"Environmental justice" is becoming the biggest buzzword in planning since "smart growth." There is an irony here, because, at least in California, the two appear to be on something of a collision course.
On one hand, smart growth principles call for focusing new development on land available in existing urban areas. But on the other hand, environmental justice calls for an equitable distribution of development so that older neighborhoods with concentrated poverty do not bear a disproportionate burden of harmful facilities.
These two things are not at complete odds with each other. Not all growth channeled into poor neighborhoods is harmful; and not all older neighborhoods are poor. But older affluent neighborhoods have long been skilled at deflecting any kind of undesirable development. In a certain way, older poor neighborhoods are using the environmental justice movement to fight the same projects.
Indeed, the debate in California planning is whether environmental justice concerns should be dealt with in general plans or during environmental review under the California Environmental Quality Act (CEQA). This mirrors a fundamental debate about how most other planning issues in California should be handled. Planners often argue that things should go in the general plan; yet use of CEQA is a favored tactic of project opponents everywhere.
At the policy level, the general plan approach appears to be winning. A new law requires the Governor's Office of Planning & Research (OPR) to include environmental justice considerations in revising the general plan guidelines, and to complete those revisions by next year. But CEQA-style review may win at the street level in the long run simply because the tactics of environmental justice proponents lend themselves to project-by-project battles. In particular, environmental justice advocates appear to believe that if affluent suburban neighborhoods can use CEQA to their advantage in stopping projects, inner-city activists ought to be able to do the same.
The environmental justice movement has emerged largely as a result of aggressive action by ethnic and anti-poverty advocacy groups, which have argued that non-white and poor neighborhoods bear a disproportionate burden of the impact of noxious facilities. In many ways, environmental justice is simply a new way of looking at the familiar planning question of how to balance regional benefit and local impact. Planners have struggled with this question at least since the 1970s, when Rutgers University planning professor Frank Popper coined the phrase "Local Unwanted Land Use" (LULU).
Environmental justice advocates have revived the LULU debate by casting it sharply in terms of race and economic class, however. For example, the Latino Issues Forum, a San Francisco-based research and advocacy group, recently used a GIS analysis to challenge the California Energy Commission's statistics on the impact of new energy plants on non-white populations. The research report found that non-white populations generally -- and Latino populations specifically -- were highly concentrated in areas adjacent to proposed peaker energy plants throughout the state.
This kind of aggressive activism in environmental justice has become much more common since 1994, when President Clinton issued Executive Order 12898. The order called on every federal agency to make environmental justice "part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations." In issuing the executive order, he relied on a combination of Title VI of the 1964 Civil Rights Act (which requires that federal actions not discriminate on the basis of race, among other factors), the National Environmental Policy Act, the Clean Air Act, and federal freedom of information laws.
As a result of the executive order, all federal agencies and some state and local agencies dependent on federal funds — most notably Caltrans — have embarked on aggressive programs to include environmental justice in their activities. (A recent survey of 63 state agencies by OPR found that 2% had environmental justice policies and 11% were developing them; among agencies subject to Title VI, those figures were 6% and 33%.) But a recent federal appellate court ruling from New Jersey has called the full force of the executive order into question.
In South Camden Citizens in Action v. New Jersey Department of Environmental Protection, the Third Circuit Court of Appeals ruled that the federal civil rights law could not be used to pursue a claim of "disparate impact" unless the underlying statute in question specifically states that disparate impact is against the law. The successful argument by anti-environmental justice lawyers was that the Civil Rights Act was not passed in the context of concern for "disparate impact;" therefore, it cannot be used to pursue such claims, despite Clinton's reliance on Title VI.
Environmental justice has come under fire not only from conservative commentators but from iconoclastic middle-of-the-road pundits, such as David Friedman of the New America Foundation, who have argued that the evidence of actual health problems associated with proximity to noxious facilities is less than overwhelming. According to one study cited by Friedman, living close to a plant emitting toxic chemicals shortens people's lives far less than simply being poor.
In spite of these debates over the legal and scientific validity of environmental justice, the topic has gradually worked its way into the debate over land use planning in California. Indeed, much of the debate over both CEQA and general plan revision in recent years has revolved around environmental justice.
For example, most efforts to streamline CEQA in urban areas have run into opposition from environmental justice advocates. These same environmental justice advocates, however, have been unable to work the topic overtly into the CEQA process.
CEQA and the CEQA Guidelines do contain some basis for what we today call environmental justice. Both contain references to decent housing and "suitable living conditions" for all people and warn that environmental protection cannot be achieved at the cost of those goals. There is no specific mention of environmental justice, however.
When she was state lawmaker, Rep. Hilda Solis, a Democrat from of El Monte, repeatedly attempted to work environmental justice into CEQA and other state laws. In 1997, Solis pushed a bill requiring environmental justice considerations to be part of CEQA analysis all the way to the desk of Gov. Pete Wilson, but Wilson vetoed it. Two years later, Gov. Gray Davis signed a Solis bill establishing OPR as the statewide coordinating agency for environmental justice programs. The Solis bill and a bill by Sen. Richard Alarcon (D-San Fernando) passed in 2001 seek to use the California Environmental Protection Agency as a model for environmental justice programs.
The most important bill for land-use planning, however, was AB 1553 (Keeley) in 2001, which calls on OPR to include environmental justice considerations in its next set of general plan guidelines, and to issue the revised guidelines by July 1, 2003.
In response to the Keeley bill, OPR conducted four public hearings around the state in January and February soliciting ideas for the General Plan revisions. Among other things, those testifying suggested:
* Beefing up efforts to inform local governments about the federal Civil Rights Act.
* Encouraging local governments to pursue equitable distribution of facilities.
* Providing precise definitions for sometimes vague environmental justice terms, such as an "environmental justice affected community," "equitable distribution," "livable," "over concentrating," "buffer zones," and "employment zone."
Planners at OPR have not drafted changes to the general plan guidelines yet. But it will be interesting to see whether the eventual changes will alter the nature of California planning practice. Will local governments add "environmental justice elements" to their general plans? Will they take the whole topic seriously? Or will they deal with it in such a way that environmental justice advocates — like so many environmentalists before them — simply fall back on CEQA as the handiest tool at their disposal?