Air Date: Week of January 21, 1994

Host Steve Curwood talks with attorney Luke Cole about civil rights law in the environmental justice movement. Cole says the Civil Rights Act is becoming an increasingly valuable tool against environmental racism. And, under pressure from grassroots activists, the EPA is catching on. They have started paying attention to environmental civil rights violations.

Transcript

CURWOOD: The EPA's decision to begin using the Civil Rights Act to examine toxic facility siting... has gotten a positive although somewhat cautious response from environmental justice activists and attorneys. Luke Cole, an lawyer with the California Rural Legal Assistance Foundation, has written about environmental racism for the Michigan Law Review. Mr. Cole recently won a state court ruling that Latinos in California's Kettleman City had been unfairly discriminated against by local authorities... in the siting of a toxic waste incinerator. That ruling, which is under appeal, held that Spanish-speaking residents had not been kept properly informed during the permitting process. Mr. Cole joins us on the line from member station KQED in San Francisco. In your view, what's the importance of the E.P.A.'s investigation in Louisiana?
COLE: Well, I think the Louisiana case is a case that environmental justice activists around the country are watching very closely. Because whichever way it comes out, it's going to kind of start the ball rolling for using Title Six in other local struggles.
CURWOOD: Now, what's the power of Title Six, what's the interest that you litigators in this field have when the words "Title Six" are put together?
COLE: Well, in civil rights law, there are two different standards, two different burdens of proof. One is proving discriminatory intent, and the other is proving discriminatory impact. All of the cases that have been reported so far have alleged violations of the Fourteenth Amendment of the Constitution, that is, violations of the equal protection clause. Now that requires a proof of discriminatory intent by government decisionmakers. It's very difficult to find the kind of smoking gun, to find a legislator who's said, on the record, 'I'm doing this because it's the black people who live there', or ' the Latino people who live there'. The strength of Title Six -- actually, regulations under Title Six that are promulgated by government agencies such as the EPA, Department of the Interior, Department of Agriculture, Department of Defense -- all have discriminatory impact clauses. So that if a community can show that a government decision is going to have a discriminatory impact -- that is, say, the black community is going to get more of the burden from a toxic waste site than the white community -- then that is actionable under these regulations.
CURWOOD: Give us a little history, please, Mr. Cole. I understand back in 1971, the EPA actually decided not to use any civil rights laws in its enforcement. Why do you suppose that was?
COLE: Well, in 1971, the head of the EPA, William Ruckelshaus, testified before Congress that their mission was to control pollution, it was not to remedy any of the social problems of the time. And the EPA argued at the time, in the early 1970's, that they were having enough problems convincing local municipalities to install expensive pollution control equipment and sewage equipment without introducing another potential problem, which is what they saw civil rights as.
CURWOOD: But back then, there was a sense that there could be a question, then, of civil rights.
COLE: Right. And in 1975, actually, the United States Commission on Civil Rights
chastised the EPA quite strongly for their refusal to look at civil rights data in their permitting and in their sewage grants.
CURWOOD: So what do you think has changed the EPA's mind? Is it just the change in administration, here?
COLE: I think what's changed the EPA's mind is this massive grassroots movement across this country -- the movement for environmental justice. That movement put so much pressure on the Bush Administration and then on the Clinton Administration that environmental justice has become a priority. EPA at the beginning of the year sent out a directive to its regional offices saying, 'Give us some cases. We want to do some cases that look like this. We are putting environmental justice high up on our priority list.'
CURWOOD: What do you expect the EPA will do in these cases ... what's you best guess?
COLE: Our hope is that they would require states to administer their permitting programs so that there was not a racially disparate impact. So that there was not a greater toxic burden on African American communities in Louisiana than on white communities. That may be optimistic. I think what they'll probably do is come up with a very narrow remedy that applies only to this site, rather than to the entire state permitting program.
CURWOOD: Let's look into your crystal ball for a moment. You've been looking at civil rights laws and questions of environmental justice for much of your professional career. What do you think that this government's willingness to open a Title Six case in Mississippi and Louisiana means for the environmental justice movement as a whole?
COLE: Environmental justice struggles are political and economic struggles, not legal struggles -- so that coming up with one more legal tool is important at the margins, but I don't think it's going to be the thing that makes or breaks the environmental justice movement. However, activists across the country are looking very closely at these two cases in Louisiana and Mississippi as some indication of whether the federal government will be a friend or foe in some of these environmental, local environmental justice struggles.

CURWOOD: Thank you. Luke Cole is a staff attorney with the California Rural Legal Assistance Foundation. Thank you, sir.
COLE: Thank you.