Environmental Justice and Grassroots Legal Action

Abstract

This article examines the way that one environmental justice organization advised its members about litigation and legal strategies. As many scholars would predict, the Center for Health, Environment and Justice discouraged activists from using litigation as the primary strategy to advance their agenda. However, they also offered activists advice about how to control the role of lawyers to prevent them from dominating the movement. In addition, the organization offered activists ideas for ways of making litigation and legal strategies more accessible to grassroots participation.

Environmental justice movements propose that the best way to resolve the problems in their community is to enhance the residents' role in the political processes that govern environmental decision making.1 –4 They seek more and better information about environmental conditions in their neighborhoods and demand that the regulatory processes include the residents' experiential knowledge rather than just scientific studies conducted by expensive experts. The strategies the movement endorses for achieving these goals emphasize mass participation in protest activity and in political action.1,5 They encourage community groups to organize protests, demonstrations, and to engage in civil disobedience.1,2,4 Environmental justice activists also encourage community groups to develop relationships with the media, to draw greater attention to policymaking processes that usually occur in secret.2,6,7

Environmental justice activists vigorously discourage the use of strategies such as litigation, primarily because such strategies take control over the movement out of the hands of the local leadership and turn it over to professionals. These strategies rely heavily on experts, including doctors, scientists, engineers, and especially lawyers, but scientific and legal expertise is rarely free, and environmental justice organizations can find themselves raising money to hire the experts rather than engaging in more productive and participatory oppositional strategies.5 Moreover, retaining experts interferes with one of the goals of environmental justice to claim power over the knowledge needed to participate in democratic decision making.5 Legal strategies are particularly disfavored. In an analysis of “voices and venues” in the environmental justice movement, Cable and her colleagues distinguish between activists and lawyers.a

In their account, lawyers use their expertise to exercise undue influence over the strategic direction of a movement; these lawyers file lawsuits but do nothing else for the movement. Lawyers' goals—“appropriate juridical arguments and winning”—are at odds with activists' goals—“recruitment and political mobilization” (36, 37).5 Moreover, these lawsuits are rarely successful, except when environmental laws have been clearly violated. More creative claims of race discrimination have proven unsuccessful because legal liability requires evidence of both discriminatory intent and a causal connection to some injury, leading the authors to conclude: “The activists' lay notion of causality finds no acceptance among lawyers” (36). 5 The authors also claim that besides being ineffectual, legal strategies also weaken the movement: “Litigation frequently hinders mobilization because as protest activities ebb, lawyers increasingly make the decisions and the grassroots organization must dig deeper for funds to support the litigation” (35).5 While the authors acknowledge that the distinctions between lawyers and activists may be collapsing, they suggest that the evidence for this collapse is anecdotal (36).5

Yet law and society scholarship has shown that legal strategies do not always have a negative impact on social movements. Legal strategies can publicize complex social problems in relatively simple narratives with protagonists and antagonists, thus winning public support for movement grievances.8 –10 In addition, lawsuits can provide critical leverage in negotiations between movements and more powerful corporate and governmental authorities.9, 10 Lawyers for social movements often rely on identities as both professionals and as activists and conduct their legal work in ways that puts the movement's goals ahead of any desire to win a particular lawsuit.11 –13 Litigation has proved empowering to potential activists who think of themselves as rights-bearers.9,14 And those rights, once won, may give individuals ways of thinking in oppositional terms about their everyday lives.15,16 Thus, this overarching narrative about the risks of litigation is at odds with the novel and creative ways that activists engage the law in their struggles for environmental justice. In fact, some environmental justice organizations in the United States have turned litigation into a participatory strategy that helps mobilize grassroots interest in the movement and that democratizes expertise.

This article examines the way that one environmental justice organization advised its members about litigation and legal strategies. As many scholars would predict, the Center for Health, Environment and Justice (CHEJ) discouraged activists from using litigation as the primary strategy to advance their agenda. However, they also offered activists advice about how to control the role of lawyers to prevent them from dominating the movement. In addition, CHEJ offered activists ideas for ways of making litigation and legal strategies more accessible to grassroots participation.

Data And Methods

This article is based on materials published by the Center for Health, Environment and Justice. Committed to the principle that “people have the right to a clean and healthy environment regardless of their race or economic standing” and to promoting participatory democracy, CHEJ supports community organizing and consciousness-raising among small groups across the United States by providing activists with support and resources, including technical information and training necessary to mobilize their communities2,17 To further its mission, CHEJ publishes a newsletter entitled Everyone's Backyard (EBY). EBY contains articles about technical developments in environmental health and science, as well as articles offering advice about engaging in grassroots organizing, including how to conduct meetings, how to build coalitions within communities, and how to lobby public officials. The newsletter profiles specific grassroots campaigns across the country, focusing on successful tactics used to challenge environmental hazards. Finally, EBY covers legal and regulatory issues by publishing articles about developments in environmental law.

In this article, I rely on two sets of articles in EBY. The first is the column, “Legal Corner,” published for twenty years, from 1982 to 2002 when it was discontinued. During that time period, the column appeared in all but 5 issues of EBY; there were 76 columns in all. Primarily CHEJ's general counsel, Ron Simon, authored the column although five other “guest” attorneys occasionally contributed material. This column “frames” legal strategies for EBY readers, giving them insight into the risks associated with the legal system and offering advice about how to pursue legal strategies if necessary. The second group of articles profiled particular environmental justice campaigns. These profiles served as models—or cautionary tales—for CHEJ member organizations by emphasizing the tactical choices activists made in challenging polluters and government officials. EBY published 94 movement profiles between 1982 and 2002.

I read these articles to identify CHEJ's recommendations for movement strategies to promote environmental justice. Thus, in the movement profiles, I documented each of the tactics that the campaigns used to organize and mobilize new members, to publicize its grievances and proposed solutions, and to put pressure on corporate polluters and government officials. In the “Legal Corner” columns, I documented the strategies that Simon and other lawyers recommended activists pursue. I also analyzed the articles for their statements about lawyers, litigation, and the law more generally.

The analysis in this article cannot be generalized to the environmental justice movement in general, nor can it be considered a catalogue of the strategic choices of such movements. Rather, I'm using the movements as “negative cases”—those cases that contradict the general patterns that research suggests we should expect.18 Those negative cases provide the opportunity to build new theories that might incorporate those patterns. In this case, I hope to generate new insights about the role of law in the life of the environmental justice movement.

In the sections that follow, I examine CHEJ's complex and ambivalent framing of legal strategies for the movements it served. First, I outline CHEJ's critique of the legal system, articulated most forcefully in its column, “Legal Corner.” That critique emerges directly from the environmental justice movement's collective identity as a grassroots, participatory movement trying to reclaim the power to make decisions from the corporate and government elites who dominate the political processes. Second, I show that in CHEJ's rendering, law and litigation are transformed into more grassroots, participatory strategies. CHEJ authors remind movements to retain control over the decision making, especially when using legal strategies. In addition, CHEJ offered suggestions for lay people to remain active when a movement turned to court. Finally, CHEJ encouraged activists to use litigation to build the movement rather than counting on it for concrete outcomes.

Limiting The Influence Of Lawyers And Litigation

The authors of “Legal Corner” offered readers general advice about when to hire an attorney or to sue an opponent. Urging people to always “think about why you want a lawyer,” Ron Simon often recommended that activists ensure that litigation would advance their goals. For example, Simon observed:

Non-lawyers frequently ask me whether they can file a lawsuit for one thing or another. I usually respond by saying that whether you can file a lawsuit asking for something really isn't the right question. You need to ask what the likelihood is that you can accomplish a particular goal through a lawsuit, and how long the lawsuit will take, and how much it will cost. Then, you should compare the lawsuit to other ways of accomplishing the same goal. Are the other ways more likely to succeed? Are they cheaper or faster? (EBY Winter 1988)

Simon rarely thought that litigation was worth the time and expense, but in those situations where it made sense, he urged activists to take precautions to make sure the strategy met all the movement's goals.

According to “Legal Corner,” some issues confronting environmental justice activists demand legal expertise. For example, when readers complained about personal injuries—stemming from lead poisoning or contaminated water, for example—Simon urged them to consult with attorneys to learn about how to obtain compensation. In advising activists who were seeking the relocation of their homes away from a landfill, Simon observed: “I strongly favor political action as a way to deal with facilities that are still operating. But a lawsuit on behalf of individuals seeking to be moved can be a useful tactic because it clarifies the rights and demands of those seeking to be moved.” But he added a cautionary note: “Remember, the legal process may offer some protection and it does not offer any guarantees” (EBY August 1991). In addition, Simon advised readers to hire attorneys before signing releases or other settlement agreements: “[A] release is a technical legal matter and you need to review carefully with a lawyer what rights you are giving up before making an agreement” (EBY August 1990).

The organizations featured in EBY that pursued legal strategies often did so on relatively narrow legal grounds that re-enforced the community's right to participate in local decisions about the siting of hazardous waste. For example, several organizations obtained injunctions preventing polluters from establishing or expanding their operations. The grounds for these injunctions were most commonly violations of sunshine laws or local ordinances requiring public hearings or environmental impact statements (EBY Fall 1982; EBY Summer 1988; EBY Spring 1997). Only one of the movement profiles describes a lawsuit that sought damages for injuries caused by a tannery's dumping of toxins in a local creek (EBY Fall 1985).

On the rare occasions when legal services seemed necessary, the authors of “Legal Corner” admonished activists to exercise strict control over their lawyers. In writing about client-lawyer relationships, Simon in particular emphasized the importance of communication and active client participation in the conduct of any type of litigation. “The rules of the situation are simple,” he told one reader. “You should be making all of the decisions in the case. The lawyer should inform you of each and every step and you should work together to decide what will be done. The lawyer does have legal expertise but the client is supposed to make decisions.” Simon also urged readers to settle these issues before they hired the lawyer:

The key to good communication comes in the beginning of the relationship. The client and the lawyer must have a clear and explicit understanding of the goals and their respective roles. The client must be sure to set a good precedent for communication at the very beginning of the relationship by making sure that lots of questions—especially the difficult ones—are asked, and answered. (EBY April 1993)

“Legal Corner” also encouraged activists to learn as much about the law as possible so that they did not surrender responsibility for legal knowledge to their attorneys. Although it was confined to a page or less of text, the column summarized complex bodies of environmental regulation, described the procedural rules associated with litigation, and outlined the impact of particular court cases on environmental justice goals. In EBY Winter 1983, Simon wrote: “Although the lawyer knows about the law and the court, nothing in the law is so mysterious that a non-lawyer cannot understand it. The lawyer has an obligation to explain the law to you so that you can understand it and make meaningful decisions in the case.” Thus, one goal of “Legal Corner” was to demystify law and lawyers for the grassroots activists. This demystification reflects the movement's broader goal of democratizing environmental decision making. A crucial aspect of this democratization is asserting control over various forms of expertise that govern the public debate in environmental policy.1

Lay activists for the movements profiled often conducted their own research on the legal and regulatory environment governing the siting of environmental hazards. For example, residents living near New Jersey's Pine Barrens researched the Endangered Species Act and found that a proposed landfill would threaten several different species living in the forests (EBY Fall 1985). Working with lawyers and environmental engineers, another activist in Marshall, Texas became familiar with the complicated regulations governing the disposal of hazardous waste produced by a carbon reduction unit. In all, at least seven campaigns profiled in EBY relied on citizen research about the laws and regulations at stake in their disputes with polluters.

More than just encouraging activists to assert control over the legal strategies, the “Legal Corner” columns reflected a broad commitment to full citizen participation in every aspect of the movement. Simon in particular urged activists to engage in the political process to fight environmental hazards rather than filing lawsuits. For example, he urged activists to participate in public hearings rather than turning the job over to attorneys:

If there is a public hearing, it is important that the people making the decision hear from the residents who would be affected—not from their lawyers. Facilities have not been stopped by the strength of legal or scientific argument, but rather by the strength of the community opposition. No matter how brilliant a spokesperson, your lawyer will be matched by a high paid lawyer for the company. If it is a match of lawyers, you stand a good chance of losing since the law allows new facilities to be built. It is your power, voice and vote as citizens that have kept new facilities from being sited. (EBY Summer 1986)

Thus, to Simon and other “Legal Corner” columnists, democratic participation by movement activists in public processes was both a means to environmentally sound communities and an end in itself.

Simon understood that this commitment to grassroots activism might sometimes conflict with the lawyer's vision of the proper strategic course to take. Indeed, many litigators are apprehensive about direct action, particularly protests and civil disobedience. Such tactics can attract negative publicity which portrays the clients as lawless rabble-rousers and which makes them much less sympathetic in court. Simon dismissed such concerns, claiming frequently that direct action was often the best political means for achieving environmental justice goals. But according to Simon, lawyers should never interfere with the movement's political strategies. Warning that “many lawyers are very cautious about their clients' political activities” (EBY Winter 1983), Simon also reminded readers that lawyers were not necessarily good activists: “[L]awyers give advice about organizing, politics and publicity that is generally too conservative or wrong. You should remember that a law license is not a diploma in politics or community organizing” (EBY Summer 1985).

Conclusion

The columns and articles in Everyone's Backyard reproduced the concerns prevalent in the environmental justice movement. Thus, the authors critiqued the location of environmental hazards in poor and minority communities, attributing such siting decisions to undue corporate influence over political and legal processes. As a result of this influence, ordinary citizens and their concerns were excluded from environmental policymaking. To redress this imbalance, activists have demanded better information about potential protestors, fair hearings, and greater democratic participation in these processes. To this end, the environmental justice movement overwhelmingly prefers mass mobilization and direct action to litigation, which are elitist tactics taking the struggle out of the hands of ordinary people.1,2,19,20 The articles in EBY, especially the “Legal Corner” columns, echo these themes, particularly those favoring grassroots strategies over litigation.

But this analysis suggests that social movements exert more influence over their strategies than is contemplated by the rigid categories social movement scholars use to study them. It will probably never be prudent to completely reject formal political and legal channels in seeking to control environmental policymaking. Thus, environmental justice movements do not have the luxury of ignoring such strategies, but they can be transformed in ways that make them more susceptible to grassroots control. “Legal Corner” and the movement profiles contained many suggestions for enhancing the participatory potential of law: activists could demand full participation in the conduct of the case, attend legal proceedings, publicize judicial decisions, use evidence produced in discovery for other tactics, conduct legal research, and help lawyers prepare for court. Litigation, and other institutional strategies, need not be left to the devices of elites and professionals.

Footnotes

a

This distinction is particularly notable because the authors observe that most environmental justice attorneys are public interest lawyers. They observe: “In contrast to, for example, personal injury lawyers who seek compensation for the client's injury with large sums of money to be divided between lawyer and client, public interest lawyers tend to view themselves ‘as surrogate representatives of under-represented people’” (Cable, Hastings, and Mix 2002, citing Rivkin 1999, 474).

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