Shaky Ground

Environmental activists adopt a new strategy -- playing the race card

On a chilly Tuesday morning in early December, more than a dozen angry residents of the Midway Village public housing project in Daly City grabbed picket signs and turned out to protest the installation of a large drainage pipe near their homes.

Digging a hole for the new pipe, the protesters feared, would turn up contaminated soil and risk exposing as many as 150 families, and the children at a nearby day care center, to toxic fumes.

When 68-year-old Basilia DeGuzman spotted a construction truck heading toward the work site, she did not hesitate. The diminutive Latina, wearing a clapboard sign that read "This is genocide. Did you know this is a toxic waste dump?" lay down in the truck's path. The rest of the protesters quickly followed.

Residents of Midway Village believe toxic soil still threatens their health.
Paul Trapani
Residents of Midway Village believe toxic soil still threatens their health.

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As the dark blue 18-wheeler loomed above her, DeGuzman remained sprawled on a dusty concrete incline, refusing to move. She shouted in clipped but forceful English that she was tired of falling ill from the toxic chemicals near her home. The truck turned back, and the protesters cheered.

It was a small -- and temporary -- victory in the decade-long struggle Midway Village residents have waged in pursuit of an extensive cleanup of soil under and around their homes. In 1990, residents learned that their 30-acre housing project was built on 20,000 cubic yards of concrete and soil fill contaminated with polynuclear aromatic hydrocarbons, some of which are considered probable carcinogens by the U.S. Environmental Protection Agency. The tainted residues were left over from a long-closed gasification plant, and had been spread about the area during various construction projects.

After some of the contaminated soil was hauled away, and the worst sites were capped with concrete, Midway Village was cleaned up to the satisfaction of state regulators. But residents of the predominantly low-income, minority neighborhood continue to argue that not enough has been done to safeguard their health. Their ensuing protests, two failed lawsuits, pleas to state regulators -- even a letter to the president -- have not produced the cleanup the residents want.

The recent fight over the drainage pipe project was just the latest chapter in the long-running dispute, and the protests only stopped work temporarily. But while picketing and grass-roots organizing have accomplished little beyond stopping an occasional truck, Midway Village residents are now adopting another tactic, one that is becoming increasingly common in environmental disputes across the country.

In a complaint filed with the U.S. EPA, Midway residents argue that the California EPA and the state Department of Toxic Substances Control are, in effect, racist for failing to do enough to clean up the neighborhood. The residents are asking the federal government to withhold funding from the two agencies for behaving in a discriminatory fashion.

The allegations are similar to others that have sprung up across the country. Discrimination claims are emerging as the newest front line for environmental activists, an outgrowth of the "environmental justice" movement that took hold in the 1990s.

By using an old law -- the Civil Rights Act of 1964 - in a new way, environmental lawyers argue that it is a violation of federal law when minority neighborhoods bear the brunt of harm from polluting industries or hazardous waste sites.

The claims typically do not argue that a particular business or government agency has intentionally discriminated against minority neighborhoods. Instead, they argue that the effect of certain decisions is enough to violate the civil rights of minority residents.

So far, the idea of invoking civil rights law in environmental cases has gained little legal traction. No lawsuits based on the argument have prevailed in court, and no such claims filed with the federal government have succeeded.

Only one court -- the U.S. 3rd Circuit Court of Appeals in Pennsylvania -- has validated the notion that minority communities might be able to use civil rights arguments in environmental disputes.

"Eliminating intentional, conscious discrimination - there's no question that was what the Civil Rights Act set out to do," says June Carbone, a Santa Clara University law professor. "But if you look at the evolution of litigation since then, it's gone well beyond conscious discrimination to attacking acts that have the effect of disproportionate discriminatory impact."

But despite the tenuous legal standing of their strategy, environmental activists are finding advantages in recasting environmental issues as civil rights violations. Raising discrimination claims can change the nature of the debate, and capture the attention of regulators who fear losing their federal funding and don't want to be branded as racists. Environmental activists are finding elbow room in the nether world between the letter of the law and public perception.

"We encourage communities to use [the Civil Rights Act] because there are benefits outside of whether they win or lose the issue," explains San Francisco attorney Luke Cole, who has handled over 10 such complaints. "It's a great organizing tool. Violation of civil rights - it resonates with the community. The civil rights piece is a rallying cry. And [the Civil Rights Act] gives communities a legal hook for what they experience as environmental racism."

Arguments of environmental racism have taken root since studies began documenting the unequal exposure of poor, minority communities to hazardous materials. The first benchmark report on the subject, "Toxic Waste and Race in the United States," published in 1989 by the United Church of Christ, found a pattern in which minority communities were more likely to be located near a toxic waste site or facility.

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