A Center for Progressive Regulation White Paper March 2005

CPR White Paper #505 Page 1

I. Introduction

Even a cursory visit to an area affected by toxicpollution – what some call a toxic tour – maygraphically reveal the scope of environmentalinequities in American society.

In some refinery communities of the Gulf Coastregion, visitors first see acres of imposing industrialbuildings joined by an intricate set of holding tanks,pipes, and smokestacks. In the shadows of thesefacilities are tiny houses. Visit some of the familiesin these houses and you will see that many keepsuitcases filled with essentials by the front door,tucked perhaps behind the couch, becauseevacuations are not uncommon. There are “shelter inplace” alarms, where children are taught to run insideand immediately close all the windows and doors.1

Another example: standing on the bank of theMississippi river in the industrial corridor betweenNew Orleans and Baton Rouge, one might see a manstanding on the bank, fishing. Immediately acrossfrom him is a factory with a huge outfall pipebelching effluent into the river. The smell is intense,stinging the eyes, but the man continues to fish. Hewill take the catch home to his family. It is theirprimary source of protein.2

Another: In Pennsylvania, one might see a smallcommunity ringed by large facilities. The newest is amedical and municipal waste incinerator. Hugetrucks roll by, an average of one every few minutes.They shake the foundations of the houses and otherbuildings; indeed, a nearby church is crumbling. Thesmells are terrible, and rodents are a big problem.3

These are classic real life environmental justicescenarios.

Environmental Justice

by Eileen Gauna, Catherine A. O’Neill, and Clifford Rechtschaffen

But sometimes environmental justice issues arenot readily apparent. Imagine a school yard thatlooks typical, even idyllic, in the sunny southernCalifornia landscape, with no big imposing facilitiesin sight. But a community organizer explains thatthere are high rates of leukemia and rare cancersamong the children. He explains that many of theschool teachers have had multiple miscarriages andthat there have been a significant number of birthdefects among the faculty and staff at the school. Hepoints to what he believes is the culprit: the vent of asmall metal plating shop next door. The emissionsvent directly into the school yard.4

Similarly, in a community near Tucson, you seeanother school yard. In the middle of it is a gardenmemorial to the children who have died. In this case,contaminated water is thought to be responsible.5

When encountering instances of environmentalinjustice, one sees a range from the obvious to theinvisible. There are quality of life impacts (noise,odors, rodents) and serious adverse health impacts(cancer clusters and exceedingly high rates ofrespiratory diseases) in all kinds of combinations.Such scenarios illustrate the persistent failure ofenvironmental laws to protect certain populations.And as the examples and the data pile up, whatbecomes apparent is that the failure is not random.People of color and the poor disproportionately livein the communities that are overburdened bypollution and underprotected by industry andgovernment.

This white paper describes briefly the remarkablejourney of community-based environmental justiceadvocates over the last 15 years and their impact onenvironmental regulation. It will also describe someof the empirical evidence of disparities and the

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regulatory dynamics that make these inequities anintractable problem, despite the collective efforts ofgrassroots leaders, environmental justiceorganizations, public interest law firms, andgovernmental officials. The paper then focuses onone important set of issues that must be tackled inorder to achieve environmental justice: thoseinvolving injustice in risk regulation. These are by nomeans the only issues that confront environmentaljustice communities andtheir advocates, who mustnavigate a technocraticregulatory arena despite apersistent lack of resources,language barriers, lack ofnotice, and otherimpediments to fair process.They confront a wide rangeof issues. Risk is asignificant one, to be sure,but so are other quality oflife impacts, lack ofenforcement, destruction ofsacred sites, and lack ofaccess to such environmental amenities as parks,open space, and beach access.

While the Center for Progressive Regulation doesnot purport to speak for or on behalf of suchimpacted communities, we strive in this white paper,as allies in this collective undertaking, to analyze anddiscuss some of the troubling regulatory processesand methodologies that bedevil attempts to reducerisk and eliminate disparities. We close with sevenrecommendations for agencies. While this list is by nomeans exhaustive, it includes steps that, takentogether, agencies should undertake to begin torespond to environmental injustice. We stress alsothe need for any response to comport with thePrinciples of Environmental Justice6 and to provide forfull, meaningful participation by impactedcommunities and consultation with affected tribes.

II. History and Regulatory Responses

Broadly speaking, environmental justice refers to apolitical and social movement to address the disparate

distribution of environmental harms and benefits insociety and to reform the processes of environmentaldecision making so that all affected communities havea right to meaningful participation.

Some place the beginnings of the present dayenvironmental justice movement at the 1982demonstration against the siting of a landfill forpolychlorinated biphenyls (PCBs) near an African-

American community inWarren County, NorthCarolina. Environmentaljustice advocates place thebeginning as early as the1964 passage of the CivilRights Act,7 or in 1971,when an annual report bythe Council ofEnvironmental Qualityacknowledged that racialdiscrimination adverselyaffects the urban poor andthe quality of theirenvironment. Local in

origin, the movement grew to national prominence inthe late 1980s and early 1990s as regionalenvironmental justice networks grew from localorganizations, the empirical evidence ofenvironmental injustice mounted, and activists cametogether in 1991 for the First National People ofColor Leadership Summit. The last 15 years inparticular have seen remarkable changes in thelandscape of environmental regulation in response toenvironmental justice claims and the empiricalevidence that supported them.

In 1993, for example, the EnvironmentalProtection Agency (“EPA”) established the 25-member National Environmental Justice AdvisoryCouncil (“NEJAC”) to make recommendations to theEPA Administrator on environmental justice matters.The NEJAC has since issued several reports andrecommendations.8 In February of 1994, then-President Clinton signed the Executive Order onEnvironmental Justice, which directed all federalagencies to make achieving environmental justice partof their missions.9 In 2001, a group of law professors

The last 15 years in particular

have seen remarkable changes in

the landscape of environmental

regulation in response to

environmental justice claims and

the empirical evidence that

supported them.

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surveyed several agencies to determine what actionsthey had undertaken in response to the ExecutiveOrder and to offer a preliminary assessment of theircompliance.10 The survey found that all agencies hadan initial outburst of energy upon issuance of theExecutive Order, but that carry-through wasinconsistent among agencies. What seemed todetermine relative success was the level ofcommitment of high-level officials within the agencyand a more centralized agency structure.

The Executive Order also created the FederalInteragency Working Group on Environmental Justice(“IWG”), a group chaired by the EPA Administrator.In 1999 the IWG established an Integrated FederalInteragency Action Agenda, a vehicle that sponsoreda number of demonstration projects to promoteenvironmental justice. These pilot projects have beenused to further develop alternative collaborativeapproaches to achieving environmental justice. Theyhave often involved efforts by federal and sub-federalagencies and tribal governments working withbusiness stakeholders and community residents. Theprojects have included a range of issues, fromenvironmental cleanup of contaminated properties,public health issues, children’s health concerns,economic development, and capacity building.

Despite these initiatives, however, EPA has madeslow progress in implementing environmental justice,as noted in a recent report by the EPA’s Office of theInspector General. That report concluded that theEPA has yet to identify minority and low-incomepopulations or develop criteria for determiningdisproportionate impact; has not developed a clearvision or comprehensive strategic plan to addressenvironmental justice; has not established values,goals, expectations, and performance measures; andhas not consistently implemented environmentaljustice in EPA’s regional offices.11

Meanwhile, because of the lack of progress inalleviating dire conditions in impacted communities,environmental justice advocates began in the early1990s to use environmental citizen suits,constitutional claims, common law actions, and TitleVI of the Civil Rights Act of 1964 to attempt to

remedy environmental disparities. Section 602 ofTitle VI authorizes federal agencies to adoptregulations that prohibit recipients of federal fundsfrom discriminating either intentionally or by using afacially neutral policy, procedure, or practice that hasa discriminatory impact on members of a protectedclass. Most of the claims consisted of a lawsuit oradministrative complaint to the EPA against stateenvironmental protection agencies that were allegedlyissuing permits to polluting facilities that resulted indisparate impacts in people of color communities.Although Title VI does not explicitly grant a privatecause of action in the statute, most federal courts hadacknowledged such a right and allowed plaintiffsaccess to the courts to prosecute Title VI violationsand seek injunctive relief. However, in 2001, theSupreme Court in Alexander v. Sandoval ruled thatdisparate impact lawsuits under Section 602 could notbe brought directly by private citizens and thatcitizens only had standing to sue for intentionaldiscrimination under Section 601.12 Instead, privatecitizens alleging disparate impact could send acomplaint to a federal agency that funded therecipient who was allegedly discriminating. Thefunding agency could launch an investigation and, if aviolation of their disparate impact regulations wasfound and not remedied, the federal agency couldterminate funding of the discriminating recipient.13

This makes administrative actions, i.e., complaintsfiled with the EPA or other federal funding agencies,the primary remedy for Title VI violations. Recently,the Office of the General Council of the U.S.Commission on Civil Rights released a report on TitleVI and the Executive Order on EnvironmentalJustice. The report concluded that the significantdelay in the EPA’s issuance of final guidance toinvestigate such claims and the procedural delay ininvestigating and ruling on such complaints have leftcommunities continually exposed to harmfulpollutants.14

According to EPA’s Title VI website, last updatedNovember 21, 2003, about 143 complaints have beenfiled. Eight of those cases have been decided on themerits, but all were dismissed, six finding no adverseimpact, one finding no disparity, and one finding lack

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In 1987, the United Church of

Christ’s Commission for Racial

Justice released a national study

documenting a significant

relationship between the location

of commercial hazardous waste

facilities and uncontrolled toxic

waste sites and race.

of intentional discrimination.15 Thus, of the 143complaints filed since September of 1993, there hasnot been a formal finding of a disparate impact in anycase, and EPA’s resolve either to terminate funding orto refer cases to the Department of Justice forenforcement remains untested.

Just as Title VI has been an illusory legal remedyto redress environmental inequities, other legal toolshave been similarly disappointing. Constitutionalclaims alleging violations of the Equal ProtectionClause have been largely unsuccessful because of thehigh evidentiary burden to prove discriminatoryintent.16 Standing requirements typically precludecitizens from prosecutingpublic nuisance actions.17

Toxic tort cases can bedifficult to prove becausethe conditions in impactedcommunities often stemfrom a variety of sources,making litigation against anyparticular defendantproblematic.

Because of the difficultyin making significantprogress at the national leveland in the courts, manyadvocates are turning theirattention to state and local approaches.18 Initiativesadopted include state executive orders, theestablishment of an environmental justice office or anenvironmental justice position, policies or strategicplans, environmental justice advisory boards(statewide or community), and working groups(agency or interagency). Cleanup requirements forcontaminated sites and brownfield initiatives alsosometimes contain environmental justice provisions,as do the criteria for approval of supplementalenvironmental projects. Some states have takenrelatively aggressive steps and targeted enforcementactions in impacted communities. These initiativesdemonstrate that environmental justice has grabbedthe attention of policymakers; however, these stateand local initiatives are of recent vintage, and anyassessment of their efficacy is premature.

III. The Evidence

The movement for environmental justice has beenbolstered by a solid body of empirical evidencedocumenting that environmental harms and benefitsare unequally distributed in society.

Some of the best publicized early research focusedon hazardous waste facilities. In 1983, for example,the General Accounting Office (since renamed theGovernment Accountability Office) found that threeof the four major offsite hazardous waste facilities inEPA’s Region IV were located in predominantlyAfrican-American communities, even though African-

Americans comprised onlyabout one-fifth of theregion’s population.19

Then in 1987, theUnited Church of Christ’sCommission for RacialJustice released a nationalstudy documenting asignificant relationshipbetween the location ofcommercial hazardouswaste facilities anduncontrolled toxic wastesites and race. Althoughsocioeconomic status

appeared to play an important role in the location ofhazardous waste facilities, race was even moresignificant, even after controlling for urbanization andregional differences.20 Later research largely hasconfirmed these results, although some studies havereached differing conclusions.21

Other early research, some dating back to the startof the 1970s, documented that air pollution and otherenvironmental hazards are distributed unequally byrace and income (and that in most cases race wasmore strongly related to the incidence of pollutionthan income).22 Based on its review of the literature,in 1992 EPA concluded that racial minority and low-income populations experience higher than averageexposures to certain air pollutants, hazardous wastefacilities (and by implication, hazardous waste),

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contaminated fish, and agricultural pesticides, andthat children of color suffer higher rates of leadpoisoning.23 (While blood lead levels of childrencontinue to drop nationwide, children from poorfamilies remain eight times more likely to be poisonedthan those from higher-income families, and African-American children are still five times more likely to bepoisoned than white children.24)

One response by academics to this evidence wasto raise the question, termed by Professor RobertBullard the “chicken or egg” debate, about whetherthe polluting facilities were initially placed in peopleof color communities or whether they were sited in amore racially neutral manner, but post-siting marketforces caused the present disparities.25 The latter“market dynamics” or “minority move-in” theoryposits that the presence of polluting facilities reducedland prices, thus prompting white residents to moveaway and poorer people and minorities to move intothe area. Based on the research to date, however,there is little empirical support for the marketdynamics theory. For example, a nationwide study byProfessor Vicki Been – one of the leading proponentsof this theory – found that in more than 500 of thecommunities that hosted commercial hazardous wastefacilities at the time of the study, neighborhoodssurrounding hazardous waste facilities did not becomepoorer or more heavily minority after the facilitieswere sited there.26

Other critics challenged the early studies asinconclusive because they failed to clarify theindependent effects of race, income, populationdensity, and other demographic and political factors.Since 1992, however, research has tended to be moresophisticated and controlled for these variables.These more recent studies in large part confirm theearlier conclusions, finding that race and class aresignificant predictors of where environmental harmsare located, while also finding that other factors canbe significant predictors.27 Professors John Hird andMichael Reese, for example, found a clear and strongrelationship between race and environmental qualityafter examining 29 indicators of environmentalquality throughout the nation, including industrial airemissions, industrial water discharges, water quality,

air quality, and proximity to hazardous wastes:nonwhite and Hispanic populations experiencedisproportionately high pollution levels.28 ScholarsJames Lester, David Allen, and Kelly Hill reachedsimilar conclusions in their own detailed study ofwhere environmental harms are concentrated at thestate, county, and city levels.29

Interestingly, several studies show that the verypoorest neighborhoods appear to repel, rather thanattract polluting facilities, and that working class orlower middle class neighborhoods bear adisproportionate share of such plants.30 A morerecent study in southern California also suggests amore complicated picture, revealing that thecommunities most likely to host risk-producing landpractices are communities experiencing an “ethnicshift” from one ethnic minority to another.31 Theseresearchers posit that social ties are weakened incommunities undergoing transition and that they areless likely to organize.32

Occupational hazards also are disproportionatelyborne by low-income workers and workers of color.One notable example is farm worker exposure topesticides: 90 percent of the approximately 2 millionhired farm workers in the United States are people ofcolor.33 The World Resources Institute has estimatedthat as many as 313,000 farm workers in the UnitedStates may suffer from pesticide-related illnesses eachyear.34 Outside the farm worker context, severalstudies show that workers of color and low-wageworkers are more likely than the rest of thepopulation to work in jobs with higher exposures totoxic chemicals and other hazardous conditions, andthat they experience greater risks of occupationaldisease and injury.35

A smaller but growing body of evidencedemonstrates the uneven distribution ofenvironmental amenities, such as effectiveenforcement, parks and open space, beach access, andtransportation spending. Examples include:

Environmental Enforcement. Low-incomecommunities and communities of color sufferdisproportionately when environmental laws are

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inadequately enforced and businesses violaterequirements, because these communities host adisproportionate share of polluting facilities. A 1992study by the National Law Journal (“NLJ”) found thatpenalties imposed by EPA for violations of federalenvironmental laws were substantially lower inminority communities than in white communities, andthat racial disparities were evident in EPA’s responseto contaminated waste sites.36 (The NLJ study hasbeen criticized, and two subsequent studies of thecases reviewed by the NLJ have questioned itsconclusions; two subsequent state studies, however,report similar results.)

Parks and Open Space. Newer studies aredocumenting disparities in parks and open space. LosAngeles has fewer acres of parks per 1,000 residentsthan any major city in the country; in the inner citywhere low income communities of color live, thereare 0.3 acres of parks per thousand residents,compared to 1.7 acres in disproportionately white andrelatively wealthy parts of Los Angeles.37

Communities of color in New York have the lowestpercentages of tree canopy in the city, and New YorkCity has the lowest open space standards for itscitizens of any metropolitan area in the country –only 2.5 acres of open space per 1,000 residents.Moreover, at least two-thirds of the community-planning districts (primarily communities of color) donot meet this standard.38

IV. The Many Regulatory Contexts in WhichEnvironmental Justice Issues Arise

Environmental justice advocates have explainedhow and why disparities exist throughout theregulatory process – in program design, standardsetting, permit issuance, enforcement, and cleanup ofcontaminated properties. Of these, permit issuance isperhaps the most recognized context in whichenvironmental justice issues arise. As noted above,much of the empirical evidence has documented themaldistribution of hazardous waste and otherpolluting facilities permitted by government agencies.However, environmental injustice may result not onlyfrom permitting decisions, but from other facets ofhealth and environmental agencies’ regulatory

approaches as well. Indeed, it would be a mistake tothink of “environmental justice” as encompassingonly issues of facility siting and permitting.

Environmental justice protections are often absentfrom the design of regulatory programs in the firstplace. For example, newer market-oriented programshave been allowed to go forward despite the potentialfor aggregate trades to result in toxic “hot spots” thatoccur in minority communities. A case in SouthernCalifornia is illustrative, where under a car-scrappingprogram, refineries were allowed to buy reductioncredits by retiring heavily polluting older cars, in lieuof installing vapor recovery systems at their marineterminals. The three refineries purchasing the bulk ofthe credits were located in predominantly Latinocommunities; these communities continued toexperience the refinery’s impacts, while the benefitsfrom the car scrapping were felt throughout the largermetropolitan area.39 Likewise, innovations in programdesign tend to be industry friendly, with noprotections for their implementation in impactedcommunities. The recent changes to the New SourceReview requirements of the Clean Air Act areillustrative. EPA has allowed companies to select thetwo-year period with the highest emissions out of thelast ten years to serve as the baseline for determiningwhether improvements at existing facilities will bedeemed to increase emissions and so require installingnew pollution control equipment. It has also tried toexpand greatly the roster of improvements that areexempt from new pollution control requirementsbecause they are considered to be routinemaintenance. Both actions work to the detriment ofthe communities that often host the older majoremitting facilities that will take advantage of the newrules and increase emissions without undergoing NewSource Review. To the extent that these hostcommunities are disproportionately comprised ofpeople of color and low-income people, the changesimpose a greater burden on these groups than on thegeneral population.

Environmental justice issues also surface inenvironmental agencies’ standard setting efforts. Forexample, when agencies set standards to determinethe amount of contamination they will permit to be

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By far the greatest number of

environmental justice challenges arise

in the course of permit proceedings.

Community residents in overburdened

communities, already beset by health

problems and a tenuous quality of life,

often view a new or expanded facility

as the proverbial straw that

breaks the camel’s back.

discharged into the air, water, or soils, they make ahost of assumptions about human exposure to thecontaminants. Environmental justice advocates havepointed out that these assumptions often do notaccurately describe themore dire circumstancesof those who live in theshadow of multiplepolluting facilities or whoconsume much more fishthan the “averageAmerican.” Whenagencies’ assumptionsunderestimate the trueexposure of thoseaffected, the resultingstandards will notadequately protect theseindividuals. These andother issues in thestandard setting context are explored in greater detailin Part V, which focuses on risk regulation.

By far the greatest number of environmentaljustice challenges arise in the course of permitproceedings. Community residents in overburdenedcommunities, already beset by health problems and atenuous quality of life, often view a new or expandedfacility as the proverbial straw that breaks the camel’sback. Add to those concerns suspicions of sitingdecisions motivated by racial discrimination, and theresult is often an aggressive and acrimoniousproceeding that is inefficient and unsatisfactory byany measure. Just as often, the permitting official isleft in a quandary about what she or he can andcannot do to address environmental justice concerns.There has been significant attention to potential legalauthorities to address environmental justice underfederal law. The consensus of commentators is thatthere is ample discretionary authority for agencies toaddress environmental justice concerns in morebroadly worded provisions or “omnibus” clauses thatcan be found in most if not all permitting statutes.40

However, to date, permitting authorities have beenexceedingly conservative in interpreting theirauthority to address environmental justice concerns.This stands in stark contrast to the very aggressive

use of this authority to allow for streamlined permits,flexible permitting, plant-wide applicability limits, andother innovative favorable regulatory treatment at thebehest of permit applicants.41 As such, the legal

authority to addressenvironmental justice inpermit proceedingsremains untried andlegally untested.

There aredocumented disparitiesin the cleanup ofcontaminated propertiesas well. Although theComprehensiveEnvironmentalResponse,Compensation, andLiability Act

(“CERCLA”) statutorily establishes a preference forremedial actions at Superfund sites that permanentlyand significantly reduce the volume, toxicity, ormobility of the hazardous substances, a 1992 NLJinvestigation found that site capping was thepreferred cleanup method 7 percent more frequentlyat predominantly minority sites compared topredominantly white sites. In contrast, soil treatmentwas the preferred cleanup method 22 percent morefrequently at predominantly white sites compared topredominantly minority sites.42 It also found thatSuperfund site cleanups under CERCLA began 12percent to 42 percent later at minority sites thanwhite sites. The reason for the disparity may lie inpart in the inability of affected communities toparticipate in the cleanup proceedings. AlthoughEPA is authorized to provide technical assistancegrants (“TAG”) to communities impacted by aSuperfund site, many environmental justice advocatesview the TAG grants as having limited effect becausethe administrative barriers limit the number ofcommunities that receive the grants and prevent themfrom using the grants effectively.43

These barriers tend to exacerbate the issues thatarise in the selection of an appropriate remedy andappropriate cleanup standards. In addition, relocation

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of residents of contaminated areas as an option posesa unique set of issues because of the displacement ofsometimes stable people of color communities. Inaddition, the payment for properties in affectedcommunities might have an artificially lower marketvalue because of perceived contamination andbecause of the way that discrimination affects thehousing market generally.44

At times, the relocationdecisions in communitiesof color have appeareddiscriminatory whencompared to relocation inwhite or wealthier areas.45

Aside from CERCLAcleanups, the 1992 NLJinvestigative report alsofound significant disparitiesin federal enforcement of other environmental laws,as discussed earlier. The findings of this studyresonated with many environmental justice advocateswho for years had heard and experienced anecdotalaccounts of lax governmental enforcement in peopleof color communities.46 The EPA disputed thecharges of discrimination revealed by the NLJ study,while acknowledging that there was a perception ofagency bias that needed to be addressed. However, itis not simply a matter of perception. Even ifenforcement decisions are completely neutral,unequal environmental burdens can nonetheless existsimply because there are more polluting facilities andother risk-producing land practices in people of colorcommunities. Thus, an equal rate of noncomplianceis certain to affect these impacted communities to agreater extent. This is troubling, considering thatnoncompliance is widespread. Numerous governmentreports indicate that rates of significantnoncompliance by major facilities with federalenvironmental requirements are in the range of 20 to40 percent. Also of concern is that enforcementdecisions – such as when to inspect, whether toprosecute, and how to settle an enforcement action –are ordinarily decisions made away from publicscrutiny and discretionary matters not typicallysubject to judicial review. Decision makers exercisingsuch wide-ranging discretion may, consciously or

unintentionally, act on biases that disadvantage poorand people of color communities.

Finally, the shift in emphasis at the state level inrecent years from deterrence-based models ofenforcement to cooperation-based enforcementstrategies may have adverse impacts on heavily

burdened communities. Forexample, state-levelinspections and othertraditional enforcementactivity dropped during thelate 1990s. Likewise, othercooperative-based strategiespursued by states – such asamnesty programs,environmental auditprivilege and immunity laws,and flexible penalty policies

– can weaken traditional enforcement and add to realor perceived disparities.

While environmental justice advocates have begunto bring these various aspects of environmentalinjustice to the attention of agency regulators, thereare several obstacles that preclude effective andprotective regulation from becoming a reality. First,environmental justice groups often lack the capacity –time, money, and expertise – to participatemeaningfully in regulatory processes, from permitproceedings to advisory groups. Another problem isthe current patchwork of local, state, and federalregulations that address environmental problems.This fractured legal jurisdiction makes it difficult forresidents in highly impacted communities to reach theright decision makers, at the right time, in theappropriate venue. Even in instances where anagency clearly has the authority over an issue, thetendency is to shift an environmental justice problemto another site of regulatory activity. For example,when environmental justice advocates have requestedenvironmental protections in proposed regulations,agencies have responded by noting that such issuesare best addressed on a case-by-case basis, such as ina permit proceeding. Then in permit proceedings, thehearing officer explains that he or she has no authorityto address environmental justice because the

The shift in emphasis at the state

level in recent years from

deterrence-based models of

enforcement to cooperation-based

enforcement strategies may have

adverse impacts on heavily

burdened communities.

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regulations are silent on the matter, or that suchmatters are best suited to enforcement actions.

Even this brief sketch affords a sense of the manyand varied regulatory contexts in whichenvironmental justice issues arise. In the next Part,we focus on one subset of these issues: occasions forinjustice in risk regulation.

V. Injustice in Risk Regulation

From the perspective of those affected, the harmsof contaminated environments are many andinterrelated. These harms include adverse impacts onecological health and to humans’ physical,psychological, social, and cultural health. In manyinstances, the affront is not only to an individual, butalso to a group. These harms, moreover, are theresult of multiple contributing “stressors” – forexample, the likely adverse impact of exposure to achemical stressor such as mercury (present in fish thatlive in contaminated aquatic environments) dependsin part on the presence of other chemical stressorssuch as PCBs and socioeconomic stressors such aslack of access to adequate health care.

When health and environmental agencies respondto the harms of contaminated environments,however, they typically focus on risk to human health– understood in the narrow, individual physiologicalsense of the term. Agencies proceed chemical bychemical (or source by source) and consider theextent to which human contact with that chemical islikely to result in an increase in the occurrence ofvarious human health “endpoints” such asneurological damage or cancer. Agencies generallymake this determination by means of risk assessment,an analytical tool that produces a quantitativeprediction of this increase for given levels ofenvironmental contamination. In setting waterquality standards, for example, agencies employ riskassessment to set standards for dioxins that aredesigned to permit discharges to surface waters justup to the level that results in an increased risk ofcancer deemed “acceptable.” In this process, agencyrisk assessors take into account the toxicity of thecontaminant in question (are dioxins potent

carcinogens?) together with the various factors thatdescribe human exposure to that contaminant (oncepresent in aquatic environments, do dioxinsbioaccumulate in fish? do humans consume these fishand, if so, in what quantity? over what period?).

Health and environmental agencies then “manage”these human health risks by one or both of twostrategies. The first strategy is risk reduction, wherebyrisk producers are required to clean up, reduce, orprevent environmental contamination; for example,through effluent limitations, applied to industrialsources that discharge contaminants into nearbysurface waters. The second strategy is risk avoidance,whereby risk bearers are asked to change the practicesthat expose them to contamination so as to avoid theresulting risk; for example, through fish consumptionadvisories directing people to reduce or eliminatecertain species of fish from their diet.

As persuasively argued by environmental justiceadvocates, there are numerous limitations in howagencies evaluate and respond to environmentalcontamination. First and fundamentally, agencies’narrow focus on human health risk misunderstandsthe nature of the harm from the perspective of manyof those affected. Second, working within this morenarrowly framed inquiry, agencies’ assessment ofexposure often fails accurately to reflect the actualcircumstances of tribes and other indigenous peoples,other communities of color, and low-incomecommunities. Third, agencies’ “toxicity timesexposure” formula for assessing risk fails to registerthe effects of multiple stressors, such that anenvironmental insult of the same intensity may resultin widely differing effects for two differentcommunities or subpopulations. Fourth, agencies’increasing reliance on risk avoidance rather than riskreduction in their efforts to address environmentalcontamination disproportionately burdensenvironmental justice groups. The NEJAC, a multi-stakeholder advisory group discussed above, hasmade similar observations about agencies’ riskassessment and risk management processes. Wehighlight below the issues of exposure, vulnerability,and risk avoidance.

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A. Exposure

Humans are exposed to environmentalcontaminants through various pathways: we inhaletoxic air contaminants, we drink contaminatedgroundwater, we absorb pesticides through our skin,and we eat fish that bioaccumulate toxins fromcontaminated surface water and sediments. In thecase of mercury and PCBs, for example, fishconsumption is the primary route of human exposure.Factors relevant to human exposure include, amongother things, the quantity of fish people consume, thefrequency of fish consumption, the species and partsof the fish people typically eat, the preparationmethods they use, and the bodyweight of thoseexposed. In gathering information about exposure toenvironmental contaminants, agencies for the mostpart consider the lives, practices, and circumstancesof the “average American” or the “typical U.S.consumer.” Yet humans’ fish consumption practicesvary considerably. Agencies have tended not toaccount for this variability and, importantly, not toregister the cultural, traditional, religious, historical,economic, and legal circumstances that are relevantwhen tribes and other indigenous peoples,communities of color, and low-income communitiesare among those exposed.

The EPA’s proposed regulation of mercury emittedfrom coal-fired power plants provides a case inpoint.47 In the preamble announcing the rule, EPAemphasizes that the “typical U.S. consumer eating awide variety of fish from restaurants and grocerystores is not in danger of consuming harmful levels ofmethylmercury from fish and is not advised to limitfish consumption.”48 Those who “regularly andfrequently consume large amounts of fish,” the EPAconcedes, “are more exposed.”49 In developing itsrule, EPA considered studies tabulating fishconsumption rates for the general population as wellas for various “subsistence” populations.50 The fishconsumption rate currently recommended by EPA asa default for use in setting water quality standards forthe general population is 17.5 grams/day (roughly onefish meal every two weeks). The default forsubsistence populations is 142.4 grams/day. In fact,fish consumption rates for some groups may well be

markedly greater than even this value for subsistencefishers. This is likely the case, for example, formembers of the various Ojibwe tribes of the GreatLakes. A survey of tribal spearers conducted by theGreat Lakes Indian Fish and Wildlife Commission(GLIFWC) found that those consuming an averagenumber of walleye meals in spring (the season ofhighest consumption) had intake rates ranging from189.6 grams/day to 393.8 grams/day.51

Additionally, methylmercury’s particular healthendpoints mean that relatively short periods ofconsumption – corresponding to developmentalperiods during which methylmercury is likely todamage the developing nervous system of the fetus orgrowing child – can contribute to health effects.52 Asa consequence, monthly or seasonal consumptionpatterns become important in evaluating the harmsfrom methylmercury exposure. Whereas there is littleseasonal fluctuation in fish intake for members of thegeneral population, this fluctuation is marked forOjibwe tribal spearers. The average number of mealsof walleye consumed ranges from a low of 2.2 mealsper week in the fall to a high of 3.6 meals per week inthe spring.53

Moreover, seasonal and cultural constraints (forexample, consumption as part of ceremonies ortraditional gatherings) affect tribal consumption inways that do not affect most members of the generalpopulation. Further, even the size of the averagemeal may differ considerably among differentsubpopulations – whereas the EPA assumes that theaverage meal size for a fish consumer in the generalU.S. population is 6 ounces (approximately 170grams), the GLIFWC survey revealed that the averagesize of a fish meal for tribal fishers ranged from 13 to27 ounces (approximately 369 to 766 grams).54 It isnot only how much fish is consumed, but also howfrequently and at what point in one’s life this fish isconsumed that is relevant to exposure.

Finally, because the concentration ofmethylmercury present in fish tissue differs fromspecies to species, and from fish to fish within aparticular species, different groups’ fish consumptionpractices again contribute to differences in exposure.

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Many of the species that are most frequentlyconsumed by the general population in the UnitedStates. (e.g., Alaskan pollack, salmon, crab, and cod)are contaminated to a far lesser degree than thosespecies most frequently consumed by GLIFWC tribalmembers (e.g., walleye, muskellunge, northern pike,and lake trout).55

As a result, members of the various Ojibwe tribesin the Great Lakes are more highly exposed than themembers of the general population that are theapparent focus of EPA’s regulatory efforts formercury.56 In fact, given current levels ofcontamination in walleye, a woman consuming atrates typical of the general U.S. population is currentlyexposed to methylmercury just at the EPA’s referencedose (RfD) – the level above which exposure isunsafe for humans.57 But a woman consuming at ratestypical of the general population in the Great Lakesstates is exposed at levels over twice the EPA’s RfD.58

And a woman consuming at rates typical of GLIFWCtribal fishers is currently exposed at levels more thanten times the EPA’s threshold.59 Thus, the level set byEPA’s proposed mercury rule leaves many in theGreat Lakes region unprotected, and it imposes themost severe burden on the fishing tribes and theirmembers.

The case of worker protection standards set byEPA under the Federal Insecticide, Fungicide &Rodenticide Act (FIFRA) in 1992 provides anotherexample.60 Those standards contain entry intervals,provisions that require a waiting period betweenpesticide application and worker reentry into thefields. The longer the entry interval, the moreprotective it is for the farm worker, but it is also moreeconomically burdensome upon the grower, who mustwait longer to harvest in the area of the applicationand pesticide drift. In developing the entry intervals,the EPA claimed that the standards take into accounttwelve-year-old workers, the youngest legal workersin the field. However, the General Accounting Officeissued a report, based upon interviews with EPApersonnel, that disclosed that the default body weightused in calculating the entry intervals was 154pounds.61 Yet, the median weight of twelve-year-oldsis 100 pounds. The EPA justified its failure to use the

more accurate, and protective, assumption of 100pounds by reasoning that although twelve-year-oldswere on average 100 pounds, their bodies have lesssurface area, and they perform less work, resulting inless physical contact with pesticide-treated plants.This justification flies in the face of the fact that,pound for pound, children eat more and breathe morethan adults, and so are more exposed to pesticides viaingestion and inhalation. In addition, children’sordinary behaviors result in greater exposures thanadults: among other things, their greater hand-to-mouth contact means that they are more likely tocome in contact with pesticides transferred fromobjects, soil, or dust. Additionally, EPA’s failure toaccount for children below the age of twelve isproblematic considering the fact, known to the EPA,that farm worker parents often take their preschoolchildren (some of them infants) into the fields withthem due to lack of day care services. Theimplications of EPA’s choice come into focus whenone considers that the vast majority – 88 percent – offarm workers are Latinos.62 This demographic groupis overwhelmingly low-income, with very loweducational attainment and few health careopportunities.

Although the issue of differential exposurecircumstances has been acknowledged by agencies,they have to date taken few concrete steps to adoptenvironmental standards that take into account theseexposure patterns and are protective of the practicesand lifeways of heavily impacted communities.

B. Vulnerability

In addition to exposure, several other factors arerelevant to assessing the likelihood of adverse effectsfrom contact with environmental contamination. Aslong maintained by affected communities, agencies’focus on a single chemical or source (for example, “arisk assessment for dioxin,” “a cleanup standard forTCE in the groundwater”) is misplaced. Rather thanstarting with a single chemical stressor and followingit to the exposed community, agencies should followan analysis that takes as its starting point asubpopulation or place and considers the multiple

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chemical and non-chemical stressors that affect thatsubpopulation or place. This broader, contextualizedunderstanding of the nature of the problem issometimes discussed in terms of groups’ differingsusceptibilities,63 the presence of “co-risk” factors,64

or cumulative risks. As the NEJAC recentlyrecognized, however, usage here has beeninconsistent.65 Thus, it adopts the helpful term“vulnerability,” a concept that includes an individual’ssusceptibility or sensitivity to the contaminant(s) inquestion; her circumstances of exposure to thecontaminant(s); and her ability to prepare for andrecover from the effects of contact with thecontaminant(s), given the various other chemical andnon-chemical stressors (for example, physical, social,cultural) that affect that individual.66

Differential Susceptibility or Sensitivity. Asubpopulation may be more susceptible to a particularenvironmental contaminant – that is, more likely tosuffer an adverse effect when exposed to a given levelor “dose” of a toxic contaminant – because of one ormore factors: members’ life stages (for example, arethey children, pregnant women, or the elderly?), pre-existing conditions (for example, do they have asthmaor an impaired immune system?), and genetic makeup(for example, do they have genetic polymorphismsthat render them more susceptible to certain healthendpoints?). A subpopulation may also be more orless sensitive to a particular environmentalcontaminant because of members’ previous exposuresto the same or similar contaminants, such that theyhave become sensitized and now have more severeresponses. It seems clear that there is a significantcorrelation between race, ethnicity, and income andsome of these factors that affect susceptibility orsensitivity. For example, asthma disproportionatelyaffects African-Americans in the United States:African-Americans visit the emergency room becauseof asthma at three times the rate of whites; arehospitalized for asthma at more than three times therate of whites; and die from asthma at two times therate of whites.67

Differential Exposure. A subpopulation may bemore vulnerable to a given level of environmentalcontamination because its members’ circumstances

and lifeways leave them more exposed to thecontaminants than those in the general population.They might live nearer to the fence line of industrialfacilities that emit multiple toxic air pollutants(pollutants that may have cumulative or synergisticeffects, such that their effects are amplified ormultiplied beyond the additive effects of exposure toeach pollutant individually); they might live in older,deteriorated housing that harbors lead dust; theymight depend on fish that has become contaminatedwith PCBs. A subpopulation may also be morevulnerable because of historic or backgroundexposure. Members may have been exposed in thepast or over time (including through occupationalexposure) such that their body burdens are alreadyrelatively high and any additional exposure may placethem at risk of exceeding threshold safety levels forhumans. Examples are numerous. Whereas 68percent of the African-American population liveswithin 30 miles of a coal-fired power plant, wherethey are exposed to sulfur dioxide, nitrogen oxides,particulates and mercury, only 56 percent of the whitepopulation lives within this distance of a coal-firedpower plant.68 Whereas 15.3 percent of non-Hispanicwhite women of childbearing age have mercury intheir blood at levels that pose a risk to a developingfetus, this number climbs to 31.5 percent for womenof childbearing age who identify themselves as“Other,” a category comprised primarily of NativeAmericans, Pacific Islanders, those “of Asian origin,”or those of “mixed race.”69 Twice as many Hispanicchildren as non-Hispanic white children have lead intheir blood above the action level established by theCenter for Disease Control and Prevention for risk oflead poisoning.70 Hmong fishers along the Fox Riverin Wisconsin not only consume fish at greaterquantities that the “average American,” but theyconsume fish heavily contaminated with both PCBsand methylmercury, contaminants researchers believemay act in concert.71

Differential Preparedness or Ability to Recover. Asubpopulation may be less able to withstand orrecover from an environmental insult or stressor. Thismay be so because the subpopulation lacks economicmeans; has nutritional deficits; has poor access topreventative and other health care (including, for

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example, vaccination, early diagnosis, adequatetreatment); has poor access to informational andother preventative resources; or is relatively isolatedor lacks influence for linguistic, racial, economic, orother reasons. Again, the examples are numerous.Nationally, American Indians and Alaska Nativeshave the highest poverty rate – twice the nationalaverage.72 Approximately 52 percent of Hispanicsunder the age of 65 do not have health insurance andHispanics account for fully one-quarter of thenation’s 74 million uninsured; these rates are evenhigher if one considers Spanish-speaking Hispanics.73

An assessment of vulnerability, of course, must

account for how these multiple and interrelatedfactors work in concert to affect communities orplaces. One useful matrix for doing this has beendeveloped by the NEJAC.74 This sample matrixgathers the factors relevant to assessing vulnerabilityin the Mississippi River Industrial Corridor – alsoknown as “Cancer Alley” – the 2,000 square mile areabetween Baton Rouge and New Orleans in the stateof Louisiana.

EPA’s current risk assessments largely ignoreconsiderations of vulnerability beyond exposure tothe single contaminant at issue. EPA has, however,

Table developed by Ms. Wilma Subra,Louisiana Environmental Action Network.

Table 1: Multiple, Aggregate, and Cumulative Risks and Impacts in the Mississippi River Industrial Corridor

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recently issued a Framework for Cumulative RiskAssessment that incorporates a broad understanding ofvulnerability and of the stressors that are relevant to acommunity- or place-based assessment of the harmsof environmental contamination.75 If fullyimplemented, the approach suggested in theFramework could significantly improve the manner inwhich risk assessments are carried out.

Finally, tribes have pointed out that there areunique considerations that apply when tribalresources are at stake.76 As suggested by thediscussion above, the various tribes and theirmembers have susceptibilities and sensitivities,exposure circumstances, and abilities to prepare forand recover from environmental insults that will oftendiffer from the general population and othersubpopulations, including, in some instances, othertribal subpopulations. In addition, it is crucial to notethat American Indian tribes and Alaska Nativevillages have a unique political and legal status thatdifferentiates them from other affected groups.77

Tribes are sovereign nations, with broad inherentauthority over their members, territories, andresources. Tribes’ unique legal status includes a trustresponsibility on the part of the federal government78

and various commitments to maintain a government-to-government relationship. In many cases, tribalrights and resources (including, for example, the rightsto catch and consume fish or to hunt certain animals)are also protected by treaties. Finally, tribes’ rights toself-determination, including cultural self-determination, may mean that appropriate riskassessments need to take into account the uniquerelationship between tribes and the traditional landsand resources on which they depend.79 Typically, thishas not been done by agencies.

C. Risk Avoidance

In responding to the harms of environmentalcontamination, the current Bush Administration hasembraced risk avoidance in lieu of risk reduction.80

Risk reduction strategies aim to clean up, limit, orprevent environmental contamination in the firstplace. Risk avoidance strategies, by contrast, leave

contamination unabated. They address the harms ofthis contamination by looking to those whosecircumstances or lifeways leave them exposed andasking them to alter their ways, thereby “avoiding”the risk – placing the burden on victims rather thanpolluters. The proposed regulation of mercury fromcoal-fired power plants exemplifies just this shift.81

Rather than seek to reduce the risks to those who“regularly and frequently consume large amounts offish” by decreasing the amount of mercury emittedinto the environment, it places responsibility on thoseaffected to avoid the risk by altering their fish-consumption practices. EPA instructs those affected,particularly children and women of childbearing age,to consult fish consumption advisories and reduce oreliminate fish from their diets accordingly.Remarkably, the EPA unflinchingly acknowledgesthat it will be Native Americans, Southeast AsianAmericans, and lower income subsistence fishers whowill be subject to avoidance measures.

This turn to risk avoidance is problematic onseveral scores and is particularly troubling from theperspective of environmental justice. First, riskavoidance is short-sighted.82 By focusing only onspecific, direct threats to human health, riskavoidance measures leave unaddressed the myriadother effects of contamination, that is, the adverseeffects on all non-human components of ecosystems.Loons cannot read fish consumption advisories. Thislack of concern for non-human health is troubling inand of itself, for example, for the MinnesotaChippewa Tribe, for whom loons, mink, and otheranimals affected by methylmercury contamination areimportant clan symbols and valued as parts of anintegrated ecosystem. Even if one is concernedchiefly with human health, however, risk avoidancemay fail ultimately to address many direct and indirecteffects on humans. In the case of mercury, forexample, there is evidence that methylmercurycontamination inhibits the growth of wild rice, astaple food and culturally important resource for thevarious Objibwe and other tribes.

Second, risk avoidance is often not effective.83 Inorder for risk avoidance to work, advisories must bereceived and understood, restrictions must be

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enforced, and human behaviors must be changed –each of which presents considerable hurdles. Thesehurdles loom larger and may become insurmountablewhen those affected do not share the language orculture of the dominant population. For example, arecent study showed that half of those consumingfish caught on the Great Lakes were unaware of therelevant fish consumption advisories; people of color,women, and those without a high school degreeevidenced the least awareness. Those for whom fishconsumption includes spiritual, traditional, or culturaldimensions may feel that it is simply not possible tocease eating fish. In the case of members of thevarious Ojibwe tribes, for example, a recent surveyshowed that whereas 57percent of tribal fisherswere aware of mercuryadvisories for walleye, only9 percent had ever refusedto eat walleye in a groupsetting such as a feast or aceremonial gathering.

Third, risk avoidance isan approach with finitepossibilities.84 Somepollutants can be morereadily avoided than others.The options for avoidingmercury in fish are few. Afisher seeking to avoid PCBcontamination might be able to alter his preparationmethods – trimming the skin and fat from fillets andbroiling or grilling so that the fats drips off whilecooking – but to continue to fish at his customarysites and for his customary species. A fisher seekingto avoid mercury contamination, by contrast, cannotdo so merely by altering her preparation methods,because methylmercury accumulates in the muscletissue that comprises the fillet. Instead, she must takesteps to reduce – and, in some cases, eliminatealtogether – her total consumption of particularspecies caught from contaminated waters and to paceher allowable intake to avoid acute exposure. As ageneral matter, the more risk avoidance is allowed tosupplant risk reduction, the fewer the options for riskavoidance. Heavy reliance on risk avoidance would

eventually lead to a world in which there are nolonger any healthful alternatives, as uncontaminatedenvironments are permitted one by one to becomeand remain degraded. Eventually, if mercuryemissions were to continue unabated, there would beno “safe” species, no lakes free of contamination.

Fourth, risk avoidance may itself introduce risks.85

If those exposed change their ways in order to avoidrisks posed by contamination, they may adoptpractices that subject them to a different set of risks.To the extent that those affected “comply” with fishconsumption advisories, the potential forcountervailing risks is a serious concern, given the

celebrated nutritionalbenefits of frequent fishconsumption. Fish are anefficient source of protein,omega-3 fatty acids,selenium, and othernutrients important tohuman health. By foregoingthese benefits, thoseaffected may openthemselves to an increasedrisk of coronary and otherdiseases. In addition, forthose for whom fish forms apart of a traditional diet,including those in thefishing tribes of the upper

Great Lakes, regular consumption of fish and othertraditional foods may function to promote health andto combat diabetes, a particular concern for tribesgiven the high rate of diabetes among AmericanIndians and Alaska Natives.86 Agencies may believethemselves to have made informed choices andtradeoffs before opting for risk avoidance. Aselaborated below, however, such tradeoffs are likelyto reflect the values of the dominant society; this isproblematic to the extent that these values aredifferent from those on whom the burden ofundertaking risk avoidance will fall. And the pointnonetheless remains that agency decision makers maynot foresee fully the roster of countervailing risksintroduced by avoidance measures.

Finally, risk avoidance is

fundamentally unfair: the burden

of undertaking risk avoidance

measures is likely to fall

disproportionately on tribes and

indigenous peoples, other

communities of color, and low-

income communities, because it is

these communities who are likely

to be among the most exposed.

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Finally, risk avoidance is fundamentally unfair:the burden of undertaking risk avoidance measures islikely to fall disproportionately on tribes andindigenous peoples, other communities of color, andlow-income communities, because it is thesecommunities who are likely to be among the mostexposed. In the case of mercury contamination,whereas members of the general population,especially those who do not consume fish, are notmuch affected by a turn to advisories in lieu ofreduced contamination, members of these fishingpeoples will be faced with the “choice” of curtailingseverely their fish intake or being exposed tomethylmercury in fish at levels determined to beunhealthful for humans.

Moreover, risk avoidance measures are likely to beevaluated by reference to the understandings andcommitments of the dominant society and adoptedonly where avoidance is thought not to occasion greatcosts or profound loss. Yet the understandings andcommitments of those who will be faced with alteringtheir practices and lifeways may be quite differentthan those of the dominant society. This will oftenbe the case where Native peoples are prominentamong the risk bearers, as they are when the sourceof risk is methylmercury contamination. Thus,environmental injustice here arises not only fromdistributive inequities but also from culturaldiscrimination. Not only are the Ojibwe and otherfishing peoples the ones most heavily burdened byreliance on fish consumption advisories, but they arelikely to understand differently the nature of thisburden. There are likely profound differences in thevalue attached to fish, fishing, and fish consumptionas between various indigenous peoples and thedominant society. For the fishing tribes of the GreatLakes, as for fishing peoples elsewhere, fish and thelifeways associated with fish are central to theiridentity as peoples; they are indispensable to physical,social, economic, political, spiritual, and culturalhealth. For the dominant society, by contrast, thesepractices, while important, are likely not constitutiveof their very identity. Thus, for example, a memberof the general population who habitually consumestwo meals of fish per week might, in the face of fishconsumption advisories for mercury, look to

substitute food sources with relatively modestaccommodations to palate and pocketbook. Amember of the Mille Lacs Band, however, might viewsuch risk avoidance measures as impossible, given theaffront this would mean to her tribe’s very identity, towhat it means to be Ojibweg. By permittingsignificant mercury contamination to remain andrelying instead on fish consumption advisories, EPAperpetuates a long history of cultural discriminationagainst American Indian peoples.

VI. Recommendations

The following recommendations do not by anymeans exhaust the possible efforts agencies mightusefully undertake to address the issues outlinedabove. But they represent important steps that, takentogether, would at least begin to addressenvironmental injustice.

1. Reduce Risk, Don’t Force the Public to AvoidRisk

Agencies should stop using “risk avoidance”strategies – those that require the public to avoid therisks imposed on them rather than require firmscreating the hazards to reduce these risks – as a wayto control environmental and health risks. Thesestrategies fail to address the underlying risks posed byharmful activities, are of doubtful efficacy (they rely,for example, on warnings about consumingcontaminated fish to be read and understood and tochange the behavior of subsistence anglers; or theycount on the construction of a fence surroundingcontaminated soil to permanently keep children fromplaying there), and tend to fall disproportionately onNative Americans, racial minorities, and low-incomeindividuals who are the most highly exposed toharmful pollutants. Moreover, these strategies oftenburden practices highly valued on cultural or spiritualgrounds only by indigenous peoples or other peopleof color – such as fishing and fish consumption orbasket-weaving. Rather than placing the burden oninnocent members of the public – instructing childrento remain indoors during especially bad air days orcounseling anglers not to eat fish caught in waters

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contaminated by toxics – agencies should strive toreduce or eliminate risk-generating activities.

2. Prevent Pollution at the Source

Agencies must devote increasing attention topreventing or reducing pollution at the source, ratherthan controlling pollution after its creation at the “endof the pipe.” Chemical products and processes mustbe redesigned to reduce or eliminate the use andgeneration of hazardous substances. Pollutionprevention can reduce waste, save costs and increaseefficiency, and reduce risks to workers, theenvironment, as well as the public – risks that aredisproportionately borne by low-income communitiesand communities of color.

Although most environmental laws currently donot mandate pollution prevention, agencies cannonetheless use the permitting and enforcementprocesses to identify and implement source reductionopportunities. As noted above, it is the consensus ofcommentators that ample discretionary authorityexists under most if not all of the relevantenvironmental statutes. Federal and state agenciesshould make use of this authority to requiremitigation, to address cumulative impacts, or to denypermits in cases where permit issuance would resultin a disparate impact in overburdened communities.Moreover, as outlined in the NEJAC report, AdvancingEnvironmental Justice Through Pollution Prevention,agencies should work with community residents inareas with multiple sources of pollution to developcomprehensive, community-wide toxics reductionplans. Additionally, states and localities should adoptlaws that require companies to analyze their use oftoxic chemicals and identify options for reducing use.This approach in Massachusetts, in the form of thestate’s Toxic Use Reduction Act, has been quitesuccessful at reducing toxic emissions.

3. More Systematically Analyze Cumulative Risks

Traditionally environmental agencies haveanalyzed risks posed by polluting facilities or otheractivities one at a time – chemical by chemical orsource by source, as if these risks occurred in

isolation. As a result, many environmental decisionshave been made by agencies without consideration ofthe multiple and varied stressors that affect the healthand well being of impacted communities.

To the maximum extent permitted by theirdiscretionary authority, agencies should work toincorporate cumulative risk analysis in their decision-making process. Moreover, as articulated in EPA’sFramework on Cumulative Risk Assessment, agenciesshould embrace a broad view of what constitutescumulative risk, including examining stressors beyondthose subject to their regulatory authority. Riskshould be defined to include not just chemicalstressors but a range of other biological, physical,social and cultural factors that affect the populationexperiencing a risky activity – factors such as geneticdisposition, life stage, preexisting illnesses andbackground health conditions, income level, access tohealth care and health insurance, and historical andbackground exposures. Moreover, agencies shoulddraw on the knowledge and expertise of communitymembers and tribes in assessing the many factors thatmay contribute to that group’s increased vulnerabilityto risk-producing activities.

Related, in the context of Clean Air Actpermitting decisions, EPA and state agencies shoulduse their authority to require that proposed new orexpanded sources in heavily impacted areas conduct“multi-source” modeling – modeling that analyzes notonly the source’s direct impacts but the combinedimpacts of all existing sources in the area. This willallow agencies and the public to gauge moreaccurately the cumulative air burdens facingcommunities.

4. Implement a Community-Based ParticipatoryResearch Model

EPA and other environmental agencies shouldimplement a community-based participatory researchmodel for conducting risk assessments, research, andother investigations. This model promotes activecommunity or tribal involvement in the processes thatshape agency research and intervention strategies

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affecting local communities. It helps ensure that riskassessments are informed by local knowledge andconditions, and that agency research questions areguided by the environmental health issues andconcerns most important to community members ortribes.

5. Adopt the Precautionary Principle

Agencies should embrace a precautionaryapproach to dealing with risky activities – one thatcalls for precautionary measures when an activityraises potential threats to the environment or humanhealth, even if there is scientific uncertainty aboutthose impacts. In such situations, the burden ofproving that an action is safe should be placed on theparty responsible for creating the risk, and a full rangeof alternatives should be examined to see if there aresafer, less harmful options to the proposed activity.87

This principle has become a cornerstone ofinternational environmental law treaties,environmental policies adopted by the EuropeanUnion, and local ordinances in several U.S.communities, including Portland, Oregon and SanFrancisco, California.

For example, although humans have introducedtens of thousands of toxic chemicals into commerceover the past several decades, agencies lack toxicityinformation about the vast majority of them. Toremedy this large data gap, agencies should shift theburden of proof to chemical producers todemonstrate the safety of toxic chemicals – anapproach mandated by the European Union’s recentREACH legislation. Ultimately, a precautionaryapproach will lead to reductions in risky activities –activities that disproportionately burden poor,minority, and indigenous populations.

6. ‘Nonattainment’ Areas for Toxic Releases

Many communities are saturated with multiplesources of pollution or face high community healthburdens resulting from the cumulative combination ofmultiple stressors. Just as new or expanding sources inareas that fail to meet the National Ambient Air

Quality Standards of the Clean Air Act must offsettheir increased pollution by eliminating a greateramount of emissions in the area in order to allowprogress toward meeting the air quality standards,agencies should pioneer the concept of“nonattainment areas” for toxic emissions. Newsources discharging toxic pollutants into an alreadyoverburdened area should be required to mitigatetheir harmful emissions by a greater amount of thenew emissions, so as to help relieve the cumulativeburdens faced in these communities. For their part,agencies should require extra protections – in the wayof buffer zones, tighter triggers for morecomprehensive analyses, or additional enforcementscrutiny – in these overburdened communities. TheSouth Coast Air Quality Management District in LosAngeles, for instance, now requires buffer zones forsuch sensitive receptors as schools to protect againstthe risks posed by toxic emissions from chromeplating and other high impact sources.

7. Prevent Hot Spots in Pollution TradingPrograms

Recent years have seen an explosion of interest inemission trading and other market-based programs.While in theory these programs can reduce overallpollution levels more efficiently than certain forms oftraditional regulation, as discussed earlier, they alsohave considerable potential to create or exacerbatepollution “hot spots,” typically in low-incomecommunities or communities of color. Suchcommunities, for example, may host adisproportionate share of older, inefficient facilitiesthat are likely to purchase emission reduction creditsfrom plants in other areas, rather than adopt on-sitepollution controls.

To prevent hot spots from developing,environmental justice considerations should befactored into the design of market-based programs.Thus, for example, decision makers (or tradingpartners) should be required to analyze the potentialimpact of emission trades on low-incomecommunities and communities of color before thetrades go forward. In especially overburdened

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communities, trades should be prohibited absentoffsetting reductions of equal or greater amount inthat community. Finally, trading in some instancesmay simply not be appropriate. This is likely to bethe case where the pollutants at issue have acuteimpacts (e.g., many hazardous air pollutants) or whereinter-pollutant trading (i.e., trading of differentpollutants with diverse characteristics) is involved.This is also the case where trading could perpetuateor exacerbate inequities in environmental protection(in the case of mercury emissions for coal-fired powerplants, for example).

The Center for Progressive Regulation haselaborated on several of these recommendations in ANew Progressive Agenda for Public Health and theEnvironment.88

About the Authors

Eileen Gauna is a tenured full Professor at Southwestern University School of Law Professor Gaunahas published widely in the area of environmental justice and has co-authored with Clifford Rechtschaffena casebook titled, Environmental Justice: Law, Policy and Environmental Protection (2002). She works closelywith grassroots environmental justice organizations and networks in the Southwestern United States.

Catherine A. O’Neill is an Associate Professor of Law at Seattle University School of Law. She hastaught, lectured, and written in the areas of environmental justice, environmental law, natural resourceslaw, and property. Her work considers questions of risk and justice in environmental policy, focusing inparticular on issues of environmental justice for Native peoples.

Clifford Rechtschaffen is Professor and Director of the Environmental Law Program at Golden GateUniversity School of Law. He is also Co-Director of Golden Gate’s Environmental Law and JusticeClinic. Golden Gate’s environmental law program has been ranked among the top 20 in the nation by U.S.News & World Report in two of the past four years.

The authors gratefully acknowledge the contributions of Melissa Winters of Seattle University Schoolof Law, Class of 2005 for her invaluable research assistance, and Professor Robert L. Glicksman of theUniversity of Kansas School of Law for his wise counsel.

Professors Gauna, O’Neill, Rechtschaffen, and Glicksman are Member Scholars of the Center forProgressive Regulation.

Conclusion

Environmental justice advocates have done muchin the past 15 years to focus the attention of agencyregulators and the public on the currentmaldistribution of environmental burdens andbenefits. While their efforts have resulted in anenlarged understanding of the regulatory contexts inwhich environmental justice issues arise, agencydecision makers have yet to undertake many of thechanges that would be necessary to begin to addressthese issues. We echo environmental justiceadvocates’ call for change, and offer sevenrecommendations for agencies that, taken together,would make some important inroads. Ultimately, weseek agency decisions that reduce risk, eliminatedisparities, and ensure environmental justice for all.

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End Notes

1. See Ed Timms, Racial Patterns: Economics and SegregationLeft Minorities Closer to Toxic Sites, DALLAS MORNING

NEWS, Oct. 3, 2000, at A1, available at 2000 WL28111045 (describing how accidental releases fromrefineries force residents in nearby public housing toevacuate or adopt “shelter in place” strategies).

2. Annual Meeting of the Association of American LawSchools, Environmental Law Section Tour of theIndustrial Corridor, Louisiana (1999).

3. Title VI Advisory Committee, Tour of Chester,Pennsylvania (circa 1998).

4. Communities for a Better Environment, Tour of LosAngeles, California (circa 2001).

5. Title VI Advisory Committee, Tour of Tucson,Arizona (circa 1998).

6. PROCEEDINGS OF THE FIRST NATIONAL PEOPLE OF

COLOR ENVIRONMENTAL LEADERSHIP SUMMIT xiii (Oct.24-27, 1991).

7. See SECOND NATIONAL PEOPLE OF COLOR

ENVIRONMENTAL LEADERSHIP SUMMIT, ENVIRONMENTAL

JUSTICE TIMELINE – MILESTONES, at http://www.ejrc.cau.edu/summit2/%20EJTimeline.pdf.

8. NAT’L ADVISORY COUNCIL FOR ENVTL. POL’Y & TECH.,REPORT OF THE TITLE IV IMPLEMENTATION ADVISORY

COMMITTEE: NEXT STEPS FOR EPA, STATE, AND LOCAL

ENVIRONMENTAL JUSTICE PROGRAMS (1999); see alsoENVIRONMENTAL JUSTICE IN THE PERMITTING PROCESS: AREPORT FROM THE PUBLIC MEETING ON ENVIRONMENTAL

PERMITTING CONVENED BY THE NEJAC NOVEMBER 30-DECEMBER 2, 1999; ENVIRONMENTAL JUSTICE AND

COMMUNITY-BASED HEALTH MODEL DISCUSSION: AREPORT ON THE PUBLIC MEETING CONVENED BY THE

NEJAC MAY 23-26, 2000; NEJAC REPORT ON

INTEGRATION OF ENVIRONMENTAL JUSTICE IN FEDERAL

PROGRAMS: A REPORT ON THE PUBLIC MEETING

CONVENED ON DECEMBER 11, 12, AND 14, 2000; FISH

CONSUMPTION AND ENVIRONMENTAL JUSTICE: A REPORT

ON THE PUBLIC MEETING CONVENED BY THE NEJACDECEMBER 3-6, 2001; and ADVANCING ENVIRONMENTAL

JUSTICE THROUGH POLLUTION PREVENTION: A REPORT

DEVELOPED FROM THE NEJAC MEETING OF DECEMBER

9-13, 2002.

9. See U.S. ENVTL. PROTECTION AGENCY,ENVIRONMENTAL JUSTICE STRATEGY (1995), availableat http://www.epa.gov/compliance/resources/policies/ej/ej_strategy_1995.pdf.

10. Denis Binder et al., A Survey of Federal Agency Response toPresident Clinton’s Executive Order No. 12898 onEnvironmental Justice, 31 ENVTL. L. REP. 11133 (2001).

11. OFF. INSPECTOR GEN., EVALUATION REPORT: EPANEEDS TO CONSISTENTLY IMPLEMENT THE INTENT OF THE

EXECUTIVE ORDER ON ENVIRONMENTAL JUSTICE (2004),available at http://www.epa.gov/oig/reports/2004/20040301-2004-P-00007.pdf.

12. Alexander v. Sandoval, 532 U.S. 275 (2001).

13. The four-justice dissent in Sandoval opined thatplaintiffs should be able to sue for a violation ofdisparate impact regulations under Section 1983, astatute that grants citizens a private right of action forviolations of rights, privileges, or immunities securedby the Constitution and laws of the United States.Currently, there is a split in the federal circuits whetherdisparate impact claims can be brought throughSection 1983; in 2002 the Tenth Circuit affirmed thatthey can. Robinson v. Kansas, 295 F.2d 1183, 1186(10th Cir. 2002). However, also in 2002 the U.S.Supreme Court decided a case under the FamilyEducational Rights and Privacy Act which held that inlegislation enacted pursuant to Congress’ spendingpower, private rights of action are not typicallyallowed unless Congress clearly so provided,particularly where there are sufficient administrativemeans to enforce such laws. Gonzaga University v.Doe, 536 U.S. 273 (2002). The stringent standardadopted in the case will now make it more difficult,over the long run, for plaintiffs seeking to enforceEPA’s Section 602 regulations in court.

14. U.S. COMMISSION ON CIVIL RIGHTS, NOT IN MY

BACKYARD: EXECUTIVE ORDER 12898 AND TITLE VI AS

TOOLS FOR ACHIEVING ENVIRONMENTAL JUSTICE 84-87(2003), available at http://www.usccr.gov/pubs/envjust/ej0104.pdf. The Commission found that ofthe 124 Title VI complaints filed with the EPA byJanuary 1, 2002, only 13 cases or 10.5 percent wereprocessed by the agency in compliance with its ownregulation. Id. at 57. None of these 13 complaints

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were accepted for investigation. Id. They were allrejects because the EPA determined they did not meetthe agency’s requirements. Id. The Commission alsofound that, as of February 2002, no decisions had beenmade on the merits of backlogged complaints. Id.

15. http://epa.gov/civilrights/docs/t6csnovember2003.pdf (last visited Feb. 2, 2005).

16. CLIFF RECHTSCHAFFEN & EILEEN GAUNA,ENVIRONMENTAL JUSTICE: LAW, POLICY &ENVIRONMENTAL REGULATION ch. XIII (2002).

17. See, e.g., In re Exxon Valdez; Alaska Native Class v. ExxonCorp., 104 F.3d 1196 (1997) (upholding summaryjudgment order on behalf of Exxon on grounds thatAlaska Natives had failed to demonstrate the requisite“special injury” different in kind from that suffered bythe general public for harms to their culture andsubsistence lifeways resulting from the massive oil spillin the 1998 grounding of the tanker Exxon Valdez ).

18. ENVIRONMENTAL JUSTICE FOR ALL: A FIFTY-STATE

SURVEY OF LEGISLATION, POLICIES, AND INITIATIVES

(Steven Bonorris ed., 2003), available at http://www.abanet.org/irr/committees/environmental/statestudy.pdf.

19. U.S. GEN. ACCT. OFF., SITING OF HAZARDOUS WASTE

LANDFILLS AND THEIR CORRELATION WITH RACIAL AND

ECONOMIC STATUS OF SURROUNDING COMMUNITIES

(1983). EPA’s Region IV is comprised of the statesKentucky, Tennessee, North Carolina, South Carolina,Mississippi, Alabama, Georgia, and Florida.

20. UNITED CHURCH OF CHRIST COMMISSION FOR RACIAL

JUSTICE, TOXIC WASTES AND RACE IN THE UNITED

STATES: A NATIONAL REPORT ON RACIAL AND SOCIO-ECONOMIC CHARACTERISTICS OF COMMUNITIES WITH

HAZARDOUS WASTE SITES (1987).

21. See, e.g., BENJAMIN GOLDMAN & LAURA FITTON, TOXICS

WASTES AND RACE REVISITED: AN UPDATE OF THE 1987REPORT ON THE RACIAL AND SOCIOECONOMIC

CHARACTERISTICS OF COMMUNITIES WITH HAZARDOUS

WASTE SITES (1994). For a contrary conclusion, seeDouglas Anderton et al., Environmental Equity: TheDemographics of Dumping, 31 DEMOGRAPHY 229 (1994).

22. Paul Mohai & Bunyan Bryant, Environmental Racism:Reviewing the Evidence, in RACE AND THE INCIDENCE OF

ENVIRONMENTAL HAZARDS: A TIME FOR DISCOURSE 163(Bunyan Bryant & Paul Mohai eds., 1992).

23. U.S. ENVTL. PROTECTION AGENCY, ENVIRONMENTAL

EQUITY: REDUCING RISK FOR ALL COMMUNITIES, VOL. 2:SUPPORTING DOCUMENT 7-15 (1992).

24. Centers for Disease Control & Prevention, Update:Blood Lead Levels – United States 1991-1994, 46MORBIDITY & MORTALITY WKLY. REP. 141 (1997).

25. Vicki Been, Locally Undesirable Land Uses in MinorityNeighborhoods: Disproportionate Siting or Market Dynamics?,103 YALE L.J. 1383, 1385 (1994).

26. Vicki Been & Francis Gupta, Coming to the Nuisance orGoing to the Barrios? A Longitudinal Analysis ofEnvironmental Justice Claims, 24 ECOL. L.Q. 1, (1997).

27. JAMES P. LESTER ET AL., ENVIRONMENTAL INJUSTICE INTHE UNITED STATES 13-14 (2000).

28. John A. Hird & Michael Reese, The Distribution ofEnvironmental Quality: An Empirical Analysis, 79 SOC. SCI.Q. 693, 711 (1998).

29. LESTER, supra note 27, at 149-155.

30. Evan J. Ringquist, Equity and the Distribution ofEnvironmental Risk: The Case of TRI Facilities, 78 SOC. SCI.Q. 811, 818 (1997).

31. Rachel Morello-Frosch et al., Environmental Justice andSouthern California’s Riskscape: The Distribution of AirToxics Exposures and Health Risks Among DiverseCommunities, 36 URB. AFF. REV. 551 (2001).

32. See also, James T. Hamilton, Testing for EnvironmentalRacism: Prejudice, Profits, Political Power?, 14 J. POLICY

ANAL. & MGMT. 107 (1995)(finding a strong negativecorrelation between siting of LULUs and politicalparticipation, as measured by voter turnout, rather thanbetween siting and race).

33. Yvette Perfecto & Baltimore Velásquez, Farm Workers:Among the Least Protected, 18 EPA J. 13 (March/April1992).

34. U.S. Dept. of Health and Human Services, Office ofMinority Health Resource Center, Migrant FarmworkersSuffer from Pesticide Exposure, CLOSING THE GAP (Oct.

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1997), available at http://www.omhrc.gov/ctg/env-09.htm.

35. See George Friedman-Jiménez, M.D., AchievingEnvironmental Justice: The Role of Occupational Health, 21FORDHAM URB. L.J. 604, 610-613 (1994).

36. Marianne Lavelle & Marcia Coyle, Unequal Protection:The Racial Divide in Environmental Law, NAT’L L.J., Sept.21, 1992, at S1-S12.

37. Robert Garcia, Building Community: Lessons Fromthe Urban Parks Movement in Los Angeles(unpublished manuscript on file with author).

38. Samara F. Swanston, Environmental Justice: Mobilizing forthe 21st Century: Environmental Justice and EnvironmentalQuality Benefits: The Oldest, Most Pernicious Struggle andHope for Burdened Communities, 23 VT. L. REV. 545 (1999).

39. Richard Toshiyuki Drury et al., Pollution Trading andEnvironmental Injustice: Los Angeles’ Failed Experiment inAir Quality Policy, 9 DUKE ENVTL. L. & POL’Y F. 231(1999).

40. NAT’L ACAD. OF PUB. ADMIN., ENVIRONMENTAL JUSTICE

IN EPA PERMITTING: REDUCING POLLUTION IN HIGH

RISK COMMUNITIES IS INTEGRAL TO THE AGENCY’SMISSION (2001); ENVTL. L. INST., OPPORTUNITIES FOR

ADVANCING ENVIRONMENTAL JUSTICE, AN ANALYSIS OF

U.S. EPA STATUTORY AUTHORITIES (2001); Richard J.Lazarus & Stephanie Tai, Integrating Environmental Justiceinto EPA Permitting Authority, 26 ECOLOGY L.Q. 617(1999); Shiela R. Foster, Meeting the Environmental JusticeChallenge: Evolving Norms in Environmental Decisionmaking,30 ENVTL. L. REP. 30992 (2000); Eileen Gauna, EPA atThirty: Fairness in Environmental Protection, 31 ENVTL. L.REP. 10,528, 10,532-33 (2001); ENVIRONMENTAL JUSTICE

IN THE PERMITTING PROCESS: A REPORT FROM THE PUBLIC

MEETING ON ENVIRONMENTAL PERMITTING CONVENED

BY THE NEJAC NOVEMBER 30-DECEMBER 2, 1999;Memorandum from Gary S. Guzy, EPA GeneralCounsel, EPA Statutory and Regulatory AuthoritiesUnder Which Environmental Justice Issues May beAddressed in Permitting (Dec. 1, 2000), available athttp://www.epa.gov/region02/community/ej/ogcmem.pdf.

41. Gauna, supra note 40, at 10,561.

42. See Marcia Coyle et al., Unequal Protection: The Racial

Divide in Environmental Law, NAT’L L.J., Sept. 21, 1992, atS1-S12 (a special investigation).

43. Deeohn Ferris, Communities of Color and Hazardous WasteCleanup: Expanding Public Participation in the FederalSuperfund Program, 21 FORDHAM URB. L. J. 671, 679(1994).

44. For an interesting case study on relocation, see EscambiaTreating Company Case Study for the Relocation RoundtableMeeting, discussed in RECHTSCHAFFEN & GAUNA, supranote 16, at 236-244.

45. See Robert R. Kuehn, Remedying the Unequal Enforcementof Environmental Laws, 9 ST. JOHN’S J. LEGAL COMMENT.625, 633-34 (1994) (noting that EPA quickly authorizedgovernmental buyouts of the homes of residents livingin Love Canal and Times Beach, but was unwilling toauthorize a buyout in the African-American town ofTriana, Alabama).

46. See generally, id.

47. Catherine A. O’Neill, Mercury, Risk, and Justice, 34ENVTL. L. REP. 11,070 (2004).

48. U.S. ENVTL. PROTECTION AGENCY, Proposed NationalEmissions Standards for Hazardous Air Pollutants;and, in the Alternative, Proposed Standards ofPerformance for New and Existing Stationary Sources:Electric Utility Steam Generating Units; Proposed Rule,69 Fed. Reg. 4652, 4658 (Jan. 30, 2004).

49. Id.

50. O’Neill, supra note 47, at 11,075-11,079.

51. Id.; GREAT LAKES INDIAN FISH AND WILDLIFE COMM’N,1993 SURVEY OF TRIBAL SPEARERS (1993).

52. U.S. ENVTL. PROTECTION AGENCY, MERCURY STUDY

REPORT TO CONGRESS: VOLUME IV: AN ASSESSMENT OF

EXPOSURE TO MERCURY IN THE UNITED STATES 4-2, 4-82(1997), available at http://www.epa.gov/ttncaaa1/t3/reports/volume4.pdf.

53. O’Neill, supra note 47, at 11,077-11,078; GREAT LAKES

INDIAN FISH AND WILDLIFE COMM’N, supra note 51.

54. Id.

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55. O’Neill, supra note 47, at 11,078-11,079.

56. Id. at 11,092-11,095.

57. Id. at 10,093.

58. Id.

59. Id.

60. Eileen Gauna, Farmworkers as an Environmental JusticeIssue: Similarities and Differences, 25 ENVIRONS ENVTL L. &POL’Y J. 67, 68-71 (2002).

61. U.S. GEN. ACCT. OFF., PESTICIDES, IMPROVEMENTS

NEEDED TO ENSURE THE SAFETY OF FARMWORKERS AND

THEIR CHILDREN 19 (2000). EPA’s default bodyweightis altered to 132 pounds, however, for those pesticidesthat have potential fetal developmental effects, toaccount for the lower average bodyweight of womenin their childbearing years. Id.

62. Adrianna Quintero-Somaini et al., Natural ResourcesDefense Council, Hidden Danger: Environmental HealthThreats in the Latino Community vi (2004).

63. See, e.g., Robert R. Kuhn, The Environmental JusticeImplications of Quantitative Risk Assessment, 1996 U. ILL.L. REV. 103.

64. See, e.g., FISH CONSUMPTION AND ENVIRONMENTAL

JUSTICE: A REPORT ON THE PUBLIC MEETING CONVENED

BY THE NEJAC DECEMBER 3-6, 2001, at 42-43.

65. NAT’L ENVTL. JUST. ADVISORY COUNCIL, ENSURING RISK

REDUCTION IN COMMUNITIES WITH MULTIPLE STRESSORS:ENVIRONMENTAL JUSTICE AND CUMULATIVE RISKS/IMPACTS: DRAFT REPORT (2004).

66. Id. at iii.

67. Black Leadership Forum et al., Air of Injustice: AfricanAmericans & Power Plant Pollution 3 (2002).

68. Id.

69. Kathryn R. Mahaffey et al., Blood Organic Mercury andDietary Mercury Intake: National Health and NutritionExamination Survey, 1999 and 2000, 112 ENVTL. HEALTH

PERSP. 562 (2004).

70. Quintero-Somaini, supra note 62, at vi.

71. See, e.g., Dyan M. Steenport et al., Fish ConsumptionHabits and Awareness Among Fox River Anglers,WISCONSIN MEDICAL J. (2000), available at http://www.wismed.org/wmj/nov2000/fish.html; FriendsChildren’s Environmental Health Center, Research ProjectTwo: Perinatal PCBs and Neuropsychological AuditoryFunction, available at http://www.friendscenter.uisuc.edu/Project_2.html.

72. Centers for Disease Control & Prevention, HealthDisparities Experienced by American Indians and AlaskaNatives, 52 MORBIDITY & MORTALITY WKLY. REP. 697(2003).

73. LEAGUE OF UNITED LATIN AMERICAN CITIZENS, AIR OF

INJUSTICE: HOW AIR POLLUTION AFFECTS THE HEALTH OF

HISPANICS AND LATINOS 4 (2004), available at http://www.lulac.org/Issues/Environment/Latino%20Reportlowres.pdf.

74. NAT’L ENVTL. JUST. ADVISORY COUNCIL, supra note 65,at 5.

75. U.S. ENVTL. PROTECTION AGENCY, OFFICE OF RESEARCH

AND DEVELOPMENT, NATIONAL CENTER FOR

ENVIRONMENTAL ASSESSMENT, FRAMEWORK FOR

CUMULATIVE RISK ANALYSIS (2003), available at http://www.epa.gov/ncea/raf/recordisplay.cfm?deid=54944.

76. For a discussion of these unique considerations in thecontext of contaminated fish, see Catherine A. O’Neill,Variable Justice: Environmental Standards, ContaminatedFish, and “Acceptable” Risk to Native Peoples, 19 STAN.ENVTL. L. J. 3, 70-116 (2000); O’Neill, supra note 47, at11,112-11,115.

77. See, e.g., Jana L. Walker et al., A Closer Look atEnvironmental Justice in Indian Country, 2 SEATTLE J. SOC.JUST. 379 (2002).

78. See, e.g., Mary Christina Wood, The Indian TrustResponsibility: Protecting Tribal Lands and Resources throughClaims of Injunctive Relief Against Federal Agencies, 39TULSA L. REV. 355 (2003).

79. See, e.g., Stuart G. Harris and Barbara L. Harper, UsingEco-Cultural Dependency Webs in Risk Assessment andCharacterization of Risks to Tribal Health and Cultures, 2ENVTL. SCI. AND POLLUT. RES. 91 (Special Issue, 2000).

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80. See generally, Catherine A. O’Neill, Risk Avoidance,Cultural Discrimination, and Environmental Justice forIndigenous Peoples, 30 ECOLOGY L. Q. 1 (2003).

81. O’Neill, supra note 47, at 11,106-11,112.

82. Id. at 11,108.

83. Id. at 11,108-11,109.

84. Id. at 11,109.

85. Id.

86. See generally, Centers for Disease Control andPrevention, supra note 72, at 697. (“The rates of . . .diabetes . . . were two to three times as high among

About the Center for Progressive Regulation

Founded in 2002, the Center for Progressive Regulation is a nonprofit research and educationalorganization of university-affiliated academics with expertise in the legal, economic, and scientificissues related to regulation of health, safety, and the environment. CPR supports regulatory action toprotect health, safety, and the environment, and rejects the conservative view that government’s onlyfunction is to increase the economic efficiency of private markets. Through research and commentary,CPR seeks to inform policy debates, critique anti-regulatory research, enhance public understanding ofthe issues, and open the regulatory process to public scrutiny. Direct media inquiries to MatthewFreeman at mfreeman@progressiveregulation.org. For general information, emailinfo@progressiveregulation.org. Visit CPR’s website at www.progressiveregulation.org. The Centerfor Progressive Regulation is grateful to the Deer Creek Foundation for its generous support of thisproject and CPR’s work in general.

1200 New York Ave., NW, Suite 400, Washington, DC 20005202-289-4026 (phone) / 202-289-4402 (fax)

[American Indians and Alaska Natives] than among allracial/ethnic populations combined.”).

87. See 1998 Wingspread Statement on the PrecautionaryPrinciple, in Joel Tickner et al., Sci. & Envtl. HealthNetwork, THE PRECAUTIONARY PRINCIPLE IN ACTION: A

HANDBOOK app. (undated), available at http://www.sehn.org/rtfdocs/handbook-rtf.rtf.

88. A NEW PROGRESSIVE AGENDA FOR PUBLIC HEALTH AND

THE ENVIRONMENT (Christopher H. Schroeder andRena Steinzor, eds., 2005). Chapter 4, “Shifting theBlame,” Chapter 5, “Do the Best We Can,” andChapter 8, “Fair Distribution of EnvironmentalHarms and Benefits,” are of particular relevance.