Testimony on
environmental justice
before the L.A. City Council

Wednesday, December 11, 1996, 10:00 a.m.
by Alexander Volokh

Good morning. My name is Alexander Volokh, and I am an assistant policy analyst at the Reason Foundation specializing in environmental policy. I am here to discuss environmental justice.

First, I want to make clear that we are all in favor of environmental protection, and we are all in favor of justice, and we are all against racism. This much is noncontroversial. Having said this, I would like to add that if the General Plan Framework incorporates references to a particular concept called "environmental justice," it will open a Pandora's box that we may not be able to shut for another 30 years.

"Environmental justice" is a relatively new term. It tends to be loosely used and has different meanings for different people. Unlike other concepts used regularly in environmental policy and urban planning decisions, "environmental justice" has not yet been interpreted by court decisions, federal legislation, or EPA action.

Generally, the "environmental justice" movement has been driven by the notion of "environmental racism" -- the claim that minority communities are systematically discriminated against in urban planning decisions like the siting of industrial facilities, landfills, waste incinerators, freeways, and so on. Certainly, environmental problems exist, and racism also exists. But whether this particular concept of "environmental racism" is substantiated by the evidence is another question entirely.

There is little statistical evidence that discrimination is responsible for the siting of industrial facilities in minority communities. Most studies on environmental racism have had well-analyzed methodological problems. Their findings can vary greatly depending on the definition of "minority community" and depending on the size of the community under consideration. "Minority communities" are generally defined as communities which contain a greater-than- average percentage of nonwhite residents. But by this definition, Staten Island, N.Y., home of the largest landfill in the country, is considered a "minority community," even though it is 80 percent white (and the "whitest" of New York City's five boroughs). Another study ranked communities by their percentage of white residents, and labeled the top 25 percent "white communities" and the bottom 25 percent "minority communities." The problem with this system is that more than 75 percent of American communities are "whiter" than average. Again, many so-called "minority communities" perversely end up having a smaller concentration of minority residents than the country as a whole.

Another problem involves the use of percentages. If all we study is the percentage of minorities in an area, we can come to the conclusion that landfills in mostly-minority communities are worse for minorities than landfills in mostly-white communities. But this is not always the case. If the mostly- white community is very large, there may be more members of minorities in it than in the mostly-minority community. For example, a 90-percent white community with 10,000 people in it has 1,000 members of minorities. But a 90- percent minority community with only 1,000 people in it has 900 people. If a landfill is sited in the mostly-white community, more minorities will be affected than if it is sited in the mostly-minority community. But you wouldn't know it from the studies, which don't deal with population, only with percentages.

There is another problem with assuming that industrial facilities in minority communities are the result of discrimination. Later studies have shown that many communities where industrial facilities were sited were originally not minority communities at all. Rather, minorities took advantage of the low property values after the facilities were sited. Again, the studies that claim to show "environmental racism" don't take this into account.

And finally, the studies generally don't examine the actual health risks posed by the industrial facility. In reality, how far away you are has little relation to how harmful a site is to human health. You could live your whole life next door to a modern, state-of-the-art facility, and still not be exposed to as much risk as someone who lived across town from an old, sloppy facility built 50 years ago.

A recent case illustrates just how thorny "environmental justice" claims can get. In El Sereno Neighborhood Action Committee v. California Transportation Commission, East L.A. residents filed a federal lawsuit against Caltrans, alleging that the 4.5-mile extension of the Long Beach Freeway discriminates against Latinos. While Caltrans plans to cover the freeway or run it underground in Pasadena, it will run aboveground in El Sereno, which is more than 90 percent Latino. I will not comment on the merits of this particular case; certainly, some development decisions may have been the result of racism, and this project may or may not be one of them. But I should point out that for this environmental justice suit to succeed, the plaintiffs do not have to prove discriminatory intent. All they have to do is show that the construction of the highway has a discriminatory impact. The trouble with this is that according to Caltrans, the topography of the El Sereno area makes if difficult or impossible to build the freeway underground. If Caltrans is right, the problem is not racism, but geology. While we all agree that racism has no place in environmental policy, we can presumably also agree that just looking at differential impacts by themselves does not tell us anything useful.

If broad environmental justice language is written into the General Plan framework, then any major development decision will be subject to such delays. The plaintiff will not have to prove discrimination; the plaintiff will only have to produce evidence of differential impact. Since all impacts are "different," there is no theoretical limit to how far this can go. There may be practical limits on how willing judges will be to allow projects to proceed, but "environmental justice" suits are a new development, and we have yet to see what those limits are.

I want to stress again that no one endorses discriminating against minorities in the siting of industrial facilities. The proper way to guard against such discrimination is to ensure that race is not used as a criterion in siting decisions. Instead, siting decisions should be made based on traditional planning criteria such as relationship with the service area, costs, suitability with surrounding uses, and environmental impacts.

Finally, I ask that you remember that the results of your decision will be with us for the next 30 years. Thank you very much for your attention.

Alexander Volokh is an assistant policy analyst at the Reason Foundation, a public policy think tank based in Los Angeles. He has written numerous environmental policy studies, include "Environmental Enforcement: In Search of Both Effectiveness and Fairness" and "Punitive Damages and Environmental Law: Rethinking the Issues." He has also authored a policy series on Recycling and Deregulation: Opportunities for Market Development, which includes the policy studies "The FDA vs. Recycling: Has Food Packaging Law Gone Too Far?", "Recycling Hazardous Waste: How RCRA Has Recyclers Running Around in CERCLAs," and "How Government Building Codes and Construction Standards Discourage Recycling."