By Sam White*
On October 22, 2018 Earthjustice filed a petition for review in the U.S. Court of Appeals (D.C.) challenging the 2018 Environmental Protection Agency rule on coal ash.The plaintiffs should consider bringing a claim under the Equal Protection Clause. Though an Equal Protection claim requires meeting a stringent legal test, evidence exists to make a substantial case, and the civil rights complaint of Uniontown, AL, will help make that case.
Coal ash, a byproduct produced in coal-fired power plants contains toxic chemicals including mercury, cadmium, and arsenic, and can pollute waterways, ground water, drinking water, and the air.130 million tons of coal ash was produced in the US in 2014.Individuals living within a mile of unlined coal ash storage ponds have a one in 50 risk of developing cancer.
In Kingston, TN, a coal ash spill destroyed 40 propertiesand lawsuits were brought on behalf of 180 dead and dying plant workers alleging exposure.A similar disaster occurred in Eden, NC in 2014.Despite these disasters, on August 29, 2018, the EPA implemented a new rule regulating coal ash sites which removed many safeguards.
In Washington v. Davis, the Supreme Court found the purpose of the Equal Protection Clause was “the prevention of official conduct discriminating on the basis of race.”In order for a plaintiff to prevail on an Equal Protection claim, she must prove the defendant acted with discriminatory intent, which may be inferred from the totality of relevant facts. Village of Arlington Heights v. Metropolitan Housing Development Corp. set the relevant facts test, which includes five factors:
- Whether the official action “bears more heavily on one race than another,”
- The historical background of the decision,
- The history of the decision-making process,
- The “legislative or administrative history,” and
- Departures from the “normal procedural sequence.”
Given the totality of circumstances surrounding the new coal ash rule, a strong case could be made for “discriminatory purpose.”
The first factor is satisfied as the 2018 rule change does bear more heavily on one race than another. Coal ash storage sites are located disproportionately near low-income communities and communities of color. A since-removed report from the US Commission on Civil Rights found that those living nearest to coal ash storage pits are disproportionately low-income (70% of existing storage sites)and minorities.The Environmental Defense Fund found that 1.5 million people of color live in the catchment areas of coal ash pits.A study in the American Journal of Public Healthfound that, in California, African Americans were 5.8 times more likely to be exposed to environmental health hazards than whites.
Uniontown, Alabama is a telling example. After the massive spill in Kingston (a white, middle-class town) in 2008, four million tons of coal ash located there were shipped to Uniontown, where the population is 90% black and half live below the poverty line. Members of Uniontown recently brought a civil rights complaint to the EPA, opposing the renewal of the landfill’s permit and alleging that it had caused a myriad of illnesses. The EPA dismissed the complaint citing “insufficient evidence.”
The relocation of the coal ash site from Kingston to Uniontown, the report from the USCCR, and the Uniontown civil rights complaint show not only that the government is aware of the disproportionate effect of their rule change but that despite that knowledge, they allowed relocation of coal ash deposits to minority communities and then repealed safeguards surrounding them.
The remaining Arlingtonfactors similarly support a finding of discriminatory purpose. History shows a growing trend of awareness by the government of the intersection of environmental regulation and the rights of minority communities as is evidenced in the 1990 creation of the Environmental Equity Workgroupand the 1994 executive order to address demographic issues resulting from environmental actions.The government was put on notice regarding coal ash’s racial impact by the 2016 USCCR report which stated the “EPA [has] not fully consider[ed] the civil rights impact [of] approving movement and storage of coal ash” given the disproportionate percentage of “people of color and low-income individuals living [near] coal ash disposal facilities.”
Departures from normal procedure can be found in the EPA’s hasty and seemingly unilateral action in setting the 2018 rule. When the Obama Administration implemented the 2015 rule, they negotiated for years with environmental groups, electric utilities, and other affected industries.The Trump Administration, by contrast, implemented the rules quickly without extensive public input or negotiations with environmental and industry groups.
Even when plaintiffs meet the Arlington test, the defendant can present evidence that “the same decision would have resulted even had the impermissible purpose not been considered.”If they do so successfully, the equal protection claim will fail.
Here, the government will likely claim that a desire to reduce regulation would have resulted in the same policy even without a discriminatory purpose. Uniontown, however tells a different story. When coal ash caused environmental consequences in white middle-class Kingston, the plant was moved. When the town it was moved to, a 90% African American town, alleged environmental consequences, not only were its permits renewed, the government loosened regulations on the plant. The history of the Uniontown landfill is clear evidence that a different decision did in fact result when two different communities were met with the same environmental hazard.
*Sam White is a Junior Editor on MJEAL. He can be reached at firstname.lastname@example.org.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
Sierra Club v. U.S. Environmental Protection Agency (D.D.C. filed Oct. 22, 2018).
Oliver Milman, Environmental Racism Case: EPA Rejects Alabama Town’s Claim Over Toxic Landfill, The Guardian. https://www.theguardian.com/us-news/2018/mar/06/environmental-racism-alabama-landfill-civil-rights(Mar. 6, 2018).
The Coal Ash Problem, Earthjustice. https://earthjustice.org/features/the-coal-ash-problem(last visited Feb. 9, 2019).
Jamie Satterfield, 180 New Cases of Dead or Dying Coal Ash Spill Workers, Lawsuit Says,Knox News. (Mar. 28, 2018, 5:00 AM),https://www.knoxnews.com/story/news/crime/2018/03/28/tva-coal-ash-spill-cleanup-roane-county-lawsuits-dead-dying-workers/458342002/.
See Envtl. Prot. Agency, Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Amendments to the National Minimum Criteria (Phase One, Part One)(2018); Court Upholds National Safeguard For Coal Ash: Nation’s No. 2 Toxic Pollution Threat, Earthjustice(Aug. 21, 2018), https://earthjustice.org/news/press/2018/court-upholds-national-safeguard-for-coal-ash-nation-s-no-2-toxic- pollution-threat; Juliet Eilperin & Brady Dennis, EPA Eases Rules on How Coal Ash Waste Is Stored Across U.S., The Wash. Post(Jul. 17, 2018), https://www.washingtonpost.com/national/health-science/epa-eases-rules-on-how-coal-ash-waste-is-stored-across-the-us/2018/07/17/740e4b9a-89d3-11e8-85ae-511bc1146b0b_story.html?utm_term=.2bb9018fc70e(The new rule extends the life of existing ash ponds whose permits were due to expire, including those within five feet of groundwater, in wetlands, and seismic zones. It allows state officials themselves to certify whether facilities meet standards and allows states to suspend groundwater monitoring that had been required under the 2015 rule. The rule also permits state officials to establish their own standards for levels of chemical substances in coal ash sites for which there is no federally mandated maximum contaminant level, including cobalt and lithium, harmful chemicals found in 92% of coal ash sites.).
Washington v. Davis, 426 U.S. 229, 238 (1976).
Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 253 (1977).
Earthjustice, supranote 5.
Erin Viere, Environmental Protection Agency’s Rule Modifying Coal Ash Disposal Regulations, SciPol(Aug. 3, 2018) http://www.scipol.duke.edu/content/environmental-protection-agencys-rule-modifying-coal-ash-disposal-regulations.
George Alexeeff, et al., Racial/Ethnic Disparities in Cumulative Environmental Health Impacts in California: Evidence from a Statewide Environmental Justice Screening Tool (CalEnviroScreen 1.1), American Journal of Public Health105, no. 11 2341-2348 (2015).
Milman supra note 4.
AL Residents Denounce EPA for Closing Civil Rights Investigations, Yale Law School. (Mar. 5, 2018), https://law.yale.edu/yls-today/news/al-residents-denounce-epa-closing-civil-rights-investigations.
Alice Kaswan, Environmental Justice: Bridging the Gap Between Environmental Laws and “Justice,”, 47 Am. U.L. Rev.221, 226 (1997).
Yale Law School supranote 20.
Dennis & Eilperin supra note 9.
Id. (Additionally stating the Trump Administration solicited 160,000 comments on the proposed rule but declined to say how many people favored it).
Village of Arlington Heights,429 U.S. at 270 n.21
Id. at 271.