Whatever Works: Legal Tactics and Scientific Evidence in Environmental Justice Cases

Federal environmental justice law and policy

President Clinton signed Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (Order), in 1994, accomplishing both symbolic and substantive changes to the nation's commitment to lessen disparate environmental and health impacts in low income communities and communities of color. The Order imposed specific requirements on federal agencies to take steps towards equal enforcement of existing laws, including new mandates for researching environmental justice concerns. ⁶ Both before and after the Executive Order, communities have used litigation as an additional mechanism for seeking redress from a disproportionate burden of environmental insults.

In the beginning stages of environmental justice litigation, the most promising legal tools for challenging discriminatory action and ensuring the right to environmental justice were the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. However, through a series of court decisions, the case law established that plaintiffs would need to prove that the offender intentionally sought to discriminate on the basis of race or national origin. The 2001 Alexander v. Sandoval decision by the U.S. Supreme Court requiring proof of discriminatory intent has rendered use of Title VI for EJ cases nearly impossible. ⁷

EJ policy and proposed executive order in Massachusetts

In Massachusetts, advocates fought for passage of the Environmental Justice Policy (EJ Policy) in 2002 by the Executive Office of Environmental Affairs (EOEA), now Energy and Environmental Affairs. The EJ Policy sought to enhance public participation through staff training, extensive outreach programs, and public meetings and notices with greater language accessibility. ⁸

A more recent strategy for Massachusetts advocates is a proposed EJ executive order, which would direct executive agencies to incorporate EJ issues into their operations. At the time of print, advocates seek the governor's signature on the Massachusetts EJ executive order in 2014, the twentieth anniversary of former President Clinton's Order. While executive orders can be an effective mechanism for mobilizing support and promoting agency action, ⁹ they share similar enforcement limitations with the current Massachusetts EJ Policy. Executive orders pertain only to members of the executive branch and do not carry a private right to action, meaning that individuals cannot bring a lawsuit to enforce the order or policy if provisions go unfulfilled. ¹⁰

EJ legal tactics: “Whatever works”

When working with an EJ client group to resolve a quality of life issue that affects many people, the lawyer can adopt one or more tactics in support of the group's preferred outcome such as litigation, negotiation, lobbying, interacting with agency enforcement staff, and generating media attention. Similarly, an EJ client group can choose one or more tactics such as community organizing, supporting legislation, testifying at a public hearing, leading or participating in scientific data collection, engaging in educational initiatives, lobbying, and negotiating. Depending on the client's desired outcome, the EJ campaign strategy and associated tactics (legal, scientific, organizing, and others) will vary.

Four of the eight lawyers viewed their work as having a significant community organizing and educational component. They spoke of “empowering” the community or “making sure their voice was heard.” One lawyer (Charles) recalled a case where, “the residents felt like they needed help and an advocate, and weren't really being taken seriously…they appreciated being heard, having someone represent them, getting changes made that they had never been able to do.” David expressed similar thoughts: “[T]he other thing [that is] very important when you're working with a community, [is] to obviously listen to them and listen to their issues because the whole point is that their voice hasn't been heard.”

All interviewees adopted a “whatever works” strategy in their selection of legal tactics to employ in EJ cases, meaning they frequently use any tool that might apply to the case. As David commented, one uses “anything you can get your hands on.” Specific examples of litigation tactics used by the interviewees in EJ cases include challenging the adequacy of a Massachusetts and National Environmental Policy Act review, and reliance on public nuisance laws, Massachusetts oil and hazardous materials law, and the Massachusetts Public Waterfront Act. When asked about the primary considerations that influenced the choice of which statute, regulation, or ordinance to use, Jeffrey simply stated, “What's a winning strategy.” David responded with: “Whatever works. I come from the standpoint of a litigator, a trial lawyer. As an advocate, I'm trying to use any law that might help, and the law itself might not have anything to do with environmental justice, per se.” Donald stated that environmental justice cases can use the same statutes as any environmental case: “[T]he selection of the statute doesn't have anything to do with whether it's an EJ case or not, in my opinion. The EJ aspect has to do with whether I think it's a case that's worth my spending time pro bono on.”

EJ law: No consensus

All eight lawyers agreed that the existing laws do not provide sufficient enforcement opportunities for EJ claims. However, there was not consensus among the lawyers regarding whether Massachusetts should adopt an EJ statute. When asked about the constraints lawyers have experienced while working on EJ cases, three lawyers responded with the lack of an environmental justice law. The adoption of an EJ statute would ostensibly ease reliance on the “whatever works” strategy and would give the lawyers a stronger foundation for EJ claims. Donald stated:

There are executive orders and similar directives…that actually do not have any mandates other than to either consider the issue, disclose or discuss the issue, or conduct additional process. None of which necessarily is going to end up being an impediment to further environmental injustices.

While all the lawyers admitted that the current EJ framework lacked enforcement “teeth,” three were reluctant to recommend the passage of a Massachusetts EJ statute. Charles explained his hesitation:

I think if there were laws to make it easier to make environmental justice claims, probably nothing would get built in these neighborhoods. Jobs and things that would hopefully be better regulated won't come in…They could have a counter-productive effect of making sure that certain environmental justice communities stay run down with certain undesirable land use because you can't get anyone to come and build anything better.

By contrast, three lawyers said that a state EJ statute would be a good idea, while a fourth lawyer proposed additional local zoning or planning laws.

Science as a legal tool

Scientific expertise was considered to be one of the myriad tools used by lawyers working on EJ cases. Certain statutes require the reliance on expert scientific testimony. Charles explained: “If you have access to data on water quality, air quality, or whatever, that's important in determining whether there's compliance or noncompliance with relevant statutes and regulations.” Jeffrey summarized: “[S]cience is a pillar of our work. So is policy, so is politics, and so is law. To win an environmental court case, to win an environmental campaign, to bring about environmental justice, you need to use all of those or you're leaving weapons unused.” George said, “… working with an expert is pretty much a given. It's not just a question of law, but it's a question of fact, of certain expertise that the lawyers don't have.”

While there was consensus among the lawyers that science played a crucial role in their cases, they had substantial misgivings about the field. These reservations were related to: (1) the need for convincing communication; (2) the overly burdensome cost of scientific expertise; and (3) difficulty proving causation.

Lawyers working on environmental justice employ a variety of tactics

Environmental justice cases and campaigns require varied tactics including both traditional and non-traditional lawyering. Litigation (administrative and judicial), negotiation, drafting agreements (e.g., community benefits, supplemental environmental projects, settlements), and advising clients about applicable laws, regulations, and policies are some traditional lawyering tactics. Media engagement, community empowerment, education, and organizing are examples of non-traditional lawyering tactics that are equally important. The eight lawyers interviewed had a diversity of experience with both strategies.

Overall, the interviewees perceived their role as supporting community-driven improvements. They sought to give a voice to EJ populations and recognized community organizing as a key component to each case. However, the interviewees relied on this type of engagement to varying degrees. The results suggest that it is possible for lawyers representing EJ groups to engage in organizing and other non-traditional tactics to the extent they are comfortable. An area of future work for EJ advocates may include highlighting the non-traditional tactics that have led to favorable outcomes. While traditional legal tactics may be widely known and available to lawyers, there is room for education and training in the realm of “whatever works.” On the whole, the “whatever works” approach is the guiding principle for pro bono lawyers working on EJ cases in our study.

Additionally, the traditional lawyering tactics described by our interviewees involve mostly environmental and land use laws with little reliance on civil rights laws. None of the lawyers interviewed mentioned their use of civil rights laws, which is likely reflective of the precedent set in Alexander v. Sandoval. ¹²

Lawyers disagree about whether EJ laws in Massachusetts would result in meaningful changes

The lack of an EJ legal structure in Massachusetts led our interviewees to resort to the “whatever works” strategy for bringing EJ claims. The need for an EJ law remains an unsettled question from the interviewees' perspective due to uncertainty about how to write a law that would result in meaningful changes and tensions between environmental justice and job creation. The lawyers who noted uncertainty about legislating meaningful change referenced the federal Executive Order, which scholars argue has not sufficiently addressed environmental injustices. ¹³ If statutes or regulations were implemented that prevented new or expanded industrial facilities from receiving agency approval in EJ neighborhoods, three attorneys noted the likelihood that such laws and regulations would be challenged in court by owners and operators of industrial facilities. While the history of the EJ movement is replete with stories about jobs versus community opposition, the efforts of numerous EJ groups, advocates, and blue green coalitions have united communities to improve quality of life for residents and workers alike.^14,15

Although not stated by any interviewees, one hypothesized reason for rejecting an EJ statute is the tension that an EJ law might create between paying and pro bono clients. Such a law would require the lawyers' paying clients (often facility owners or municipalities) to take additional steps to protect public health and the environment, while an EJ law would assist their non-paying EJ community group clients to achieve their goals.

Three lawyers noted their support for an EJ law because the existing regulatory structure does not provide EJ groups with legal protections against the additional siting of new polluting facilities in locations that are already overburdened. A fourth lawyer noted support for more robust protections of EJ populations in existing laws.

Lawyers and scientists often need to work together to support community groups' goals

The lawyers' reservations about scientific data and expertise primarily focused on the need for convincing communication, the high cost of science, and differing causal frameworks between lawyers and scientists. The tension surrounding scientific communication in the courtroom highlights an important distinction between the fields of law and science. For scientists, the goal is to be objective, while lawyers are concerned with the subjective goal of winning their clients' case. The lawyers want the scientists to offer persuasive findings to build a stronger case for their clients, and scientists might have some difficulties with persuasion if their professional goal is to be consistently objective. To ease this tension, attorneys could offer scientists training on presenting evidence in legal proceedings and communicating effectively with EJ community groups. Scientific experts should also make clear what they expect from the lawyers with whom they are working, including a basic understanding of what scientific conclusions can and cannot be drawn from available data.

With respect to the prohibitive costs of scientific experts in EJ cases, some of the lawyers' suggestions should be considered such as the establishment of a fund for experts and active recruitment to increase the network of environmental scientists willing to work on a pro bono or reduced cost basis. Scientists and laboratories could also consider ways to make their services affordable to community groups. A precedent exists for this in the European Living Knowledge Network. ¹⁶ In addition, organizations like ACE are approaching professional associations and university scientists to request their members and faculty offer pro bono scientific services. ¹⁷

As described in the literature, differences in scientific and legal certainty were discussed by several interviewees.^18,19 Due to multiple exposures, individual genetic variability, or other confounders, lawyers may also have difficulty proving disproportionate impacts using scientific data, ²⁰ and may therefore rely on strategies that focus on enforcement of existing law. Increasing collaboration between lawyers and scientists, perhaps through focus groups on the merits of “informal science,” or scientific discussion conducted outside of the context of a formal study, may be a fruitful area of future research. This can include community data collection, brief expert consultation, or more general reports on hazards faced by EJ communities. Moreover, lawyers and communities could benefit from scientists who are knowledgeable about the relevant legal frameworks and required burdens of proof.