By Thomas J. Henderson, David S. Bailey and Selena Mendy (Click here to view the entire P&R issue)
This article focuses on one aspect of a broad challenge by Citizens Against Nuclear Trash (CANT), a grassroots coalition in Louisiana, to the proposed construction, between two small African American communities-Forest Grove and Center Springs–of the first privately owned uranium-enrichment plant in the United States.
CANT engaged Nathalie Walker of the Sierra Club Legal Defense Fund and Diane Curran and Ann Spielberg, of Harmon, Curran, Gallagher, and Spielberg, to challenge the license application by Louisiana Energy Services (LES) to the Nuclear Regulatory Commission on a variety of technical and environmental grounds, including the adequacy of the National Environmental Policy Act (NEPA) Environmental Impact Statement(EIS) prepared by LES. The Lawyers’ Committee for Civil Rights Under Law later joined the case to assist in developing the environmental justice claims. Our article summarizes the gathering and application of “disparate impact’ evi-dence, and the legal theory developed to challenge the siting of the LES facility.
Disparate Impact
In siting decisions, “disparate impact” means that the proposed facility more heavily burdens an identifiable community of color, and thus has a racially discriminatory result. Establishing disparate impact is essential to any challenge based on discrimination.
LES purportedly employed a sophisticated and carefully documented selection process that ranked potential sites against “essential” and “desired” site location factors, beginning at the national level and incrementally narrowing choices until selection of a final site. Their initial criteria were essentially technical-such as shipping distances, meteorological requirements, and geological and geographical limitations–and narrowed the national regions to certain states. However, as the focus of the site selection process narrowed, the criteria became inherently more vague and subjective, including factors such as “local support,” “active and cohesive community,” “manufacturing mentality” or “opinion leader unity.” Evaluation of the use LES made of these subjective criteria revealed that they were applied in a discriminatory manner. For example, they were applied to the majority-white town of Homer, five miles distant from the site, and not the 97% African American communities of Forest Grove and Center Springs im-mediately adjoining the site.
Through discovery, CANT obtained the records underlying the site selection process, which revealed not the meticulous process touted by LES, but largely issues were not adequately addressed in the EIS.
Legal Claims
In addition to disparate impact analysis, pressing an environmental justice claim required developing a legal claim that recognized such analysis. Because no constitutional or civil rights claims were stated, a claim was developed using NEPA in conjunction with Executive Order 12898. Specifically, it was argued that NEPA’s “significant impacts” and “informational” requirements demanded that LES prepare an EIS that properly recognized and evaluated environmental justice issues.
Although the Supreme Court had held that NEPA analysis is limited to the physical, as opposed to emotional or psychological, impacts of a project, the record in CANT clearly illustrated that disparate impacts can have real social and economic effects subject to NEPA’s requirements. Furthermore, NEPA has an important “informational component”-a mandate to fully inform the decision-maker of the adverse impacts of the proposed project.
Further support for this argument was found in Executive Order 12898 and EPA’s (then draft) Environmental Justice Policy. The logical way for many federal agencies to implement the Executive Order on Environmental Justice is through the FIS process, and failure to do so can violate NEPA. Where such adverse impacts further environmental injustice and disproportionate risk to racial minorities, and run contrary to the policy articulated in the Executive Order and civil rights statutes, such information is indeed relevant. Although the Executive Order expressly does not create an independently actionable claim, its application is important to agency decision-making. The courts have encouraged agencies to apply Executive Orders in their decision-making process, stating that agencies that follow such Presidential directives do not act illegally, but rather in “laudable fashion.”
Combining NEPA requirements with what is contained in the Executive Order creates an obligation that any FIS should include an evaluation of disparate racial impact and related environmental justice issues. Carefully analyzing and developing evidence of disparate racial impacts can create a record that demonstrates that an EIS fails to satisfy this aspect of NEPA.
Thomas J. Henderson is Deputy Director, with the Environmental Justice Project, all of the Lawyers Committee for Civil Rights Under Law, 1450 G St. NW, #400, Washington, DC 20005, 202/662-8330.
The case, In the Matter of Louisiana Energy Services, LP (Claiborne Enrichment Center): Docket No. 70-3070, has been argued before the Nuclear Regulatory Commission. Atomic Safety and Licensing Board. The NRC has not yet made a final decision whether to accept the Environmental Impact Statement and issue a permit.
David S. Bailey is a Staff Attorney with the Environmental Justice Project, all of the Lawyers Committee for Civil Rights Under Law, 1450 G St. NW, #400, Washington, DC 20005, 202/662-8330. The case, In the Matter of Louisiana Energy Services, LP (Claiborne Enrichment Center): Docket No. 70-3070, has been argued before the Nuclear Regulatory Commission. Atomic Safety and Licensing Board. The NRC has not yet made a final decision whether to accept the Environmental Impact Statement and issue a permit.
Selena Mendy is a Staff Attorney with the Environmental Justice Project, all of the Lawyers Committee for Civil Rights Under Law, 1450 G St. NW, #400, Washington, DC 20005, 202/662-8330. The case, In the Matter of Louisiana Energy Services, LP (Claiborne Enrichment Center): Docket No. 70-3070, has been argued before the Nuclear Regulatory Commission. Atomic Safety and Licensing Board. The NRC has not yet made a final decision whether to accept the Environmental Impact Statement and issue a permit.
