Showing papers in "Fordham Urban Law Journal in 1994"

Issues of Classification in Environmental Equity: How We Manage is How We Measure

Abstract: This Article addresses how concepts of race and ethnicity have been operationalized as a basis for defining and locating subpopulations (either explicitly or implicitly) for the purpose of analyzing environmental equity issues, and recommends some future directions. Part II focuses on how subpopulations are currently defined and on some problems encountered to date. The implications of these inconsistencies on the accuracy of health and environmental risk measures for a given subpopulation are addressed. Part III focuses on how spatial areas have been defined to aggregate these subpopulations within confined geographic boundaries.

Notes From The Front Line

Abstract: In the last five years, local thinking about environmental protection started to take shape. It is indisputable that cities are not neutral or homogenous geographies in terms of distributing benefits and burdens by class and race. This fact is applicable to local environmental politics. Environmental justice and fair share advocates – and in some instances the courts – are finding that cities like New York are extremely heterogeneous in terms of environmental conditions and the impact of implementing environmental laws. This Essay describes the Environmental Benefits Program, which the New York City Department of Environmental Protection has undertaken in order to address some of the inequities caused by local sources of pollution in New York City. This program may serve as a model for other communities in the effort to address environmental

Environmental Justice and Sustainability: Is There a Critical Nexus in the Case of Waste Disposal or Treatment Facility Siting?

Abstract: Environmental justice is redress for the structures and situations arising from environmental discrimination and, particularly, environmental racism Environmental discrimination is actions and practices, arising from both individual ideologies and social structures that preserve and reinforce domination of subordinate groups with respect to the environment, while such discrimination with respect to race is environmental racism Part I of this Essay discusses how environmental injustice is a three-dimensional nexus of economic injustice, social injustice and an unjust incidence of environmental quality, all of which overwhelmingly assures the continued oppression of communities of color and low-income communities on environmental matters Part II of this Essay seeks to understand urban environmental justice in the context of this nexus Part III describes the backdrop against which urban environmental justice movements must struggle Part IV highlights some specific urban environmental problems that affect communities of color and low-income people in cities Part V summarizes some of the strategies being used in urban areas by grassroots environmental activists

The Victims of Nimby

Abstract: Not In My Back Yard, or NIMBY, in its various forms, has three principal types of targets The first is waste disposal facilities, primarily landfills and incinerators The second is low-income housing The third is social service facilities, group homes and shelters for individuals such as the mentally ill, AIDS patients, and the homeless This Article addresses the issue of the victims of NIMBY, with special reference to the effects of project opposition on racial minorities Because the effect of facility opposition varies widely with the type of project involved, Part II arrays the types of relevant projects and shows the ways that opposition manifests itself Part III then briefly discusses the legal techniques used by those who oppose facilities, and the counter measures used by facility proponents Part IV examines the available evidence on who suffers as a result of the opponents’ techniques Part V looks at who benefits from opposition to siting new facilities Part VI is devoted to some of the secondary and imponderable effects of facility opposition Finally, Part VII draws conclusions from the preceding discussion, and shows how the costs and benefits of NIMBY are very different from those envisioned by those who either condemn or applaud facility opposition

City versus Countryside: Environmental Equity in Context

Abstract: This Article takes an approach to the problem of environmental equity that is different from the remedies advocated by the leaders of the environmental equity movement. The plea that the benefits of environmental protection be extended to all groups in society is, of course, a legitimate one, but the movement is too narrowly focused and its aims are too modest. I dissent from the two central premises held by environmental equity advocates. First, the movement assumes that judicially recognized and enforced rights will lead to improved public health. Second, the movement asserts that disadvantaged communities should adopt a “Not in My Backyard” (NIMBY) strategy. In contrast, I argue that the current focus of the environmental equity movement, important as it is, is too narrow because the legal strategy of the civil rights movement is largely inapplicable to environmental issues. Environmental protection is not a rights-based movement. Thus, the judiciary’s role in promoting environmental quality is limited compared to its role in promoting racial justice through the recognition and enforcement of constitutionally-based civil rights. In addition, I argue that the NIMBY strategy is equally shortsighted. Environmental equity takes current environmental protection strategies as a given at a time when the science and ethics of environmental protection are undergoing a profound re-evaluation.

The Visible Spectrum

Abstract: Today, the national environmental movement is entering a new phase, led by new players, just as the still young environmental protection movement is becoming more politically influential at the local level. The political power of the environmental justice and equity movement and its links with racial and social justice organizations makes its potential impact reach far beyond “NIMBY” (not-in-my-backyard) protests. NIMBY was the first wave of quasi-organized local environmental protests, usually rooted in a single issue. Environmental justice is the next wave, drawing in a broader range of concerns. The focus of this analysis is on how environmental issues are manifesting themselves in the Greenpoint/Williamsburg area of Brooklyn. The experience of West Harlem in opposing the operation of the North River Treatment Plant is also examined. In both instances the social class and ethnic identity of these grassroots environmentalists significantly differ from those of the environmental activists of previous generations.

Environmental Burdens and Democratic Justice

Abstract: To date, however, there has been relatively little academic discussion about how EPA and other federal agencies can achieve environmental justice. In addition, most legal academic literature has focused either on simply identifying the legal issues associated with race and environmental law or on developing a litigation strategy for remedying “environmental racism.” None of the legal academic literature has focused on the benefits of using an administrative framework to define or develop sustainable solutions to the distributional inequities of environmental laws. The purpose of this Article is to explain the benefits of pursuing an administrative model for change. Unlike other legal academic pieces, this Article does not focus exclusively on the presence of distributional inequities or on private litigants’ judicial remedies for distributional inequities. Rather, it accepts that distributional inequities are present and it offers a broader, holistic, front-end approach to the administration of environmental laws with the goal of creating a framework which federal agencies can use to both achieve and maintain environmental justice. This Article is divided into three parts. First, it briefly discusses the history of the environmental justice movement and of historical political responses to distributional issues associated with the environment and human health. The second part of the Article describes the problems with relying exclusively on litigation as a mechanism for achieving environmental justice. Finally, this Article presents the theoretical basis for pursuing administrative solutions to the inequitable distribution of environmental hazards.

Issues of Community Empowerment

Abstract: The environmental policies and concerns of local, state, and federal governments have failed to protect their citizens. More particularly, the nation’s environmental agenda neglects to account for the urban environmental problems of people of color. This Essay first considers how environmental injustice and racism has impacted the West Harlem community. It next considers some of the particular health implications, such as lead poisoning and asthma, in the Harlem community. The needs of all communities of color and poverty are considered. The response of West Harlem Environmental Action to these needs is examined. Finally, the Essay concludes by briefly examining some of the obstacles to change and recognizing the need for alliances to continue to progress in the pursuit of environmental justice.

The Question of Risk: Incorporating Community Perceptions into Environmental Risk Assessments

Abstract: The environmental justice movement has seen some successes After years of neglect, the federal government and several states are directing legislative and executive efforts towards reforming siting processes and remedying discriminatory enforcement of environmental regulations Community opposition in general has proved to be quite powerful in some instances Since the passage of the Resource Conservation and Recovery Act in 1976, there has been only one new siting of a hazardous waste landfill and few new sitings of hazardous waste incinerators To a lesser extent, municipal solid waste and medical waste incinerators have also been successfully blocked or delayed However, certain factors behind these successes suggest that procedural reforms of the siting process, though sorely needed, may not provide a complete solution to disparate dumping unless they also address the conflict over the nature of risk and how it is measured This Article discusses the issues of perception of risk and citizen involvement in environmentally sensitive siting decisions Part I describes the different phases of the siting process, ie, the various determinations made at certain points during the process, the factors that enter into these calculations, and the interests implicated in each Part II discusses the gap between citizens’ and government agencies’ understanding of environmental problems: what constitutes an acceptable risk, how risk is measured, and who makes these decisions Part III sets out ways in which community groups can more effectively incorporate their concerns into the siting process and argues that public officials should give greater weight to public perceptions of risk

Peace, Wealth, Happiness, and Small Claim Courts: A Case Study

Abstract: This Article presents empirical data on the operation of the small claims court in the city of Denver. The study underlying this Article evaluated the court in terms of (1) users’ reactions, (2) the correctness of outcomes (recognizing that a determination of the underlying truth may be impossible), (3) the correctness of procedures (allowing for the informality that has been characterized as essential for their operation), and (4) the effective power of the court in terms of enforcement of results. The study shows that small claims courts may be paradigmatic of governmental responses to social problems. They do some good work and some bad work; people’s impressions of the work they do may be significantly skewed; no one knows how helpful their existence is to the entire group of people whose welfare they are intended to improve; and it is hard to determine whether the individuals they actually do serve are better off for having been able to use their processes. This study answers two fundamental questions about small claims courts: (1) Who usually wins? (2) Do victors collect their judgments? The rate of victory for plaintiffs who file claims and appear in court is eighty-five percent. Of winning plaintiffs, fifty-five percent never collect any part of their judgments. Overall, among victorious plaintiffs, the judgment amounts collected equal thirty-one percent of the total amounts awarded. Thus, as has been the pattern in other small claims courts studied, the operation of the court must be viewed in the context of overwhelming advantage to plaintiffs at the trial stage and of significant disadvantage to plaintiffs after trial. This Article explores these issues, and some empirical data related to them. Part II explains Colorado’s small claims court history and legislative background. Part III discusses the court’s current operation. Part IV develops a critique of the court’s current status. This Article concludes by proposing legislative action to improve the efficacy and usefulness of the Colorado

Communities of Color and Hazardous Waste Cleanup: Expanding Public Participation in the Federal Superfund Program

Abstract: Superfund is the nation’s program to clean up the most dangerous hazardous waste sites. The Superfund law mandates that parties responsible for hazardous waste sites (i.e., waste generators, site owners, site operators, and waste transporters) shall be financially liable for cleaning them. If responsible parties cannot be located, are unable to perform cleanups, or refuse to do so, EPA can conduct the cleanup action and seek recovery of associated costs from these delinquent parties. As the Superfund reauthorization effort ensues, it is clear that few unequivocally applaud past Superfund performance. Collectively, communities, industry, and government are critical about whether the Superfund program has actually achieved Congressional goals-speedy, effective, efficient, and permanent cleanups. Discontent and frustration is especially pronounced within communities of color. The 1986 Amendments authorized EPA to make grants of up to $50,000 to citizens affected by an NPL site, which ostensibly enable community awareness and involvement in the remedy development, selection, and implementation process. Having experienced the most profound deficiencies of Superfund implementation, communities of color are uniquely positioned to offer meaningful suggestions for improving the program. This Essay focuses on several specific reforms which will provide immediate relief to communities in distress and will respond to the need for increased public participation in the Superfund process. These specific reforms involve the following areas: Native American Programs, Technical Assistance Grants, Community Working Groups, Health Assessments, Technologies Clearinghouse and Citizen Suits.

Politics and The Death Penalty: Can Rational Discourse and Due Process Survive the Perceived Political Pressure?

Abstract: This article is a transcript from a program sponsored by the American Bar Association Section of Individual Rights and Responsibilities entitled, “Politics and the Death Penalty: Can Rational Discourse and Due Process Survive the Perceived Political Pressure?” In it, Norman Redlich, former Dean of New York University Law School, James Coleman, Shabata Sundiata Waglini, Attorney General Ernest Preate, Jr., Bryan Stevenson, Executive Director of the Alabama Capital Representation Resource Center, journalist Nat Hentoff, New York State Assemblywoman Susan John, and Chief Justice Exum of the North Carolina Supreme Court discuss the issue of the death penalty in America. Redlich discusses his experience litigating organizing the New York State Justice-PAC, a political action committee which promoted anti-death penalty candidates for the New York State legislature, and challenges the notion that there is overwhelming public support in the United States of America for the death penalty. Coleman provides an overview on what the Supreme Court has done in the area of capital punishment, with an emphasis on the question whether the states can implement the death penalty fairly. Coleman posits that there is still unguided discretion in the implementation of the death penalty since Furman v. Georgia and McCleskey v. Kemp, and that in the years since the Court reinstituted the death penalty, it has become increasingly more difficult for defendants to litigate the constitutionality of their convictions and sentences. Waglini, born Joseph Green Brown, spent fourteen years on death row and came within fifteen hours of being executed for a crime he did not commit. Waglini emphasizes that he sees the issue of death penalty at the state level as primarily a political one, and discusses his experience in the system from his trial through his appeal before the Eleventh Circuit, which stayed his death sentence. Attorney General Preate posits that in too many of our capital cases there is ineffective assistance of counsel on both sides and discusses his work towards achieving federal habeas reform. Stevenson discusses his experiences representing men on death row, with a focus on the racial disparities of the system, while Nat Hentoff discusses how the press has done very little to clarify, or to expose, what he sees as propaganda by the advocates of the death penalty. Assemblywoman John discusses running for office as an anti-death penalty candidate, and Chief Justice Exum comments on the politics of the death penalty in the North Carolina judiciary.

Planning, Power and Politics: A Case Study of the Land Use and Siting History of the North River Water Pollution Control Plant

Abstract: This Essay discusses one example of environmental racism in New York City – the planning and construction of the North River Water Pollution Control Plant in West Harlem. This case study of the West Harlem community depicts how race-based land use planning and environmental policy-making transformed West Harlem, one of this city’s most beautiful communities, into a giant dumping ground. Since 1968, the North River Water Pollution Control Plant has irritated the residents of West Harlem. Initially, countless public hearings and community meetings were held to address why this facility was being built in this community. After the Plant was built, West Harlem residents questioned why the Plant functioned as a major source of air pollution in their community. This Essay traces the political and economic framework of New York City’s land use and planning processes for North River, discusses how issues of race and socioeconomic status are integral elements in this process, and examines one community’s actions against environmental racism.

Writing Like a Lawyer

Abstract: There is a problem of bad legal writing – one that is far more serious than we recognize or are willing to admit. The causes include insufficient education in good writing, carelessness, faulty thinking and reasoning, a failure to appreciate the potential and impact of legal language, an unwillingness to risk new language, and an inability or failure to make the time commitment required for good legal writing. First, at the law school level, legal writing must be given greater emphasis. If our programs are not able to deal with poor command of language, grammar, and syntax, perhaps we must set a higher standard for law school applicants than exist at the present time. Second, we must acknowledge at the law school level that the development of legal writing skills requires a significant time commitment. Third, clinical legal education programs need to expand their coverage of fact analysis to enhance the writing skills of future lawyers. Finally, the issue of bad legal writing is more than a law school’s problem to solve; practicing lawyers have a responsibility to produce legal writing that meets professional standards.

Race, Gender, Age, and Disproportionate Impact: What Can We Do About the Failure to Protect the Most Vulnerable?

Abstract: Hard economic times and social conditions are driving a reordering of environmental protection priorities that threatens to sacrifice the most vulnerable groups. Environmental regulatory agencies acknowledge that vulnerable populations face the greatest risk of harm from environmental insult and that these groups are not adequately protected. Although a risk-based prioritization of resources benefits the greatest number of people, such allocation would disadvantage minority communities, which contain disproportionate numbers of sensitive subgroups. Our regulatory bodies must therefore develop new strategies to adequately protect sensitive subgroups identified in minority communities. Part II of this Article looks at some of the considerations that influence the health protection priorities and resource allocations that environmental regulatory agencies make. Part III examines the importance of variation in susceptibility to environmental insult and how minorities, women, and the young are particularly affected. Part IV discusses the economic rationale and available mechanisms for protecting vulnerable subgroups.

Newborn HIV Screening and New York Assembly Bill No. 6747-B: Privacy and Equal Protection of Pregnant Women

Abstract: Proposed New York Assembly Bill No. 6747-B5 attempts to answer one of the most urgent problems of the current HIV/AIDS epidemic: pediatric AIDS. Part I of this Note discusses the bill, which would respond to pediatric AIDS by mandating HIV testing for all babies born in the state and requiring disclosure to all mothers whose babies test positive. Part II of this paper briefly discusses the medical background of pediatric AIDS and HIV infection, particularly the epidemiology of HIV/AIDS in women and children. Part III describes New York’s current HIV screening program and compares it to the changes proposed under Bill No. 6747-B. Part IV examines privacy issues, specifically infringement of the discrete rights of confidentiality and autonomy, and concludes that both are violated by the bill. Part V, focusing on gender and pregnancy discrimination, presents an equal protection argument likely to be raised against the proposal, and concludes that the bill violates the Equal Protection Clause as well. An alternative proposal-combining fully funded counseling and routinely recommended voluntary testing tied directly to family-oriented, follow-up care-is suggested in Part VI. In conclusion, this Note urges the New York State Assembly to reject Bill No. 6747-B, in light of its substantial and unconstitutional infringement of the rights of childbearing women and its inability to justify that infringement on medical or public

Protecting Endangered Communities

Abstract: Nontraditional environmentalists are struggling to protect and preserve communities, both urban and rural, that have become threatened by constant, multiple exposures to toxic air, contaminated water, and pesticide-ridden and chemical-laden soils. Numerous reports, including a 1992 study by the United States Environmental Protection Agency, have suggested that people of color and low income communities have been, for decades, the unwilling recipients of numerous hazardous waste sites, incinerators, chemical factories, and sewage treatment plants. Historically, these communities often lacked the essential resources necessary to oppose sitings of potentially hazardous facilities: money, organization, and political voice. Land in these communities is usually inexpensive and, therefore, is a logical, affordable target of local land-use planners and zoners seeking sites for environmentally hazardous projects. There is little or no political resistance to such sitings since most of these communities are perceived as powerless. In fact, the siting of new facilities, even hazardous industries, brings the promise of economic prosperity and tax revenues, forcing these communities, which often have high unemployment, to choose between economic security and environmental degradation. Continuous exposure to toxic pollutants from multiple sources has been associated with significant increases in the rates of cancer, asthma, chronic bronchitis, emphysema and other respiratory diseases, reproductive and birth defects, immunological problems, and neurological disorders. More systemic studies are just now being designed to look at the correlation between etiology, latency effects, casual and multiple exposures, and health effects.

Fighting Municipal "Tag-Team": The Federal Fair Housing Amendments Act and Its Use in Obtaining Access to Housing for Persons with Disabilities

Abstract: This Article examines the impact of the Fair Housing Amendments Act (FHAA) on prohibiting housing discrimination against persons on the basis of their disabilities, and analyzes the court decisions interpreting the FHAA on questions of land use to determine whether they are consistent with the stated intentions of the drafters of the Amendments. Part I traces the legislative intent behind the FHAA and, specifically, the sections of the Amendments enjoining housing discrimination against persons with handicaps. Part I also analyzes the court decisions interpreting the Amendments’ requirements as to what facts must be demonstrated to prove discrimination. This Part of the Article considers judicial treatment of the question of whether certain handicapped persons meet the statute’s definition of “handicap” and whether certain residences qualify for coverage under the Amendments. Thereafter, this Article examines the land use issues that recur frequently in handicap housing discrimination cases. Part II discusses decisions in which courts have found that actions of municipalities constituted intentional discrimination against persons with handicaps. Part III analyzes court interpretations of both “facially neutral” laws and ordinances, and laws and ordinances that provide for special treatment of persons with handicaps, to determine if those interpretations comport with the intentions of the drafters of the Amendments. Part IV considers the impact of the reasonable accommodation portion of the Amendments on handicap housing discrimination and the section of the Amendments exempting certain “reasonable” local laws and ordinances from coverage. Part V discusses the doctrine of federal abstention and the Anti-Injunction Act and their application to the goals of the Fair Housing Act Amendments. Finally, Part VI recommends an approach to cases under the FHAA that would be consistent with the intentions of its drafters.

Challenging the Telco-Cable Cross-Ownership Ban: First Amendment and Antitrust Implications for the Interactive Information Highway

Abstract: This Note explores options available to decisionmakers by analyzing Chesapeake & Potomac Telephone Co. v. United States (C & P), which set an important precedent regarding a telephone company’s First Amendment right to provide video programming over its own facilities in its local service area. C & P, a Bell Atlantic Corporation subsidiary providing local telephone service in Northern Virginia, claimed that the cable-telco cross-ownership ban, codified at §533(b) of the Cable Communications Policy Act of 1984, infringes unconstitutionally upon its First Amendment right to freedom of expression. On November 21, 1994, the Court of Appeals for the Fourth Circuit upheld the Eastern District Court of Virginia’s decision that §533(b) is unconstitutional under the First Amendment because it is not narrowly tailored. As a result of its holding, the district court enjoined the federal government from applying §533(b) to prohibit C & P from transmitting over its own lines its own video programming. This Note argues that these courts should have found §533(b) to be narrowly tailored because the statute is a reasonable method for Congress to address a significant problem: anticompetitive behavior in the telecommunications industry. To support this conclusion, this Note explores the antitrust concerns underlying the cross-ownership ban. Before reaching this antitrust analysis, however, Part II summarizes the background of the C & P case by discussing the significance of an interactive information highway, reviewing the regulatory history of the telecommunications industry and reporting the facts specific to C & P. Part III traces the C & P courts’ First Amendment conclusion that §533(b), the cross-ownership ban, is not narrowly tailored. Part IV, the primary focus of this Note, analyzes potential anticompetitive behavior by telcos in the noninteractive and interactive video programming transmission markets, according to the antitrust doctrine of essential facilities. Part V presents three recommendations: (i) emphasize the role of interactivity in making judicial and legislative decisions about the information highway, (ii) in C & P and Other similar cases, courts should defer to Congress, especially ∗J.D. Candidate, 1995, Fordham University School of Law; B.A., 1989, Yale University. The author thanks James C. Goodale, Esq., Mark S. Nadel, Esq., and the editorial board of the Fordham Urban Law Journal for their helpful comments on this Note; and the National Telecommunications and Information Administration (NTIA) and the Electronic Frontier Foundation (EFF) for giving her opportunities to learn firsthand about telecommunications policy. considering the complexity of the facts pertinent to telecommunications reform, and (iii) to regulate the structure of telecommunications companies, apply the generallyapplicable antitrust laws, which are less vulnerable to First Amendment challenges than industry-specific legislation, such as §533(b).