish to use the federal courts for an environmental justice claim. That is a difficult standard to meet, especially because the causes or factors explaining the existence of an environmental injustice can be political, economic or historical, and might be intentional or unintentional.

We also have little to cheer about at home when it comes to enforcing environmental justice. Bills to enact a state environmental justice law have been bottled up in the legislature. The state Environmental Justice Policy is only policy. It specifically notes that it “is intended only to improve the internal management of EOEA agencies and is not intended to, nor does it create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law or equity by a party against EOEA, its agencies, its officers or any person.” It does not create a private right of action. It is not intended to regulate agencies outside the EOEA secretariat except to the extent that those agencies have decisions pending before EOEA agencies. The Environmental Justice Policy has been in effect for more than three years, but there is little evidence showing that an environmental justice community has had its environmental burdens reduced or environmental benefits increased under the Environmental Justice Policy. EOEA has not amended its Massachusetts Environmental Policy Act (MEPA) regulations to incorporate environmental justice protections and the Department of Environmental Protection has not adopted any environmental justice regulations.

MEPA itself has drastic limitations for its use by environmental justice community residents. The Secretary of Environmental Affairs is under no obligation to respond to comments of community residents concerning an environmental notification or report and is not required to make detailed findings in his decisions or decide between competing factual statements. The Supreme Judicial Court in Enos v. Secretary of Environmental Affairs,9 held that community residents do not have standing to sue the Secretary of Environmental Affairs even if the secretary’s decision is wrong, arbitrary or contrary to MEPA requirements and even if the residents would be adversely affected by that decision. But, a project proponent has standing to sue the secretary for an erroneous decision.

Further, Massachusetts environmental laws and regulations do not prohibit pollution but instead place limitations on pollution and do not require a disparate impact analysis. Consequently, the cumulative impacts of relatively small and more dispersed sources of pollution throughout urban neighborhoods may contribute to or exacerbate poor health conditions and a poor quality of life but they may not violate environmental standards. Thus, environmental burdens continue and adverse impacts of industrial pollution are more pronounced in lower-income communities and communities of color. For example, rates of childhood asthma are much more prevalent in such communities.

Much should be done to further environmental justice. The state needs a stronger and more comprehensive environmental justice policy and a strong state environmental justice law.10 It should be easier to obtain standing for community residents to challenge decisions that may adversely affect their environmental justice communities. There should be environmental justice regulations for MEPA and DEP that require a close look at disparate impact and cumulative impact. We should allow litigation based on impact not intent, for if an adverse environmental justice impact is the same whether an action is intentional or unintentional, why focus on intent rather than on how to right the wrong? We should fund more basic research to identify connections between urban environmental degradations and community health problems.

This article can end on a positive note. There have been and continue to be many environmental justice victories. In Roxbury, local youngsters helped transform a dangerous and unsightly traffic island in their neighborhood into a grassy and safer corner and forced the clean up of a 10-foot mound of asbestos and lead laden dirt that was dumped and left uncovered. Community groups have forced the closure of illegal transfer stations in Roxbury and stopped a proposal to site an asphalt batch plant in South Bay. They also helped force the MBTA to stop idling its buses, agree to replace its old diesel buses with cleaner fuel buses and move some of its bus depots out of Roxbury. More recent successes include how Brockton residents stopped a proposed expansion of a trash transfer station in their community by banding together and working with a pro bono attorney through the Massachusetts Environmental Justice Assistance Network. Additionally, there was a favorable settlement of a civil rights claim against Freetown, where the town zoned the only community of color in the town as industrial, tried to move commercial businesses into that neighborhood and provided inadequate substitute potable water when the wells serving the neighborhood became contaminated.

What environmental justice advocates and environmental justice communities have learned is that the communities that have been unable to resist environmental injustices are those with the fewest resources to defend themselves politically. Thus, our work must be to provide resources and empower communities so that they can defend themselves.

End notes


1. The environmental justice policy is available at http://www.mass.gov/envir/ej/default.htm.[back]

2. Daniel R. Faber and Eric J. Krieg, Unequal Exposure to Ecological Hazards 2005: Environmental Injustices in the Commonwealth of Massachusetts, Philanthropy and Environmental Justice Research Project, Northeastern University (October 2005). The report may be downloaded from http://www.socant.neu.edu/graduate/concentrations/green_justice/. The 2005 report uses 2000 census data and 2004 environmental data. It updates a 2001 report by Faber and Kreig based on 1990 census data. The earlier report helped show the need for an environmental justice policy in Massachusetts.[back]

3. Benjamin F. Chavis, Jr., and Charles Lee, Toxic Wastes and Race in the United States: A National Report on the Racial and Socioeconomic Characteristics of Communities Surrounding Hazardous Waste Sites, United Church of Christ Commission for Racial Justice (1987).[back]

4. For references, see http://www.ejnet.org/ej/index.html.[back]

5. The Principles of Environmental Justice can be downloaded from http://www.ejnet.org/ej/principles.html. A more detailed history of environmental justice is available at http://www.ejrc.cau.edu/ejinthe21century.htm.[back]

6. Federal EJ resources are available at http://www.epa.gov/compliance/resources/policies/ej/index.html.[back]

7. 532 U.S. 275 (2001).[back]

8. 536 U.S. 273 (2002).[back]

9. 432 Mass. 132 (2000).[back]

10. Space does not allow for a critique of the current Environmental Justice Policy. Contact the author of this article if you would like a copy of ACE’s comments on the current Environmental Justice Policy.[back]

©2014 Massachusetts Bar Association