MISSION: Southwest Research and Information Center is a multi-cultural organization working to promote the health of people and communities, protect natural resources, ensure citizen participation, and secure environmental and social justice now and for future generations

Environmental Justice in New Mexico:
Renewed Push for Change

Excerpted from the "Environmental Justice Background Report for the New Mexico Environment Department"
(www.unm.edu/~ejpc/EJBackgroundReport-Final-Dec08-04.pdf).
Prepared by Judith M. Espinosa, Director, Alliance for Transportation Research Institute(ATRI) and Eileen Gauna, Professor, Southwestern University School of Law, November 2004.

Some place the beginnings of the present day environmental justice movement at the 1982 demonstration against the siting of a Polychlorinated Biphenyls (PCB) landfill near an African-American community in Warren County, North Carolina. Environmental Justice advocates place the beginning much earlier, at the 1964 passage of the Civil Rights Act. They also point to the 1971 annual report by the Council of Environmental Quality (CEQ) acknowledging that racial discrimination adversely affects the urban poor and the quality of their environment. Regardless of where one places the precise beginning of the movement, what is clear is that the last fifteen years has seen remarkable changes in the landscape of environmental regulation in response to the claims of that poor and people of color communities receive disproportionately greater risk, less environmental protection and fewer environmental amenities than predominantly white, wealthier communities.

The most high profile of those events occurred in the context of siting of hazardous waste facilities. After the Warren County demonstration, for example, the General Accounting Office published a report finding that three of the four major off-site commercial hazardous waste facilities in EPA Region IV were located in African-American communities, despite the fact that African Americans make up only about one-fifth of the region’s population. This report was followed by a 1987 report, national in scope, which found a positive statistical correlation between the location of hazardous waste facilities and uncontrolled waste sites, and people of color communities. The publication of this report by the United Church of Christ Commission for Racial Justice led to the politically explosive charge of “environmental racism,” thus causing alarm among environmental protection agencies and traditional environmental groups, all of whom, it was charged, were complicit in the state of affairs (Rechtschaffen, Gauna, 2002). The U.S. EPA convened an internal workgroup of staff persons who undertook a two year review of the then existing evidence of racial disparities. Their report, issued in 1992, acknowledged that racial and ethnic minorities were disproportionately subjected to exposures to air pollutants, hazardous waste facilities, contaminated fish and agricultural pesticides, in addition to acknowledged adverse health effects from lead poisoning (in African-American children). That same year a report of an investigation by the National Law Journal found racial disparities in the enforcement of environmental laws.

Although the public in general may have viewed environmental justice as largely an issue involving siting, environmental justice advocates challenged a much broader class of regulatory activities. They began to analyze and challenge environmental inequities that lay embedded in a wide range of agency functions, including the formation of agency policy, criteria and standards development, the cleanup of contaminated properties and the enforcement of environmental laws. They also addressed issues such as agency decision-making and public participation. These challenges will be discussed in greater detail below in the section on the EPA.

Environmental justice advocates also began to litigate under environmental laws, typically challenging the grant of a permit on environmental justice grounds or using private citizen enforcement suits. They also prosecuted constitutional claims, civil rights claims and common law actions such as nuisance and toxic tort suits. Constitutional claims have been largely unsuccessful because of the high evidentiary burden needed to prove discriminatory intent. There have been a handful of successful toxic tort and nuisance claims. However, the toxic tort cases can be difficult to prove because the conditions in impacted communities often stem from a variety of sources, making litigation against any particular defendant problematic.
At present, there have been significant milestones towards achieving environmental justice. For example, in 1993 the EPA established the 25-member National Environmental Justice Advisory Council (NEJAC) to make recommendations to the Administrator on environmental justice matters. In 1998 the EPA established the “Title VI Implementation Advisory Committee,” a subcommittee of the National Advisory Council on Policy and Technology, to issue recommendations on how the States might comply with Title VI of the Civil Rights Act. The later Committee concluded its mission and issued its report in 1999 and the NEJAC has since issued several reports and recommendations. Despite these and other efforts, however, conditions in many vulnerable and impacted communities remain dire. Environmental justice advocates have been hampered in their efforts by a pervasively unequal playing field in environmental protection. They enter the stakeholder process with far fewer resources than industrial, agricultural and governmental interests. Their challenges carry a strong ethical, or fairness, component, which is difficult to reconcile within an aggressively pluralistic regulatory arena that is oriented towards technical requirements and economic tradeoffs. More recent challenges that advocacy face, particularly at the national level, are a shift in priorities due to issues of national security. As a consequence, not only are there now fewer resources devoted to environmental justice by agencies and private funders, but the secrecy measures put in place in response to concerns over terrorist attacks have left communities without information about potential risks from large facilities within their communities. The real or perceived non-responsiveness to environmental justice concerns at the national level may increase advocacy at the state and local levels. This shift of focus may be appropriate given the recent trend by the EPA and other federal agencies to devolve more decision-making authority to the States. As such, this NMED initiative is both timely and appropriate.

The Definitions... “Environmental Racism refers to institutional rules, regulations, policies or government and/or corporate decisions that deliberately target certain communities for locally undesirable land uses, resulting communities being disproportionately exposed to toxic and hazardous waste…Environmental racism is caused by several factors, including intentional neglect…and a lack of institutional power and low land values of people of color. Environmental Equity refers to the equal protection of environmental laws…1. People of Color are entitled to the same protections under environmental laws as any race of people. 2. People of color are entitled to equal access at all levels of decision-making that apply to environmental protection. Environmental Justice refers to those cultural norms and values, rules, regulations, behavior, policies, and decisions to support sustainability, where all people can hold with confidence that their natural environmental is safe and productive. Environmental Justice is realized when a people can realize their highest potential, without interruption by environmental racism or inequity… [From the University of Michigan Environmental Justice Initiative. www.umich.edu/~snre492/] Environmental Injustice (replaced ‘environmental racism’ because it was a more inclusive term of reference) referred to the placement of environmental burdens in lower-income communities as well as racial or ethnic minority communities. [From the Virginia Natural Resource Leadership Institute - Session 2, University of Virginia, Charlottesville, VA.]

Definitions of Environmental Justice

In 1982, well before the term environmental justice existed, the Reverend Benjamin Chavis of the United Church of Christ Commission for Racial Justice defined ‘Environmental Racism’ as being “racial discrimination in environmental policy making and the enforcement of regulations and laws; it is the deliberate targeting of people of color communities for toxic and hazardous waste facilities; the official sanctioning of the life threatening presence of poisons and pollutants in communities of color; and the history of excluding people of color from leadership of the environmental movement” (Mortavalli, 1998). The toxic sitings in Warren County North Carolina, an impoverished, predominately black community, propelled him to surmise that this county was selected for landfills because its populace was Afro-American. Fundamentally, he believed, the sitings were another form of institutionalized racism.

Edward Rush (1997) of the Center for Health, Environment and Justice said:

The concern over environmental inequity has two components (Huebner, 1998). The first is that the siting process and the issuance of permits allow a disproportionate percentage of undesirable facilities to locate in minority and poor neighborhoods. The second is that environmental cleanup and remediation actions and the enforcement of environmental laws favor neighborhoods of relatively affluent whites over minority and poor areas.

The New Mexico Environmental Justice Working Group, a collaboration of environmental justice representatives and technical advisors from around the State, has worked on recounting the history of EJ in New Mexico. According to the Working Group, members continue to hear from environmental justice communities around the State.

The Authority of the New Mexico Environment Department (NMED)

When the NMED was created on April 1, 1991, the Legislature vested specific authorizing statutory language to the Secretary, the Governor, and the Department allowing for its administrative and rulemaking operations. One such authority is the ability of the NMED to “…cooperate with the federal government in the administration of environmental programs in which financial or other participation by the federal government is authorized or mandated under state or federal laws, regulations, rules or orders. (emphasis added) Within section B. of that same statute, the law is clear that the “governor or secretary may by appropriate order designate the department…as the single state agency for the administration of any environmental program when that designation is a condition of federal financial or other participation in the program under applicable federal law, regulation, rule or order.” These provisions along with the authority vested in the NMED and the Environmental Improvement Board (EIB) through the Environmental Improvement Act gives the NMED adequate authority to pursue an environmental justice policy agenda and lay the foundation for guiding principles, program actions, and regulatory strategies which can be undertaken by the Department without legislative authority.

The NMED’s basic authority under the Environmental Improvement Act provides for environmental management and consumer protection in the state, which is carried out not only by NMED and its programs but through the EIB, the regulatory arm of the NMED. As stated, “The purpose of the Environmental Improvement Act is to create a department that will be responsible for environmental management and consumer protection in this state in order to ensure an environment that in the greatest possible measure will confer optimum health, safety, comfort and economic and social well-being on its inhabitants; will protect this generation as well as those yet unborn from health threats posed by the environment; and will maximize the economic and cultural benefits of a healthy people.”

To be sure Environmental Justice policies and standards embody the principles of consumer protection and the management of the environment as stated in the Act for all New Mexico residents including people of color and those disproportionately affected by damage done to their living environment.

Preliminary Recommendations

To be sure the NMED does not want to assert an environmental justice agenda by any other means than through consensus building and buy-in from all sectors it regulates and from other agencies within state and local government. The current steps taken to elicit feedback and public input around the state utilizing an open meetings forum and requesting recommendations on environmental justice issues is an important and relevant process. This open dialogue will provide the Department with the groundwork for integrating environmental justice principles into its programs and regulatory structure. It will allow the Department to structure its recommendations through concurrence with its constituencies who can provide the facts and case studies. Several policies and methodologies cited in the sections above on state implementation of environmental justice would lend themselves to adoption and consideration in New Mexico.

Research and Data Gathering: One of the first activities that the NMED can do without much controversy is preliminary research and data gathering to compile and analyze environmental justice attributes in various communities. The NMED has databases and maps of all permitted facilities in the state, including those permitted by NMED and those done by other state and federal agencies. Spatially locating permitted facilities and researching the demographics and social profile of the communities in close proximity would provide a baseline of research.

GIS Mapping: Once the NMED has provided a good baseline of facility and population location, it can begin to compile, publish and distribute maps documenting environmental justice criteria based on the 2000 census. Examples of GIS mapping of low income and disproportionately overburdened environmental justice communities can be found in other States, the EPA, and NGO or advocacy research. For instance, Massachusetts has identified environmental justice population areas.

Environmental Justice Definitions and Principles: NMED can develop and adopt a definition of environmental justice along with guiding principles for staff, collaboration with sister agencies, conduct with the regulated community, and cooperation with local governments. These policies can be drafted and adopted through the Office of the Secretary and his Executive staff and require no regulatory or legislative authority. It would certainly be within the purview of the Department’s delegated authority from EPA.

EIB Procedures: The NMED can encourage the EIB to begin to establish guidelines in permitting actions that implement existing authority under the provisions for protecting and preserving the “public health, safety and welfare” in a manner that recognizes Environmental Justice concerns. EIB can also be instrumental in providing educational meetings that focus on the scientific basis for environmental justice community identification, such as cumulative risk analysis, multiple stressors (chemical and non-chemical) and toxic or hazardous waste considerations.

PRINCIPLES OF ENVIRONMENTAL JUSTICE PREAMBLE: We the People of Color, gathered together at this multinational People of Color Environmental Leadership Summit, to begin to build a national and international movement of all peoples of color to fight the destruction and taking of our lands and communities, do hereby re-establish our spiritual interdependence to the sacredness of our Mother Earth; to respect and celebrate each of our cultures, languages and beliefs about the natural world and our roles in healing ourselves; to insure environmental justice; to promote economic alternatives which would contribute to the development of environmentally safe livelihoods; and, to secure our political, economic and cultural liberation that has been denied for over 500 years of colonization and oppression, resulting in the poisoning of our communities and land and the genocide of our peoples, do affirm and adopt these Principles of Environmental Justice: Environmental justice affirms the sacredness of Mother Earth, ecological unity and the interdependence of all species, and the right to be free from ecological destruction. Environmental justice demands that public policy be based on mutual respect and justice for all peoples, free from any form of discrimination or bias. Environmental justice mandates the right to ethical, balanced and responsible uses of land and renewable resources in the interest of a sustainable planet for humans and other living things. Environmental justice calls for universal protection from nuclear testing, extraction, production and disposal of toxic/hazardous wastes and poisons and nuclear testing that threaten the fundamental right to clean air, land, water, and food. Environmental justice affirms the fundamental right to political, economic, cultural and environmental self-determination of all peoples. Environmental justice demands the cessation of the production of all toxins, hazardous wastes, and radioactive materials, and that all past and current producers be held strictly accountable to the people for detoxification and the containment at the point of production. Environmental justice demands the right to participate as equal partners at every level of decision-making including needs assessment, planning, implementation, enforcement and evaluation. Environmental justice affirms the right of all workers to a safe and healthy work environment, without being forced to choose between an unsafe livelihood and unemployment. It also affirms the right of those who work at home to be free from environmental hazards. Environmental justice protects the right of victims of environmental injustice to receive full compensation and reparations for damages as well as quality health care. Environmental justice considers governmental acts of environmental injustice a violation of international law, the Universal Declaration On Human Rights, and the United Nations Convention on Genocide. Environmental justice must recognize a special legal and natural relationship of Native Peoples to the U.S. government through treaties, agreements, compacts, and covenants affirming sovereignty and self-determination. Environmental justice affirms the need for urban and rural ecological policies to clean up and rebuild our cities and rural areas in balance with nature, honoring the cultural integrity of all our communities, and providing fair access for all to the full range of resources. Environmental justice calls for the strict enforcement of principles of informed consent, and a halt to the testing of experimental reproductive and medical procedures and vaccinations on people of color. Environmental justice opposes the destructive operations of multi-national corporations. Environmental justice opposes military occupation, repression and exploitation of lands, peoples and cultures, and other life forms. Environmental justice calls for the education of present and future generations which emphasizes social and environmental issues, based on our experience and an appreciation of our diverse cultural perspectives. 17. Environmental justice requires that we, as individuals, make personal and consumer choices to consume as little of Mother Earth's resources and to produce as little waste as possible; and make the conscious decision to challenge and reprioritize our lifestyles to insure the health of the natural world for present and future generations. Adopted, October 27, 1991, in Washington, D.C.

Environmental Review: The environmental review of new or expanding sources of air emissions, ground water discharges, surface water discharges, or waste facilities will be enhanced by an environmental justice perspective. This initiative could be accomplished, not as part of a new or expanded permit, but as a review by NMED to gather baseline information on future facilities. This action could take the form of research to assess environmental and public health, include an analysis of multiple environmental impacts and cumulative risks, and analyze the environmental burdens faced by environmental justice and low income communities impacted when compared with other communities of higher income or fewer minority residents. In addition, it can include data on baseline public health conditions and an assessment of potential exposures.

Environmental Justice Training: One effective means of implementing environmental justice policies and principles is to obtain environmental justice training for NMED and other state agency staff. This training may also afford an opportunity for the NMED to educate other State and local government agencies in environmental justice principles and the need for New Mexico statutory and regulatory revisions. Environmental Justice advocacy groups, non-profit law centers, and other NGO’s have collaborated to develop such environmental justice training programs. EPA regional offices have utilized them effectively. It may be that industry and business interests may benefit from such training or seminars on the subject.

Public Information/Input and Notice: One of the changes that the NMED can make quickly and assertively to begin to correct any issues regarding public notice of pending NMED actions, is to revise its public notice and public input policies. Public participation at meetings and hearings can be expanded with use of alternative media outlets. Going beyond the notice statutes or requirements is never a problem, nor does it require any legislative or regulatory action, only a change in policy. Neighborhood newspapers or newspapers directed to the Spanish-speaking population or other ethnic groups can certainly be used for notice requirements beyond just the “publication in a newspaper of general circulation.” The use of general library internet services or repository services as a means to provide information is a possibility to achieve greater public input or provide public information. Currently, many libraries have Spanish-speakers that can assist populations uncomfortable with English as a first language. Certainly, NMED can initiate and adopt policy requirements that all notices and materials be translated into Spanish or other language in an ethnically diverse community where NMED activities are taking place.

References:

Rechtschaffen & Gauna, Environmental Justice: Law, Policy & Environmental Regulation (2002).

Marcia Coyle, Marianne Lavelle and Claudia Maclachan, Unequal Protection: The Racial Divide in Environmental Law, NAT'L L.J., Sept. 21, 1992, S1-S12 (a special investigation).

Mortavalli, Jim (1998, July 1). Dr. Robert Bullard: “Some People Do Not Have the Complexion for Protection.” E: The Environmental Magazine. www.keepmedia.com

Rush, Edmund. (1997). "Environmental Racism: Fact or Friction?" Everyone's Backyard. Summer. www.copeen.org.

Huebner, Stephen B. (1998). “Are There Storm Clouds Brewing on the Environmental Justice Horizon?” Center for the Study of American Business. Policy Study 145, April. St. Louis, MO: Washington University.