before the L.A. City Council
Wednesday, December 11, 1996, 10:00 a.m.
by Alexander Volokh
Good morning. My name is Alexander Volokh, and I am an assistant policy analyst
at the Reason Foundation specializing in environmental policy. I am here to
discuss environmental justice.
First, I want to make clear that we are all in favor of environmental
protection, and we are all in favor of justice, and we are all against racism.
This much is noncontroversial. Having said this, I would like to add that if
the General Plan Framework incorporates references to a particular concept
called "environmental justice," it will open a Pandora's box that we may not be
able to shut for another 30 years.
"Environmental justice" is a relatively new term. It tends to be loosely used
and has different meanings for different people. Unlike other concepts used
regularly in environmental policy and urban planning decisions, "environmental
justice" has not yet been interpreted by court decisions, federal legislation,
or EPA action.
Generally, the "environmental justice" movement has been driven by the notion of
"environmental racism" -- the claim that minority communities are systematically
discriminated against in urban planning decisions like the siting of industrial
facilities, landfills, waste incinerators, freeways, and so on. Certainly,
environmental problems exist, and racism also exists. But whether this
particular concept of "environmental racism" is substantiated by the evidence is
another question entirely.
There is little statistical evidence that discrimination is responsible for the
siting of industrial facilities in minority communities. Most studies on
environmental racism have had well-analyzed methodological problems. Their
findings can vary greatly depending on the definition of "minority community"
and depending on the size of the community under consideration. "Minority
communities" are generally defined as communities which contain a greater-than-
average percentage of nonwhite residents. But by this definition, Staten
Island, N.Y., home of the largest landfill in the country, is considered a
"minority community," even though it is 80 percent white (and the "whitest" of
New York City's five boroughs). Another study ranked communities by their
percentage of white residents, and labeled the top 25 percent "white
communities" and the bottom 25 percent "minority communities." The problem with
this system is that more than 75 percent of American communities are "whiter"
than average. Again, many so-called "minority communities" perversely end up
having a smaller concentration of minority residents than the country as a
Another problem involves the use of percentages. If all we study is the
percentage of minorities in an area, we can come to the conclusion that
landfills in mostly-minority communities are worse for minorities than landfills
in mostly-white communities. But this is not always the case. If the mostly-
white community is very large, there may be more members of minorities in it
than in the mostly-minority community. For example, a 90-percent white
community with 10,000 people in it has 1,000 members of minorities. But a 90-
percent minority community with only 1,000 people in it has 900 people. If a
landfill is sited in the mostly-white community, more minorities will be
affected than if it is sited in the mostly-minority community. But you wouldn't
know it from the studies, which don't deal with population, only with
There is another problem with assuming that industrial facilities in minority
communities are the result of discrimination. Later studies have shown that
many communities where industrial facilities were sited were originally not
minority communities at all. Rather, minorities took advantage of the low
property values after the facilities were sited. Again, the studies that claim
to show "environmental racism" don't take this into account.
And finally, the studies generally don't examine the actual health risks posed
by the industrial facility. In reality, how far away you are has little
relation to how harmful a site is to human health. You could live your whole
life next door to a modern, state-of-the-art facility, and still not be exposed
to as much risk as someone who lived across town from an old, sloppy facility
built 50 years ago.
A recent case illustrates just how thorny "environmental justice" claims can
get. In El Sereno Neighborhood Action Committee v. California Transportation
Commission, East L.A. residents filed a federal lawsuit against Caltrans,
alleging that the 4.5-mile extension of the Long Beach Freeway discriminates
against Latinos. While Caltrans plans to cover the freeway or run it
underground in Pasadena, it will run aboveground in El Sereno, which is more
than 90 percent Latino. I will not comment on the merits of this particular
case; certainly, some development decisions may have been the result of racism,
and this project may or may not be one of them. But I should point out that for
this environmental justice suit to succeed, the plaintiffs do not have to prove
discriminatory intent. All they have to do is show that the construction of the
highway has a discriminatory impact. The trouble with this is that according to
Caltrans, the topography of the El Sereno area makes if difficult or impossible
to build the freeway underground. If Caltrans is right, the problem is not
racism, but geology. While we all agree that racism has no place in
environmental policy, we can presumably also agree that just looking at
differential impacts by themselves does not tell us anything useful.
If broad environmental justice language is written into the General Plan
framework, then any major development decision will be subject to such delays.
The plaintiff will not have to prove discrimination; the plaintiff will only
have to produce evidence of differential impact. Since all impacts are
"different," there is no theoretical limit to how far this can go. There may be
practical limits on how willing judges will be to allow projects to proceed, but
"environmental justice" suits are a new development, and we have yet to see what
those limits are.
I want to stress again that no one endorses discriminating against minorities in
the siting of industrial facilities. The proper way to guard against such
discrimination is to ensure that race is not used as a criterion in siting
decisions. Instead, siting decisions should be made based on traditional
planning criteria such as relationship with the service area, costs, suitability
with surrounding uses, and environmental impacts.
Finally, I ask that you remember that the results of your decision will be with
us for the next 30 years. Thank you very much for your attention.
Alexander Volokh is an assistant policy analyst at the Reason Foundation, a
public policy think tank based in Los Angeles. He has written numerous
environmental policy studies, include "Environmental Enforcement: In Search of
Both Effectiveness and Fairness" and "Punitive Damages and Environmental Law:
Rethinking the Issues." He has also authored a policy series on Recycling and
Deregulation: Opportunities for Market Development, which includes the policy
studies "The FDA vs. Recycling: Has Food Packaging Law Gone Too Far?",
"Recycling Hazardous Waste: How RCRA Has Recyclers Running Around in CERCLAs,"
and "How Government Building Codes and Construction Standards Discourage
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