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"The Streets, the Courts, the Legislature and the Press: Where Environmental Struggles Happen,"

by Rachel Godsil May/June 1996 issue of Poverty & Race

In November 1995, the East New York Community Committee Against the Incinerator celebrated a victory: the Committee had just defeated a wood-waste incinerator slated for a permit in the primarily African-American and Latino community of Brooklyn's East New York area.

A few months later, another Brooklyn community coalition, the Community Alliance for the Environment (CAFE)-comprised of Latinos, Hasidic Jews and African Americans from Williamsburg and Fort Greene-also celebrated a victory. CAFE had staved off as million pound per day municipal waste incinerator proposed for the Brooklyn Navy Yard for over a decade. It had just received word that the City of New York agreed to its most recent demand: a Supplemental Environmental Impact Statement (SEIS) for the project to replace the Environmental Impact Statement (EIS) issued in 1985.

From the perspective of a civil rights lawyer in New York City, the world looks bleak: judicial hostility, the resurgence of conservative politics at the city, state and federal levels, and a powerful backlash against the civil rights gains of the past decades. But as a lawyer in the Environmental Justice Movement, a participant in the East New York struggle, and a late comer to the Brooklyn Navy Yard battle, I cannot help but be cautiously optimistic.

East New York

In March 1995, the NY State Department of Environmental Conservation (DEC) declared that the Atlas-Bioenergy Corp. need not prepare an Environmental Impact Statement to build a wood-waste incinerator. East New York was not Atlas' first choice. The company first sought to build the incinerator-euphemistically called a waste wood gasification facility-in Southhampton, Long Island. But when the Southhampton town board declared its opposition, Atlas agreed not to seek a state permit, and instead focused on East New York. Atlas filed a permit application with the DEC and sought funding for the environmental review of the incinerator from the NY State Energy Research and Development Agency. In New York, before an agency may grant a permit for a project that may have an environmental impact, it must conduct an environmental review. The agency conducts an initial review to determine whether the project "may have a significant environmental impact," and if so, a full EIS must be prepared. The EIS grants an opportunity for public review and comment and requires consideration of the project's potential effect on community health and character, as well as a range of more blatant environmental effects.

When DEC filed a notice of complete application in March 1995 and declared that an EIS was unnecessary for the incinerator - sited for a small industrial plot in a largely residential community, within blocks of day care centers, schools, public housing, senior centers and single-family homes-East New York residents finally received notice of the plan and began to organize. Residents learned that the incinerator would spew tons of toxic pollutants into the neighborhood's already polluted air.

The notice of complete application was rescinded when the New York Public Interest Research Group (NYPIRG) pointed out to the state that the permit application was not, in fact, complete. Community members and their elected officials, working with lawyers and organizers from the NAACP Legal Defense and Education Fund (LDEF), NY Lawyers for the Public Interest and NYPIRG, pressured the City to take over the environmental review and require preparation of an EIS. The lawyers explained to the newly formed East New York Community Committee Against the Incinerator that the EIS process, which provides significant opportunity for community involvement, could result in delay sufficient to doom the project. It is also an excellent organizing opportunity, since public meetings and other public review and comment are required. As East New York activists organized weekly meetings of 30 to 50 people, we drew charts and passed out fact sheets and glossaries to make the EIS process accessible.

At one meeting, Committee Chair Charles Barron told the lawyers that a community resident had informed him of a city law prohibiting incinerators in apartment buildings and asked that we research whether the law might also apply to the proposed Atlas incinerator. With scant belief that the incinerator was illegal, but out of respect for Barron, we researched the City Administrative Code. To our welcome surprise, the Code stated: "No person shall cause or permit the installation of refuse burning equipment." The only exceptions were for municipally-sponsored and medical waste incinerators. The Atlas incinerator was neither.

The Committee sent a letter outlining the law -which had never been interpreted in a court -to the City Department of Environmental Protection and requested a meeting. No response. The Committee upped its organizing. On July 15, a 105-degree day, the Committee held a rally at the incinerator site with several hundred people, demanding that the City uphold its own law. A few weeks later, the Committee held a Community Update for 200 residents, to which it demanded attendance from the Department Commissioner. She did not attend, but sent a representative and a letter, slating that the City had not decided whether the incinerator was illegal and that the Committee could air its concerns in the EIS process. The Committee began to consider litigation to short-circuit the EIS process. The environmental impacts-dire though they would be-were secondary: the City Code stated that the incinerator was illegal.

Litigation proved unnecessary. After more organizing, and pressuring the City with thousands of petition signatures, letters, press and political work, the city denied Atlas its permit, pursuant to the Administrative Code provision unearthed by the Committee.

Brooklyn Navy Yard

A coalition among divergent communities-formalized with the birth of CAFE in 1992- has fought a battle against three different mayors to stop construction of a 55-story (!) incinerator in the heart of the Williamsburg and Fort Greene sections of Brooklyn. After ten years of struggle, which produced considerable community expertise around city and state environmental review laws, CAFE and NYPIRO organized to demand a Supplemental Environmental Impact Statement from the City to replace a 10-year old EIS.

In June 1995, 96 community and environmental organizations, 90 medical and technical professionals and 55 elected officials requested a SEIS from the City. A thorough report by NYC Public Advocate Mark Green provided clear factual support for the legal claim that an SEIS was necessary. The Public Advocate's report documented significant new information about the incinerator's harmful impacts from toxic emissions, about vulnerabilities in the affected communities from AIDS, increased asthma and tuberculosis and the fact that new housing development and changed patterns of economic development have taken place in the nearby communities. This new information rendered the 1985 EIS useless. But, as in East New York, despite a clear legal necessity, the City balked.

CAFE and NYPIRO decided to litigate. In November 1995, the coalition, represented by lawyers from NYPIRO and the NAACP LDEF, filed in state Supreme Court an expedited proceeding challenging the City's determination, citing city and state environmental review laws and the Americans with Disabilities Act, for failing to study the effects of the incinerator on people with HIV. While the litigation proceeded slowly, CAFE and NYPIRG continued to organize.

The City's Department of Sanitation, the project's sponsor, was completing its bi-annual Solid Waste Management Update, which required approval from the City Council. CAFE and NYPIRG applied political pressure to City Council members to require the City to agree to prepare the SEIS as part of the Solid Waste Management Update. Last February, the City agreed. Now, a new environmental review process will precede any attempt to build the incinerator. Larry Shapiro, attorney for NYPIRG, predicts, that after more than a decade, "the incinerator will never be built."

Charles Barron advises that for any struggle, "We need action on the social, legal, political and information fronts: in other words, we have to fight them in the streets, the courts, the legislatures and the press." The Brooklyn victories resulted from strategies on all four fronts.

The Social Front: It has become axiomatic-and rightly so-that environmental justice struggles are grassroots-led. Both the East New York and Brooklyn Navy Yard struggles benefited from brilliant leadership and committed community participation.

In East New York, a reputedly fractious community came together weekly in the East New York Community Committee Against the Incinerator. Committee members sent letters to politicians, attended community board meetings, aggressively sought to meet with the Commissioner, demanded support from politicians, and held rallies and community updates with hundreds of participants. Charles Barron summed it up as follows: "The victory against the incinerator was a triumph of community people rising up to fight environmental racism and promote environmental justice."

In Williamsburg and Fort Greene, the often antagonistic Latino, Hasidic and African-American communities "found common ground in the ground itself," as CAFE Co-Chair Luis Garden Acosta has said. CAFE emerged in 1992 out of an environmental summit meeting that drew 1200 residents. The fact that CAFE is a multi-racial, multi-ethnic coalition of highly organized communities means that it can demand support from a wide variety of politicians beholden to different segments of the coalition.

The Legal and Political Fronts: Lawyers working with the communities in the Environmental Justice Movement have to be prepared to break down the traditional relationship in which the lawyer is the advisor and the client the advisee. Working hand in hand, the community and lawyer can find fresh approaches by combining the community's political expertise and knowledge with the lawyer's ability to interpret arcane rules and regulations to help find inroads for the community's political work. The close relationship between the lawyers and the Community Committee resulted in better legal work by the lawyers and a fruitful avenue for the community to apply political pressure.

In their most recent victory, CAFE and NYPIRO focused upon the state environmental review process and used it creatively. First, they sought full implementation by demanding the SEIS. When the City demurred, CAFE and NYPIRG filed suit-but continued to up their political pressure. By complementing the litigation strategy with political work and following the minutiae of City law-the requirement for the City Council to approve the City's Solid Waste Management Update---CAFE and NYPIRG achieved a much quicker victory than even the expedited suit they had filed.

The Press Front: Many of us first became aware of the state's decision not to require an EIS for the Atlas incinerator in the New York Daily News. Suzanne Matthei, an attorney with Public Advocate Mark Green's office, had noticed the state's decision to not require an EIS for the incinerator. Green's office issued a press release, along with NYPIRG, decrying the decision-which was picked up by Dai4 News reporter Annette Fuentes. Fuentes continued to follow the story, and the Community Committee worked hard to ensure that the extraordinary community effort under way was reported. Atlas-Bioenergy vice-president Thomas Polsinelli acknowledged the power of the media in a Village Voice interview after the City denied his permit: "Polsinelli was clear about where the firm wants to place future furnaces: One at the offices of the Village Voice, four at the Daily News and one at the New York Times."

The Future: In both communities, the fight against the outside threat has blossomed into a fight for community sustainability. The East New York Community Committee Against the Incinerator has reconstituted itself as the East New York United Front (ENYUF, which continues to meet monthly and is tackling education issues, economic and community development and violence in the community, as well as continuing to focus on environmental justice. CAFE also plans to expand its scope, focusing on the existing overabundance of environmental threats, as well as developing local leadership to ensure future existence and strength.

These Brooklyn victories are examples of the power of communities in the Environmental Justice Movement. They also establish steps that are necessary to victory: organized communities, creative uses of the legal and political processes and a sound media strategy. Sadly, the experiences of other communities with equally brilliant leadership and community commitment and equally able technical assistance indicate that these steps may not always be sfficient, Without certain basic statutory structures - such as environ,mental review processes that allow for community participation - and some supportive elected officials, there are fewer inroads for community orgaizating. Similarly, the unavailabliity of technical assistants (organizers, lawyers, scientists) early in the process who are committed to the principles of environmental justice and supporting the community can impede a community's efforets. Hopefully, the strategies applied by communities in East New York, Williamsburg, and Fort Greene will porve useful to other communities engaged in environmental justice struggles - and inspiring to civil rights lawyers and activists thirsty for hope in this seemingly desolate time.

Rachel Godsil a Staff Attorney with the NAACP Legal Defense Fund, 99 Hudson Street, 16th floor, NYC, NY 10013, 212/219-1900.

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