1. Environmental Justice The “Not In My Backyard” problem and how to solve it

2. Environmental Justice Environmental Justice is “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” U.S. Environmental Protection Agency

3. Environmental Justice How did the movement come about? “NIMBY” problem: “Not In My Backyard” Wealthy and empowered able to resist federal, state and local projects with environmental consequences Disproportionate impact on poor, minorities and disempowered Results in increased health risks and impacts on poor, minorities and disempowered

4. Environmental Justice How did the movement come about? 1960s -- Civil Rights Movement Leaders began to examine negative impact on poor and minority families from environmental hazards 1990 -- Congressional Black Caucus meetings with EPA 1994 -- Clinton signed Executive Order 12898, "Federal Actions to Address Environmental Justice in Minority Populations and Low- Income Populations"

5. Environmental Justice Executive Order 12898: Federal agencies must develop policies to prevent disproportionate impact on poor and minorities Affected communities must have access to public information about projects with environmental impact Must also be able to participate in discussions with agency and have concerns considered in decision-making process

6. Who Regulates?

7. U.S. Environmental Protection Agency Created in 1970s –Prior to creation, had been “common law” –Environmental action relied on suits under theories of nuisance and trespass. Mission: “To protect human health and the environment”

8. Enforcing Statutes Legislative Branch (Congress) enacts statutes –General guidelines only Executive Branch (Administrative Agency) –Specificity –Force of law –President can issue Executive Orders that pertain to agency action Executive Order 12898 What’s the downside?

9. U.S. Environmental Protection Agency Major statutes include: –Clean Water Act (water pollution) –Clean Air Act (air pollution) –Comprehensive, Environmental Response, Compensation and Liability Act (CERCLA or “Superfund”)(clean up hazardous waste sites) –Toxic Substances Control Act (TSCA)(handling toxic chemicals –Resource Conversation and Recovery Act (RCRA) (hazardous waste regulation)

10. What can the EPA do? Develop regulations that enforce the various environmental statutes Issue permits Fine and sanction violators Bring enforcement actions Voluntary pollution prevention programs

11. What can the EPA do about environmental justice? Reviews proposed actions by federal agencies to ensure fairness Must consider environmental justice concerns in agency activities including licensing National Environmental Justice Advisory Council: –Representatives from various interest groups –Provides recommendations on environmental justice issues to the EPA.

12. Accessing the EPA: What can you do? Comment on proposed rules: (www.regulations.gov) Obtain “Right to Know” information –Under Emergency Planning and Community Right-to-Know Act –Material Safety Data Sheets (MSDS) and lists of on-site chemicals –Toxic Release Inventory Program -- information on toxic chemical releases

13. Accessing the EPA: What can you do? Report a violation: –Emergencies -- National Response Center –Possible violations: First local, then state environmental agency NJ Dep’t. of Environmental Protection –Information of prior spills -- National Response Center

14. State Agencies EPA delegates some responsibilities to states In some cases, states can establish standards that are more stringent than some of the federal standards –Example, lead dust on playground soil EPA -- 400 ppm MA -- 300 ppm; WI -- 250 ppm

15. NJ Department of Environmental Protection Issues standards and regulations under NJ’s environmental laws Enforcement of environmental regulations Licenses and permits

16. NJ DEP Environmental Justice E.O. 12898: states that receive federal funding for environmental programs must address environmental justice concerns proactively. 2003: Corzine issues E.O. 131 on environmental justice

17. NJ DEP Environmental Justice E.O. 131 requires: –Programs affecting health and environment need to ensure not disproportionate impact on poor –Affected communities given opportunities to participate in decision- making –Environmental Justice Advisory Council

18. Can you sue to protect rights under environmental laws? Answer: MAYBE Several threshold issues first: –Private right of action –Standing –Mootness/Ripeness –Exhaustion

19. Private Right of Action Not all statutes permit individuals to sue Require EPA or State Attorney General to pursue Many, however, do allow private suits

20. Standing Even if the statute allows private suits, are you the right person to bring the suit? Do you have “standing?” Must show an “injury in fact”: actual injury traceable to defendant’s conduct

21. Mootness/Ripeness Is the timing right? Has the problem resolved itself (Mootness)? Is the problem not developed enough (Ripeness)?

22. Exhaustion Have you exhausted the remedies that the administrative agency has in place? May be procedures for administrative review before can start suit Some agencies have arbitration provisions –Mandatory vs. voluntary –EPA has voluntary arbitration for violators

23. What do you want? Money damages are easiest to get If want violators to stop, need to ask for “equitable remedies” such as temporary or permanent injunctions –Have to show that money damages would not make you whole

24. Can you bring any other suits? Answer: PROBABLY Can sue manufacturers of goods for product liability and negligence Common law vs. statutory claims May be able to proceed on a contingency basis Can pursue international companies if “personal jurisdiction” May be brought as a “class action”