Virtual Guest Speakers 

February 20:

Robert Kuehn - Director, Tulane Environmental Law Clinic
Topic: The Shintech PVC plant siting controversy in Convent, Louisiana
 
Biography
Virtual Lecture  (Real Audio format)
Transcript of Lecture
Other links
Discussion List   (Professor Kuehn will participate from February 27 - March 6).

Short Biography of Professor Robert Kuehn
(stolen from www.law.tulane.edu/studorg/els/faculty.htm)

Biography: Professor Robert Kuehn, director of Tulane's environmental law clinic, is a graduate of Duke University, George Washington University School of Law, Columbia University School of Law, and Harvard University School of Public Health.
After graduation from law school, he clerked for judges on the U.S. District Court for the Southern District of Florida and the U.S. Court of Appeals for the Eleventh Circuit. Prior to joining the Tulane faculty, Professor Kuehn was an attorney in the
Environmental Enforcement Section of the U.S. Department of Justice in Washington, D.C., and worked as a Special Assistant
U.S. Attorney with the U.S. Attorney's office in Washington, D.C. While with the Justice Department, he prosecuted civil
enforcement actions under a wide range of pollution control and hazardous waste laws. At Tulane, in addition to his teaching
responsibilities, he has authored articles on enforcement and environmental justice issues. Mr. Kuehn tends to reserve his free
time for visits to less-developed countries of the world; he recently returned from an extended trip through eastern Europe.


Virtual lecture

Tulane's Environmental Law Clinic and the Shintech siting controversy

This lecture is recorded in RealAudio format.  To download the free RealAudio Player, click here.


Transcript of lecture

Steve Johnson (introduction):

I'd like to thank everyone for coming out to hear our guest speaker this afternoon. As you may know Mercer, Southern Illinois, West Virginia, Lewis and Clark, University of Oregon, Pace, and Wuhan University in Wuhan, China, are working together this semester on a virtual environmental law guest speaker project. Under the project, a guest speaker will speak at one of the participating schools. The talk will be taped and made available in audio and text format over the Internet; and the speaker will participate on a discussion list with students and faculty from participating schools after the talk. There is a web page that describes the project, and I put the address up here on the board.
 

We are honored to welcome Robert Keuhn, the director of Tulane's Environmental Law Clinic today as the inaugural speaker for the series. Especially since he chose to spend Mardi Gras weekend here in Georgia, instead of in New Orleans. Professor Kuehn is a graduate of Duke University and George Washington and Columbia Law Schools. Prior to becoming director of Tulane's Environmental Law Clinic, he was an attorney in the environmental enforcement section of the United States Department of Justice. Professor Kuehn will talk to us this morning about the important environmental justice work the clinic is doing regarding the siting of a new PVC production plant in Convent, Louisiana.
 

I was pleased that he was able to be our inaugural speaker because environmental justice is one of the most important issues in environmental law today. For those of you who may not be familiar with the topic, several studies over the last decade and more have indicated that low income communities, African American communities, and Hispanic Communities are disproportionally exposed to higher levels of pollution from hazardous waste facilities and chemical or other industrial plants. As a result, representatives of the Civil Rights community and the Environmental community have been working together to address these disparities and to achieve environmental justice. You will see from the talk today that the tools that are used to achieve environmental justice come from Civil Rights Laws like Title VI and Equal Protection laws, and from environmental laws like the Clean Water Act and the Clean Air Act. So without further adieu, I give you Professor Robert Kuehn.
 

Professor Robert Kuehn:
 

Thank you, Steve. So that you won't feel so guilty, I just want to let you know that when I was (I don't want to age myself), but when I was in high school and college, I played in a number of bands and my idols were the Alman Brothers. I feel like I'm on sacred ground here and I was glad to come to Macon just because that it is the home of the Alman Brothers. And I'm hoping to convince my wife that rather than us rush off to Savannah afterwards, we can go see the Georgia Music Hall of Fame.
 

I am very pleased to be the inaugural speaker on what may be an exciting development in legal education with this virtual Environmental Law classroom. It is also a tremendously exciting time for us at Tulane, as you can imagine, because when I speak today about what is going on, maybe you as students can put yourself in the shoes of the students at Tulane who have been basically doing all the legal work on this case, and trust me this case should be hard for a law firm. It would be surely hard also for a large public interest environmental law firm, and it has surely been very taxing on us.
 

The whole thing, really, the Shintech case that I am going to talk about today, is all about an attempt by Shintech, this Japanese petrochemical company, to build a new polyvinyl chloride plant in a rural area of Louisiana between Baton Rouge and New Orleans. If you have ever been there, for something other than Mardi Gras, and if you traveled that area up and down the river, it is also sometimes know as the chemical corridor because it perhaps has the highest concentration of petrochemical plants there than anywhere in the world. There are about forty-three different facilities in that sixty-mile area with toxic air emissions over one hundred thousand pounds per year. It has also been not so affectionately referred to as cancer alley because of some studies some years back that showed very high incidences of cancer among the residents there.
 

Shintech proposed to build, or proposes to build, a 1.1 billion dollar PVC plant on three hundred acres of land in this rural area. It also hopes to expand, and if they have their vision turn out the way they'd like it to be, between their own plant and other plants related to their production, a three thousand acre area would be used for petrochemical production. Within two miles of that area are thousands of residents. As you can imagine, there are schools, lots of homes, and, I think it is important to know, that within a four-mile area of where Shintech would locate, there are already ten other facilities that release toxic pollution. This part of the state, this parish, is already subjected to twenty-three million pounds of toxic pollution per year, and at the time I am here today there are two new steel plants being built, because the area was recently redesignated from non-attainment, or dirty air, to attainment, or clean air. There's a number of other plants in the area that are expanding.
 

Shintech would add six-hundred thousand pounds of toxic air pollution per year. It would discharge six-million gallons of toxic water pollution in the Mississippi River per day. I will be drinking that; I am down the stream, so that is surely a concern for me. Analysis by Shintech themselves shows that people within a four, and in some cases a six-mile zone, are in what they call the vulnerability zone, what my clients call the kill zone, which means if there is a serious explosion at the plant, people could potentially suffer serious injury or death. Therefore, not surprisingly the motto of the residents that we are helping up there is "enough is enough," though many people suggested that it ought to be, "too much is too much."
 

When the plant first approached local residents in the summer of l996, the residents immediately said, "you know we have a lot of pollution, and we also think that there is a very serious environmental justice issue here, and we would like for you to rethink your project in that light." The area around the plant is 80% or more African-American in a state that is only 30% African- American. More than 40% of the residents in the area are below the poverty level. The median income in the area is one-half the income in the parish. The median income of the parish is a third of the median income in the United States and if you think that jobs are important, or maybe that people should buy into that because there's a job, it would only create 165 jobs of which I can assure you a Walmart would create more jobs than that. And, in fact, there are already ten, as I told you, toxic facilities in the area, yet there is massive unemployment and, as you heard, poverty. In fact, in a recent study done by Dr. Paul Tomblay at LSU, he said that the number, the amount of toxic pollution emitted in Convent per manufacturing jobs is already six times the state average. If you want to talk about a trade off between jobs and the environment, then I would at least hope that you would keep that in mind.
 

Tulane got involved because we have an Environmental Law Clinic, and like other clinics across the country, we offer free legal assistance to indigent persons or community organizations that need help on environmental issues that might threaten their community. Late in the fall of 1996, we were approached by a group of residents who brought us literally a stack of permit applications, a foot and half high or 2 feet high, and said "We need your help, we are very worried about this plant and the vinyl chloride emissions in the air and the dioxin emissions in the air and the accident potential, and all these discharges to the water." We looked it over and said, "Boy, this looks like a lot of work; any chance you could find someone else?" They cameback two weeks later, and said that they had approached a lot of other people, including some national organizations and they all begged out, I believe on resource grounds, and so we felt that we should, because of good legal issues, and this was surely a community was in badly need of help.
 

We decided that we at the clinic would step in, and what follows, and I want to tell you about today, is I think a very good example of what happens in a major federal permitting case where there is a facility that needs a panoply of federal and state permits. I think that I probably will not have enough time to tell you about all the Louisiana politics, which you can image are spicy if not corrupt. I surely will talk about Environmental Justice, which was the other side of this case. It's not just about enforcing Environmental Laws, but it also about thinking about what it means as far as the possible discriminatory effect of this facility on the local residents.
 

O.K. I am going to put on the board here for you not so virtual participants a list of some of the things that I am going to talk about today and the different legal actions that have gone on in the case and I will follow up at the very end of it talking specifically about environmental justice. The first thing that you might want to know is that Shintech needs four toxic air permits to build their facility. They need a PVC permit. They need a vinyl chloride permit. They need an ethylene dichloride permit. They need a chlor-alkali permit. And, in December 1996, the State put out some drafts permits. There was a Public Hearing held on that that went until 1:00 a.m. in the morning. The State, in spite of what we thought were some very good legal arguments against them, and in spite of what we thought were some fairly substantial testimonies against them by the local residents, in their infinite wisdom, decided they were going to issue those four permits, and they did in May of l997.
 

Upon review by the students in the clinic and our lawyers, we thought that that permit had been issued illegally. We thought that substantively it failed to meet the requirements in the law for discharges of toxic pollutions, something, if you've studied a lot of environment law, that is called MACT standards. We thought that, substantively, it also failed to properly regulate what are called conventional non-toxic pollutants, under what is called the BACT Standard. We argue, or believe, that it violated a State constitutional provision that addresses the right of all people to deliberate and fair consideration of environmental harms, and we were very concerned about the process by which the State had issued that permit, including in the hearings allowing Shintech and its supporters to speak first (Shintech had flown in a whole bunch of people from Texas to speak well of them), and by the fact that (the few that have taken Administrative Law may not know that this is the way that the reality works), after the close of the comment period, the State allowed Shintech and its supporters to submit additional evidence into the record without informing anyone else of that fact. I think if you do take Administrative Law, you are usually lead to believe that there is comment period, and it closes, and that is the end of it. And the agency decides, and if you don't get your comments in on time, then it is too late. Not so here! The decision was made to sue on these permits because we believed they were issued illegally, we filed a lawsuit in May of 1997 challenging the four permits. As you will hear in a few minutes, the EPA agreed with us with many of the problems with the permits, and at this point in time, that State Court lawsuit has been stayed, because the State is in the process trying to fix some of the problems that have come out of the permit.
 

Shintech also sought, and needs, a Water Pollution Permit Discharger permit, because as I said they want to discharge six million gallons of toxic water pollution in the Mississippi River per day. Another hearing was held, and a permit was issued in May of 1997. Once again, we looked at that permit and thought that it had problems. Wwe thought that it was not sufficiently protective and we had more procedural problems. In this particular case, after the close of the comment period, and in fact just one week before they issued the decision, they got a document from EPA that discussed the proper control technology. No one else had ever seen that document. They relied on that document almost exclusively for the basis for their decision. We made the argument that you have to have those documents in the record available to everyone to see and to critique before you can make a decision. We filed another suit in State Court in July 1997, challenging that water permit. The Judge we went to got very, very interesting in settling the case, thinking, I think, wouldn't that be a good thing to do; wouldn't that be quite a coup. There were a series of face to face meetings with the residents and the Judge, the Judge and the Agency, the Judge and Shintech, and believe it or not, even the Judge and some people that weren't even parties to the case. A pretty interesting question whether or not a judge, in this case who was going to be the fact finder in the case, should be engaged in settlement discussions in which she literally was telling people to tell them their bottom line. It happened, as they say in Louisiana, blank happens in Louisiana. And in January, she upheld the water permit, though she did take a very interesting ruling that some people think has the potential to be quite dramatic if applied here or elsewhere in Louisiana or across the country. She said that given the obvious impacts that this facility would have on the local residents, she said that the State's action in permitting the facility constituted a taking of property for which the residents were due compensation. You know, the taking clause of the Constitution says the state can't take property without compensation. Although we haven't seen the written ruling yet, the announcement from the bench seemed to be her view that in the state giving permission here, and believe me in this case they have done a lot more than give permission. They've aided Shintech, they've given Shintech money and tax payer assistance. So, I guess it was her belief that that was sufficient state action, such that if the plant's permitting and operation would effect-- she seemed to be only worried about property values, not health values, would effect the property values of people as she put it, living adjacent to the plant, that they were entitled to compensation, and she told Shintech and the State that they needed to rewrite the permit to include that provision. Now, if that provision stands, and if it is applied to other permits in the state of Louisiana, then potentially, it's a fairly interesting proposition which would be that if the state has reason to believe that the effect of their permitting action, whether it be a landfill or a chemical plant or whatever, might be to harm the property values of people in the area, then they need to condition the approval of the company agreeing to compensation. What is the process for that compenstation? How do you figure out who is injured and who isn't, how much they get, whatever? Who knows? So, we will just have to see whether that decision stands up, and if it does, how it is interpreted and how it may be applied in other cases, and whether or not other Judges across the country thinks that a proper way to go.
 

Shintech's also gonna be burning some hazardous wastes and creating dioxins, which is, in some peoples view, the most dangerous man-made chemical floating around the environment today. In order to incinerate that waste product, they need a hazardous waste permit under what is often referred to in federal law as RCRA--Resource Conservation Recovery Act. They've applied for that pemit, and even though it would appear that everything is ready to go, at least from a state's perspective in putting out that draft permit for comment, that permit has been msyterious held up. Our clients suspect it is because there has been a lot of discussion about the effects of vinyl cloride which is going to emitted out of the plant under these air permits. They suspect that Shintech, at this point in time, doesn't really want the discussion to also involve dioxin, which might in many people's view might be even a nastier chemical in the waste permit, so they may be just holding that back figuring that once the air permits are done, they can come in and get these permits for the hazardous waste incenerator.
 

It is also the case, though I see I left it off the board, it is hard for me to keep up even with all these legal actions, that in Louisiana, we have a State Coastal Zone Management Program. I am sure, like literally every other state that borders on an ocean area or gulf area of the United States, as a condition of building in the coastal zone of Louisiana, one needs to get a coastal use permit to show that that activity either will not harm coastal resources or has been designed in a way to mininimize or mitigate those problems. In this particular case, it was not the State, but the local government, that has permission under Louisiana law to issue a coastal use permit. With the exception of perhaps one of the seven local officials, they are all very big cheerleaders for Shintech, and yet they were acting in this particular case not in a legislative capacity, where perhaps any possible bias is ok, but in a permitting capacity. Not surprisingly, they proceeded to issue those coastal use permits with literally nothing said about it--didn't make the findings, didn't submit the documents to the public. In fact, there are some very interesting documents in the file that show really an enormous amount of bias by those officials and an inability to provide the local residents with a fair and impartial decisionmaker. We also sued in State Court challenging that permit. Shintech and the local government tried to get that case dismissed on a timing issue. They lost, and we are now awaiting trial on that issue.
 

If you can imagine the process of doing a case like this, information is a very important commodity for anyone representing a community like this and much of that information is in the public domain and public agency files. And we have made surely a lot of what we call public records requests, similar to the Federal Freedom of Information Act. When we made some requests from the local parish , they did a couple of things we think broke the law. They said you have to pay 75 cents per page for every piece of paper. I don't think Kinkos charges any more than10 cents a page, and I think that they are trying to make money. And the State law, in fact, says that the governments are supposed to provide those documents at cost. In fact, all the case law says that cost does not even include people's time. That is pretty expensive paper and/or electricity. They also very conveniently seemed to have misplaced or destroyed a document that contained a sort of political strategy, identifying who on the council would favor Shintech or not, what their race was, how they could be gotten to--pretty convenient. We have sued under the public records law, alleging that the failure to provide documents at cost, and the lost or destroyed documents, violated the public records act. That case is in discovery right now, and we are hoping that the parish might see the light and lower that 75 cents charge.
 

We have also made a number of public act records requests on the DEQ. They have, at this point, withheld 30 to 40 documents on something that you can ask your Evidence professor about the next time you go to class called the expert privilidge. Don't know what that is -- haven't see any cite to it. According to the State, if they have a member of their staff who they consider an expert, then they don't have to allow people to see any documents that that person creates. There is something that the Freedom of Information Act recognizes called the deliberative privilege, which provides that documents that the agencies is generating as part of the process of making a decision should not be revealed, because it might shield the free and open exchange of opinions and ideas among government employees, but we don't have that in Louisiana. This is, quite frankly, part of a bigger strategy by the State to deny access to the opponents to lots of documents and lots of meetings. I don't know when this will go on the line, but I believe that by the time it does you may see a law suit on that, because we think it is completely outrageous for the State to be withholding those documents.
 

One of the actions that we have taken on behalf of the citizens that's gotten the most attention, has been a petition under Title V of the Federal Clean Air. Title V was part of the Clean Air Act that was added by Congress in 1990 to address the fact that, unlike with the water program, facilities in America at the time that discharged toxic air pollution didn't even need a permit, unless the state decided that they needed one. Nothing in Federal law said anyone needed a permit to emit toxic air pollution. So, Congress developed this permitting program in Title V of the 1990 Clean Air Act that required all facilities emitting certain quantities of toxic air pollution to apply for and obtain a permit, and, like much of environmental law, it provides for EPA to authorize States to run that permitting program.
 

One of the very interesting things about the Shintech case and a very interesting federalism issue, if you want to call it that, or devolution, the process of giving programs from the Federal Government to the State, is the fact that for the water permits and the hazardous waste permits and the air permits, that if Shintech had applied for those permits three years ago, the State Department of Environmental Quality really wouldn't be involved. All those permits would have to come from EPA. But as part of this process of giving programs to the states to run with federal oversight----the State of Louisiana has authority and all the citizen battles have been with the state agency as that new permitting authority.
 

Nonetheless, in the Title V Clean Air Act Provision, it does provide for the US Environmental Protection Agency to maintain oversight of State toxic air permits, and to review them to ensure that they comply with federal law. So, back in the process when the State issued four toxic air permits--they had to send those permits to EPA Region VI in Dallas for a review. Somewhat shocking to us, because we thought there were lots of problems with that permit, Region VI did not object, but did tell the State that they thought there were some very serious environmental justice issues that ought to be addressed. We were tremendously perplexed when we saw that the Region hadn't objected at all, and lo and behold, it turned out that the Region had lost the document, and a copy of the document that the citizens had submitted pointing out all the problems. We would have been really upset, had it not been for what you are about to hear.
 

We had another remedy with EPA, and we figured the heck with the Region, let's go to headquarters. In Section 505(b)(2) of the Clean Air Act, it allows citizen to petition the Administrator of EPA to review any State toxic air permit to ensure compliance with federal standards. We filed that petition this past Summer. In a first of its kind ruling on September 10, EPA granted that citizen petition, the first citizen petition that they have ever granted, and literally vetoed the four state air permits, finding that they were not in compliance with the Clean Air Act. EPA identified 50 deficiencies in those permits and in something that I think that they deserve a lot of credit for--they not only identified and ruled on problems that we had raised--they, on their own initiative, went and looked at the permits themselves, and found an unbelievable number of problems on their own. That is good news, I think, for citizens because it means that if you can find a few problems and get it before EPA, then EPA will use there considerable resources and knowledge to make sure that when that permit goes back to the State, all the problems are addressed. Right now, the state is in the process of trying to reissue those vetoed permits. I'm feeling tremendous guilt, though you won't know it, being here today, because my students are working all weekend because the comments have to be in on Monday on those new reissued permits. Curiously, it appears that for reasons that I don't understand, the State has not addresssed all 50 deficiencies--whether that's because they think it is too hard to address them, or Shintech's convinced them its to expensive to correct them, or whether they figure, let's just do the same thing again and call EPA's bluff, and see what EPA will do again, I don't know. We shall see whether we are about to go through yet another round of review of state issued air permits.

Let's talk about Environmental Justice in the remaining time. You will hear a lot of definitions of Environmental Justice, and I am not hear today to embrace any particular one. Though, lets just assume for purposes of our discussion today, it's meant to be the fair and equitable treatment of all persons in regards to environmental hazards--sort of, in a sense, an equal protection. People will point out it does not mean equal pollution. It means, in many people's respects, lowering exposure for all communities.
 

There are a couple of legal issues involving Environmental Justice that I'm going to raise today, and I am hoping that these are cited or posted on the Website, and I encourage you to take a look at these documents, because they are the documents that are driving the discussion today across the United States, and I am sure in every community where any law student listening or reading this address today would be. The first issue is an executive order issued by President Clinton in February 1994 - Executive Order 12898, entitled "Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations." The purpose of President Clinton's Executive Order was to prevent or reduce disproportionally high pollution burdens on racial minority and low income populations.
 

As Professor Johnson pointed out to start, there have been numerous studies across the United States that show that either persons of color or low income populations have tended to be disproportionally exposed to pollution than other, say for example, white or more affluent groups. So, in other words, you would find in many studies that there is more toxic pollution in a low income neighbor or minority neighborhood than in a similarly situated white or more affluent neighborhood. Is that the case in Shintech? Well, eighty percent African American neighborhood--40% plus, below the poverty level--very, very, very, very, high levels of existing pollution. And I think by almost any analysis you want to run, and in almost any other community you want to compare it to, this is a disproportionally affected community. Again, that's why you have the moto "enough is enough" or "too much is too much."
 

What the President's Executive Order directs is for all federal agencies to implement Environmental Justice in all policies, programs and activities. Pretty vague, and I am not so sure whether as some people would ask, is there any law to apply? In fact, there is no law to apply if you take the Executive Order on its face, because like all Executive Orders, after there are a lot of very fine statements about problem, about the purpose of the Executive Order, about what agencies are to do, it says at the bottom that this Executive Order is not intended to create any substantive or procedural rights. So, perhaps it is a, sort of exhortation from the President to Federal Agencies to, in a sense, get their act together on Environmental Justice. But there are surely some very serious questions about whether it's a tool that anyone could use to enforce anything. Nonetheless, as part of the Executive Order provisions, all agencies were supposed to come up with Environmental Justice implementation plans. EPA has one, the Department of Energy has one, the Department of Defense. I'm sure, although I haven't seen it, the Department of Interior, the Department of Agriculture, any agency, that you imagine, whose activities might involve some adverse environmental or public health effect.
 

The Executive Order has surely resulted in EPA establishing an office in Environmental Justice in both the District of Columbia and in its 10 regions. It has also resulted in EPA trying to ensure that it takes Environmental Justice considerations into account when it issues regulations or permits. Surely I think, which is what Shintech is all about, you are seeing more attention to it by EPA as part of their oversight activities with State Programs. People had hoped that perhaps you could use it more substantively to enforce a decision. At least the rulings by the EPA Environmental Appeals Boards so far suggest that's not the case. They do believe, the Appeals Board believes, that this means that States and EPA need to pay more attention to public participation and ensure that their procedures not unfairly harming one group, but they have not been willing to, in a sense, find a new standard for reviewing or rejecting permits.
 

There is a very interesting decision you should be aware of however, last May from the Neuclear Regulatory Commission Atomic Safety and Licensing Board. In that case, the board actually denied a license for a new uranium enrichment plant in, where else, Louisiana again, this time in North Louisiana, in Homer, another community very similar to Convent, Lousiana, where Shintech would locate. Very high minority population, very poor. In that particular case, the board denied the license on the ground that the Neuclear Regulatory staff had failed to consider all Environmental Justice issues. They found not only the facial problems with demographics with the minority population and low income. There is some very interesting evidence there of almost intentional discrimination, if you read the transcript, where the person responsible for choosing location talks about driving around and looking around where it looks like it would be a good place to put it. If you drive around that area, you will see, in the area he chose, some very poor folks. Apparently, the company seeking this permit wasn't too pleased with that decision, and that is now on appeal to the full Neuculer Regulatory Commission. I don't know a whole lot about how the structure works, but apparently the board initially reviews the license. If you don't like the ruling of the board, you can appeal to the full Commission. I think many people are watching to see how that turns out, and it has already been briefed, and I think something could come out on that soon.
 

What I do know quite a bit about, because I've been living it and breathing it every day, is another remedy in the struggle for Environmental Justice and that is Title VI of the Civil Rights Act of 1964, 42 USC section 2000(d), which says "No person in the United States shall, on the grounds of race, color or national origin be excluded from participation in, be denied the benefits of, or be subject to discrimination under, any program or activity receiving federal financial assistance." Now, there have been a lot of cases under that and, outside the environmental justice area, based on a Supreme Court case called Guardians' Association v. Civil Service Commission in 1983 and a case called Alexander v. Choate in 1985, the Supreme Court said that Title VI, itself (meaning the statute), only reaches instances of intensional discrimination. So, if one were to sue under Title VI itself, you would have to show intent. To my knowledge, all the environmental justice cases that have been brought to date that have had to prove intent have failed, whether they sought to go under Title VI or under the Equal Protection Clause or 1983. And, there have been some pretty decent cases, at least I believe, looking at the evidence out of Houston and Virginia, but they just didn't work.
 

Fortunately, the Supreme Court said in the Guardians opinion and the Alexander cases, that agencies have the authority, should they choose to exercise it, to promulgate implementing regulations using a discriminatory effect, rather than intent, standard. So that in other words, agencies can, if they choose, when they issue their own Title VI regulations, make the standard of proof just one of discriminatory effect and not actual intent by the state. Sure enough, that's what EPA has done. I know that the Housing of Urban Development have done that as well and I'm sure many, many, many other agencies. And so, what EPA, for example, says at 40 CFR 7.35(b), is a recipient, in this case we talked about before, of federal financial assistance, shall not use criteria or methods of administering it's program which have the effect of subjecting individuals to discrimination because of their race, color, national origin, or sex. That's an effects test. And in the guidance that EPA put out, they put out their first guidance on Title VI and environmental justice at the end of January. It's actually a draft interim guidance. EPA said that facially neutral policies or practices that result in discriminatory effects, violate Title VI regulations unless it's shown that they are justified and that there is no less discriminatory alternative. So, therefore, if a state department or agency receives EPA funds, all programs or activities of that department are subject to Title VI, even those not funded.
 

What does that mean in Louisiana? In Louisiana, that means the feds give a lot of money to the states to run their air program. And they also give a lot of money of the state to run their water program. And they also give a lot of money to the state to run their hazardous waste program. Surely, all those programs must be operated in a non-discriminary way. But, the state also has a program for landfills, solid waste. Not hazardous waste, but solid waste. Under the law, if there is a discriminatory effect from a Louisiana Department of Environmental Quality decision regarding a solid waste landfill, even though that program gets no federal money, the fact that the agency itself is getting federal money for one of its other programs, means that you can challenge the agency's decisions, even in that unfunded programs. Pretty broad range. And the regulations go on to state that if EPA finds discrimination, they shall initiate procedures to deny, annul, suspend or terminate funding (in other words, take back all the money they gave to those other programs), or they can use any other means authorized by law to obtain compliance (there's a vague term, huh?) including referring the matter to the US Department of Justice for enforcement. What does this look like with Shintech then, o.k? Well, the State Department of Environmental Quality is surely a program or activity receiving federal financial assistance. Lots of it. Millions and millions and millions of dollars per year. We believe that the evidence shows that the operation of their programs or activities has had a discriminatory effect, in that it is subjecting the residents of the Convent area to disproportionate amounts of pollution, or, in other words, excessive pollution. (Not to mention some other issues we raised about just the way the DEQ had handled the permit.) And since the group that has been disproportionally effected is 80% African-America, the theory goes that the state's activity in permitting the Shintech air permits has a discriminatory effects on the 80% plus African-American neighborhood and, therefore, violates Title VI.
 

At the time we looked at this issue and ultimately filed a complaint with the agency, no case had held that a resident or person could sue in court to enforce the regulation. In other words, remember that I told you before, you've got the act that requires intentional discrimination - that's a very tough thing to do. You got these great regs, though, that say just show effect. What if a resident or citizen could say, you know, you, the state, violated the regs, I'm am going to go to court an do something about it. But, at the time we were putting this together, no case had held that private that cause of action under EPA's regulations. EPA or the Justice Department could go to Court to enforce the regs, but not a citizen. Lo and behold, in a fairly substantial development at the end of November, in a case that I'm almost positive is cited on the Website, Chester Residents' Concerned for Quality Living vs. Seif, out of the Third Circuit, it held that private plaintiffs may maintain an action under EPA's discriminatory effect regulations. And so, this now makes clear that in a situation such as Shintech, where the community feels that the action of the state receiving federal money has had a discriminatory effect, they could choose, rather than going to the EPA and complaining, to go instead, or in addition, to Federal Court, saying that the state had violated the regulation--because you will find, in every agreement where EPA gives money to the state, it has (in boiler plate language) that the state shall operate its programs in compliance with all federal laws, including the Civil Rights Acts of l964.
 

As I said, we either didn't have that remedy then, or we weren't smart enough like the lawyers in Chester, Pennsylvania to figure out that that was the way to go. Instead, in July of 1997, on behalf of the residents of the area, we filed an Administrative Complaint with EPA alleging a violation of Title VI. How does that all work? Well, if you want to look at the way it works, it's at 40 CFR Part 7, and EPA's regs say that within a hundred and eighty days of whatever act you believed created the alleged discrimination, any person adversely effected by the decision who believes there has been discrimination can file a complaint directly with EPA. EPA is supposed to figure out, within twenty days, whether in essence it looks to be facially at least plead a possible case, or whether they should reject it summarily. In our case, they accepted it for determination in August of 1997. Once EPA accepts the complaint, it initiates an investigation to determine if the actions of the state created a disparate impact or add to an existing disparate impact on racial or ethnic populations. In other words, they do what they are calling a disparate impact analysis. They are trying to determine, whether even before, for example, Shintech moved in, the State has discriminated in a way against the residents of Convent, Louisiana, by subjecting them to excessive pollution compared to other populations or when we add Shintech on top of everything else, we have there the residents of the area are being disproportionately or discriminatorily effected versus, for example, me, reasonably rich (but not as rich as the governor would believe) white professor living in uptown New Orleans. If it doesn't find that discriminatory effect, in EPA's view, the case is all over. If they do make a finding of disparate impact, then it moves to a couple of other stages. Right now, EPA is in the process of collecting information literally on demographics. They have put out some draft demographic information. They have allowed the parties to comment on that. If you are, or know any Ph.D. statisticians, we can use you. EPA has done some very strange work with the numbers, and seems to be suggesting (which I want you to pay attention to, to see if this goes on across America), seems to be suggesting that possibly what they ought to be paying attention to is what additional impacts does Shintech make? In fact, maybe even suggesting that how much pollution right now do certain African America communities in the state have, and how much more would be ok, as opposed to asking either how much pollution do white populations have and compare that to black populations, or what is the average exposure of all populations to see if it's more? So, I think we need to be careful and pay attention to whether EPA's demographic analysis literally freezes in place existing discrimination and says as long as you don't do any more or do any worse, it is all right, or whether instead, EPA does what people suggest is what the law requires. They ought to be insuring that even if there is existing discrimination already throughout the state, that does not justify doing it here again.
 

Let's just assume for the sake of argument that EPA does in fact find a disparate impact in Convent, Louisiana, from the Shintech facility, then they move to some very interesting stages in this process, called the rebuttal and mitigation stages, which means that it allows, by rebuttal, the state of Louisiana to come in and, after that finding of disparate impact, and to say "you know, you got it dead wrong. There is no disparate impact here at all--everything is keen-- we are treating everybody really bad," or they can try to mitigate. Mitigation is, apparently, means that you can mitigate public health or environmental considerations. I think, by that, it means that you could somehow force Shintech, or modify the permits in a way where, as EPA puts it, there is little or no adverse effect, so that even if you do put it in there, who cares, you are not adversely effecting people. Oor they even call, in mitigation, something called a supplemental mitigation project--SMP-- a fairly vague concept that says that perhaps there's other nonpermitting environment adjustments that could be made also to reduce the adverse impact. I am not so sure exactly what they mean there--unless possibly what they mean is that, in addition to reducing, perhaps, the pollution from Shintech, maybe the state could go and reduce the reduce the pollution from a lot of plants, so that literally overall, when Shintech came in, it is not really adding to an existing burden because we have reduced everybody around us. Don't know what that means because this is the first case ever -- maybe I should have said that up front--because you are probably thinking this guy's pretty clueless about how this works.
 

EPA only issued this policy in January, and Shintech, apparently, is going to be the first case ever where they actually go on and apply and makes these findings. If the state can neither rebut the finding, i.e. show that there is no disparate impact, nor develop an acceptable mitigation plan, then the state can seek to demonstrate that it has a "substantial legitimate interest that justifies the decision to proceed not withstanding the disparate impact." What does that mean? Well, EPA at least acknowledges that it doesn't mean that its enough that the state shows that the permit will comply with all the legal requirements under environmental laws. It is possible that what the state could show is tremendous value to the state or DEQ if the facility is permitted. In fact, according to EPA , the State could show that value or justification is not just to the DEQ but could be to the state as a whole. What does that mean? Well, I am not so sure either, but the EPA does say that, if you know, that it is a renewal of a permit, a facility that already exists with perhaps some demonstrated benefits to the State, it would be more willing to accept that justification than if it's a new facility, like Shintech, with very, very, very speculative potential benefits to the residents, who are surely not going to receive many of the jobs at this high tech plant. And, I think that what is a little unclear here is either, one, is it enough for a state to say, "You know Shintech is going to create a lot of jobs and create a lot of money in the area?" That's a justification. Would it be enough if Shintech said "You know, we will give the residents some money, some job training, something like that?" I don't know. We do know that the state is giving Shintech 130 million dollars in tax breaks and financial assistance, or $800,000, in what some people might charitably call corporate welfare, per job created. Shintech in turn has, thinking they are very generous, said that they would, but only if they get the permits, give $500,000 to a group of plant supporters, who can go and create some sort of economic development fund. As one of my clients said, taxpayers giving Shintech $130,000,000 and them only giving the community back $500,000, doesn't sound like a very fair trade--260 to 1 odds. But it's very unclear at this point what, if we get to this stage after the disparate impact finding, EPA may accept as justification for state permitting a facility that by every account would have a discriminatory effect.
 

As I told you before, if I had another hour I could tell you about some Louisiana politics--big time. The governor, as you may have heard or not heard, has viciously attacked Tulane and threatened to take away their tax exempt status, and encouraged friends of the university to withhold money until the Tulane Environmental Law Clinic is shut down. We have fortunately, to date, knock on wood, withstood those attacks. I think some business interests being frustrated that the governor was unsuccessful, and that Tulane was holding tight, filed a complaint with the Louisiana Supreme Court, requesting that they investigate the Environmental Law Clinic, and again, either shut it down or to change the rules under which students can go to court, such that they could not, in the future, represent communities like Shintech. We think that we will turn out hopefully o.k. on that. It turned out that a state official who is giving this $130,000,000 to Shintech and is probably one of their biggest cheerleaders, was keeping dossiers on plant opponents--pretty interesting stuff--including having his lawyers looking to ways to attack the tax exempt status of those opponents. When the governor was asked about that, he didn't have a whole lot of problems.
 

There's been a lot of money paid by Shintech to (some might say) buy support. They've given money to some local residents to support it, they've given money to a lawyer to represent the local residents, they've given money to a particular civil rights group for support. Very interesting to watch the money trail on this case. And finally, this only came out last week. It turned out that Shintech had found some contamination on their proposed property and they were somewhat embarrassed or disturbed or worried about that, and when they submitted the document as showing that to the state, they asked the state to treat it as confidential, because of concerns that they had an ongoing public relations campaign, and it would harm their community relations. You know, the law doesn't allow you to hide documents for that reason and in fact, the law doesn't allow you to hide documents of contamination for any reason. And, of course, I hear, although I heard this happened yesterday when I left town, the governor once again was saying, "no harm, no foul there, what's the big deal?" So that's the political side of Shintech.
 

I don't know what you take away from this other than just to understand that we are really in a new era on environmental law. We've recognized, I think for about five years, I hope at least, that there is this discriminatory effect problem out there. I think we are now at the stage of trying to see what's going to be done with it, either under executive orders or Title VI. And, as I said before, we don't quite know what kind of disparate impact is enough to trigger a violation, we don't know whether a state can justify it.
 

I think that one of the more interesting things that's been said about environmental justice in environmental law is that, in some respects for the very first time, it's put fairness and a sense of right and wrong into environmental law. You read a lot of cases in environmental law (very rarely will the book mention it). Maybe a fairly astute student will say, "is that fair?" And I think that maybe we're having to ask that question, and we're no longer just talking about controlling pollution, but we're seeing about whether that's fair and I think that will probably push people even further to reduce or eliminate pollution. And so, watch the newspaper, keep your ears open, and we will find out soon whether EPA has gotten the message that an 80% plus African-American community in Convent, Louisiana with six, eight, ten, twelve times the burden of pollution of other communities has had enough. And, I think we will see very soon therefore, whether or not EPA is interpreting its Title VI regulation in a way that might provide not just the people of Convent, Louisiana with some relief, but literally hundreds and hundreds of communities across America. Thank you very much.


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