Understanding ‘Environmental Justice’

It’s not exactly a secret that when city, state and federal governments decide where to route an interstate, site a sewage treatment plant, or build a waste incinerator, it’s most often poorer and less politically advantaged neighborhoods that bear the brunt of the projects.

That’s in part why the sewage from Old Lyme’s beach communities, which could be pumped a mile or so west to the Connecticut River, will instead be pumped 15 miles east to New London, where it is treated and released in the Thames River.

Likewise, garbage collected in Lyme, Old Lyme and Essex – and 48 other towns across the lower Connecticut River valley – is trucked up to an aging incinerator on the south side of Hartford.

And this division of labor, if you want to call it that, is reflected in our social services – homeless shelters, affordable housing, methadone clinics are, by and large, located in poor communities – and in our zoning laws, which for the last century have tended to separate residential neighborhoods from commercial districts and industrial areas. Rich from poor.

Is that just?

Well, there is no overarching law, either on the state or the federal level, that protects the poor from discrimination. Economic status – unlike race, religion, or disability – is not a “protected class.”

A restaurant, for example, cannot refuse equal service to Black Americans.

In Greensboro, North Carolina, Joseph McNeilFranklin McCainEzell Blair Jr., and David Richmond took their seats at “Whites Only,” lunch counter in 1960 to demand that equal service – a right that four years later was enumerated in the Civil Rights Act of 1964.

But there is no law that says a restaurant must accommodate the poor, or a requirement that, say, restaurants offer a few less expensive dishes. I think most people in America would agree that would be a bit absurd.

But what if you crunch the numbers and can show that a policy, regardless of intent, disproportionately harms, for example, Jewish people or Black Americans? 

That’s exactly what Congress did a few decades ago in a series of hearings which found that minority religions are disproportionately disadvantaged in the zoning process. Jews, for example, make up just 2 percent of the population, but are involved in 20 percent zoning disputes on matters of religion – not entirely a surprise, given that for many, walking to synagogue on the Sabbath is a matter of faith, and zoning laws in America are rarely paragons of walkability. In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act to address the issue.

So what if a zoning law or policy – regardless of intent – disadvantages the poor, who are also disproportionately made up of persons with a disabilities and people of color? Does that constitute de facto illegal discrimination?

If not a restaurant, then what about a town? Must towns allow for affordable housing options?

Well, that’s a question that hasn’t been settled definitively, but over the last half-century the courts have been inching toward the affirmative through a standard of “disparate impact,” whereby statistical evidence and other evidence can be used to convince the courts that a law or practice can constitute de facto prohibited discrimination, even if the intent is innocent (or claims to be innocent).

For projects receiving federal funds or requiring federal permits – like a trash incinerator, a sewage treatment plant or high-speed rail – the rules are already pretty clear under a doctrine known as “Environmental Justice.”

That doctrine dates all the way back to 1994, when then-President Bill Clinton signed Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” which required that all federal agencies “make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.”

Fifteen years later, NEC Future, the controversial high-speed rail project proposed under President Barrack Obama, was one of the first large infrastructure projects to take the doctrine seriously in its choice of routes. But the latest proposal of high-speed rail held a recent conference call entirely devoted to the issue of environmental justice.

This session, three bills were introduced in the state legislature to address environmental justice –  including House Bill 5813, which would “mandate a state-wide study of the air, water and soil quality in areas of distress, the areas affected by pollution coming from construction, industrial incinerators, city operations such as waste treatment facilities and recycling operations.”

No doubt replacing the aging MIRA trash incinerator falls squarely under that bill and doctrine, as do potentially dozens of other decisions in the state of Connecticut, including permitting and retiring carbon-based energy generators – something broached by DEEP Commissioner Katie Dykes in a recent conversation with CT Examiner.

None of this is to say that MIRA will be relocated to Essex, or that Old Lyme will soon need to build a treatment plan on the Connecticut River – but for at least the next four years, environmental justice is bound to be in the mix for everything from Department of Housing grants to transportation funding.

In fact, environmental justice is the impetus behind the proposed $435 billion “Economic Justice Act,” recently introduced by Democrats in the U.S. Senate, that would, among other things, include $10 billion of funding for urban highway removal – an effort to erase the wrongs of urban renewal – which is potentially a boon for advocates of the idea of burying or rerouting I-84 through Hartford, a project with a lot of support, but very little funding.

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