The many faces of environmental justice.

Environmental justice is an issue that merits the attention of all environmental and land use lawyers, especially those who represent local governments and business clients subject to environmental regulation. The term is defined by the U.S. Environmental Protection Agency as "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." It has been further defined by the Florida Legislature as "the fair treatment of all people of all races, cultures, and income with respect to the development, implementation, and enforcement of environmental laws." However, these statutory and regulatory meanings have been overshadowed by the ever-changing meaning of the term within the environmental justice debate. There is little doubt that environmental justice has the potential to impact many businesses in Florida.

Today, regulators, environmental groups, universities, and community activists use the term environmental justice to describe a combination of technical and policy criticisms ranging from risk assessment methodology to governmental siting, enforcement, and cleanup decisions. Since environmental justice issues have many faces that often emerge in highly charged circumstances, these issues are difficult for businesses to resolve. However, experience has revealed that dialogue and the exchange of factual information, including scientific data, is the most cost-efficient approach for businesses to resolve environmental justice issues with regulators and local communities. It is clear that in order to prosper in the 21st century, public and private entities must be able to communicate effectively with very diverse environmental justice stakeholders.

Environmental Equity and Justice Study Commission

Significant attention has been given to this issue by policymakers in Florida since 1994. That year, the Florida Legislature created the Florida Environmental Equity and Justice Study Commission to collect data to determine whether the poor and people of color in Florida are subject to unequal enforcement of state environmental laws. The study commission found that African-Americans, Latino, and other people of color are more likely to live near targeted facilities in Florida, than upper and middle class whites. However, there was insufficient public health data available to determine whether these communities were exposed to a disproportionate amount of environmental pollution from regulated facilities.

In 1998, the Florida Legislature created the Center for Environmental Equity and Justice at Florida Agricultural & Mechanical University in Tallahassee. The center is authorized to conduct research, develop policies, and engage in educating and training communities with respect to environmental justice matters. Furthermore, the center may enter into memoranda of understanding with state agencies to address environmental justice matters. The legislature appropriates $672,000 each year for this center.

The 1999 Florida Legislature created the Community Environmental Health Program for the purpose of ensuring the availability of general public health services to poor people living in urban and rural communities. This program established community health pilot projects throughout Florida. A Community Environmental Health Advisory Board was created within the Florida Department of Health to implement the new program, including a health study due to the Florida Legislature on January 1, 2001.

The Collaborative Approach to Problem Solving

A collaborative approach to addressing environmental justice concerns has proven to be the most cost-effective route for resolving environmental justice issues for clients today. For example, before surfing the net became America's pastime, the public had little involvement in facility operations. However, public access to online environmental information about facilities in their neighborhoods have created a more involved and inquisitive public. Scorecard, an online environmental information service provided by the Environmental Defense Fund, is an example of this new era of public access to information about chemical plants. Clearly, no one knows more about a chemical plant than its plant manager. However, many plant managers do not perceive their facility as being part of the surrounding community. Therefore, many plant managers do not have a relationship with neighboring communities. This detachment or gap between the facility and nearby community is fertile ground for the seeds of distrust and fear to grow in the community. This lack of trust and proliferation of fear is what fuels charges of environmental racism by community advocates when an accidental spill or other accident occurs at the facility.

Numerous chemical manufacturers have established and learned to rely on community advisory panels (CAPs) to bridge the gap between facilities and local residents. The CAP model is a useful model for teaching and engaging the public in discussions regarding facility operations. Without such a mechanism, companies faced with charges of environmental racism are left unarmed to deal with angry and distrustful residents. In addition to the CAP model, mediation and facilitation are useful tools to address environmental justice concerns.

Litigation, however, has not yet proven to be a useful tool for resolving environmental justice concerns. For example, in 1997, an environmental justice case against an oil company became a legal fiasco that received plenty of coverage from national newspapers, including the Wall Street Journal. Jesse Jackson and the NAACP President Kweisi Mfume publicly supported residents of a predominantly poor African-American neighborhood in Houston who alleged that they had a compensable risk of developing cancer, tumors, and other ailments because their community was built many years ago on abandoned oil pits. This case settled, very publicly, reportedly for $8 million. Also in 1997, a $15 million settlement was reached by a chemical company over alleged leaks of ethylene dichloride from a chemical plant into the groundwater of a neighboring poor community. These cases illustrate that ignored environmental justice concerns can escalate into expensive settlements, a tarnished corporate image, and political fallout.

Environmental Justice Tool Box

In order to resolve environmental justice concerns in the most cost-effective manner, environmental and land use lawyers should assist clients in the development and implementation of the following tools:

1) Understand the historical and current definition of "environmental justice." Industry should promote a definition of the term "environmental justice" that integrates economic justice.

2) Identify stakeholders in the environmental justice debate and know how their roles impact industry: local governments; the poor and people of color; environmental groups; state Department of Health; state Department of Environmental Protection; state Department of Community Affairs; U.S. Environmental Protection Agency; universities; media; and industry.

3) Understand and consider promoting three consensus principles which have evolved from the environmental justice debate:

* Stakeholders agree that discrimination in environmental policies and laws on the basis of race, national origin, or economic status is illegal and unjust.

* Stakeholders agree that government should promote and ensure meaningful participation by all stakeholders in governmental decisions implementing environmental laws and policies.

* Stakeholders agree that risk and health effects from exposure to environmental pollutants should be communicated to communities in a responsible and understandable manner.

4) Establish credibility and trust between your facility and neighboring communities through personal interactions on school and church committees; task forces; work groups; and CAPs. Companies can expedite this process by associating themselves with highly regarded professionals in the environmental justice arena.

5) Attend and participate in seminars of the FAMU Environmental Equity and Justice Center and other universities involved in environmental justice research.

6) Participate and/or monitor the state and national legislative agenda on environmental justice; however, be aware that environmental justice issues are truly local issues that should be resolved by companies at the local level using a collaborative approach to problem solving.

In conclusion, the Florida experience has revealed that collaboration is the most cost-effective approach to resolving environmental justice issues. In order to prosper in the 21st century, businesses must have the ability to build trust and communicate with diverse environmental justice stakeholders. Businesses can accomplish "trust building" with local residents by participating in collaborative efforts to resolve environmental justice issues. These efforts may result in consensus environmental justice policies, residential relocation programs, trade-offs in brownfield redevelopment projects, or other creative environmental justice solutions. In the final analysis, it is clear that in order to counsel local government and business clients effectively, environmental and land use lawyers must take environmental justice issues seriously. Public and private entities that do not develop the ability to communicate effectively and to collaborate with diverse environmental justice stakeholders are not likely to prosper in the 21st century.

Maribel Nicholson-Choice is an environmental and land use attorney with the Greenberg Traurig law firm sand is a member of the executive council of the Bar's Environmental and Land Use Law Section. Her primary practice concentrations are in the areas of hazardous waste regulation, air and water quality regulation, environmental justice law, brownfields redevelopment, and environmental legislation. In 1994-1996, she served on the Florida Environmental Equity and Justice Study Commission.

This column is submitted on behalf of the Environmental and Land Use Law Section, Lawrence E. Sellers, Jr., chair, and Melissa P. Anderson, editor