Green redlining: how rules against "environmental racism" hurt poor minorities most of all.

Janice Dickerson never imagined she could be accused of environmental racism. A black community activist who now heads the Louisiana Department of Environmental Quality's Office of Environmental Justice, Dickerson thought she was doing right by both the environment and the impoverished, mostly black community of Romeville when, in 1997, she helped shepherd through a deal to build Shintech Corporation's state-of-the-art, $700 million polyvinyl chloride plant in St. James Parish. But today, she can't even talk to the people of Romeville.

Dickerson committed her sins while acting as liaison between her agency, Shintech officials, and Romeville residents - a role for which she seemed uniquely suited. As an activist, she had long been critical of the state's industries for ignoring the communities in which they operate. She says she was hired by the LDEQ "because business [in Louisiana] needs to change the way they do business. Environmental justice is about involving the community."

Her mission is part of a larger Louisiana "enterprise zone" initiative to attract industry to poor areas by trading tax incentives for guarantees that companies will hire 35 percent of their labor force locally. Until recently, those efforts appeared successful for both Shintech and Romeville. The company not only passed state and federal emissions tests with ease but also agreed to a $500,000 training program to help local residents land some of the plant's 255 high-paying jobs. Shintech even pledged to hire 50 percent of the 700 needed construction workers locally. Furthermore, the plant would plow $5.8 million into local schools under a parish construction tax. Beams Dickerson, "Shintech made a commitment to hire locals. This is a facility that wants blacks and wants to hire them."

But the Clinton administration and its radical allies in the environmental and civil rights movements have a different vision of environmental justice. Under an Environmental Protection Agency policy drafted this year, a state agency that approves an emissions-producing facility having a "disparate impact" on minorities - that is, a facility whose emissions affect predominantly nonwhite communities - is in violation of Title VI of the Civil Rights Act. Greenpeace and the Tulane University Environmental Law Clinic have filed a federal claim and a state lawsuit under this policy, accusing Dickerson and her colleagues at the LDEQ of discrimination. Janice Dickerson, on the advice of LDEQ lawyers, can no longer speak with Romeville's residents. And the EPA has blocked Shintech from building its plant in poor and black Romeville because Romeville is...poor and black.

The EPA's policy and its application in Louisiana have enraged and confused governors, mayors, and environmental officials across the nation. These officials see the administration's efforts not as environmental justice but as a policy of environmental redlining that effectively excludes minority areas from badly needed business investment.

Though the EPA's rule does not specify what constitutes a "disparate impact," in practice the agency has determined such impact by drawing one-, three-, and five-mile radii around an industrial site. If the minority population within any of these lines is roughly twice as great as that of the surrounding county or state, then the facility is vulnerable to a civil rights claim. In Shintech's case, 82 percent of the population within five miles of the facility is black - significantly larger than the 49 percent in St. James Parish and over twice the black population (31 percent) of the entire state.

Such a standard threatens not only facilities in rural, "greenfield" areas like St. James but also urban sites in major American cities where mayors are desperately trying to attract jobs, especially to abandoned industrial "brownfield" sites. "There is not a brownfield in New Orleans that is not in a minority community," sighs Fred Barrow, an African American who leads the LDEQ's efforts to develop brownfields and fears that the EPA's rule could redline the entire city. Detroit Mayor Dennis Archer, an African American and a Democrat, says the EPA's environmental justice policy is "so vague and so broad that it nullifies everything that we have done to attract companies to our brown field sites." This June, Archer drafted a resolution for the U.S. Conference of Mayors demanding that the administration suspend its Title VI rule. The resolution was adopted unanimously.

Russ Harding, commissioner of Michigan's Department of Environmental Quality and an outspoken critic of the administration's policy, says the EPA's rule gives fringe activist groups a potential veto over any future or existing industrial facility that needs federal permitting. "All it takes is a postcard," says Harding, who predicts that rather than locate near minorities and face the threat of civil rights litigation, companies "will quietly decide to locate somewhere else, even overseas."

"Environmental justice" was originally conceived in the 1980s as a way to consider the economic and health needs of poor communities in the siting of industrial facilities near them. But as the idea matured into a national movement, its focus narrowed to race. Black activists such as Ben Chavis and Professor Robert Bullard of Clark Atlanta University contended that industries and the state agencies that oversee them were deliberately targeting minority communities for polluting facilities because residents lacked the political clout to stop them. To address this alleged injustice, activists pressed for the establishment of a "disparate impact" standard.

Unlike "discriminatory intent," which requires litigants to prove a facility was deliberately located in an area because of its racial composition, "disparate impact" requires only evidence that the facility has the "effect" of discriminating. For the past six years, the Clinton administration has not only embraced the national environmental justice movement but has aggressively pushed a disparate impact standard as well. "Nobody can question that, for far too long, communities across this country - low-income, minority communities - have been asked to bear a disproportionate share of our modern industrial life," said EPA Administrator Carol Browner at a 1994 White House briefing. Celebrating Earth Day on April 22, Vice President Al Gore directed all agencies to redouble their efforts to enforce the EPA's policy, saying "our efforts to date have not been sufficient."

The EPA's Title VI rule, issued this spring without consulting state or local governments, applies a disparate impact standard to all permits issued by state and local agencies that receive federal funding. Predictably, the policy has opened the floodgates to suits brought by the very activists that lobbied for it. The effect, writes Stephen Huebner, a Washington University economist, has been to "deny communities like Romeville the right to decide what is in their own best interests, while opening the door to outsiders to play a larger role in local matters."

In the Shintech case, the EPA's environmental redlining rule gave Greenpeace - which has never concerned itself with civil rights issues - another weapon in its international campaign to ban polyvinyl chloride (PVC), a plastic widely used in everything from vinyl siding and door frames to computer keyboards and blood bags. Greenpeace opposes PVC because it claims plants that use chlorine create dioxin as a byproduct - never mind that an environmental impact study prepared for the LDEQ found that "dioxins were never detected... from these manufacturing facilities." The group also claims dioxin and chlorine are serious toxic threats, a concern endorsed by the EPA and Gore but dismissed by most scientific experts for lack of evidence.

It was Greenpeace, with legal help from the Tulane Environmental Law Clinic, that first claimed, in April 1997, that Shintech's siting was discriminatory under a 1994 Clinton executive order (a precursor to the 1998 Title VI rule) instructing all federal agencies to be on the lookout for environmental racism. In July of last year, Greenpeace filed a claim with the EPA, saying Shintech's siting violated federal civil rights law. "Greenpeace made the decision that we are going to stop dioxin pollution by trying to stop the expansion of the PVC industry," Greenpeace activist Damu Smith told National Journal last summer. Conceding that the group's goal is not environmental justice but PVC extinction, Smith added: "Shintech just can't be built."

Shintech's local supporters say the federal government has sold them out. "The EPA is empowering special interests to make decisions that are against community interests," protests Dickerson. "What this community wants is being ignored," adds Gladys Maddie, a Romeville resident for 30 years who, along with her mostly black neighbors, helped form the St. James Citizens Coalition to work with Shintech management.

David Wise, plant manager for the new Shintech site, says the company selected the rural, 3,700-acre site now occupied by sugar cane fields not because it was in a black area but because of its proximity to raw materials (a salt dome in particular), its deep water access, and the area's industrial infrastructure. Wise has spent countless hours in the poor neighborhoods near the plant listening to residents' concerns. Shintech has flown some residents to 97-percent-white Freeport, Texas, where the company operates another PVC plant. That facility gets 90 percent of its labor force locally and invests in numerous community social programs.

In an interview with National Journal, the EPA's Browner insisted that "if people who live in the community feel like they are part of the decision-making process that affects their community, a lot of issues that may otherwise be raised [by civil rights claims] can be spoken to in advance." But Wise finds such platitudes disingenuous. "We have partnered with [the Romeville] community. Our permits are sound," he says. "What else do we have to do to get a plant approved?"

Chris Foreman, a political scientist at the Brookings Institution and author of a forthcoming book on environmental justice, laments the administration's racial politicization of the permitting process. "Environmental justice is not fundamentally racial," Foreman says. "But Title VI invites race-based claims." He says accusations of environmental racism are "dubious, but politically compelling. No one wants to be called a racist." In its zeal to apply Title VI civil rights law to industrial emissions, Foreman contends, the administration has obscured the real health problem that threatens communities like Romeville: poverty.

Shintech's jobs, starting at $12 an hour plus benefits, pay far and above the $6-an-hour jobs (with no benefits) that many St. James Parish residents now work in the sugar cane fields. Cherie Fernandez, a pro-Shintech African American who works for $24 an hour in another chemical facility across the Mississippi from Romeville, says more manufacturing jobs like Shintech's are needed, especially as St. James's population of welfare dependents go looking for work under new federal welfare laws (18 percent of the county's blacks are unemployed). Barrow, the LDEQ's brownfields expert, says the EPA doesn't understand that the "environment is the totality of [minority] surroundings. Industries like Shintech mean the streets are paved. They mean community centers for the kids. It's laughable to say these communities are better off without them."

State and local governments across the nation have felt Louisiana s pain. Despite the national economic boom, black unemployment remains over 9 percent, and local governments are scrambling to attract industries to state enterprise zones and brownfields. In addition to the U.S. Conference of Mayors, local organizations and business groups throughout the country have lined up to condemn the EPA's environmental redlining policy. The list includes 17 states, the Environmental Council of the States (a group representing each state's top environmental official), the National Association of Counties, the National Association of Black County Officials, 14 attorneys general, the Western Governors' Association (including Colorado Gov. Roy Romer, head of the Democratic National Committee), the U.S. Chamber of Commerce, and the National Black Chamber of Commerce.

Addressing the Black Chamber of Commerce's annual meeting, U.S. Chamber of Commerce President Thomas Donahue said: "I'm trying to think of a policy that would be more effective in driving away entrepreneurs and jobs from economically disadvantaged areas - and I can't do it."

Such fears were sown in cities like Lansing, Michigan, where General Motors will soon consolidate two huge facilities employing 7,000 people into a single final-assembly plant. City officials are lobbying the company to build the new facility in one of the majority-black city's many brownfield sites. But as long as the EPA rule is in effect, says Michigan environmental chief Harding, "G.M. will not build in Lansing. They'll buy farmland somewhere instead. The loser won't be the company; the losers will be the workers and cities." Says Steve Serkaian, media relations director for Lansing Mayor David Hollister: "What does this have to do with civil rights? If these plants don't build in these communities, [residents] will suffer from malnutrition, not pollution."

Michigan officials have been in the forefront of the Clinton administration's critics, not only because of their concern for environmental redlining's effect on proposed facilities but because of the effect on existing facilities. The EPA's Sector Facility Indexing Project (available at http://es.epa.gov/oeca/sfi/) lists plants around which the agency has literally drawn targets. The demographics within a three-mile radius of every plant in five major industries (automobile assembly, pulp manufacturing, petroleum refining, iron and steel production, and the primary smelting and refining of aluminum, copper, lead, and zinc) are just a keystroke away.

Contrary to the EPA's claim, a Scripps Howard News Service study of facilities listed on the agency's Web site in 13 industrial states did not find a disproportionate number in minority areas. Louisiana, for example, is 31 percent black, but only 18 percent of its industrial plants are located in black areas. The study did, however, find dozens of facilities in minority areas that could be vulnerable to activist suits under EPA's Title VI rule if and when they seek to expand or renew their permits. Eleven of the most vulnerable of these plants are in the auto industry - six of them in Michigan.

Fifty-seven percent of the population living within five miles of Ford's truck assembly plant in Dearborn, for example, is minority, as compared to 16 percent of the state's population. As a result, when Ford sought to update its paint operations this year, local activists threatened it with an environmental racism complaint, delaying the company's permit for four months. In the highly competitive auto marketplace, which measures new model development in months, Ford is concerned that the EPA's policy could create a nightmare of red-tape delays. "It seems like the EPA is setting up an almost endless adversarial process," Ford executive Tim O'Brien told The Detroit News.

Though the EPA ignored local officials when it drafted the Title VI policy, the administration cannot ignore their concerns now. Big city Democratic mayors are a key power base in the Democratic Party, and EPA chief Browner has reassured them in meetings around the country that she will work with them to draft a policy that meets their concerns. But Browner insists that a Title VI disparate impact standard must play a role in the permitting process, an approach that many state environmental officials simply find unworkable.

In a letter to Browner demanding that her agency withdraw that the U.S. EPA "cannot lawfully issue a policy" extending Title VI civil rights law to pollution without congressional action. Under current law, continues the California letter, neither state nor federal agencies have the authority to "to deny permits based on the racial makeup of the area surrounding the facility." Furthermore, the "California Supreme Court has determined that hazardous waste laws do not preempt local land use authority."

California EPA concludes that, without congressional action, the administration's unilateral re-interpretation of Title VI law would give the EPA "unfettered discretion to apply statistical data in any way it chooses, create risk assessments without peer reviewed standards, determine that all discharges create measurable disparate impacts by their very existence and treat people differently based on racial or ethnic grounds." Environmental officials in others states support California's legal analysis.

No matter what form the administration's environmental justice policy finally takes, the underlying question is whether environmental racism exists at all. What is perhaps most disturbing about the administration's crusade is that it has for years ignored evidence - much of it from the EPA itself that minorities are not disproportionately affected by industrial waste. As with the issues of secondhand smoke and global warming, the administration's policy is driven not by facts but by ideology.

The administration and its allies cite a handful of studies conducted by activist groups indicating systematic discrimination in the siting of industrial facilities. Most influential of these was a 1987 study by the United Church of Christ Commission for Racial Justice, which found hazardous waste facilities were more likely to be located in zip codes populated by minorities, and a 1992 National Law Journal study that claimed to show tougher enforcement of environmental laws in white areas than in black areas. However, subsequent independent academic studies by researchers at New York University, Washington University, the University of Chicago, and elsewhere have all contradicted the notion that race and pollution are related.

In a comprehensive survey of studies examining the surrounding demographics of plant sites, Washington University's Huebner concluded this year that "the evidence relied on by environmental justice advocates is flawed....In particular, the dynamics of the housing market prove a plausible alternative explanation for the disparities observed in the current location of industrial facilities. Recent evidence indicates that minority and poor populations tend to locate near industrial facilities after the facilities are located, possibly due to lower property values."

Most damning, however, have been studies by the EPA itself. Two such studies were obtained by David Mastio of The Detroit News. The EPA studies were conducted to confirm the link between pollution and race found in the United Church of Christ report and other studies. In both cases, however, the EPA's exhaustive survey of the communities surrounding 1,234 Superfund sites - some of the most polluted land in the country - turned up no evidence of disparate impact on minorities. To the contrary, the studies found that the populations most exposed to these toxic sites were white and middle class. For example, in EPA Region 5, which includes the heavily industrialized Rust Belt, all minorities were underrepresented in areas around Superfund sites. But because the EPA's studies contradicted emerging administration policy on environmental racism, they were never made public.

Upon The Detroit News's exposure of these hidden reports, the House Commerce Committee, outraged that key documents on a major EPA initiative had been withheld from congressional oversight, immediately launched an investigation and demanded all relevant EPA documents. But two months later, the News's Mastio found that the agency continued to withhold a key report contradicting the National Law Journal study. The report, written five years ago by Bernard Sisken, a government expert on civil rights cases, found the Journal's findings were either "statistically insignificant" or erroneous.

Lacking evidence for their cause, environmental justice activists have used scare tactics to turn residents against proposed plants. In Claiborne Parish, Louisiana, Greenpeace and Earth Justice used a campaign of fear (and exploited Clinton's 1994 executive order) to torpedo a proposed $855 million uranium enrichment plant last April.

The Claiborne Enrichment Center (see "Environmental Injustice," August/September 1997) had been recruited by a rural parish where there are few industrial jobs and where 30 percent of residents live below the poverty line. Internal company documents show the plant's investors - a consortium of American utilities and a European construction company - were attracted to the area by local leaders' enthusiastic response as well as its proximity to an interstate highway, its low property prices, and its minimal seismic activity (an operational necessity for the facility's high-speed centrifuges). But while polls showed broad, multiracial support for the company's location of 180 high-paying jobs in a sparsely populated enterprise zone, anti-nuclear activists fanned out among the roughly 250 poor, black residents of the area bordering the 440-acre site (the plant itself would have occupied 80 acres), warning of poisonous gases that would strangle them in their sleep and of radioactive materials that would contaminate their groundwater.

Marjorie Walker, an African American who lives in a clapboard home within a mile of the Claiborne site, was visited by Greenpeace representatives who told her that company officials and the state of Louisiana would deliberately contaminate her community because it was black. "Greenpeace told me how many plants had been located in poor communities," she says. "All those plants down in 'Cancer Alley' are located where the black people live."

But "Cancer Alley," a term coined by environmentalists to describe the alleged sickness inflicted by chemical and refining plants along the Mississippi between Baton Rouge and New Orleans, is a myth. In a study released this year by the nationally respected Louisiana Tumor Registry, which has tracked cancer incidence in Louisiana for 20 years, cancer rates for the so-called "river parishes" were found to be at or below national averages. "Are people who live in the industrial corridor likely to get cancer?" asks Tumor Registry Director Vivien Chen. "The answer is no."

Yet activists continue to talk routinely of people "dropping dead" in Louisiana's Mississippi Valley. Back in St. James Parish, situated in the middle of the industrial corridor, Brenda Huguet believes that she's been made ill by local industry. A kindly white woman who is part of a local anti-Shintech group, Huguet says she's been convinced by the group's legal representatives at the Tulane Environmental Law Clinic and her environmentalist allies that she is suffering from an unidentified lung disease caused by "Cancer Alley" industries. If Shintech were allowed to locate in the sugar cane fields near her home, she says, she would die.

Huguet emphasizes that she and other plant opponents aren't against jobs; they're just against the location of another chemical plant in the parish. She wants to know why St. James can't recruit "dean" industries like auto plants. Leaving aside the likelihood that environmental groups could also claim environmental racism if a large automotive facility were to locate in St. James, the idea that a PVC plant is somehow less healthy than other factories illustrates radical environmentalists' exploitation of the regulatory process to oppose industrial development.

At the core of Greenpeace's opposition to Shintech is the plant's alleged production of dioxin. In fact - as detailed in LDEQ and industry reports - the plant would produce none. Zero. In its analysis of Shintech's Romeville and Freeport facilities, Chemrisk, an environmental engineering firm, put it this way: "Greenpeace made several assertions that the production process produces high concentrations of dioxins in its wastewater effluent. There is no objective scientific data that supports this claim."

Huguet's concerns about Shintech's emissions are influenced by Greenpeace claims, echoed in media reports, that Shintech will dump 190 tons of toxic pollutants into the air every year. While Shintech has permits to put out 190 tons of pollutants each year, it will emit much less; the typical PVC plant of that size emits between 30 percent and 50 percent of that amount. And Hilry Lantz, an environmental engineer for the LDEQ, says over two-thirds of these emissions are from methanol, used as a catalyst in the production process. Methanol is a noncarcinogen hailed as a clean, alternative fuel for automobiles by the very same environmentalists who oppose Shintech! Indeed, a modern, "clean" General Motors plant in Shreveport emits around 1,400 tons of similar, noncarcinogenic pollutants a year.

On nearly every aspect of the environmental racism debate, the administration and its allies make false claims to residents and reporters. Luke Cole, for example, is general counsel for the Center on Race, Poverty, and the Environment in San Francisco, an adviser to the EPA on environmental enforcement, and perhaps the single most influential activist in prodding the EPA to draft its Title VI rule. Like many of the groups that have filed claims under the EPA's rule, Cole's group also received funds from the agency.

Asked what Shintech must do to satisfy environmental justice concerns, Cole says the answer is simple: The company need only ask other industrial plants located in St. James Parish - 13 in all - to collectively reduce their air emissions by the same amount that the Shintech plant would add. This would at least sound reasonable if the St. James Parish area were bumping up against its federally imposed "attainment" ceiling for industrial emissions. But LDEQ engineer Lantz, who approved Shintech's emissions permits, says Cole's point is moot because St. James is well within attainment limits even with the addition of the Shintech plant. Cole's "simple solution" is a red herring.

The foundation of the administration's support of environmental racism claims seems to be a belief that minorities are permanent victims. It is a theme that runs through press coverage of the issue as well. A July National Journal cover story, for example, examined the Shintech case in detail by talking to plant managers and opposition groups. But the reporter did not once consult a black member of the St. James Citizens Coalition, or Janice Dickerson, or a black parish councilman for their opinion of the plant. The article s assumption is that blacks near the plant must be victims because they are black.

Shintech's black supporters in Romeville are aware that they are not conforming to stereotype. "Blacks are supposed to play the role as victim," says Nanette Jolivette, lawyer for the St. James Citizens Coalition. "But this community did not play that role. This community is to be commended." The fact that the community has not been commended by national black leaders has rankled plant supporters. Despite never having visited the Shintech site, Jesse Jackson, Rep. John Conyers (D-Mich.), and Sen. Carol Moseley-Braun (D-Ill.) are among those who oppose Shintech on grounds of environmental racism.

"Jesse Jackson has never visited us," says an angry Oliver Cooper, a black councilman from St. James Parish who, like Dickerson, has been named in the anti-Shintech suit for his "discriminatory" support of Shintech. "He does not represent us. Six of seven councilman [in this parish] support this plant." Jackson, complains Cooper, "has never spoken to any of us."

Romeville residents believe that the real injustice would occur if Shintech chose not to locate in St. James Parish. Some of them have seen the company's Freeport, Texas, plant, and know it is in a prosperous, white area, one of the richest counties in the state. Romeville's black residents want the chance to make the same choice the white residents of Freeport made.

In Claiborne Parish, site of the administration's first experiment in environmental redlining, the public's choice never really counted. Federal bureaucrats drew a one-mile radius around the plant's location, determined the racial makeup of the area based on census figures, and declared that the plant would have a disparate impact. As a result, the parish, whose property tax base would have doubled with the presence of the Claiborne Enrichment Center, still cannot afford a fire department; many of its residents still drive 40 miles to work in Shreveport's casinos; and the school system is $12 million poorer without the construction tax the plant would have paid.

Greenpeace, on the other hand, can celebrate one more win in its international crusade against the nuclear industry. And the Clinton administration can claim a victory for "environmental justice."

Henry Payne ([e-mail]), a writer and cartoonist for Scripps Howard News Service, is a contributing editorial cartoonist for REASON.