Environmental Justice in America.

Environmental Justice in America

Edwardo Lao Rhodes Indiana University Press iupress.indiana.edu 280 pp., $39.95

Recalling the movement from which he takes his book's title, Edwardo Lao Rhodes takes as his premise in Environmental Justice in America an observation familiar to any trial lawyer who represents victims of pollution and toxic exposure: Environmental hazards and the risks they pose to human health disproportionately affect people who are poor, are members of racial minority groups, or have been deprived of a political voice.

Trial lawyers regularly encounter examples like those he gives in the book:

* Lead poisoning is much more common among the children of African-Americans in the inner city than among whites in better-funded school districts.

* Pesticide poisoning has its most direct and severe effect on migrant workers (the majority of them Hispanic) who toil on corporate farms.

* Hazardous waste facilities are too frequently located close to the homes of poor and minority families.

These and similar patterns violate a fundamental principle of "environmental justice," which was "unofficially" defined by the U.S. Environmental Protection Agency (EPA) in 1998:

   The fair treatment of all races, cultures,
   incomes, and educational levels with respect
   to the development, implementation,
   and enforcement of environmental laws,
   regulations, and policies. Fair treatment
   implies that no population of people should
   be forced to shoulder a disproportionate
   share of the negative environmental impacts
   due to a lack of political or economic
   strength.

Rhodes knows that public policy makers have been slow to grasp, or even recognize, the problem. His ultimate goal is to provide a framework for bridging the gap. A professor of public and environmental policy at Indiana University, Rhodes wrote his book after a sabbatical spent at the EPA's Office of Environmental Justice. There, the scope of his work evolved from his original intent to analyze the question of environmental justice "quantitatively" into a broader exploration of the issue.

But this stated ambition did not inspire him to examine the important role tort law might play in framing and attempting to redress the environmental inequities at the heart of the book. As trial lawyers know, the tort system works best when it compensates those who suffer negative impacts that stem from a lack of political or economic strength. It can provide justice when a lack of resolve paralyzes government policy makers: Courtroom evidence can prove the reality of an injustice and its consequences, even before they are generally accepted among mainstream scientists.

This has long been true when it comes to environmental injustices, but this book makes no reference to, for example, how asbestos litigation accelerated the development of public health policy regarding a needless epidemic disproportionately affecting workers. The author does not mention trial lawyers' role in compensating the victims of lead poisoning or in convincing lawmakers to regulate that dangerous neurotoxin. The book barely mentions the large number of citizen groups that have gone into federal courts to stop the siting of dangerous facilities in areas populated by the poor or minorities.

The book also avoids analyzing the system's failures. While Rhodes is optimistic that EPA regulations under Title VI of the Civil Rights Act will help abate the disparate impact on minorities of "market driven" sitings of hazardous waste facilities, he is seemingly unaware of recent federal decisions stripping those regulations of meaningful enforcement. While he recognizes that a truly "just" understanding of pollutants' effects on people cannot wait for scientific "certainty" about causation, he fails to discuss how federal judges' incorrect application of epidemiological principles in the wake of the Daubert trilogy has thwarted justice.

Some of this criticism may be unfair. After all, Rhodes is a professor of public policy, not a lawyer. He is interested in developing a "new paradigm" for environmental issues in the context of public policy, not in advocating particular outcomes. While his book ignores the roles of trial lawyers, juries, and the courts in achieving some measure of environmental justice, it does provide insights that should be important to lawyers dealing with these issues.

For example, Rhodes cites the findings of surveys that explode the myths that African-Americans care less about environmental issues than whites do, or that environmental consciousness is the exclusive province of liberals. Awareness that concern about the environment--and a willingness to assess responsibility for its destruction--cuts across class, race, and political lines provides both hope for the future and insight that can be useful in jury selection.

Environmental Justice in America is a well-researched look at this significant contemporary problem, and its author makes an important call for more attention to it. It could have benefitted from a fuller examination of the problem's treatment in the real-world disputes heard in courtrooms.

GERALD J. WILLIAMS is a partner with Williams, Cuker & Berezofsky in Philadelphia and in Cherry Hill, New Jersey.