Mud Lake
Mud Lake is a collection of short adventure stories about children living in Haslett, Michigan, during the 1960s and 70s, when kids were allowed to freely explore the natural world without adult instruction or supervision.
Whole-of-Society Is Necessary, but Not Easy
Environmental Law Institute
Current Issue
Issue
1
It will surprise no one that Inflation Reduction Act implementation is a critical priority for 2024. Eighteen months after the IRA was signed, we’re starting to see the shape, scale, and strategy of some of its programs, and how its nearly $400 billion is being put into play to help realize the transition to a clean energy economy.
One of the most important aspects of the IRA is that it embraces a whole-of-society approach, with its financial incentives designed to provide support across sector value chains. It’s hard to overstate how important this approach is to enable systemic change at the scale needed to shift our economy. Take electric vehicles, for example. You can’t increase sales without increasing charging infrastructure; you can’t increase production without increasing critical minerals mining; and so on.
Last November, ELI’s GreenTech initiative worked with the Georgetown Climate Center and Georgetown Environmental Law & Policy Program to host a multi-stakeholder discussion around IRA implementation. (You can view recordings and other materials at greentechconference.org.) Featuring expert speakers across a variety of industrial sectors and jurisdictional scales—with particular emphasis on power, transportation, and carbon management—the discussion looked at the landscape of the IRA and homed in on where we are seeing progress, where we are encountering obstacles, and where there are gaps.
Those conversations highlighted how many programs are being operationalized that truly do embrace a complete value chain or full lifecycle approach, and this is cause for optimism. To stay on the electric vehicles example, increased charging infrastructure requires increased transmission, which we are trying to figure out how to accelerate; increased critical mineral mining must occur domestically and faces challenges ranging from general public concern to concerns about specific sites; etc. At the same time, many questions remain unanswered and tensions unaddressed, where more work is needed to find the path forward.
Which brings us to the other aspect of a whole-of-society approach, which isn’t about the economy, or sectors, or siloed functionalities—it’s about people. It’s about ensuring everyone is considered in the clean energy transition, that no one is overlooked. On this front, the Biden administration’s Justice40 initiative is key. To date we’ve seen the development of screening tools, equity action plans, community benefits plans, and as I’m writing this, EPA announced it is readying $2 billion in environmental justice spending, arguably the largest allocation ever. But we are still waiting to see if these efforts yield the intended benefits. Returning to the EVs example, novel approaches may be needed to ensure benefits aren’t limited to high-income areas and to elevate community voices in siting decisions.
The clean energy transition is a transformation of our economy, and it truly requires a whole-of-society approach. We’re on the track, but it’s neither easy nor simple, and we have a ways to go.
On "Whole of Society" Approach.
Behind EPA’s Cancer Alley Pullback
Grist
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5
Pastor Philip Schmitter waited more than 20 years for the Environmental Protection Agency to do its job. In 1992, he’d filed a civil rights complaint to halt the construction of a power station that would spew toxic lead into the air of his predominantly Black community in Flint, Michigan. Decades passed without a response, so he joined four other groups around the country in a lawsuit to compel the agency to address their concerns.
The case hinged on the EPA’s duty to enforce Title VI, a provision of the landmark Civil Rights Act of 1964. Title VI allows federal agencies to take action against state policies that discriminate by disproportionately harming groups protected by the act—the discriminatory policy being, in this case, Michigan’s permitting of a plant that would pollute Black neighborhoods. After EPA lost the suit in 2020, agency officials finally began timely investigations of civil rights complaints and made some of EPA’s first-ever findings of discrimination.
That progress, however, could be short-lived.
This summer, EPA abruptly terminated three of its highest-profile open civil rights complaints. The move deals a major blow not only to the majority-Black communities that filed them but also to EPA’s own authority to enforce Title VI in places with some of the nation’s worst air quality. The cases originated in the region widely known as Cancer Alley, an 85-mile industrial corridor in southeast Louisiana, and were voluntarily closed after the state’s Republican attorney general sued the federal government for alleged abuses of power during the complaint negotiations.
Grist obtained copies of two draft agreements from the now-defunct negotiations, which reveal efforts by EPA officials to institute profound changes to Louisiana’s permitting process, which has historically concentrated chemical plants near Black communities. One of the most substantial terms of the resolution would have required state regulators to assess whether a community is already exposed to disproportionately high levels of pollution before permitting new plants there. With the cases closed, the prospect of those changes has all but vanished.
“This is basically the EPA not using the full power of its environmental laws,” said Adam Kron, a senior attorney at Earthjustice who worked on the case. He described Title VI as one of the clearest ways to advance environmental justice, a goal that the Biden EPA has repeatedly called a priority. “It’s disappointing to see EPA acquiesce to what seems like a lawsuit that really doesn’t have much grounding to it.”
The Title VI statute states that no person should, on the basis of race, color, or national origin, be subject to discrimination under any program that receives federal funding. The provision is wide-reaching, covering hundreds of thousands of programs across the country and governing decisions as diverse as where a road can go or who can get treatment at a hospital. But in the environmental space, it’s been largely underutilized, with EPA routinely failing to respond to dozens of cases within the 180-day period required by the law.
The 2020 federal court ruling on Schmitter’s case gave communities in Louisiana’s St. James and St. John the Baptist parishes hope that Title VI could finally help limit pollution in their backyards. Together, their complaints alleged a number of negligent actions by state regulators, including a failure to curb cancer-causing emissions that violate federal safety standards, and to consider pre-existing pollution when permitting new industrial plants. A formal resolution of their cases would have likely addressed these concerns.
The draft agreements that Grist obtained include sweeping measures to change the way the state of Louisiana approves new industrial facilities, like folding community involvement into critical moments of the decisionmaking process and requiring officials to prove, both before and after plants begin operating, that their emissions will not disproportionately harm people of color. In Louisiana, majority-Black communities are exposed to at least seven times the emissions, on average, as predominantly White communities in industrial areas.
“We were hoping to get systemic change,” said Kimberly Terrell, a research scientist at the Tulane Environmental Law Clinic, who worked on the complaints. “For decades, people have been fighting against individual polluters and individual facilities, but when the decisionmaking process itself is flawed, you need something that seeks to improve it.” Louisiana officials did not respond to a request for comment.
Despite progress with the agreements, testimony in Louisiana’s legal filings suggests that, at some point during the negotiation process, things between state and federal officials began to sour. Then, in late May, the state’s attorney general, Jeff Landry, sued EPA.
The case hinged on EPA’s ability to pursue actions based on “disparate impacts,” or the idea that a policy or agency decision can disproportionately harm a specific group of people, regardless of whether or not that harm is intentional. These standards have always been unpopular with some state officials who view them as evidence of federal agencies meddling in matters beyond their authority. The Supreme Court’s conservative majority is sympathetic to these concerns, ruling in numerous landmark cases over the past few years to vastly restrict the powers of federal regulators.
But multiple lawyers whom Grist interviewed argued that Louisiana’s legal arguments would have ultimately been unlikely to undermine Title VI, raising the question of why EPA appears to have preemptively conceded on the matter. “It was unripe—there was no action by the EPA that Louisiana could challenge,” said Kron. “So it seems like a strange lawsuit for [the federal government] to take as a serious enough threat to just undo this whole process that’s been going on for over a year.”
Environmental advocates and residents in Louisiana also decried the decision to close the complaints.
“I often feel like our communities are left to fight on our own,” said Joy Banner, an activist and long-time resident of the region. “It’s disappointing when we have organizations at the federal level who aren’t willing to step in to fight along with us for our basic human right to survive.”
EPA spokesperson Khanya Brann told Grist that the agency remains “fully committed” to improving the environmental conditions in the communities that filed the complaints.
“Community participation has been critical to identifying both problems and solutions, and we look forward to our continued partnership with the residents in both parishes as we continue our joint efforts to improve public health and the environment,” she said.
The Environmental Protection Agency wrote in its letters announcing the closure of the complaints that it would address residents’ concerns through other means, like its pending litigation against one of the region’s most infamous chemical plants and its proposed rules for tightening standards for certain types of facilities operating in the region. But residents told Grist that those measures do not cover the totality of their concerns, and that a major benefit of the Title VI process is its speedy timeline: While court cases can drag on and emissions standards can take years to implement, a resolution of the complaints may have granted communities much faster relief from toxic emissions.
Claire Glenn, a criminal defense attorney with a background in civil rights law, compared EPA’s use of Title VI to other federal agencies’ more robust implementation of the law. The Department of Transportation, for example, requires regulators to consider whether a project will disproportionately impact a group of people before it’s ever constructed. However, she added, deciding where a transit line goes is often less controversial than approving a multi-billion dollar company’s new industrial complex. “I think the reason EPA’s Title VI program is so hamstrung is because it is so directly butting up against corporate interests,” she said.
Advocates told Grist that they are exploring other options to advance residents’ concerns, and called EPA’s actions this week a setback but not a roadblock. Residents said that they are determined not to give up.
“We come from a long line of people who fought,” said Banner. “This is just one little hill that we have to overcome—but ultimately I see us heading to the mountain, and victory is the mountain.”
This story was originally published by Grist.
TESTIMONY The agency was on the cusp of cleaning up Cancer Alley. Then it backed down. Documents obtained by the online publication Grist reveal the sweeping changes that EPA was negotiating before giving in to GOP pressure.
Equal Protection for All
Environmental Law Institute
Current Issue
Issue
5
There are “literally two Americas,” said Dr. Martin Luther King Jr., a community activist by nature and a spellbinding orator whose words still resonate today. “One America is flowing with the milk of prosperity and the honey of equality. That America is the habitat of people who have food and material necessities for their bodies, culture and education for their minds, freedom and human dignity for their spirits. That America is made up of millions of young people who grow up in the sunlight of opportunity.” But, Dr. King observed, “There is another America. And that other America has a daily ugliness about it that transforms the buoyancy of hope into the fatigue of despair.”
More than a half century later comes confirmation of Dr. King’s analysis in the form of a 2022 EPA-financed study showing that “Historical Redlining Is Associated With Present-Day Air Pollution Disparities in U.S. Cities.” Redlining was state-sponsored segregation—it was federal housing policy starting in the 1930s and was also implemented by state and local officials. The authors of the report demonstrate that historically redlined neighborhoods, in addition to a greater pollution burden today, still are more likely to have high populations of Black, Latino, and Asian residents. In short, the study reveals how racist federal housing policy continues to contribute to enduring inequalities across the United States more than fifty years after housing discrimination was made illegal under federal law.
Redlining was a discriminatory practice in which financial services—mortgages, insurance, loans, etc.—were denied to people who resided in neighborhoods classified as “hazardous” to investment. The federal government deemed these areas as places where property values were most likely to decline, and the areas were marked in red—a sign that they were not worthy of inclusion in homeownership and lending programs. Not coincidentally, most of the “hazardous” areas were neighborhoods where Black residents lived. Banks used these maps to determine where people were able to get loans, based on racial makeup, while real estate agents would only show certain houses to certain families.
Though the maps were internal documents that were never made public by the federal government, their ramifications were obvious to African Americans who could not get home loans that were backed by government insurance programs. Greater understanding of redlining became more prevalent during the Civil Rights Movement, especially in the era leading up to the passage of the Fair Housing Act of 1968. The act prohibits redlining—federal, state, and local government housing policies that explicitly segregated metropolitan areas nationwide in patterns that violated the Constitution.
Yet as the new EPA study shows, the settlement patterns created by redlining persist today—and that formerly redlined areas have greater environmental burdens and still experience “the fatigue of despair.” So, the question is, What remediation can be done today, using the Constitution, to address the environmental and public health concerns of those disproportionately impacted communities—neighborhoods who continue to suffer because of historical redlining? This article argues that a federal lawsuit from two decades ago, Miller, et al. v. City of Dallas, and the cutting-edge outcome of the 1997 Neighbors for a Toxic Free Community v. Vulcan Materials Company litigation in Denver offer litigators and affected communities some practical lessons on a forward course of action into the “sunlight of opportunity.”
EPA defines environmental justice as the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. The agency’s definition is focused primarily on the issuance of permits and operation of pollution-generating facilities sited in affected communities. A special concern is the adverse impact on the health of residents who have been environmentally overburdened—exposed disproportionately to harms and risks compared with other communities.
To address their environmental and public health concerns, communities have sought to use the Equal Protection Clause of the Fourteenth Amendment, which reads that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” And “any person” means all persons. Disproportionately impacted communities have not succeeded, however, because of the difficulty in proving in court the discriminatory intent of the government actor(s) in the decisionmaking process. In 1972, the Supreme Court in Village of Arlington Heights v. Metropolitan Housing Development Corp. delineated criteria to determine the intent of a zoning board entrusted with the task of making fair and impartial decisions. The Court concluded that although evidence of racially discriminatory intent is necessary to invoke a “strict scrutiny” analysis, the plaintiff must also show that it was a motivating factor in any decision involving a suspect or protected class. The Court stated that the plaintiff has the burden of showing that the official action affected a protected class in greater proportion than others, and that the official action was intended to discriminate against a suspect or protected class.
Consequently, applying the Arlington Heights criteria resulted in losses in several notable environmental justice cases because of issues related to the legal distinctions in proving discriminatory intent, discriminatory purpose, and discriminatory impact. This was the situation in spite of compelling statistical evidence presented by communities in the 1979 case Bean v. Southwestern Waste Management Corporation, the 1989 case East-Bibb Twiggs Neighborhood Association v. Macon-Bibb County Planning & Zoning Commission, and the 1991 case R.I.S.E. Inc. v. Kay, et al.
But, although a federal district court applied the Arlington Heights criteria, the 2002 result in the Miller v. Dallas case was markedly different. The African American residents of Cadillac Heights presented material facts that would likely prove that the city of Dallas intentionally discriminated against them by providing municipal services unequally based upon race, in violation of the Equal Protection Clause. The municipal services included flood protection, zoning, landfill practices, streets and drainage, protection from industrial uses, and federal funding for housing and community development. The residents offered material facts relating to discriminatory effects; the historical background of the city’s decisions; and Dallas’s departure from normal substantive criteria or standards.
The residents survived the city’s motion for summary judgment because they were able to show that there was a genuine dispute as to material facts, and that Dallas was not entitled to judgment as a matter of law on the claims or defenses raised in its motion. The district court judge determined that the case would proceed to trial. Following the court’s decision, the residents settled for money damages: the city paid $50,000 each to four plaintiffs for the purchase of their homes, and $35,000 each to two plaintiffs for the purchase of their homes. Dallas denied liability, and paid plaintiffs’ attorneys $265,000.
According to Professor Richard Rothstein’s comprehensive 2017 book The Color of Law: A Forgotten History of How Our Government Segregated America, in 1933, faced with a housing shortage, the federal government began a program to increase and segregate America’s housing stock. The government’s efforts were primarily designed to provide housing to middle and lower middle class White families in new suburban communities. Blacks and other minorities were pushed instead into urban public housing projects.
In 1934, the Roosevelt administration and Congress established the Federal Housing Administration. It implemented the government’s segregation efforts by refusing to insure mortgages in or near Black neighborhoods. At the same time, however, the FHA was subsidizing builders who were mass-producing entire subdivisions for Whites with the specific requirement that none of the homes could be sold to African Americans.
Dallas is an excellent example of how this state-sponsored system of segregation worked, in carving out the neighborhood of Cadillac Heights as a minority and low-income community—effects which did not stop with enactment of the Fair Housing Act. In 1950, of the small portion of Cadillac Heights for which census data are available, Tract 89 blocks 32, 33, 34, 35, 53, and 55, were White. Cadillac Heights rapidly became a minority residential area. In 1950, block 32 was zero percent non-White. By 1960, that block was 41 percent non-White. In 1950, Block 33 was zero non-White. By 1960, that block was 74 percent non-White. In 1950, block 34 was zero percent non-White. By 1960, that block was 78 percent non-White. By 1960, 74 percent of the occupied housing units in Census Tract 89 were occupied by non-Whites. The FHA was passed in 1968, banning redlining, but the change in ethnic makeup continued. The 1990 census population for Tract 89 was 82 percent Black and 18 percent Hispanic. The 2000 population for the Cadillac Heights Census Tract—the last census before the lawsuit—was 51 percent Black, 47 percent Hispanic. Pursuant to this systematic government program, local housing policies in Dallas mandated segregation. That’s where and how written and oral mistakes were made by city decisionmakers, demonstrating purposeful racial discrimination.
In Dallas’s motion for summary judgment, the city argued that the residents’ claims of intentional discrimination in the provision of municipal services under the Equal Protection Clause failed as a matter of law because they could not show that any violations of their federal rights were committed pursuant to a policy or custom of the city.
First, citing Arlington Heights, Dallas pointed out that the Supreme Court had made clear that “impact alone is not determinative . . . unless the impact is unexplainable on grounds other than race.” Thus, the residents could not establish a claim for the discriminatory provision of municipal services based solely on evidence of disparate impact. The residents’ mere recitation that some African Americans had been disparately affected by the city’s practices was insufficient to raise a genuine issue of material fact considering the city’s uncontradicted testimony explaining the nondiscriminatory basis for the disparity.
Second, Dallas argued that the residents must show that the city had “selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”
Third, Dallas argued that the residents had no genuine evidence that any of the city’s activities in their neighborhood were motivated by intentional racial discrimination. Instead, the plaintiffs tried to establish that the city had been “thoughtless” and “neglectful” of the neighborhood. Even if that were true, it is not enough to establish a violation of the Fourteenth Amendment.
Fourth, quotes from then-Mayor Ron Kirk, an African American, were not competent evidence sufficient to create a genuine issue of material fact in support of allegations of racial discrimination.
Fifth, the remainder of the residents’ case was based solely on questionable “evidence” of disparate impact. There are legitimate, nondiscriminatory explanations for Cadillac Heights’ situation. The residents have none of the evidence that is typically used to supplement evidence of statistical disparity, such as procedural or substantive irregularities, racially discriminatory statements by city officials, or evidence that similarly situated non-minority neighborhoods were treated differently.
In sum, because the neighborhood had no evidence of intentional discrimination, summary judgment was proper for the city.
The plaintiffs’ brief in opposition provided material facts, as well as the sources of those facts, that Dallas had a history of enforcing racial segregation in neighborhoods by ordinance through direct decisions of its city council. This segregationist tradition eventually led to such a severe shortage of housing deemed “available” for minorities that city leaders spent much of the l940s struggling to address what they called “The Negro Housing Problem.” Dallas’s proposed solution to the problem was implemented by annexation of Cadillac Heights and its designation for “Negro development.”
Furthermore, the city, through zoning ordinances passed by the council, had issued numerous permits to all manner of incompatible, noxious, and hazardous industries to invade and encircle the neighborhood. In the 1980s, when the council overhauled zoning citywide, the city refused to apply the changes to Cadillac Heights in order to keep the industries there. The official action by the council included the adoption of the Southeast Oak Cliff Master Plan that continued the pattern by rezoning the entire Cadillac Heights residential area to industrial. As an example, the City’s Board of Adjustment granted Dixie Metals the right to operate its lead smelter in Cadillac Heights.
Finally, it was the White city attorney Alex Bickley who made the decision to delay or deny enforcement of Dallas’s environmental protection ordinances. He and the council accepted settlements with the industrial polluters that allowed them to exceed the city’s own environmental standards.
In sum, the paucity of municipal services, the lack of flood protection, the incompatible zoning, and the absence of environmental protection were not being inflicted by neglect or by thoughtless city underlings. It was, in fact, the city council and its chief policymakers who officially set the course of action implemented by city employees. The Cadillac Heights residents were able to show that Dallas was not entitled to judgment as a matter of law on the claims or defenses raised in its motion for summary judgment.
It is true that a single federal district court decision more than twenty years ago denying summary judgment against the residents of Cadillac Heights has not led to sweeping legal change. But Miller v. Dallas offers an evidentiary framework for community organizations to use the Equal Protection Clause not only for securing equal municipal services but also for reallocating environmental benefits fairly through collaborative problem-solving. As Dr. King said, “Let us never succumb to the temptation of believing that judicial decrees play only minor roles in solving this problem. Morality cannot be legislated, but behavior can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless.”
Nonetheless, going to court on equal protection grounds may seem an odd recommendation, because community use of the Fourteenth Amendment to address environmental and public health concerns has been problematic due to Supreme Court decisions. The Court’s 1976 ruling in Washington v. Davis instituted the rule that impermissible discrimination under the amendment requires a showing of intent by the state actor(s), not simply of disparate impact. In 1977, the Arlington Heights decision established the criteria to determine whether invidious discrimination underlies an otherwise legitimate exercise of governmental authority.
But using the Arlington Heights factors as its framework for the decision, the district court judge determined in Miller the following material facts compelling. First, zoning for the neighborhood started as residential, but the area was curiously rezoned by the city for heavy industrial uses. Second, the city considered overt racial segregation as a legitimate policy goal for land use decisions through the 1940s and beyond. Third, the city knew that Cadillac Heights would be an industrial area when it designated the neighborhood for “Negro development.” In sum, Miller demonstrates that American cities with a written and oral legacy of racist land use practices may be vulnerable to class action lawsuits brought by community-based environmental justice organizations.
Additionally, residents living in communities of color can bring Equal Protection Clause actions to secure municipal services equal to those in White neighborhoods. In three notable cases—Baker v. City of Kissimmee (1986), Ammons v. Dade City (1984), and Dowdell v. City of Apopkaf (1981)—federal courts have held that the discriminatory intent standard was satisfied by evidence of the government officials’ knowledge of disparate impacts in the provision of municipal services.
Given the legal trends, and depending on the facts, residents living in communities of color should consider bringing class action lawsuits to address their environmental and human health concerns. And to do so from the perspective of using an equal protection argument in seeking an equitable allocation of environmental benefits going forward, which can be easier to establish. Environmental benefits in urban areas include drainage and waste systems; infrastructure that can reduce traffic congestion and improve public health; housing affordability for the poor; addressing environmental degradation; quality drinking water; access to nutritious food; and land security and safe shelter. These environmental benefits are controlled and managed by city decisionmakers who shall not “deny to any person within its jurisdiction the equal protection of the laws.”
Furthermore, I argue that using collaborative problem-solving could be even more effective in addressing the environmental and public health concerns of the greater Cadillac Heights community and similarly affected neighborhoods throughout the United States. And often, as the following example shows, collaborative problem-solving can evolve out of a lawsuit.
The 1997 Neighbors for a Toxic Free Community v. Vulcan Materials Company litigation in Denver serves as a case study. Following a toxic chemical spill in 1995, a nearby West Denver community sued Vulcan Materials Company, a chemical firm, for failing to comply with Section 326 of the Emergency Planning and Community Right-To-Know Act. The fire and release of chemicals caused a toxic cloud of muriatic and hydrochloric acid that covered the community, resulting in the evacuation of 300 people. While no one was injured, the community experienced tremendous disruption. Children at a local daycare center were sheltered at an unidentified location for hours while anxious parents were prevented from trying to find them. Members of the hazardous materials response team went door-to-door in moon suits.
In addition to providing emergency notices to government authorities, EPCRA requires a company to provide information to the local community emergency coordinator. After the facility failed to provide specific information to the residents regarding the event, the community brought a legal action under EPCRA’s citizen suit provision. The lawsuit was filed by Neighbors for a Toxic Free Community, formed by the residents in 1987 to address environmental problems caused by the many industrial facilities located in the West Denver area. The residents are of mixed heritage, mostly Hispanic, generally with low incomes and few economic resources.
Instead of responding directly to the residents’ allegations or providing the information that the community sought, the company replied that even if what the residents alleged were true, the court had no jurisdiction to hear the civil complaint and should dismiss the case for the residents’ lack of standing. The district court rejected the motion for summary judgment, finding that the residents had standing to bring their suit, and scheduled the case for trial. Notably, this was the first time that a nongovernment entity was deemed to have standing to bring a citizen suit against violators of EPCRA.
At this point, attorneys for Vulcan Materials recommended that a collaborative approach, through a mediator, might offer the most favorable outcome for both the company and the residents. Going into the mediation, the company’s primary goal was to avoid the expense of trial and a potentially adverse legal precedent.
In the mediation, residents stated that their requests for information about the potential adverse health effects of the accident, which had gone unanswered, combined with the handling of the spill by Denver and the company, had left the community “feeling discounted and disrespected . . . [and that] this might be one more instance of a company being unwilling to respond to a low-income community of color.”
Company managers, speaking directly to neighborhood leaders rather than through lawyers, apologized for the spill and the community’s treatment. They explained the circumstances that led up to the release and the lessons that Vulcan had learned. Moreover, company officials described new precautions that would further reduce the chances of a similar release and the steps that would be followed both locally and companywide to ensure a more appropriate response should a release occur. Company managers also offered to establish an ongoing dialogue with the residents to improve the flow of information between the company and the surrounding neighborhood.
Finally, company officials described their feelings of being isolated from the surrounding residents. They shared about not knowing how to access community leaders. They expressed concern that the safety of chemical tanks and employees were in danger, as gunshots had been fired at the tanker cars by intoxicated individuals. The possibility of tankers exploding because of errant gunshots was a mutual concern of both the company and the community. In turn, having heard Vulcan Materials acknowledge responsibility and state its desire to engage the community for assistance, the residents saw a chance to transform the conflict into an opportunity.
Company representatives stated that they would be willing to work with the neighbors to improve relations and the level of communication. The residents, in turn, said that they would be willing to work with the company to help “teach” officials how to work proactively with other host communities of its facilities and operations across the country. Based on this greater understanding of mutual interests, which extended beyond those at issue in the litigation, the community and the company negotiated a set of principles upon which a Good Neighbor Agreement would be based.
Not all cases are appropriate for a structured mediation process. Rather, the West Denver outcome elucidates the value of collaborative problem-solving between two opposing stakeholders as a means of developing pragmatic, mutually beneficial solutions that are tailored to the fact-specific situation, and improved relationships going forward.
Dr. King reminded us that the “arc of history is long, but it bends toward justice.” As these examples show, communities can seize the initiative and use the courts and direct negotiations on the road to “equal protection of the laws” for all. TEF
COVER STORY Communities have not been able to prove discriminatory intent in inequitable environmental burden cases, but they may be successful in securing equitable environmental benefits by using the laws effectively and by engaging in collaborative problem-solving.