Environmental justice: principles, challenges, and applications

ENVIRONMENTAL JUSTICE & EXECUTIVE ORDER 12898

The objective of this work is to examine whether the issuance of Executive Order 12898 in 1994 has made a recognizable difference in assisting the environmental justice movement reach its goal of achieving environmental protection for all communities.

On February 11, 1994, President Bill Clinton signed Executive Order 12898 on Environmental Justice: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations. This order directs each federal agency to develop an environmental justice strategy for identifying and addressing disproportionately high and adverse human health, or environmental effects of its programs, policies, and activities on minority populations and low-income populations. Monies were allocated to federal agencies and state governments assisting communities to develop strategies toward local environmental problems.

Executive Order 12898 reinforces the 45-year-old Civil Rights Act of 1964, Title VI, which prohibits discriminatory practices in programs receiving federal funds. The order also focuses the spotlight back on the National Environmental Policy Act (NEPA), a 40-year-old law that set policy goals for the protection, maintenance and enhancement of the environment. NEPA's goal is to ensure for all Americans a "...safe, healthful, productive, and aesthetically and culturally pleasing environment, NEPA requires a detailed statement on the environmental effects of proposed federal actions that significantly affect the quality of human health." (paraphrased)

III. BACKGROUND

Environmental Justice' refers to treatment of all races, cultures, and income levels that is equitable or quite simply that is fair in regards to the "...development, implementation and enforcement of environmental laws, regulations, programs and policies." (Environmental Justice Readings, NIEHS, 2009) Specifically, in regards to justice, or fair treatment within the 'environment' or all that surrounds the individual, including as stated by NIEHS:

your home, your school, and where you play. And if you have a job, it's also refers to where you work. It includes your friends' and grandparents' homes, and any other places that you visit. It includes the lake where you might swim or fish, the places where your food is grown or prepared, and even the places your drinking water travels through on its way to your home." (Environmental Justice Readings, NIEHS, 2009)

The chance that the individual has when they are among the minorities or the low-income to reside in areas that are environmentally clean and healthy is much less likely that for those not of an ethnic minority or low-income population. These environments are many times the location of toxic and hazardous waste sites which have been cited as being causative in cancer developing in populations residing in these areas and asthma has been cited in research findings to be disproportionately represented among Latino children and those reports are cited as well. The work of Robert D. Bullard entitled: "Environmental Justice in the 21st Century" states "...hardly a day passes without the media discovering some community or neighborhood fighting a landfill, incinerator, chemical plant, or some other polling industry. This was not always the case. Just three decades ago, the concept of environmental justice had not registered on the radar screens of environmental, civil rights, or social justice groups. Nevertheless, it should not be forgotten that Dr. Martin Luther King, Jr. went to Memphis in 1968 on an environmental and economic justice mission for the striking black garbage workers. The strikers were demanding equal pay and better work conditions. Of course, Dr. King was assassinated before he could complete his mission." (1998) Bullard relates that another "landmark garbage dispute took place a decade later in Houston, when African-American homeowners in 1979 began a bitter fight to keep a sanitary landfill out of their suburban middle-income neighborhood. Residents formed the Northeast Community Action Group of NECAG."(1998) class action lawsuit was filed in the attempt to block the construction of the facility. The environmental justice movement began in Warren County, North Carolina "where a PCB landfill ignited protests and over 500 arrests." (1998) it was this even that "provided the impetus for an U.S. General Accounting Office study, 'Siting of Hazardous Waste Landfills and Their Correlation with Racial and Economic Status of Surrounding Communities'. It is related by Bullard that it was this study that "revealed that three out of four of the off-site, commercial hazardous waste landfills in Region 4 (which comprises eight states in the South) happen to be located in predominantly African-American communities, although African-Americans made up only 20% of the regions population." (Bullard, 1998) Stated to be even more important is the fact that this protest served to "put environmental racism on the map." (Bullard, 1998)

The protests which took place in Warren County additionally served in leading the 'Commission for Racial Justice' to produce "Toxic Waste and Race' which was the first of all national studies that correlated waste facility sites and demographic characteristics and demonstrated that "race was found to be the most potent variable in predicting where these facilities were located - more powerful than poverty, land values and home ownership." (Bullard, 1998)

The convergence of the social justice and environmental movements into the environmental justice movement is stated by Bullard to have been chronicled in 1990 in 'Dumping in Dixie: Race, Class, and Environmental Quality'. The focus of this work was "African-Americans environmental activism in the South, the same region that gave birth to the modern civil rights movement.

What had started out as a local and often isolated community-based struggles against toxics and facility siting blossomed into a multi-issue, multi-ethnic, and multi-regional movement." (Bullard, 1998) Stated to be the most important event in the history of the movement was the 1991 First National People of Color Environmental Leadership Summit which "broadened the environmental justice movement beyond its early anti-toxics focus to include issues of public health, worker safety, land use, transportation, housing, resource allocation and community empowerment." (Bullard, 1998)

According to Bullard, "the question of environmental justice is not anchored in a debate about whether or not decision makers should tinker with risk management. The framework seeks to prevent environmental threats before they occur. The environmental justice framework incorporates other social movements that seek to eliminate harmful practices (discrimination harms the victims), in housing, land use, industrial planning, health care and sanitation services." (1998)

Bullard states that the impact realized from "redlining, economic divestment, infrastructure decline, deteriorating housing, lead poisoning, industrial pollution, poverty, and unemployment are not unrelated problems if one lives in an urban ghetto or barrio, rural hamlet, or reservation." (1998) General characteristics of the environmental justice framework are those stated as follows:

The environmental justice framework incorporates the principle of the "right" of all individuals to be protected from environmental degradation. The precedents for this framework are the Civil Rights Act of 1964, Fair Housing Act of 1968 and as amended in 1988, and Voting Rights Act of 1965;

The environmental justice framework adopts a public health model of prevention (elimination of the threat before harm occurs) as the preferred strategy. Impacted communities should not have to wait until causation or conclusive "proof" is established before preventive action is taken. For example, the framework offers a solution to the lead problem by shifting the primary focus from treatment (after children have been poisoned) to prevention (elimination of the threat via abating lead in houses);

The environmental justice framework shifts the burden of proof to polluters/dischargers who do harm, discriminate, or who do not give equal protection to racial and ethnic minorities, and other "protected" classes. Under the current system, individuals who challenge polluters must "prove" that they have been harmed, discriminated against, or disproportionately impacted. Few impacted communities have the resources to hire lawyers, expert witnesses, and doctors needed to sustain such a challenge;

The environmental justice framework would allow disparate impact and statistical weight, as opposed to "intent," to infer discrimination. Proving intentional or purposeful discrimination in a court of law is next to impossible, as demonstrated in Bean v. Southwestern Waste. It took nearly a decade after Bean v. Southwestern Waste for environmental discrimination to resurface in the courts; and the environmental justice framework redresses disproportionate impact through "targeted" action and resources. This strategy would target resources where environmental and health problems are greatest (as determined by some ranking scheme but not limited to risk assessment). Reliance solely on "objective" science disguises the exploitative way the polluting industries have operated in some communities and condones a passive acceptance of the status quo. Human values are involved in determining which geographic areas are worth public investments. In the 1992, EPA report Securing Our Legacy, the agencies describe geographic initiatives as "protecting what we love. (Bullard, 1998)

IV. VARIOUS FORMS of EQUITY DESCRIBED

Bullard (1998) states that there are various forms of 'equity' including:

Procedural equity;

Geographic equity; and Social equity. (Bullard, 1998)

Procedural Equity' is stated by Bullard to refer to the 'fairness' question or "the extent that governing rules, regulations, evaluation criteria and enforcement are applied uniformly across the board and in a nondiscriminatory way." (1998)

Geographic Equity' refers to "location and spatial configuration of communities and their proximity to environmental hazards, noxious facilities, and locally unwanted land uses (LULUs) such as landfills, incinerators, sewer treatment plants, lead smelters, refineries, and other noxious facilities. For example, unequal protection may result from land-use decisions that determine the location of residential amenities and disamenities. Unincorporated, poor, and communities of color often suffer a "triple" vulnerability of noxious facility siting." (Bullard, 1998)

Finally, 'Social Equity' is that which "assesses the role of sociological factors (race, ethnicity, class, culture, life styles, political power, etc.) on environmental decision making. Poor people and people of color often work in the most dangerous jobs, live in the most polluted neighborhoods, and their children are exposed to all kinds of environmental toxins on the playgrounds and in their homes." (Bullard, 1998)

V. EXAMINATION of CULTURAL RESOURCES

The National Preservation Institute states that the term 'cultural resource' is not defined in NEPA or even in any other Federal law and yet there are "several laws and executive orders that deal with particular kind of 'resources' that are 'cultural' in character." The following is a description of various sources and their definitions of regulations relating to cultural resources and the human's interaction with their environment.

NEPA and CEQ regulations: makes a requirement of agencies to consider the effects of their actions on all aspects of the 'human environment'.

The National Historic Preservation Act (NHPA) sets forth Government policy and procedures regarding "historic properties" -- that is, districts, sites, buildings, structures and objects included in or eligible for the National Register of Historic Places. Section 106 of NHPA requires that Federal agencies consider the effects of their actions on such properties, following regulations issued by the Advisory Council on Historic Preservation (36 CFR 800).

The Native American Graves Protection and Repatriation Act (NAGPRA) requires Federal agencies and federally assisted museums to return "Native American cultural items" to the Federally recognized Indian tribes or Native Hawaiian groups with which they are associated. Regulations, by the National Park Service (NPS) are at 43 CFR 10.

The American Indian Religious Freedom Act (AIRFA) says that the U.S. Government will respect and protect the rights of Indian tribes to the free exercise of their traditional religions; the courts have interpreted this as requiring agencies to consider the effects of their actions on traditional religious practices.

The Archeological Resources Protection Act (ARPA) prohibits the excavation of archeological resources (anything of archeological interest) on Federal or Indian lands, without a permit from the land manager.

The Archeological Data Preservation Act (ADPA) or Archeological and Historic Preservation Act (AHPA) requires that agencies to report any perceived impacts that their projects and programs may have on archeological, historical, and scientific data, and to recover such data or assist the Secretary of the Interior in recovering them.

The Federal Records Act (FRA) requires that agencies manage documents in such a way as to protect their historical value.

The Abandoned Shipwrecks Act (ASA) asserts U.S. title to abandoned shipwrecks, and transfers title to the States.

Executive Order 12898 requires that agencies try to avoid disproportionate and adverse environmental impacts on low income and minority populations; impacts may be cultural -- for example, impacts on a culturally important religious, subsistence, or social practice.

Executive Order 13006 requires that agencies give priority to using historic buildings in historic districts in central business areas to meet their mission requirements.

Executive Order 13007 requires that agencies try not to damage "Indian sacred sites" on Federal land, and avoid blocking access to such sites by traditional religious practitioners. (National Preservation Institute, 2009)

The National Preservation Society states that the 'human environment' is to include "the natural and physical environment and the relationship of people with that environment." (40 CFR 1508.14; as cited by the National Preservation Institute, 2009) the National Preservation Institute additionally states that a NEPA conducted environmental analysis that is thorough "should systematically address the 'human' - social and cultural - aspects of the environment as well as those that are more 'natural' and should address the relationships between natural and cultural." (2009)

Cultural resources include such as the following:

Historic properties;

Other culturally valued pieces of real property;

Cultural use of the biophysical environment; and Such 'intangible' sociocultural attributes as social cohesion, social institutions, lifeways, religious practices, and other cultural institutions. (National Preservation Institute, 2009)

VI. ENVIRONMENTAL JUSTICE: CLEANUP

The work of Sandra George O'Neil (2007) entitled: "Superfund: Evaluating the Impact of Executive Order 12898" states that the U.S. Environmental Protection Agency (EPA) addresses uncontrolled and abandoned hazardous waste sites throughout the country. Sites that are perceived to be a significant threat to both surrounding populations and the environment can be placed on the U.S. EPA Superfund list and qualify for federal cleanup funds." (O'Neil, 2007)

It is reported that the "equitability of the Superfund program has been questioned; the representation of minority and low-income populations in this cleanup program is lower than would be expected." (O'Neil, 2007) it is stated for example by O'Neil that environmental justice became acknowledged widely in the early 1980s "...as minority and low-income neighborhoods fought to keep environmental hazards out of their communities and away from their families. Researchers began to analyze and document environmental injustices around the country and found that minorities and poor were in fact, more frequently living near environmental hazards." (2007)

The U.S. Congress under President Carter is stated to have "...established the Comprehensive Environmental Response Compensation and Liability Act or CERLA (1980). As part of CERCLA and in an effort to address hazardous waste sites across the country, the U.S. Environmental Protection Agency (EPA) must locate and prioritize the most severe sites for remedial action. Sites perceived to be the most threatening to both surrounding populations and the environment can be placed on the National Priorities List (also known as NPL or Superfund list; U.S. EPA, 2007) and are then eligible to receive funding through the Superfund. Although the specific ways in which toxins in the ground, water, or air produce adverse health effects in humans are still disputed, the toxicity of such sites and potential risks posed to human populations and the environment certainly warrant attention. As of March 2003, there were 1,484 sites on the Superfund list, and over 6.5 million people living in census tracts with Superfund sites." (O'Neil, 2005/2007)

O'Neil additionally notes as follows: "Ideally the process of moving a site to the federal Superfund list would be related solely to the severity of hazard posed to the surrounding populations. However, other social forces shape the listing of a Superfund site. A site could be listed because of its hazardousness, or conversely it could be listed because it is less hazardous and therefore easier to clean. Moreover, a site could also move more quickly through the listing process because it is in a community perceived to have more power through access to resources because individuals residing in the area have higher incomes or because of racial or ethnic composition of the area. This environmental cleanup injustice has been supported by research demonstrating that representation of minorities and low-income populations is lower in areas with Superfund sites, indicating these populations are not benefiting equally from the Superfund program." (2007)

An attempt was made to correct the environmental injustice by President Carter in 1994 in the establishment of Executive Order 12898 which stated requirements that "...each Federal agency shall 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.... (Clinton, 1994) Executive Order 12898 has as its focus the correcting of environmental problems resulting in a disproportionate effect to minority and low-income populations. These populations are specifically identified by this Order and as well this Executive Order makes it a requirement that the agency "address policies and programs that may adversely affect these populations in particular." (O'Neil, 2007) Executive Order 12898 has been on the receiving end of much criticism. The order itself and "its implementation has been criticized." (O'Neil, 2007)

The work of O'Neil (2007) states that the argument posed by Environmental justice concerning the burden of hazardous waste is that the minority and poor population has been shouldering the burden and that this is so because of less power, "lower socioeconomic status and people of color." Cited as the authorities in the work of O'Neil (2007) are studies conducted by the U.S. GAO (1983); the United Church of Christ (UCC, 1987), and Robert Bullard's study of Houston, Texas (1983). The combination of these three study and their findings is stated to support that minorities are indeed overburdened by environmental hazards."(O'Neil, 2007)

While some researchers hold that the disproportionally is merely income-based there are many studies to support the fact that while in "varying degrees" it is the minorities and poor who are most "disproportionately affected by environmental burdens." (Anderton et al. 1994a, 1994b; Been 1993, 1994; Been and Gupta 1997; Bullard 1993; Bullard et al. 1994; Daniels and Friedman 1999; Downey 1998; Faber and Krieg 2001; Krieg 1995; Logan and Molotch 1987; Mohai and Bryant 1992 in: O'Neil, 2007)

O'Neil states that while there is much to be found in existing study findings on environmental burdens and environmental justice "...far fewer studies examine the relationship between environmental remediation and environmental justice, or environmental cleanup justice. The distinction between these two concepts has not been clearly demarcated. Environmental justice and cleanup justice studies have been combined indiscriminately, using Superfund as an indicator of environmental equity. (O'Neil, 2007) This is an assumption that O'Neil states to mean that Superfund sites are "similar to other environmental hazards such as toxic releases, incinerators, and other hazardous facility sitings." (ONeil, 2007)

O'Neil goes on to state that the Superfund had been and well should be a "distinctly different analysis in environmental justice." (O'Neil, 2007) Hazardous waste sites result in massive expenditures if a benefit to the environment can be accomplished. The limited resources of a clean environment results in those who are minority and poor being less likely to live in an environment that is clean and safe. Additionally, hazardous sites are "not automatically placed on the NPL. Sites may be discovered and never proposed to the Superfund list, or sites may be proposed to the Superfund list but never make the list. O'Neil states "Therefore, environmental cleanup justice would require that minorities and the poor be treated the same as other socioeconomic groups, represented proportionately, and encouraged to participate in the cleanup of environmental hazards in their communities to the same or even greater extent than other populations." (2007)

The little research that has been reported has to a great extent been on "representational equity, the degree to which populations are "proportionately represented in the Superfund program." (O'Neil, 2007) it is reported by O'Neil that combined studies shows that "although the poor were less likely to be represented in Superfund that they were more likely to be represented in living in proximity to hazardous waste than were the wealthy." (2007) O'Neil states of the existing evidence: "However, there is evidence that the poor, and in some cases minorities, are underrepresented in the Superfund program and may not be benefiting equally from environmental cleanups." (2007)

VII. EXECUTIVE ORDER 12898

Executive Order 12989: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations published by the U.S. General Services Administration states that the responsibility of the Agency is to make 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 in the United States and its territories and possessions, the District of Columbia, the Commonwealth of Puerto Rico and the Commonwealth of the Mariana Islands." (1994) the working group is stated to have the responsibilities of the following:

1) making provision of guidance to Federal agencies on criteria for identifying disproportionately high and adverse human health or environmental effects on minority populations and low-income populations;

2) coordinate with, provide guidance to, and serve as clearinghouse for, each Federal agency as it develops an environmental justice strategy as required by section 1-103 of this order, in order to ensure that the administration, interpretation and enforcement of programs activities and policies are undertaken in a consistent manner;

3) to assist in the coordination research through stimulation of cooperation among: (a) Environmental Protection Agency; (b) Department of Health and Human Services;

4) Department of Housing and Urban Development; and (5) other agencies conducting research or other activities in accordance with section 3-3 of this order;

5) Assist in coordinating data collection, required by this order;

5) Examine existing data and studies on environmental justice;

6) Hold public meetings as required in section 5-502(d) of this order; and 7) Develop interagency model projects on environmental justice that evidence cooperation among Federal agencies." (Clinton, 1994)

Agency Strategies Development is stated to include the required development of an environmental justice strategy that is agency-wide that effectively identifies and addresses "...adverse human health and environmental effects of its programs, policies and activities on minority populations and low-income populations." (Clinton, 1994) Also required is the listing of programs, policies, planning and public participation processes, enforcement, and/or rulemakings related to human health or the environment" of the environmental justice strategy that changes this strategy to minimally:

1) Promote enforcement of all health and environmental statutes in areas with minority populations and low-income populations;

2) Ensure greater public participation;

3) Improve research and data collection relating to the health of and environment of minority populations and low-income populations; and 4) Identify differential patterns of consumption of natural resources among minority populations and low-income populations." (Clinton,1994)

Additionally required in the environmental justice strategy are:

1) a timetable for undertaking identified revisions;

2) and consideration of economic and social implications of the revisions.

Stated as the responsibilities of the Federal Agency for Federal Programs is that each Federal agency "shall conduct its programs, policies, and activities that substantially affect human health or the environment, in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination under, such programs, policies, and activities, because of their race, color, or national origin." (Clinton, 1994) Required in the conduction of human health and environmental research analysis are:

1) Environmental human health research, whenever practicable and appropriate, shall include diverse segments of the population in epidemiological and clinical studies, including segments at high risk from environmental hazards, such as minority populations, low-income populations and workers who may be exposed to substantial environmental hazards;

2) Environmental human health analyses, whenever practicable and appropriate, shall identify multiple and cumulative exposures; and 3) Federal agencies shall provide minority populations and low-income populations the opportunity to comment on the development and design of research strategies undertaken pursuant to this order. (Clinton, 1994)

Stated in relation to human health and environmental data collection and analysis is that each Federal Agency must "...collect, maintain, and analyze information assessing and comparing environmental and human health risks borne by populations identified by race, national origin, or income. To the extent practical and appropriate, Federal agencies shall use this information to determine whether their programs, policies, and activities have disproportionately high and adverse human health or environmental effects on minority populations and low-income populations." (Clinton, 1994)

It is also stated as a requirement that each Federal Agency "...collect, maintain and analyze information on the race, national origin, income level, and other readily accessible and appropriate information for areas surrounding facilities or sites expected to have a substantial environmental, human health, or economic effect on the surrounding populations, when such facilities or sites become the subject of a substantial Federal environmental administrative or judicial action. Such information shall be made available to the public, unless prohibited by law." (Clinton, 1994)

Also required that is that each Federal agency "...collect, maintain, and analyze information on the race, national origin, income level, and other readily accessible and appropriate information for areas surrounding Federal facilities that are:

1) subject to the reporting requirements under the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. section 11001-11050 as mandated in Executive Order No. 12856; and 2) expected to have a substantial environmental, human health, or economic effect on surrounding populations. Such information shall be made available to the public, unless prohibited by law. (Clinton, 1994)

Federal agencies are also required when appropriate to "...collect, maintain, and analyze information on the consumption patterns of populations who principally rely on fish and/or wildlife for subsistence. Federal agencies shall communicate to the public the risks of those consumption patterns." (Clinton, 1994)

The work of the 'Center for Environmental Excellence' entitled: "Environmental Justice" relates that Executive Order 12898 was signed by President Bill Clinton on February 11, 1994 which is known also as Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations and is an Executive Order that makes the requirement of each Federal agency to "the greatest extent practicable and permitted by law to 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." (Center for Environmental Excellence, 2008) the specific actions that are stated to be directed in NEPA-related activities include those as follows:

Analyzing environmental effects, including human health, economic, and social effects on minority populations and low-income populations when such analysis is required by NEPA;

Ensuring that mitigation measures outlined or analyzed in [Environmental Assessments] EA's, [Environmental Impact Statements] EIS's, and [Records of Decision] ROD's, whenever feasible, address disproportionately high and adverse environmental effects or proposed actions on minority populations and low-income populations;

Providing opportunities for community input in the FHWA NEPA process, including identifying potential effects and mitigation measures in consultation with affected communities and improving accessibility to public meetings, official documents, and notices to affected communities; and in implementing Section 309 of the Clean Air Act, EPA must ensure that the agencies have fully analyzed environmental effects on minority communities and low-income communities, including human health, social, and economic effects. (Center for Environmental Excellence, 2008)

The Center for Environmental Excellence states that the report 'Technical Methods to Support Analysis of Environmental Justice Issues (National Cooperative Highway Research Program) Project 8-36(11), provided the explanation of the U.S. DOT Order as follows:

For all groups covered by Executive Order 12898, the U.S. DOT order establishes an "avoid if practicable" standard of protection; and the [USDOT officials] will ensure that any of their respective programs, policies or activities will only be carried out if further mitigation measures or alternatives that would avoid or reduce the disproportionately high and adverse effect are not practicable. In determining whether a mitigation measure or an alternative is 'practicable,' the social, economic (including costs) and environmental effects of avoiding or mitigating the adverse effects will be taken into account." (Center for Environmental Excellence, 2008)

"more stringent requirement" was set by the U.S. DOT order in regards to groups protected under Title VI which includes the USDOT ensuring that "any of their respective programs, policies or activities that will have a disproportionately high and adverse effect on populations protected by Title VI ('protected populations') will only be carried out if":

1) a substantial overall need for the program, policy, or activity exists, based on the overall public interest, and 2) alternatives that would have less adverse effects on protected populations either i) would have other adverse social, economic, environmental or human health impacts that are more severe, or ii) would involve increased costs of extraordinary magnitude." (Center for Environmental Excellence, 2008)

It is stated that the roles of each transportation agencies, metropolitan planning organizations and the public related to environmental justice are those stated as follows:

FHWA's environmental justice website provides the following explanation of the roles of transportation agencies, metropolitan planning organizations and the public related to environmental justice.

Federal Agencies -- FHWA and FTA staff assure that Federal transportation regulations and policies affirm and reinforce nondiscrimination; Federal staff will take other important actions to:

Ensure that Title VI compliance and environmental justice principles are understood and implemented in metropolitan and statewide planning activities and in NEPA processes and documents; and Identify effective practices, potential models, and other technical assistance resources to promote the integration of environmental justice into all planning, development, and implementation activities. (Center for Environmental Excellence, 2008)

State DOTs are required to:

Develop the technical capability to assess the benefits and adverse effects of transportation activities among different population groups and use that capability to develop appropriate procedures, goals, and performance measures in all aspects of their mission;

Ensure that State Transportation Improvement Program (STIP) findings of statewide planning compliance and NEPA activities satisfy the letter and intent of Title VI requirements and environmental justice principles;

Enhance their public-involvement activities to ensure the meaningful participation of minority and low-income populations; and Work with Federal, State, local, and transit planning partners to create and enhance intermodal systems, and support projects that can improve the natural and human environments for low-income and minority communities. (Center for Environmental Excellence, 2008)

Requirements of MPOs include certification of compliance with Title VI and addressing environmental justice which includes the MPOs need to:

Enhance their analytical capabilities to ensure that the long-range transportation plan and the transportation improvement program (TIP) comply with Title VI;

Identify residential, employment, and transportation patterns of low-income and minority populations so that their needs can be identified and addressed, and the benefits and burdens of transportation investments can be fairly distributed.

Evaluate and - where necessary - improve their public involvement processes to eliminate participation barriers and engage minority and low-income populations in transportation decision making. (a) Transit Providers -- Transit agencies support Title VI and environmental justice principles when they: (a) Ensure that new investments and changes in transit facilities, services, maintenance and vehicle replacement deliver equitable levels of service and benefits to minority and low-income populations; (b) Avoid, minimize or mitigate disproportionately high and adverse effects on minority and low-income populations; and - Enhance public involvement activities to identify and address the needs of minority and low-income populations in making transportation decisions. (Center for Environmental Excellence, 2008)

It is related that the public and groups serve to "...advance the letter, spirit, and intent of Title VI and environmental justice in transportation when they:

Participate in public involvement activities (meetings, hearings, advisory groups, and task forces) to help responsible State and local agencies understand community needs, perceptions, and goals; and Get involved with State and local agencies to link TEA-21 programs with other Federal, State, and local resources to fund projects that support community goals. (Center for Environmental Excellence, 2008)

VIII. EFFECTS of EXECUTIVE ORDER 12898

The work of O'Neil (2007) reports a study that was conducted through a historical analysis in evaluating the impact of Executive Order 12898 on the equitability of the Superfund program." (O'Neil, 2007) Findings in this study are stated to suggest that "despite environmental justice legislation. Superfund site listings in minority and poor areas are even less likely for sites discovered since the 1994 Executive Order." (O'Neil, 2007) Conclusions stated by O'Neil are as follows: "Executive Order 12898 for environmental justice has not increased the equitability of the Superfund program." (2007) Specifically stated as evidence are the following points:

EPA is essentially relying on state and local governments to deal with the environmental justice concerns...even though the executive order does not apply to state or local governments, and, absent specific state or local law, they have no obligation to consider environmental justice.... (www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1913562" U.S. GAO 2005; as cited in O'Neil, 2007)

EPA has not fully implemented Executive Order 12898 nor consistently integrated environmental justice into its day-to-day operations. EPA has not identified minority and low-income, nor identified populations addressed in the Executive Order, and has neither defined nor developed criteria for determining disproportionately impacted. (www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1913562" U.S. OIG 2004; as cited in O'Neil, 2007);

study examining the executive order as it applies to pesticides in the State of Florida concluded, "the goals of the Executive Order 12898 are not being achieved by the U.S. Environmental Protection Agency" (www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1913562" Murphy-Green and Leip 2002; as cited in O'Neil, 2007);

Missing, is stated to be "support at the Federal level, these programs are left without federal funding and are inconsistent across the nation. Because neither minority nor low-income have been defined at the federal level, regional offices are left attempting to create these definitions on their own and using regional funding to implement programs." (O'Neil, 2007) in 2004 the U.S. OIG reports: "[in] the absence of environmental definitions, criteria, or standards from the Agency, many regional and program offices have taken steps, individually to implement environmental justice policies. This has resulted in inconsistent approaches by regional offices. (as cited in O'Neil, 2007)

Whitman (2001), U.S. EPA administrator, rewrote the Executive Order 12898 and did away with the considerations that was previously given to minority and poor populations in terms of their being affected most by environmental hazards." (as cited in O'Neil, 2007) Specifically Whitman wrote that environmental justice, in its new definition would "...mean the www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1913562" fair treatment of people of all races, cultures, and incomes with respect to the development, implementation and enforcement of environmental laws and policies, and their meaningful involvement in the decision making process of the government. (U.S. OIG 2004) This resulted in a change because while "...advocating fair treatment of all people in regard to environmental laws and policies is certainly commendable, the memorandum is and was not the letter or the spirit of Executive Order 12898. The original wording of the 1994 executive order, required specifically "identifying and addressing" programs that disproportionately affect "minorities and low-income groups." (O'Neil, 2007)

The order clearly requires agencies to take special consideration of populations that historically have been overburdened with environmental hazards. In contrast, Whitman's 2001 memorandum indicates a distinct policy shift; agencies are being told they no longer need to consider race, ethnicity, or other socioeconomic indicators in their programs or policies. Although this 'blind' justice may seem impartial, these agencies, and the U.S. EPA in particular, were told nearly 7 years before to specifically target populations to ensure proper and proportional treatment. Furthermore, it disregards the historically inequitable treatment and burden that minorities and the poor have born and the reason why the order was constructed initially." (O'Neil, 2007) This "lack of direction" is stated by O'Neil to appear to be "coming from the highest levels at U.S. EPA..." (2007) Indeed, O'Neil states "The choice of spatial variables in environmental justice or environmental equity studies is always contentious." (2007)

IX. CHICAGOLAND AREAS & ENVIRONMENTAL JUSTICE

The work of David Jaguib Pellow entitled: "The Movement for Environmental Justice in Chicago and the United States" relates the story of a lady named Hazel Johnson who is described as "a soldier in the army fighting against environmental racism." (2004) the organization to which Hazel Johnson belongs is 'People for Community Recovery' (PCR) which has been "leading the battle for environmental justice on Chicago's South Side." (Pellow, 2004) Johnson's home is Altgeld Gardens, a public housing community on the South Side of Chicago. This housing community was constructed on a landfill in 1945 "on the edge of an old industrial and 'sanitary' dump (or sewage farm)." (Pellow, 2004)

Approximately 10,000 residents live now at Altgeld Gardens with demographics as follows:

African-American - 97%

Below the Poverty Level - 62% (Pellow, 2004)

Altgeld Gardens is surrounded by approximately 53 toxic facilities which includes landfills, oil refineries, waste lagoons, a sewage treatment plant, cement plants, steel mills, coke ovens, and incinerators." (Pellow, 2004) it is related that of the 53 toxic facilities, 42 sites have been "evaluated and considered for the federal Superfund program, and 36 are regulated as hazardous waste facilities under the federal Resource Conservation and Recovery Act (RCRA)." (Pellow, 2004)

The South Side of Chicago has been a popular dumping site since the late 1800s and heavy industry moved into the area. The city opened up a 300 acre municipal dump on the South Side in 1940 and effectively gave "official sanction to the Far South Side's use as a waste depository for the entire metropolitan area." (Pellow, 2004) According to Pellow, the residents in this Altgeld Gardens "breathe in an estimate 126,000 pounds of toxic pollutants emitted into the air each day and are surrounded by the most landfills per square mile in the United States." (Pellow, 2004)

In 1983, a study was conducted of the South Side which is stated to have "turned up cancer rates double those in the rest of the city." (Pellow, 2004) This is one of the twenty communities in Chicago with the highest rate of low-birth weight infants as well as the highest infant mortality rate and the highest rates of individuals who have been poisoned by lead as well as the highest rates of cancer mortality." (Pellow, 2004) Hazel Johnson posits that this environmental racism is actually "another form of genocide." (Pellow, 2004) Additionally, this study notes that Johnson stated "This is a forgotten area...We don't hardly get city services. it's like we were a little island unto ourselves." (Pellow, 2004) Pellow states that studies conducted in Chicago in the "162 toxic hot spots" states findings that 99 of these are "in zip codes that are at least 65% people of color..." (Pellow, 2004) the residents of Altgeld Gardens have made great efforts in their mobilization around toxic issues on the South Side of Chicago including:

The Committee to Protect the Prairie;

Irondalers Against the Chemical Threat;

Hegewisch Organized to Protect the Environment (HOPE); and the local CID (Waste Management) landfill. (Pellow, 2004)

Pellow (2004) reports that the environmental justice movement is " a force unlike any other. Producing a more balanced and more radical concern for the natural and social environment, this movement has united strange bedfellows and exposed divisions within some communities." (2004)

The work of Sriraj, Fruin and McNeil entitled: "Analysis of the Environmental Justice Compliance of the Chicago Transit Authority (CTA)" states that environmental justice (EJ) derives its principles and foundation from Title VI of the Civil Rights Act of 1964. The Executive Order 12898 issued in 1994 mandated all agencies receiving federal funds to be environmental justice complaint." (2003) This order requires compliance to Environmental Justice in the form of ensuring that the "minorities, ethnic population groups as well as the low-income population in a region are not adversely affected due to the implementation of programs funded with federal funds." (Sriraj, Fruin and McNeil, 2003)

Sriraj, Fruin and McNeil state in regards to transportation equity that a primary concern of those who plan and legislate transportation since the civil rights movement however, over the past twenty years "environmental justice has progressively gained momentum in the last decade and along with it have attempts to ensure that no target population is disproportionately affected by projects involving federal dollars." (Sriraj, Fruin and McNeil, 2003) it is additionally stated that the Federal Transit Administration has stated three principles of environmental justice to guide transit agencies in their compliance efforts" and specifically stated are the following:

1) Ensure that new investments and changes in transit facilities, services, maintenance, and vehicle replacement deliver equitable levels of service and benefits to minority and low-income populations;

2) Avoid, minimize, or mitigate disproportionately high and adverse effects on minority and low-income populations; and 3) Enhance public involvement activities to identify and address the needs of minority and low-income populations in making transportation decisions. (Sriraj, Fruin and McNeil, 2003)

It is reported in the study of Sriraj, Fruin and McNeil (2003) that the CTA "for the purposes of this project...divided its service area into six geographic zones, Loop North, Northwest, South, Southwest and West. Broad descriptions were chosen for zonal boundaries and the results are compiled as approximations which are held to be "representative of the zone's true demographic makeup." (Sriraj, Fruin and McNeil, 2003) the demographic analysis is stated to have been conducted at two levels and specifically:

At the zonal level; and at the census tract level.

This analysis states that all census tracts are included which have their geographic center located within the six zones which has provided for "realistic approximations of the demographic and economic conditions in each service area. These numbers are stated to be "only approximations and future work on defining the appropriate boundaries will continue in the second half of this study based on discussions with staff at the CTA." (Sriraj, Fruin and McNeil, 2003) the following table illustrates the zonal populations and the number of census tracts within each zone. Those who qualify as low-income have income "within 150% of the poverty threshold." (Sriraj, Fruin and McNeil, 2003)

Target Population Demographics

Source: Sriraj, Fruin and McNeil (2003)

The population differences between zones can be seen in the foregoing figure which also reveals that there are high concentrations of target populations residing in the same zone. It is stated that the CTA statutory service boundaries and the city of Chicago are both claimed by Cook County, Illinois and the EJ neighborhood criteria were obtained through "computing the appropriate demographic and economic information for Cook County and using that information as the threshold for the individual census tracts." (Sriraj, Fruin and McNeil, 2003) the thresholds for each of the target populations in this study are stated as follows:

Black - According to the 2000 Census, 26% of all residents of Cook County are Black. All census tracts with a Black population greater than 26% qualify as EJ neighborhoods.

Hispanic - According to the 2000 Census, 20% of all residents of Cook County are Hispanic. All census tracts with a Hispanic population greater than 20% qualify as EJ neighborhoods.

Low-income - All households that are within 150% of the poverty threshold are considered low-income. Using the reference area technique, this population is 21.5% of the total population in Cook County. Accordingly, census tracts which have more than 21.5% of their population within the low-income threshold, qualify as EJ neighborhoods. (Sriraj, Fruin and McNeil, 2003)

The following figure shows the breakdown of EJ census tracts and non-EJ census tracts by zone.

Source: Sriraj, Fruin and McNeil (2003)

Sriraj, Fruin and MacNeil (2003) state as their objective in making this comparison the objective of making the provision of a "detailed look at selected demographic differences between the respective populations of people living inside census tracts that are considered EJ neighborhoods and those that are living in census tracts designated non-EJ neighborhoods within each of the six CTA service zones and the service area as a whole." (Sriraj, Fruin and McNeil, 2003)

What is being sought in this study is "high concentrations of Blacks, Hispanics, and/or low income residents and not at individuals themselves." (Sriraj, Fruin and McNeil, 2003) Stated as a final issue for consideration is that "one individual can be Black, Hispanic and low-income. These populations do not have clearly defined borders rather they have overlapping boundaries." (Sriraj, Fruin and McNeil, 2003)

It is reported that the area in this study consists of 1,107 census tracts according to the 2000 decennial census. These tracts qualify as EJ tracts under either the race, ethnic or low-income categorization. The most striking detail about the distribution is that this study area has more census tracts under the EJ classification (762) as opposed to the non-EJ classification (345) or 69% compared to 31%. " (Sriraj, Fruin and McNeil, 2003) Most of these EJ tracts are located in the South and West zones at 43% while the EJ tracts in the Northwest zone are stated at 11% of the total tracts in the census. The following statistics are stated to show the concentrations of the target populations in EJ neighborhoods:

System-wide, 86% of the low-income population is found to live in the EJ tracts, with only 14% living in the non-EJ tracts.

System-wide, 96% of the Black population is found to live in the EJ tracts, with only 4% living in the non-EJ tracts.

System-wide, 87% of the Hispanic population is found to live in the EJ tracts, with only 13% living in the non-EJ tracts.

System-wide, only 11% of the White population is found to live in the EJ tracts, with 89% living in the non-EJ tracts. (Sriraj, Fruin and McNeil, 2003)

When comparing the zones with the greatest population of the target populations the data is stated to have shown even higher amounts of concentration as follows:

The South zone has the largest Black population in the study area (586,184) and the EJ tracts in this zone account for nearly all (99.9%) of the Black population in the zone.