Michael Gerrard - The law of environmental justice: theories and procedures to address disproportionate risks

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Page i The Law of Environmental Justice Theories and Procedures to Address Disproportionate Risks Michael B. Gerrard, Editor For updates: http://www.abanet.org/abapubs/envirolaw.html

Page ii Section of Environment, Energy, and Resources Book Publications Committee Mark Squillace, chair Kathleen Marion Carr James W. Checkley, Jr. Michael Scott Feeley Elizabeth Geltman Sam Kalen John S. Lowe Owen L. Schmidt Evan Slavitt Cover design by Lisa Empleo. The publications of the Section of Environment, Energy, and Resources have a commitment to quality. Our authors and editors are outstanding professionals and active practitioners in their fields. In addition, prior to publication, the contents of all of our books are rigorously reviewed by the Sections's Book Publications Committee and outside experts to ensure the highest quality product and presentation. The materials contained herein represent the opinions of the authors and editors and should not be construed to be the action of either the American Bar Association or the Section of Environment, Energy, and Resources unless adopted pursuant to the bylaws of the Association. Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This book and any forms and agreements herein are intended for educational and informational purposes only. 1999 American Bar Association. All rights reserved. Printed in the United States of America. 03 02 01 00 99 5 4 3 2 1 Law of environmental justice / Michael B. Gerrard, editor. p. cm. Includes index. ISBN 1-57073-680-4 1. Environmental lawUnited States. 2. Environmental justice United States. 3. Race discriminationLaw and legislationUnited States. I. Gerrard, Michael. II. American Bar Association. Section of Environment, Energy, and Resources. KF3775.E4667 1999 344.73'046dc21 99-33273 CIP Discounts are available for books ordered in bulk. Special consideration is given to state bars, CLE programs, and other bar-related organizations. Inquire at Book Publishing, ABA Publishing, American Bar Association, 750 North Lake Shore Drive, Chicago, Illinois 60611. www.abanet.org/abapubs/envirolaw.html

Page iii SUMMARY CONTENTS About the Editor xxi About the Authors xxiii Preface xxix Part I: Legal Theories Chapter 1 Equal Protection Philip Weinberg 3 Chapter 2 Title VI Bradford C. Mank 23 Chapter 3 Other Civil Rights Titles Colin Crawford 69 Chapter 4 Executive Order 12,898 Bradford C. Mank 103 Chapter 5 State Environmental Justice Programs and Related Authorities Chuck D. Barlow 140 Chapter 6 Native American Law Judith V. Royster 157

Page iv Part II: Legal Procedures Chapter 7 Public Participation Sheila Foster 185 Chapter 8 Access to Information Bernard A. Weintraub 230 Chapter 9 Impact Assessment Sheila Foster 256 Chapter 10 Risk Assessment, Susceptible Subpopulations, and Environmental Justice Carl F. Cranor 307 Chapter 11 Access to the Courts Ellen P. Chapnick 357 Chapter 12 Evidentiary Issues: Proving Intent and Effect and Defining the Affected Community Kenneth J. Warren 397 Chapter 13 Issues of Legal Ethics in Environmental Justice Matters Irma S. Russell 429 Part III: Legal Objectives Chapter 14 Stopping and Building New Facilities Michael B. Gerrard 465 Chapter 15 Controlling Existing Facilities Heidi Gorovitz Robertson 490

Page v Chapter 16 Cleaning up Abandoned or Inactive Contaminated Sites

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