31 ELR 10968 | Environmental Law Reporter | copyright © 2001 | All rights reserved

Sustainability and Environmental Justice: Is the Future Clean and Black?

Robert W. Collin is Associate Professor, Environmental Studies, University of Oregon. He received his LL.M. from the University of Missouri; M.S., Urban Planning, Columbia University; M.S., Social Work, Columbia University; J.D., Albany Law School, Robin Morris Collin is Professor of Law, University of Oregon. She received her J.D. from Arizona State University; B.A., Colorado College. Prof. Robin Morris Collin developed and teaches one of the first law school courses on sustainability.

This Dialogue is an excerpt from the forthcoming book, FOREVER WILD, FOREVER FREE: ENVIRONMENTAL JUSTICE AND SUSTAINABILITY. It amplifies certain legal issues and social dynamics for the Environmental Law Reporter readership. The book is intended for a general audience, and addresses a number of multidisciplinary issues.

The authors thank Dr. William Harris, Dr. Peter Marcuse, and all those who participated in the recent Seventh Annual Conference Against Environmental Racism, for their insights.

[31 ELR 10968]

Garden

Strange

Distorted blades of grass,

Strange

Distorted trees,

Strange

Distorted tulips

On their knees.¹

A Brief History of 382 Years: The Development of an Extract, Consume, and Pollute Economy and Racial Injustice

The environmental movement and advocates for social justice must embrace each other in defiance of our history. The environment does not "care" about justice or inequity, it simply reflects and accounts for all of the toxicity and waste deposited by human actions. But, in order to engage, rectify, and prevent the degradation the environment has experienced, the environmental movement and our national environmental conscious must inevitably engage people of color, communities of color, and former colonial nations, and effectively address poverty.² The history of environmental injustice in the United States can be traced back to the colonization efforts of western European nations. Land, life, and livelihood of indigenous people were taken, and often destroyed. Then the Colonies began to import slaves to provide labor, thus vastly expanding the use of the land to grow indigo, cotton, and tobacco. The footprint of slavery and Jim Crow created much of the current landscape of waste sites and environmental racism.

The institution of American slavery began in 1619 with the first official sale of Africans in Jamestown, Virginia.³ It ended with Abraham Lincoln's Executive Order, signed in 1863, which declared that slaves held in the rebellious states were "thenceforward and forever free."⁴ Of course, most slaves did not even hear about their freedom until the defeat of the rebels in 1865. The 246 years of American slavery were no ordinary period, even by the standards of slavery. Africans held in the New World were denied any human rights: language, a family name, family ties, marriage, protection of life, and property—it was illegal to teach American slaves to read and write (with the exception of the Bible which, together with the protection of religion under the First Amendment to the U.S. Constitution, may explain the close association between African-American civil rights leaders and religion). The period from 1865 to 1896 was marked by chaos and lynching,⁵ with no legal institutions effectively removing the stigma and oppression of slavery. Then, in 1896, the U.S. Supreme Court gave official sanction to a caste system of American apartheid, called segregation or "Jim Crow." In Plessey v. Ferguson,⁶ the Court declared that separate facilities for African Americans did not violate the constitutional guarantee of equal protection so long as those facilities were "equal" facilities. The era of segregation lasted for another 58 to 68 years until Brown v. Board of Education⁷ was decided in 1954, ending segregation in public education. It took another 10 years to end segregation in other public arenas through the passage of the Civil Rights Act of 1964. With the passage of that legislation, [31 ELR 10969] 314 years of slavery and stigma created and supported by law finally ended. From 1964 until the present, there have been no analogous legal experiments with slavery or segregation.⁸

But the question remains, what is left of these legal institutions of 314 years duration? Major inequalities in social, economic, health, and environmental well-being remain.⁹ American slavery was among the most oppressive in the world, and continues to be reflected in the environment of subsequent generations. After Emancipation, racial oppression continued in voting rights, education, housing, and employment. The legal remedy for racism has relied on proof of a chimerical intention to discriminate, and has not been effective. The environment—unlike our compromised and ineffective efforts to end racial discrimination in housing, education, and employment—responds to results only.

The most pernicious remnant of this history remains in our land, air, water, and in the bodies and bones of people most closely connected to the earth. These consequences will no longer respond to simple incremental changes in environmental protection. Simply expanding the current system of governmental environmental protection to treat all communities equally may not be sufficient to create a truly sustainable environment. Cities and other communities of color have been waste sinks for hundreds of years. Assuming that we would and could protect all communities equally, failure to remediate the environment of these waste sinks will only continue to degrade environmental quality for that bioregion. Only a transformation of attitude about the connection between environment, race, and waste will drive our behavior toward the law and politics of sustainability. As Prof. Peter Marcuse has said in discussing sustainability and urban environmentalism, "we must do what is fair, then find ways to make it sustainable."¹⁰ Not only do all other efforts to end discrimination rely upon environmental equality, we all rely on environmental equality for environmental protection and emerging approaches to sustainability.

The generation of today has inherited the legacy of racism in the state of the environment and in the persistence of racism without an effective remedy. The uncontested disparities in exposure to environmental hazards by race continue to adversely affect and accumulate in and near people of color.¹¹ The goal of equal protection under the environmental laws—coupled with societal demands for sustainability—will drive deeper analyses of the relationships between our processes of production and consumption and the preservation and protection of the land, air, and water we all share.¹²

Twin Dynamics in Political Decisionmaking: Profit Maximization at Cost to the Vulnerable People

What Happens to the Earth

Happens to the Children of the Earth

Chief Seattle.¹³

The complex environmental problems that challenge our future are the direct result of human, political, social, and economic judgments exercised upon nature and on other people during the preceding industrial age. Our contemporary environmental problems are contextualized in these past and present political, social, and economic realities.

Our contemporary environmental problems are the direct causal result of an economic development system which systematically, for profit, exploits both nature and the people who live and work in closest contact to nature. The consequences have been devastating to both nature and certain communities of people. These problems represent deliberate policy decisions made for the purposes of industrial growth and development. Post-industrial problems such as global warming and endocrine disruptors (a.k.a. environmental estrogens) are the results of industrial history, economic policy, politics, and values. These are "post-industrial problems" because they are clearly related to policies of industrial development. For example, global warming and toxic waste are related to our insatiable need for energy to fuel prevailing assumptions about never-ending economic growth. In turn, conspicuous consumption and unacknowledged environmental privilege becomes a desired social norm.

Capital accumulation and wealth formation as a proxy for social good drive both the assumption of economic growth and the development of consumptive social norms. Neither are sustainable with nature, nor serve as a good fundamental social context for truly equal environmental protection. Industrial employment transforms workers into labor commodities. Unemployment has become a tool to control inflation, and the labor force a commodity for our industrial economy.¹⁴ Labor must be mobile in order to increase profits [31 ELR 10970] from manufacturing.¹⁵ All over the world, increased labor mobility has resulted in disrupted communities, cultures, and family life. One consequence of labor mobility is a lost sense of rootedness and identification with a place.

Another corrosive legacy of the industrial period is a lack of relationship with the land and an understanding of connection to it.¹⁶ We have no rituals which we expect to perpetuate in a certain place. This lack of belonging destroys a sense of caretaking, and eventually even a respect for it as well.¹⁷ For example, one of the things that is a hallmark of an indigenous culture is the expectation that current members and successive generations will live in a particular area—just as parents, grandparents, great-grandparents, and other relatives have. This creates a sense of responsibility for nature and for community, not just for one's children's welfare, but for the welfare of what one expects them to inherit. When people are separated from their sense of identification with place, our sense of stewardship for nature and for community dies in the hearts and minds of those affected, and adversely affects future generations.¹⁸ American society doesnot venerate ancestors in place, but rather those who, for example, pioneered the West by beating nature and indigenous people under self-serving rhetoric and propaganda such as "Manifest Destiny" and "Free Land for Free Men."

Post-industrial problems are the results of our industrial history, economic policy, and exclusionary politics and values. Those policies are responsible for extraordinarily rapid industrial development in the western economies. They are also responsible for a complex, increasingly unavoidable, and uncertain set of post-industrial problems for the environment and for the global community. For example, the policies of the industrial era have contributed to global warming, a complex problem both for the environment and for human settlements. The policies of industrialization have also driven the creation of toxic wastes, which we do not know how to handle under any degree of equal environmental protection or realistic conception of sustainability. The policies of industrialization have contributed to unemployment as labor mobility cannot keep pace with a rapidly increasing rate of natural resource use, fueled by population growth and high levels of consumption. The consequences of lower levels of employment are loss of family and social coherence, increased crime, and diminished quality of life.

Nature 'R Us: Bioaccumulating Uncertainty

We, as a species and as a society, have many impacts on nature. Unfortunately, we have usually engaged in serious discussion of those impacts merely out of a political agenda to preserve wilderness.¹⁹ Economists call some or all of these impacts "externalities," while industrial environmental decisionmakers and governmental regulators may call them fugitive emissions, de minimus emissions, wastes, discharges, pollution, and permitted releases. It is probable that for some of our impacts on nature we have descriptive names because we are unaware of how much and in what way we are impacting it.²⁰ This is especially true if we factor in institutional racism and sexism.²¹ But named or unnamed, these impacts do inevitably affect the land, air, water, and all living things around them.

Several factors have led to an accumulation of the industrial impacts that may bioaccumulate, including the insistence of western science on a high degree of certainty for causality, the complexity of ecosystems, the lack of regulation of all industries, shoddy and ineffective environmental enforcement in urban areas, the lack of baseline environmental information, and the failure of our courts to go beyond scientific limitations to prevent reparable and irreparable damage. We do not "know" if this type of environmentally insensitive industrialization is bad or good for us, but what is occurring in a rising urban environmental consciousness is bioaccumulating uncertainty. For example, one of the uncharted areas is the responsibility of the industrialized economy for creating toxins which mimic human estrogen.²² We do not know the effects of environmental estrogens on humans.²³ These environmental estrogens are chlorinated organic chemicals used in pesticides, insecticides, fungicides, and rodenticides that fool the human body into thinking that they are human hormones.²⁴ The effects may include diminution of semen production in males, some forms of breast cancer and ovarian cancer in women, and the early onset of menses, which is occurring at unusual rates in certain populations—particularly in women of color. We are witnessing the estrogenization of our generation. But no western-trained scientist will state that they are certain that environmental conditions are the cause. Scientists have difficulties with causal certainty that communities affected by environmental health problems do not share. That is why communities see scientists and scientific expertise as yet another partisan constituency, and why experts denounce the unwillingness of communities [31 ELR 10971] to distinguish between correlation and causation in making scientific judgments.²⁵

Scientists require a high level of statistical proof to achieve a level of predictability in order to say whether a given event is "caused" by another. Unless that level is reached, they will not say whether the event is caused or not caused by a certain event. For example, a scientist testifying as an expert witness will readily state there is no causality between a pesticide spray and cancer in farm workers who have been exposed to the toxin in the spray or drifting spray. In the case of cancer clusters appearing in farm worker communities in McFarland, California,²⁶ then-Gov. Pete Wilson commissioned the California health department to study the relationship of the pesticides to the cancer. Because of the small sample size, scientists could neither confirm nor deny causality. Yet, farm worker families got cancers uniquely attributable to the chemicals used in the pesticides. As an institutional dynamic, the null hypothesis allows the accumulation of chemicals until enough people die of cancer within the relatively short time frame utilized in most research studies. This dynamic illustrates an everyday reality for many communities of color, by allowing for the continued bioaccumulation of chemicals with known and unknown risks. Clearly, farm worker communities are not equally protected by environmental laws that rely on such scientific judgments.²⁷ Such pernicious denial of equal protection of basic environmental law does not bode well for those who realistically advocate for sustainability. By the time such scientific judgments can be made, particularly with the desired degree of "certainty," the effects may be irreversible for more and more populations of species. Cancer clusters caused by chemicals affect endangered species and endangered communities,²⁸ ultimately eroding the carrying capacity of regenerative ecological functions on which all communities depend.²⁹

Both nature and people (particularly indigenous and enslaved people) were converted by industrialism into commodities and labor for use in the development of the New World for profit. Colonialism and its ideology raised the perfect rationalization for our extracted, externalized, consumed, and exploited economy: the ideology of racial supremacy. This ideology continues to blind us to the real environmental danger of lost opportunities for sustainable relationships. We, as lawyers and legal scholars, may live in a bubble of privilege that allows us to deny the reality of our diminished circumstances. What privilege buys, however, is only time. Time is the most predictable of all known dynamics. It underscores both accumulating impacts and any realistic concept of sustainability.

Communities 'R Us: Environmental Accountability at the Grassroots

The environment registers all emissions, even though we as humans do not or cannot. While environmental and land use special permits continue to be issued—one in stark isolation to the other—environmental standards go largely unenforced, and industrial self-audits are kept secret.³⁰ The environment records and reflects all emissions. As these impacts have accumulated over time, they are harder to hide. Community right-to-know laws allow communities to know whether certain hazardous materials are in their midst. Originally passed in response to the concerns of fire officials and their unions, these laws spread rapidly across the United States during the 1970s at local, state, and federal levels of government, and they are central to locally based environmental activism. Whenever a waste site or industrial plant wants to open or expand in a given community, community right-to-know laws require notice of potential risks. The knowledge of risk gained by affected communities has empowered urban environmental activists, and laid much of the groundwork for research and documentation of environmental injustices in the 1980s and 1990s.³¹

Community right-to-know mechanisms in environmental law have become a fundamental part of urban environmentalism. Their successful use depends on the conscious involvement of state and local government officials, particularly environmental planners, who must become active in seeking local government cooperation.³² However, citizens are not waiting for planners to become activists. Right-to-know laws give citizens one of the planners' basis of power—information. For example, as a direct result of a municipal citizen initiative, Eugene, Oregon, passed one of the strictest right-to-know laws in the United States, by an overwhelming majority. When Environmental Defense first published its www.scorecard.org website, it received so many "hits" from inquiring citizens that its server collapsed two consecutive days. Citizen thirst for knowledge now extends to land use. More and more communities are demanding better notice of the land use decisions that affect them. Again as a direct result of citizen initiative, the municipalities of Oregon must give actual notice of any land use change that could reduce the value of the owners' land.³³

The rise of civic environmentalism also means the rise of self-empowerment for communities of color. Faced with eroding public health and unresponsive city halls, and empowered by knowledge of the chemical exposures and land use practices, these communities integrate past environmental [31 ELR 10972] practices and cleanups with the actual current use of land. As we discuss later, urban communities of color may be the first wave of pioneers of sustainability because of the integration of land use planning and environmental protection.

Race and Sustainability

Racism is an ideology of power that keeps the powerful people in place.³⁴ The ideology of power that justified dominance, extraction, and exploitation was to teach and preach the inferiority of the victim, the inferiority of the dominated, and the inferiority of the weak. Industrialism teaches and preaches the rectitude of exploiting the meek, the unskilled, the marginalized, the oppressed, and the disenfranchised.³⁵ Racism justifies and rationalizes exploitation and degradation of both poor people and people of color, just as economic progress justifies and rationalizes exploitation and degradation of nature. The two are twins. The doctrine of racial inferiority has been internalized and motivates us today in many ways, ranging from the micro-kinetic expectations when whites and people of color encounter each other on a narrow sidewalk, to institutional racism in housing, employment, and education. Racism has continued to live and flourish in the United States in all these areas because of our societal denial and the structural inadequacy of both legal remedies and judicial forums.³⁶

Racism allows the privileged to deny how bad things really are, but denial ends in disaster for those who look to nature. Sustainability, to the extent that it means sustaining the natural environment, requires that we deal with nature as an undivided whole, with no part being unsustainable. Sustainability also requires that we deal with the human population as an undivided whole. Sustainable communities are only as strong as their weakest link. A poisoned airshed, or an aquifer that poses an unacceptable risk to human health, threaten all the people who live, work, and play there. Those people most exposed to these hazards by their work or by the location of their housing will suffer health effects first, but their concerns will soon be felt by everyone. Increases in our population, technological prowess in natural resource use, patterns of consumption, and accumulated environmental impacts must be addressed with an affirmative and equal commitment to provide environmental sustainability for every community.

In order to engage and rectify the degradation the environment has experienced, the environmental movement must inevitably engage people of color, communities of color, former colonial nations, and the poor, because these are the places and peoples upon whom industrialism has externalized its worst concentrations of pollution, toxins, and waste. It is insufficient to simply reject the notions of colonialism and racism. We must, instead, adopt positive values that allow communities to reconstruct themselves around renewing and resilient constructs. The usual statements about sustainability discuss a concept of living within the limits of natural resources that are being too rapidly depleted and exploited to leave the next generation enough, and about leaving nature in as good a condition as we received it.³⁷ Systems thinkers push this concept further by looking at nature as a set of interlocking, interdependent systems, or a flow of services on which all living things depend. The knowledge that there will be future living beings (whether or not there should arguably be fewer of them), and that they will need these living systems or services that cannot be replicated or replaced, is the source of a duty to protect and preserve these systems intact for future generations.³⁸ From these basic concepts about resources or life support systems come other related doctrines, such as the principle that polluters should pay the full and true cost of the pollution and toxicity that they create, and the principle of precaution guiding action in the face of uncertainty.

But beyond resource protection and living within the limits set by these principles is the question of what kind of society we want to sustain. Taking the status quo of our society and preserving it preserves inequities, privileges, and their consequences for people of color, women, children, and the poor. Based upon this starting point, sustainability is no more than another iteration of a conservation argument from a colonial generation—preserving the future for a small, wealthy minority. However, if we measure the concept of sustainability for the majority of us—including people of color, women, children, and the poor—sustainability must also include the elimination of all forms of racism, sexism, and unearned privileges. Indeed, as Professor Marcuse argues, legitimate environmental sustainability can only be secondary to these issues. We must do what is just, then make that sustainable.³⁹

To do what is just and sustainable will require decisionmaking that embraces contested uncertainty, includes the vision and the leadership of non-elites, and acknowledges privilege and renounces it in favor of a fair transition to a just and sustainable future society. We have discussed what these inclusive, values-based frameworks for decisionmaking will look like and how they will function elsewhere.⁴⁰ The real, inescapable question is whether the values that foster sustainability may also be employed to achieve an end to racism.

The provision of simple justice to succeeding generations lies in the acknowledgment that they—those who follow us—will need the capital resource systems upon which we all rely.⁴¹ Simple justice to contemporary strangers likewise [31 ELR 10973] means acknowledging that they need capital resources on which we all rely. It is incumbent upon us to preserve those systems because we know they will be needed. Simple equity demands that we show the same degree of care to contemporary strangers as we hope to show to future beings.

Too often, solutions to the complex environmental and social problems left in the wake of industrial development are posed as false choices: nature or people, environment or jobs. These false choices operate to once again externalize the costs of cleanup and abatement onto either nature or poor communities and communities of color—victimizing them once again. When solutions are offered which poison workers so as to benefit neighboring communities, no sustainable solution has been found; when communities are destroyed and nature is blamed, the real culprit may be the technology which destroyed employment, not endangered species. These false choices blackmail the politically vulnerable into choices that preserve privilege and wealth built over the preceding centuries of industrial and capital growth, and continue to poison both nature and the people who live, work, and play closest to nature. Change must follow the solemn realities that privilege buys time for a future that may not promise a quality of life our parents enjoyed.

Human communities, cities, towns, and villages are the terminuses where these complex policy decisions and their environmental consequences have come to rest. Communities are where the waste streams join, where development pressures for increased power generation and water usage continue, and where population growth is most visible. Current decisionmaking can exacerbate environmental pressures on communities already burdened by environmental and societal injustices of the past. It is easier and less expensive to expand a current waste site than to find a new site for disposal or incineration. Sustainability and environmental justice are inescapable and inseparable.⁴²

Gross environmental inequities—such as sites so toxic that the carrying capacity of a bioregion is affected threatening human life—have begun to affect disenfranchised communities in numerous adverse ways, as the alarming statistics on childhood cancers,⁴³ asthma-related illness, and estrogenization phenomena (including decreased sperm counts and early onset of menses) amply demonstrate.⁴⁴ National concern for environmental justice is simply the recognition that wealth and privilege will postpone but not prevent the spread of these pollution-based health hazards.⁴⁵ Separated by both class and race and the network of formal and informal segregation of housing, education and employment, African Americans and many other predominantly poor urban dwellers are not included in the predominantly white environmental movement.⁴⁶ In the past few years, the focus of environmentalism in the United States has grown to include entire bioregions, including cities. Most pollution occurs in and directly affects cities.⁴⁷ Moreover, the highest proportion of American people of color resides in cities.

Environmentalists and minority urban dwellers are moving into an unavoidable relationship with each other because environmental concerns are of great significance to urban and minority communities, while environmentalists have broadened their focus to include urban areas.⁴⁸ It is neither the soil type, nor the hydrology of the bioregion or climatological conditions, that determine the probability that a toxic or hazardous waste site exists. It is, quite simply, the race of the humans who reside in the area. The greater the proportion of African-American people in a community in the southeastern United States, the more likely it is to be situated near a hazardous waste site.⁴⁹ This is one, important example of an environmental dynamic that is driving environmentalists in the United States and communities of color to the same issues in an unavoidable, inescapable, and essential relationship.

As urban areas become more central to the goals of the environmental movement,⁵⁰ the history of racial inequity [31 ELR 10974] and its inclusion as a factor in the discussion and in community-based forums about environmental issues becomes critical.⁵¹ The environment is indifferent to intentions, or even justice; but if we merely try to save what has been most poisoned we will inevitably follow in the footprints of slavery, colonialism, and exploitation. The environment does not "care" about justice or inequity; it simply reflects and accounts for all of the toxicity and waste deposited by human actions. But, in order to engage and rectify the degradation the environment has experienced, the environmental movement must inevitably engage people of color, communities of color, former colonial nations, as well as poverty. These are the places where industrialism has dumped its worst concentrations of pollution, toxins, and waste.⁵²

Traditional environmental groups have been strong advocates in courts and legislatures for environmental protection. The leadership of the mainstream environmental movement is comprised overwhelmingly of white, upper class, educated males.⁵³ This elitism has led mainstream environmentalists to exclude concerns of communities of color.⁵⁴ This dynamic creates distrust from these communities, who are demanding that they speak for themselves. In organized communities in every region of this nation we are witnessing the development of new strategies for environmental democracy: community-based environmental decisionmaking. The failure of the U.S. environmental movement to embrace land use planning or zoning in its advocacy or planning efforts has led it to ignore or minimize important decisionmaking forums for communities. The inescapable dynamics of development, expanding right-to-know laws, and federal targeting of the worst pollution hazards have brought mainstream environmental activists and environmental regulators squarely into communities of color because race is the best predictor of the sites of controlled and uncontrolled hazardous waste.⁵⁵ These encounters sometimes have been acrimonious. Original siting decisions regarding the placement of hazardous and noxious uses did not consider environmental factors such as hydrology. The siting of these locally unwanted land uses followed the path of least political resistance into politically marginalized communities.⁵⁶ The larger the concentration of people of color, the greater the likelihood a hazardous waste site exists. And it is in cities that the unavoidable relationships between disproportionate impact and sustainability ought to come clearly into focus. Unfortunately, the typical city is not characterized by environmental sensitivity or cultural consciousness of different, sometimes more holistic, perceptions of environment.⁵⁷

Environmental Planning: Hope and Failure

The one profession most engaged in local land use control is planning. The planning profession is characterized by many of the same values that make up "sustainability," with some important exceptions. Like sustainability, planning has a futurist perspective, in that it seeks a rational allocation of scarce resources distributed in a fair way. Unlike sustainability, with its basis in natural systems, planning is limited in time to the near future, in space to political subdivisions of the state (towns, counties, villages, townships, etc.), and in power over private sector decisions regarding land and environmental permits, and virtually void of any enforcement or compliance mechanisms. All these limitations are surmountable. However, the racism in planning, housing markets, and in the environmental movement prevent planners from making credible and enforceable environmental decisions in urban areas.

One primary characteristic of an environmental justice issue is that the consequences of environmental decisions are inescapable for those adversely affected. While certain decisions have had an immediate consequence for exploited people in exploited lands, it is now dawning on the more privileged culture that some of their environmental privileges have come at a cost to others. The concept of sustainability helps to foster understanding of environmental consequences. Another motivating factor is the sober judge of all ouractions, the environment itself. Our populations are increasing, our communities are growing, we are using resources rapidly, waste is dramatically increasing with fewer places to put it, and cities are ignored. Federal policy does not require environmental assessments in urban areas because the U.S. Environmental Protection Agency (EPA) determined that cities had no complete ecosystems.⁵⁸ Most of our current environmental laws, policies, and governmental programs are aspirational—lacking definitions of the basic terms of the environment. As noted by Prof. Oliver Houck, a noted environmental legal scholar:

Supported by this evidence of a decline in diversity and the crash of ecosystems upon which all species depend "ecosystem management" and "biodiversity" have become new catchwords in the vocabulary of natural resources management.

We now have to decide what these words mean. The difficulty is not to determine what, in the name of biodiversity and willing hearts, we can do to save species and the landscapes they inhabit, but rather, as pressures to develop these landscapes continue to mount, what we cannot do.⁵⁹

The best source of current knowledge on the local environment is the local community, especially when the community [31 ELR 10975] is considering risks and impacts affecting its own members. When a local community with environmental decisionmaking capacity can participate in these decisions, we can observe the development of real-life environmental baseline data.⁶⁰ Justice can mean many things to many people, but until planners make the place and space for communities to speak for themselves on environmental issues, neither environmental justice nor sustainable values will be part of planning.⁶¹

Planning Power: Can It Deliver Environmental Justice or Sustainability?⁶²

Planners are not without resources, and their resources are critical to community capacity building for environmental decisionmaking. They often have the best knowledge of the overall land use planning of an area, as well as development trends and trends in environmental systems. Planners can also educate, coordinate, and offer visions of alternate futures. However, the primary basis of planning power is regulatory power—zoning, subdivision approvals, building regulations, sanitation codes, design standards, urban growth boundaries, and wetland and floodplain regulations. Planners also have the power to take property from private owners for public purposes if they pay fair market value for it. This is one reason why planners will be important for community capacity building and sustainable policies—they are one of the few nonjudicial forums that can command the attention of private property owners and their organizations. They can purchase development rights and accept dedication of conservation easements. Planners could exercise their power to soften the impact of permitted land development upon the environment. In urban areas this power has instead often been exercised to build interstate highways across African-American communities, displace low income renters into more expensive rental housing markets, and to allow industrial and commercial land uses near African-American communities and other communities of color. Through the use of legal regulatory and acquisition powers, planners could attempt to force current noninclusionary and ecologically incomplete concepts of bioregionally based sustainability from the urban landscape.

Planners do have some authority to shape the future direction of land uses, especially in a growing community. But theirs is a coercive power that does not engage the community on environmental issues, is limited to the geopolitical lines of their respective municipalities, is reactive to development pressures, and largely ignores public health or environmental concerns. Planning power has been used to take land away from private property owners in African-American communities.⁶³ When land is taken from a community, a major basis for economic development is destroyed. Planners recognize many of the issues federal and state policymakers tend to avoid, such as homelessness and brownfields redevelopment,⁶⁴ because these problems are inescapable, not because the planning profession is a meaningful and engaged component of federal-state environmental regulation and intergovernmental relations. Planners will have to deal directly with issues of environmental justice, by encouraging and facilitating communities to speak for themselves, if they hope to plan for environmental impact with a sustainability component.

Equity and Ecological Concerns in Environmental Planning: Not Enough for Cities or Sustainability

The environmental ethical concept of "deep ecology" refers to the notion that nature and nonhuman forms of life hold intrinsic value irrespective of the utility or value humans place on them.⁶⁵ Unfortunately, this approach is quite antiurban, and promotes the rights of other animals over the rights of humans in cities. Until recently, ecologists were interested only in the study of nonhuman environments. Ecologists preferred pristine environments, which are uncomplicated by the intervening hand of man. Food chains, ecological niches, local evolutionary adaptations, and postulating testable scientific hypotheses are all easier to identify, observe, and measure in pristine environments.

"For most ecologists, big cities are off limits. Ecological research usually focuses on locations that appear unaltered by human activity."⁶⁶ This quote from a recent issue of the journal Planning expresses the attitude that forms a basis for the current state of urban environmental uncertainty. However, so great is the need to understand urban ecosystems that Baltimore, Maryland, and Phoenix, Arizona, received funding from the National Science Foundation for two five-to seven-year long-term ecological research projects (LTER projects). Both projects will attempt to answer questions about processes that occur on an urban landscape over time. Five questions are posed by the studies: What controls the growth of plants? How do animal and plant populations vary over time? What is the fate of organic matter? How do inorganic nutrients move through the water and the soil? How do disturbances such as hurricanes, grazing, and landslides affect the system? These projects are designed to forge links with community members, by bringing in the community to monitor and interpret the environment where they live and by training community members to map and monitor what is going on where their children play and with regard to the quality of the air they breathe.

[31 ELR 10976]

These programs have been criticized as overstating the role of social scientists. There has been no report from the affected communities, and it is doubtful whether the majority of people in these cities have been given actual notice of how they and their ecosystems are being studied. Interestingly but not surprisingly, urban planners appear to be lukewarm, at best, to these two projects. Planners in both cities are citing data redundancy and time frame inadequacy as reasons for their nonresponse. Phoenix Planning Director David Richert says he feels confident that his agency already compiles most of the same data, perhaps making LTER data redundant. Other planners say that the time frame is too long to generate useful information.⁶⁷

Ecological and Justice Concerns in Environmental Community Development

While it appears that as a discipline planning does not yet have the ability to truly plan for environmental justice or sustainability, planners are an important part of the emerging urban environmentalism. Planners can accommodate communities speaking for themselves and help increase the capacity of communities to engage in all types ofdecisions. In doing so, planners will increase their ability to plan and set the stage for community-based, land-focused, environmental decisionmaking. Planners can help to facilitate the clear articulation of problems associated with land resources. Actual notice and meaningful participation of all stakeholders affected by land resource issues is an essential first step. Planners could develop principled decisionmaking involving environmental resources. For example, as it stands now, most state environmental agencies issue and enforce air and water permits, regulate hazardous materials, and often site or expand locally unwanted land uses. While planners are not in that loop, they often experience the consequences of those decisions, as do the communities they are planning. State environmental agencies, while the recipient of millions of dollars for environmental enforcement, often experience the effects of exclusion from municipal, land use decisionmaking and have demonstrated an inability, indeed an institutionalized unwillingness, to gauge environmental carrying capacities, accumulated emissions, bioaccumulated impacts, and ecological risks. Considerations of environmental loading, benefits, burdens, cleanup, and disproportionatity must be developed as a point of professional expertise and implemented as part of every decision that engages nature. Planners cannot be conflict-averse regarding environmental issues. They must tolerate disagreement and ambiguity in environmental decisionmaking in the city because that is, more than infrequently, the nature of environmental decisionmaking and decisionmaking in general. And they must listen to their communities when residents speak out about environmental conditions where they live, work, and play.

Environmental Perspectives on U.S. Cities: The Need for an Inclusive Approach

When environmentalists in the United States speak of the "environment," they conjure images of uninhabited coastlines, verdant forests, and enticing mountains, but seldom create visions of where people actually live, work, and play.⁶⁸ The truth is that the environment in which the vast majority of people spend the most time is the urban environment, inclusive of suburbs.⁶⁹ Any deep understanding of the environment cannot ignore that fact. While an environment unimpeded by humans may be a laudable goal, it simply is not reality, nor will it be.

Environmentalists have also not given serious consideration to negative attitudes toward cities generally.⁷⁰ From the very beginning of the United States, our leaders thought of cities as having a negative impact on people and as imposing a corrupting force on our then-emerging democracy. Thomas Jefferson thought of cities as "pestilential to the morals, the health[,] and the liberties of man."⁷¹ He went on to write about the people he thought lived in cities:

The mobs of great cities add just so much to the support of pure government, as sores do to the strength of the human body. It is the manner and spirit of a people which preserve a republic in vigor. A degeneracy in these [cities] is a canker which so eats to the heart of its laws and constitution.⁷²

In the early 1900s, cities began to be referred to as "Jungles"⁷³ and "Wilderness" and later, the small number of whites who went back into the city to gentrify it were called "urban Pioneers." This metaphor of city and jungle connotes attitudes and prejudices about the African Americans who reside there. If one continues the metaphor, then cities can only become civilized when whites are the majority. This theme is pervasive today in environmentalism in the United States, and in the new generation of books on planning and the environment. For example, cities are still described as follows: "The first and most obvious thing about cities is that they are like organisms, sucking in resources and emitting wastes."⁷⁴

Environmentalists are concerned with loss of habitats, destruction of farmland and forest lands, and high economic costs and infrastructural costs, but not in the practical and real-life issues of those who live, work, and play in the cities. [31 ELR 10977] This leads traditional environmentalists, and the emerging so-called green urbanists, to ignore the extremely important role of private property or the impact of constitutional issues such as "takings"⁷⁵ that define the limits of power for the state and its municipalities. For example, the literature largely ignores the plummeting public health indicators for cities due to environmental stressors, and the bioaccumulative chemicals now showing up in babies' bones and mothers' milk. These omissions make much of the current literature on environmentalism and planning irrelevant to a discussion of sustainability, and arguably constitute a "greenwashing" of racism.⁷⁶ The environmental movement consists predominantly of white males with much unacknowledged privilege who presume to dictate to those in the city what they can or cannot do so that the greenfields that they grew up with stay that way. This characteristic of the environmental movement substantiates the fears of urban people and people of color that "sustainability" really means keeping them in a continually degrading and potentially hazardous environment.

Another fact of city life that cannot be ignored when developing any environmental policy is negative attitudes toward African Americans. Many African Americans went to northern cities to escape the life threatening racism of the south.⁷⁷ Environmentalists must consider what happens when these attitudes affect thinking on sustainability or "green urbanism." After approximately 400 years of legal slavery and lawful segregation by race, what remains are tremendous disparities in economic, physical, and environmental well-being in the very places in which sustained and realistic sustainability programs are urgently needed. As long as these disparities remained in the cities, they were for many years the acceptable price of both industrial expansion and environmental protection. Any ecologically or bioregionally based environmental policy must now revisit the burdened people and places of the cities in order to implement environmental policies that really improve the environment for everyone. This is especially true of any environmental policy with "sustainable" values.

Private Property and Environmental Values

The test of the maturity of the environmental movement as we enter the 21st century will be whether it can include communities of color in meaningful and authoritative ways. If sustainability is the ecological goal of environmental public policy, then history shows us that dialogues must include all stakeholders. Today, the emerging values that unite both traditional environmentalists and urban environmentalists are based in the recognition that the values and environmental consequences of industrial capitalism were and continue to be instrumental in contributing to the exploitation of people and natural resources. Both constituencies now recognize that the common concern that must unite the post-industrial world of environmentalists and urban dwellers is sustainable use of resources and equitable treatment of people. These two cannot logically be separated, for the poisoning of earth through the irresponsible practices of uncontrolled industry leads inevitably to the poisoning of all people. Initially, those who live closest to the earth, and vulnerable people who because of their class or race live closestto the polluting sources, are most at risk. Can we afford to wait until all the owners of private property agree to and in fact do use their land, air, and water in a sustainable way? One of the assumptions we must reexamine is a presumption of inherent conflict between policies such as ecosystem management⁷⁸ and biodiversity and private property stakeholders.⁷⁹ If fear of conflict acts as a reason for exclusion of any stakeholder, then not all essential stakeholders will be included.

As we realize that all share the air and water, some people are uniting under the banner of sustainable communities to articulate and act upon policies that reject exploitative industrial practices that inflict unacceptable costs upon nature and unacceptable risks on human communities. Although new coalitions are emerging, they do not yet capture one of the strongest and recalcitrant of all stakeholders—the private property owner.⁸⁰ More and more, our suburbs are becoming gated communities and exurbs. Our value in nature is in what is clean and safe, not as a place where ancestors are buried and the environment is venerated for our descendants. We want what is clean and safe because it is a higher quality of life for us and our immediate families. As a society part of our value in nature is an escape from the cultural diversity and environmental contamination of the city. Our environmental consciousness has moved from a morally motivated respect for nature to a self-preservation engagement with the environment around us. As our population, waste generation, and adverse environmental impacts increase, those who can try to escape to a cleaner, safer place. In the current American frame of mind, a cleaner, safer place means one untouched by human hand. The private property stakeholder seeks to avoid state control of land use, whether by private property judicial protections or by resisting incorporation into municipal planning structures.⁸¹ The ability [31 ELR 10978] of the state to control the use of land, whether public or private, leased or held in trust, is very important for a policy of sustainability. No one owns the environment. No one is entitled to a better environment than anyone else. The environment is a true seamless web of interrelated actions occurring over time.

The past 30 years have provided a vast repertoire of strategies, and modes of resolving complex, post-industrial environmental problems, including the challenge of bringing people widely separated by class, race, and world experience into a relationship of commonly held values. The methods of coalition building, from the conferences of the 1970s and the community organizing methods of the 1980s to the sophisticated legislative and litigative initiatives of the contemporary era, have the capacity to unite both urban and traditional environmentalists in a dialogue with industry and government. To reach the promise of this new dialogue is to escape from gridlocked, two-way discussions between traditional environmental groups and industry. Both are now locked into a rhetoric of combat and fault that places communities and their immediate concerns at a distance. The benefits that intense local involvement brings to the cause of environmentalism are also clear; when local communities have "bought into" the solution to their problems—along with industry—enforcement will be realistic, immediate, and inexpensive. This is because monitoring and enforcement mechanisms of a coercive, punitive government system are more expensive and less effective than the monitoring and enforcement mechanisms of an engaged citizenry. Moreover, the combination of a comprehensive environmental movement, with its eye on the global picture, combined with community activism, with its eyes on local effects, holds a promise for change in the destructive practices of the industrial age regarding externalization of the true costs of pollution and toxicity. Everyone must act responsibly to end these practices.

While private property is a serious challenge to inclusionary dialogues about the environment, it may be that an eroding quality of life due to environmental stressors will bring even these most reluctant stakeholders to the table. As waste and population increase and add to already accumulated wastes, preservation of water and air quality will require everyone's involvement. Civic environmentalism will require industrial land owners to act like "Good Neighbors,"⁸² and engage communities in a framework that puts their environmental issues in a land use context.

Land Use Planning in Urban Areas: A Way Environmentally Burdened Communities Can Speak for Themselves

How cities deal with the land we live on, in, and around determines our impact on the environment. Yet, how we actually regulate land is a patchwork of politics, law, and mystery.⁸³ As environmental concerns have mounted in urban areas, many of these communities have reinvigorated the land use planning process with environmental innovation and a sustainable focus. It is in these communities that hope for sustainability in the most consumptive nation exists.

Land use and the control of land use are very important to any consideration of sustainability. Land is part of virtually every human activity, and is an absolute requirement for any form of production or development. Human population growth and patterns of capitalism have increased the simple basic need for space. The need for space generally translates into a need for land. Increased efficiencies in transportation and in telecommunications have further increased the demand for space by decreasing the need for propinquity in all sorts of human institutions. Given the increase in the demand for land, and the decrease in the need for propinquity, it is quite natural for businesses to seek out low cost land. Some land may cost less than other properties for a variety of reasons. It may be because the land is near undesirable land uses or marginialized populations, or both. Again, recent, rapid increases in the amount and types of waste, combined with population increases, greatly increase not only the pressure to find low-cost land, but to find any place at all that will accommodate the anticipated use.⁸⁴

The land with the most intense human footprint, and that will be absolutely necessary for sustainability, is decidedly urban. Yet in the United States, urban lands are the most ignored aspect of public and private environmentalism. Our colonial and post-colonial development occurred around water-based transit routes. Navigable rivers provided transportation for people, raw materials, and goods. In the 1800s railroads swept the nations, and fed ideas such as the notion of "Manifest Destiny." Railroads often followed rivers, where they could, and where rivers and railroads met became a critical juncture in the loading and unloading of freight and waste. With the advent of the car in the 1900s, roads came next. Roads also needed to be near goods and services. In this manner, cities became multimodal transportation nodules. After World War II, western Europe developed a more extensive network of railroads while the United States developed the interstate highway system. While the interstate highways were built primarily for national defense, trucks moved goods and raw materials and commuters used them extensively—often generating increased truck traffic in central cities. Where rivers, railroads, and roads met became critical nodules of economic development, long before the formation of any governmental environmental agencies. These nodules also tended to become, for decades, the sites for the deposit of accumulated wastes. The wastes came from the transportation modalities themselves, in terms of fuel, solvents, and animal and human waste; and from the goods and raw materials themselves. As the petrochemical and chemical manufacturing industries swung into high gear in the 1940s and 1950s, the use of these multimodal transportation networks dramatically increased as did the perniciousness of their wastes. Today, and in the foreseeable future, these sites are likely to be considered "brownfields."⁸⁵

[31 ELR 10979]

Land use was slow to control these dynamics. Land was cheap near noxious industries. When land use planning and zoning first began it was applied to exclude African Americans from suburban residential areas, a process called exclusionary zoning.⁸⁶ Zoning was also used to expel African Americans from redeveloping central cities, through a process called expulsive zoning.⁸⁷ How we controlled the land in our cities was to encourage a free reign to industrial development and to discourage residential development for people of color. When we finally got around to regulating the environment, in about 1970, we ignored cities. Environmental impact statements (EISs) are generally not required in American cities, and when they have been used, they have tended to ignore critical impacts upon people of color.⁸⁸ In contrast, the United Kingdom has largely focused its environmental policies on cities and their ecosystems, and now has the beginning of a truly implementable sustainability policy.⁸⁹ The oppression of people of color and of cities in the United States has led to the neglect of both, and the accumulated wastes of 100 years of unchecked industrialization in the world's most industrialized and polluted nation. It is not irresponsible to speak of Ecocide⁹⁰ when considering the cumulative effects of urban pollution. As recently observed by the Audubon Society, "now the environmental groups are looking hard at toxic facilities and garbage incinerators. And, as they squint across decades of indifference to the plight of cities, they are seeing the wreckage left behind when their parents and grandparents fled."⁹¹

The primary reason land is a critical nexus for environmental justice and sustainability is that all carrying capacity analyses rely upon the characteristics of the land.⁹² Environmental justice is concerned with the benefits and burdens of all past, present, and future environmental decisions. It is likely that most urban areas have exceeded the carrying capacity of their land base.⁹³ For human settlements that span bioregions, it may be that suburban advocates of sustainability will have to decrease the burden of an excess carrying capacity of nearby urban neighborhoods. The looming, unavoidable question that will determine constituencies in these environmental decisions regarding sustainability is how much can the land carry in terms of waste, discharges, emissions, and pollution? If urban neighborhoods are not considered to have exceeded their environmental carrying capacity, then waste streams, emissions loading, and the rubbing raw of the wounds of past, explicitly racist, environmental policies will continue. Brownfields are a policy testament to these dynamics. The carrying capacity of the land is of direct importance to environmental justice concerns, because when the land exceeds its carrying capacity waste increases, industrial by products may begin to bioaccumulate in vulnerable parts of the community, and public health becomes threatened.

For those who advocate environmental justice, and for those who advocate sustainability, dumps, uncontrolled waste sites, toxic and hazardous sites, and waste transfer stations are fundamental barriers to both equal environmental protection and to any realistic concept of sustainability. As questions about the carrying capacity of the land are raised by sustainability advocates, the environmental burden borne by people of color becomes more and more apparent. Recognition of these burdens is not enough because, again, the environment is a stone cold sober judge of results only. If recognition of the disproportionate and adverse environmental impacts on people of color is as far as our society can go, as in housing, employment, and education discrimination, then we will simply never approach real sustainability.

As urban areas become more central to the goals of the environmental movement, the history of racial inequity and its inclusion as a factor in the discussion and in community-based forums about environmental issues becomes critical. Issues such as the provision of municipal environmental services, such as recycling and basic sanitation, in urban areas are also tainted by the dynamics of racism.⁹⁴ The fact that some of these explicitly racist practices preceded Emancipation and subsequent civil rights legislation speaks to greater accumulated impacts in the environment and people in those places. These issues are part of the context of institutional [31 ELR 10980] racism, and present formidable obstacles in creating an inclusionary type of environmental decisionmaking structure and process necessary for meaningful consideration of sustainability. The overall context of environmental justice and sustainability is the land, air, and water. Land in urban areas has been ignored by environmental advocates, and land use law and planning has facilitated the exploitation and degradation of land and people.

Since its inception, land use planning has been used to exclude other people, at first through explicitly racist exclusionary zoning practices, then through modern day practices of expulsive zoning in African-American communities. Land use planning, and especially zoning, keep locally unwanted uses with locally unwanted people; and kept them both from the greenfields of the suburban, predominantly white, residential Americans.⁹⁵ Now, at the dawning of an ecological decisionmaking paradigm, everyone's environment matters. Communities of color, suffering from environmental and public health crises, and unable to access effective environmental enforcement, have turned to the land use planning process. It is a characteristic of the environmental justice movement to engage in land use decisions, when possible. Because of the anti-urban bias of the environmental movement, there are seldom environmental organizations or people who identify themselves as environmentalists in these important urban and ecologically significant forums. Faced with risk, these communities have turned to themselves. They realize no one but themselves can empower their community. As a result, these communities are the pioneers for sustainability. These forums may be the most inclusive, locally based environmental decisionmaking forums currently available and, as such, facilitate important, often groundbreaking, discussions on the environmental quality of our neighborhoods. Using the new sources of information, communities are developing environmental justice leadership and decisionmaking capacity to influence public health agencies and affect land use planning.⁹⁶ These communities, such as Barrio Logan in San Diego, California, are independently developing industrial sector approaches. These land use strategies are community wide and seek environmentally sound economic self empowerment. They are unique to each community, and increasing in number.

While the results in one case or community are difficult to generalize in a way to be applicable to another, there are certain characteristics of these communities and the processes that develop. These communities are first and foremost characterized by the presence of people of color, then by low-income measures and are laden with many sources of environmental pollution in highly dense areas. Residential land uses often stand cheek to jowl next to industrial land uses. Despite the higher level of industrial activity, these communities are characterized by a lack of environmental enforcement and compliance efforts. Even when polluters are fined, they are fined twice as much for the same act in a white community.⁹⁷ Generally, these communities have low levels of health services, older housing stock, and poor or inadequate municipal services such as police, fire, sanitation, and public transit.⁹⁸ These communities are not hard to find, but they have been easy for society to ignore. They tend to distrust the traditional news media, and often find themselves economically and politically excluded from the courts. They have effectively been foreclosed from meaningful involvement in the administrative forums of our state and federal government.⁹⁹ Accordingly, environmentally burdened communities of color have increasingly expressed their vision of sustainability through the land use planning process. Grappling with a legacy of industrial pollution at the local level is one of the most difficult challenges facing American cities. Yet it is an important foundation of any policy future that could include sustainability and equal protection of environmental laws.

From Negro District to Environmental Self-Empowerment¹⁰⁰

Many communities suffer from persistent racial isolation.¹⁰¹ African-American communities have struggled against political, social, and economic odds to gain control over the land, air, and water.¹⁰² The east side of Austin, Texas, was planned as a "Negro district" in 1928, which then and now means an area to house African-American people and to site industrial and commercial land uses. Austin's first zoning map in 1931 reflected this intent. East Austin allowed for lesser included uses until the 1980s. This meant that less intensive uses, such as residential ones, could be placed in areas of zoned for commercial or industrial use. Most municipalities had abandoned this type of cumulative zoning decades [31 ELR 10981] earlier. Much of the land was zoned industrial in any event. The current population is mainly African American and Hispanic, and the current land uses are a power plant, two or more trash recycling plants, an unknown number of waste transfer stations, a gasoline tank farm, and other industrial uses that use, store, transfer, and emit hazardous and toxic substances.¹⁰³

A 1997 city of Austin study showed that East Austin had a significantly higher amount of industrial zoning than the rest of the city, and earlier studies had shown that there was a higher usage of hazardous substances than in other areas of the city. From 1928 to 1970, when the EPA was formed, there was not even the hope of enforcement of any environmental law in East Austin. The cumulative emissions of East Austin were characterized by their proximity to thelocal community. There were multiple exposure pathways, and the risk of exposure to these unknown industrial emissions is greatest to those most vulnerable to environmental stressors. East Austin was a community under toxic assault. It sought, and found, expression for its survival instincts in playing the zoning game.¹⁰⁴

The first basic aspect of community-based environmental planning is active engagement in the land use planning processes. This requires the submission of actual and timely notice of important environmental decisions to all stakeholders before, during, and after the decision point. There are few enforced notice requirements in current environmental laws and regulations, and notification to the affected community is often overlooked. All homeowners and property owners are keenly interested in land use decisions, especially when determinations may impact the fair market value of their property or the health of their family. This was evidenced when the voters of Oregon passed an initiative that requires municipalities to give actual notice and compensation to land owners in the event of changes in zoning that may affect the value of their land.¹⁰⁵

The lack of truly meaningful participation stems, in part, from a lack of notice. But even actual notice can be of little effect in the absence of meaningful physical and cultural accommodations, such as the provision of childcare at public meetings and hearings and sensitivity to the observance of religious sabbaths. All too often, community "participation" in decisionmaking has been worse than meaningless. Environmentally burdened communities of color are, however, learning to make the process meaningful, and in so doing, are expanding their impact upon decisions affecting local, urban areas. This heightened community involvement is an essential foundation of any policy, program, or plan for sustainability or equal environmental protection.

East Austin basically rezoned out uses that were threatening to people living there and to the environment. Land uses that were in existence prior to the application of a land use plan or zoning, i.e., those occurring before 1925 to 1950 in most cities, are called prior nonconforming uses. The property owners cannot be forced to change their use of their land by application of zoning without triggering the constitutional obligation of government to pay the landowner. There is no clear practical or legal test to determine exactly when an environmental regulation becomes a "taking" of property under the Fifth Amendment of the U.S. Constitution.¹⁰⁶ From recent Court decisions, however, it appears that private property owners are more secure in developing property as they see fit, and in thwarting federal, state, and especially local land use regulations.¹⁰⁷ In the vast majority of cases municipalities prefer not to have to "take" land under the eminent domain power because of the fiscal costs and political repercussions. So, unless prior nonconforming uses substantially bother a powerful local interest, they will not be "taken." An area such as East Austin is rife with prior nonconforming uses, generally of the industrial kind. This is, indeed, a prevailing land use characteristic of communities in urban areas. Since many of the prior nonconforming uses are industrial or commercial, and precede any environmental regulation by decades, the corollary concern is the risk and actuality of accumulated emissions, wastes, by products, discharges, and pollution.

The Austin city council made two sweeping changes to its zoning standards. It designated a large part of East Austin as the "East Austin Overlay Combining District." While not changing the underlying zoning classification of any parcel, the classification meant that new industrial uses, or changes in current industrial uses, now require a permit from the city fire department. The permit application would be considered subsequent to actual notification of owners of property located within 300 feet of the zoned property and of registered neighborhood associations. The permit application would be the subject of a public hearing. City planners are supposed to report annually on the actual impact of the ordinance, in terms of the number of permits approved or denied, the change in the total appraised value in the community, and impacts related to employment opportunities. The Austin city council also changed the zoning on individual parcels, generally from industrial to commercial or residential. They did so based on neighborhood complaints about noise, rats, fires, dangerous truck traffic, emissions, and odors. They also foreclosed any future chances of currently zoned residential property from becoming anything else.

In East Austin, land use planning was reinvigorated as a method to achieve better protection of the people and the environment. Inclusion of environmental groups was sought by the community, but never truly achieved. The primary concern of the community was the amount of industrial land uses in their community, not so much whether a particular [31 ELR 10982] manufacturing facility was a wrongdoer. The citizen suit provisions of the major environmental laws have given environmental organizations a powerful litigation tool. But it has also often limited theiractivity to the courts. The next forum for the real planning for sustainability is at the community level, and it may be that environmental organizations, as they now function, will not be a part of it.

From Canaries in the Coalmine to Pioneers of Sustainability

If the goal of sustainability is the change of behavior of a broad social population in relation to the land, air, and water, the issue of risk perception must be addressed. With respect to land use issues, the canaries in the coalmine have directed their concerns about environmental issues into land use forums. Their survival holds lessons for our sustainability.

Popular perception of industrial risks is much higher than the perception of medical risks. The perception of risk may vary widely when risk is thought to be escapable or voluntary. In addition, world view, age, gender, and race all affect risk perceptions, and these differences have important consequences for democratic political decisionmaking.¹⁰⁸ The expert model of risk analysis fails to incorporate any aspect of equity. As noted by Prof. Donald T. Hornstein:

Much of environmental law addresses public health risks carried through environmental media, such as risks posed to human populations by air pollution and groundwater contamination. Typically, comparative risk analysts evaluate these risks according to their expected losses across populations (generally referred to as "population effects" or "population risk"). But in doing so, comparative risk analysts tend to emphasize aggregate effects and to downplay how public health risks are distributed.¹⁰⁹

In many communities with a disproportionate number of nonsustainable and hazardous uses it is extremely important to know precisely how the actual risk could affect all ranges of vulnerability.¹¹⁰ The accumulated exposures to many small risks, whether regulated or not, may pose greater public health threats because their impacts are unknown and cumulative. Since no one community is a monolithic whole of the same individuals, some communities may have individuals that are especially vulnerable to the risk in a given case. This is an extremely important aspect of equity, and must be explicitly recognized in land use planning processes. As Samara Swanton observes:

Environmental regulatory agencies acknowledge that vulnerable populations face the greatest risk of harm from environmental insult and that these groups are not adequately protected. Although a risk-based prioritization [note omitted] of resources benefits the greatest number of people, such allocation would disadvantage minority communities, which contain disproportionate numbers of sensitive subgroups.¹¹¹

The increased awareness of "risk" through community right-to-know laws, court cases, agency rulings, legislation, popular literature, a perception of a generally declining state of urban environmental quality of life, and the media has facilitated the public recognition that "risk" is not a trustworthy account of personal danger. People from all strata of society are becoming aware of the risks that society assumed under the industrial paradigm.¹¹² Greater knowledge of the benefits and burdens of technology and industry translates into even greater concern about the risks of land development. Communities are now differentiating between voluntarily and involuntarily assumed risk, between the environmental impacts of different industrial sectors, between industries with good or bad environmental compliance records, and between acceptable and unacceptable risks of development. Simply because a particular community is not aware of a particular risk to itself, its future, or its environment does not mean that it has voluntarily assumed that risk. As we become more aware of the risks posed to these constituencies, we cannot assume that all previously unknown risks were voluntarily assumed. Currently unthinkable policy actions, such as revoking permits if we learn that an emission poses more of a risk than the community agreed to when the permit was issued, will need to be developed.

In many environmental problems, questions of risk assessment and risk judgment are fundamental to public and private policy choices and decisions. Given the newness of this dialogue, previously excluded stakeholders, like the community, will need to build capacity and establish relationships with local elected officials, planners, churches, and grassroots environmental justice groups regarding the uses and abuses of the land. Capacity building and organizational development take time, and require the establishment of stakeholder credibility, or a workable level of trust.¹¹³ Trust is very difficult to create, and very easy to destroy. If [31 ELR 10983] we really groom the active and meaningful involvement of the community, and move slowly and deliberately in our local, state, and federal land use decisions, will we set the stage for the creation of trust between diverse stakeholders. There may be acrimony, and that may set the parameters of trust. While a consensus among all the stakeholders may not be possible, all the stakeholders should at least have the time and information necessary to reach a consensus in order for the process to be environmentally meaningful.

There is an international model of a principled way to slow down decisions regarding the environment. The precautionary principle, as used in international negotiations on the environment, should be applied where it matters the most—to our land.¹¹⁴ Not only will the environment maintain some resiliency, we will have the time to make the places and spaces, forums and venues, and advances in environmental baseline development that inclusionary, multistakerholder, sector-based, multimedia environmental planning for sustainability will necessitate. We need to act in anticipation of environmental harm if we are to begin to act in a sustainable manner. It is likely that these decisions will take much longer, but that should satisfy both those concerned with environmental quality and those who desire more information with which to make a decision.¹¹⁵ The incorporation of equity in decisionmaking is not new.¹¹⁶ But it is necessary for sustainable planning and to help achieve ecological goals such as biodiversity. Inclusiveness demands much more than small print notices in English in the classified section of newspapers with limited circulation. However, it may be that the increasing consciousness of the "cost" of incomplete knowledge of the environmental impacts of our past raises the specter of personal threats to increasingly large numbers of our society.¹¹⁷

The cost of exclusion is a "downward spiral" of the depletion of nonrenewable resources and accumulating toxicity, consequences that none of us can long escape simply by the invocation of privilege, more expensive and time-consuming litigation, and loss of an important part of our humanity—fairness. Two of the main barriers to inclusion in land use planning are the unacknowledged privileges of powerful stakeholders, and raw, unremorseful, institutional racism. Both barriers can be overcome by such sentient beings as ourselves when the burdens of past oppression are a primary subject of multistakeholder discourses.

Voices From a Savage Past: Why Race Matters to Past, Present, and Future Sustainability

William E.B. DuBois observed that it is the color line in America that establishes the standard for acceptance.¹¹⁸ The power of skin color in the psyche and behavior of Americans sets the tone for public policy, program planning and implementation, and external and self-images.¹¹⁹ Nowhere is this more currently true than in the environmental wastelands of urban places. At the 1893 Columbian Expedition, Daniel Burnham called for an environmentally healthy city. He labeled it the "White City."¹²⁰ Modern environmentalists continue to envision "white" as the standard for clean and worthy of being protected. The accepted leadership of the American environmental movement is white. The major acceptable environmental issues relate to the interests of white Americans. Even basic human preservation issues favor whites. Only white women, for example, are protected and preserved by the Mann Act, in spite of the fact that African-American women have been and are many more times vulnerable and violated than their white cohorts. Similarly, black men are seen as irrational, sex-crazed, and violent; they are justifiably, reason whites, denied human environmental protection and preservation. Our cities are planned by the white leadership with these premises.

Those who have been born into the privilege of a place to live, work, and play, free from contaminants and fear of toxicity, lose sight of that privilege, and the greater the separation becomes between them and those who have been born on the receiving end of pollution and racism. These boundaries are racially based. As noted by one prominent researcher:

The idea of race exists because people give it particular meaning, a meaning that changes with time, place, and circumstances. But one constant remains—the privileging of whiteness through different devices, social pattern, and even laws. This racial positioning is maintained in part through an unwritten rule that it cannot be discussed. In fact, the corollary rule mandates that we talk about the social desire for equality while avoiding an examination of white privilege or any other privilege.¹²¹

While it may be possible to buy off present generations of those who are oppressed (and those who oppress) with charity, religious hope for the future, powerful government jobs, or money, in order to preserve present white privilege nature cannot be bought off. What has been done by environmentalists and conservationists in the name of preserving the benefits of nature has too often come at the cost of burdening African Americans. These costs are now being borne by all present generations, because nature redistributes all environmental burdens in ways that affect everyone. As toxic hot spots emerge in African-American sections of our nation, and especially in our cities, they affect entire airsheds and watersheds. We all breathe the air and drink the water. [31 ELR 10984] White environmental privilege is at best mortgaging the future environment of all nature, including human life.¹²²

Our premise, supported by nearly four centuries of African experience in the New World, is that white racist views and practices—both individually and institutionally—produce at least two outcomes in the environmental movement. First, whites tend to discount African-American orientations to nature as less important than those presented by whites.¹²³ Second, there is the unproductive racial tension from confrontation, as marginialized African Americans are forced to challenge the arrogant assumptions of whites who insist upon dominating the environmental movement. The places where our waste has accumulated now have a human face. The land use issues surrounding one of the most controversial and growing environmental problems, waste cleanup, raise both these dynamics of racist, environmental assumptions. Assumptions are moveable impediments, and represent our dynamic understandings we have about each other. As environmental crisis and conflict expose us to each others' perspective, our assumptions should change based upon our experiences with each other. Institutions that have limited access to urban communities of color, such as colleges and universities, may present obstacles to meaningful environmental change because of their historic and present lack of inclusion. Because leaders of the environmental movement, industry, and environmental regulation are trained and educated to be the leaders of tomorrow in these institutions, their power as gatekeepers can be an impediment.

The Invisible University¹²⁴: A Major Impediment to Sustainability

The solutions to these emerging, inescapable dynamics will require our educational institutions to overcome centuries of institutional racism.¹²⁵ Environmental education must embrace issues of social justice, urbanity, and inclusion. The institutionalization of racism in higher education is legally more entrenched than in many other sectors because Title VII of the Equal Employment Opportunity Act did not apply to colleges and universities until 1971.¹²⁶ It was not until 1972 when women were admitted to some state universities, by judicial decree.¹²⁷ It was probably around 1974 or later that colleges and universities even gave slight deference to the civil rights law, and even afterwards courts often refused to "second guess" tenure and promotion decisions involving alleged racial discrimination. As late as 1994, university administrators were describing the failure of African Americans to join the "invisible university" as a legitimate reason for denial of promotion in a state university.¹²⁸ If people of color are not allowed an equal and protected space at the table of higher education,¹²⁹ then how will we know what environmental impacts exist in people of color, in our cities, and in our bioregions? If scholars are not protected and encouraged to examine these impacts, how will we know what they are? If we do not know the impacts, those societal stakeholders that benefit from the blinders that oppression of academic freedom creates will continue to benefit. Those who are excluded from higher education, by topic and person, will continue to be burdened.¹³⁰ However, no one can escape the true impact of our actions on the environment. As emissions accumulate, waste and populations increase, and our public health degrades, we will realize that sustainability will require large leaps of social justice and inclusion. Clearly, American higher education has not embraced the necessary elements for our society to begin the long road to sustainability.

The current lack of a place and space for people of color in our educational systems is yet another force that pushes communities of color into land use decisionmaking processes. Land use planning processes become an environmental battleground with consequences for all real property owners and renters. As our educational institutions engage this inescapable dynamic in both their physical plant and their curriculum, we can expect distortions of concepts of sustainability under the guise of "smart growth"¹³¹ and the reemergence of phrases such as "sprawl" that hide the city-suburb duality of our metropolitan, and soon to be [31 ELR 10985] megapolitan, human habitations. These words do not capture the relationship we have with nature. They imply that sustainability is the status quo—brownfields for brown people and greenfields for white people.¹³²

Venue and Forum Development for Environmental Justice and Sustainability: Precursors to an Inclusionary Dialogue or Cooption of Community Stakeholders?

As we have discussed elsewhere, a requirement for sustainable decisionmaking is an inclusionary dialogue. But do we know what that is yet? Judging from our environmental practices and state of ecological ignorance, one could argue that we are far from sustainable. By these same criteria, one could also contend that we are not yet inclusionary in our environmental dialogues and certainly not in our environmental decisionmaking. The forum for tough and controversial environmental decisions has largely been the judicial branch of government, which has limited accessability for most environmentally assaulted people. The fora for most environmental decisions are federal and state environmental agencies, which are far removed from the actual land use practices that they purport to regulate. The fact that residents are separated from environmental decisions has been noted since the inception of EPA. In 1971, one year after the formation of EPA, Prof.Joseph Sax, a prominent environmental law scholar, stated:

We are a peculiar people. Though committed to the idea of democracy, as private citizens we have withdrawn from the government process and sent in our place a surrogate to implement the public interest. This substitute—the administrative agency—stands between the people and those whose daily business is the devouring of the natural environment for gain.¹³³

The regional offices of federal land and environmental agencies, and state agencies, have proliferated; citizen suits for environmental causes of action have increased; and right to know laws have expanded. Yet we still do not fully comprehend what is necessary to create a truly inclusionary dialogue on issues of justice and sustainability. The stage is set for confrontation rather than dialogue, incited by the adversarial nature of the judicial process in environmental decisions, rising public health concerns, and unresponsive environmental agencies. The development of other venues and opportunities for simple dialogue on environmental perceptions must begin first. What does this mean in practical reality? It means forming mayoral and gubnatorial advisory boards on issues such as obtaining environmental justice in urban areas. It means giving actual notice to communities before environmental decisions are made. It means holding conferences, meetings, training sessions, and community meetings on issues of importance to previously excluded stakeholders. It means that these discussions are conducted by facilitators, with the provision of child care, transportation, and room and board based on ability to pay. It ultimately means that all stakeholders are given the capacity to engage in all environmental decisions in some continuous manner.

We do know that without knowledge from all stakeholders, we can never plan for sustainability, and without explicit and independent cooperation from all people, we can never be truly sustainable. When we overcome our ignorance of each other, we will reduce our epistemological uncertainty about decisions of justice and environment. Only then will we be able to develop standards for sustainability, and plan without the fear and contempt that ignorance and uncertainty breeds.

1. LANGSTON HUGHES, SELECTED POEMS OF LANGSTON HUGHES 82 (1987).

2. See generally WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT, OUR COMMON FUTURE (The Brundtland Report) (1987) [hereinafter WCED]; ALAN DURNING, POVERTY AND THE ENVIRONMENT: REVERSING THE DOWNWARD TREND (World Watch Inst. 1989); ALAN DURNING, ACTION AT THE GRASSROOTS: FIGHTING POVERTY AND ENVIRONMENTAL DECLINE (World Watch Inst. 1989).

3. See EDMUND SEARS MORGAN, AMERICAN SLAVERY, AMERICAN FREEDOM: THE ORDEAL OF COLONIAL VIRGINIA (1975) (discussing slavery as wealth for whites able to afford them and as status for whites unable to do so).

4. Emancipation Proclamation, Jan. 1, 1863.

5. These lynchings became particularly brutal in order to increase their deterrent value. Audience participation was encouraged. Quoting the Vicksburg Evening Post of Feb. 13, 1904:

When the two Negroes were captured, they were tied to trees and while funereal pyres were being prepared they were forced to suffer the most fiendish tortures. The blacks were forced to hold out their hands while one finger at a time was chopped off. The fingers were distributed as souvenirs. The ears of the murderers were cut off. Holbert was beaten severely, his skull was fractured and one of his eyes, knocked out by a stick, hung by a shred from the socket …. The most excruciating form of punishment consisted of a large corkscrew in the hands of some of the mob. This instrument was bored into the flesh of the man and woman, in the arms, legs, and body, and then pulled out, the spirals tearing big pieces of raw, quivering flesh every time it was withdrawn.

JAMES ALLEN ET AL., WITHOUT SANCTUARY: LYNCHING PHOTOGRAPHY IN AMERICA 15 (2000).

6. 163 U.S. 537 (1896).

7. 347 U.S. 483 (1954).

8. See infra note 30 and accompanying text (discussion of the educational barriers to sustainable environmental education). Title VII was substantially amended in 1971 to include colleges and universities, which were legally permitted to discriminate in faculty hiring, promotion, and tenure decisions. See Kirstein v. University of Va. Bd. of Visitors, 309 F. Supp 184 (D. Va. 1970) (citing the new amendments as the basis of admitting females to a white male state university).

9. See INITIAL REPORT OF THE UNITED STATES TO THE UNITED NATIONS COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION (2000), available at http://www.state.gov/www/global/human_rights/cerd_report [hereinafter INITIAL REPORT].

10. Remarks of Dr. Peter Marcuse (Professor of Planning and Preservation, Columbia University), Environmental Justice and Sustainable Development in the City, First Annual Freedom Colloquium, Jackson State University, Department of Urban and Regional Planning (Apr. 7, 2000) (transcript available from authors).

11. COMMITTEE ON ENVIRONMENTAL JUSTICE, INSTITUTE OF MEDICINE, NATIONAL RESEARCH COUNCIL, TOWARD ENVIRONMENTAL JUSTICE: RESEARCH, EDUCATION, AND HEALTH POLICY NEEDS 15 (1999).

12. See Alice Kaswan, Environmental Laws: Grist for the Equal Protection Mill, 70 U. COLO. L. REV. 387, 432-55 (1999) (discussing environmental justice and equal protection case law).

13. This saying, or a version of it, is often attributed to Chief Seattle (Seea-ath) of the Suqwamish and Duwamish tribes. Chief Seattle lived from 1787 to 1866. Scholars challenge the actual attribution but agree that it is probably inspired by the chief's remarkable speech delivered in 1853 on the occasion of Governor Steven's first visit to Washington territory. The speech was recorded by Dr. Henry A. Smith, who had learned the Duwamish language, and it was published in the Seattle Sunday Star on Oct. 29, 1887. Versions of this speech were later written as text for screenplays, which some scholars identify as the source of popular confusion about this now popular phrase. Access to this dialogue, to the speech, and to other information about Chief Seattle can be found on the Internet, at http://www.gopher://empire.nysernet.org:2347/7.

14. Numerous workers in industrial settings have suffered from environmental exposures. See generally TOXIC CIRCLES: ENVIRONMENTAL HAZARDS FROM THE WORKPLACE TO THE COMMUNITY (Helen E. Sheehan & Richard P. Wedeen eds., 1993) (discussing cancers from various industries).

15. RICHARD CLOWARD & FRANCES FOX PIVEN, POOR PEOPLE MOVEMENTS (1971). These issues are more thoroughly addressed in our upcoming book, ROBERT W. COLLIN & ROBIN MORRIS COLLIN, FOREVER WILD, FOREVER FREE: ENVIRONMENTAL JUSTICE AND SUSTAINABILITY (forthcoming 2001) [hereinafter FOREVER WILD, FOREVER FREE].

16. Mark Sagoff, Settling America or the Concept of Place in Environmental Ethics, 12 J. ENERGY NAT. RESOURCES & ENVTL. L. 349 (1992) (discussing "place" in United States environmental approaches to ecosystems).

17. See, e.g., THE BIOPHILIA HYPOTHESIS (Stephen R. Kellert & E.O. Wilson eds., 1993).

18. See AL GORE, EARTH IN THE BALANCE: ECOLOGY AND THE HUMAN SPIRIT 167-81 (1992) (discussing self-stewardship).

19. See generally GEORGE PERKINS MARSH, THE EARTH AS MODIFIED BY HUMAN ACTION (1877); RODERICK NASH, WILDERNESS AND THE AMERICAN MIND (3d ed. 1982) (both examples of prominent environmentalists and views on human impacts).

20. For example, there are about 80,000 chemicals in commerce in the United States. Only about 3% have been tested for public health effects.

21. Approximately 2% of occupational cancer epidemiologic studies had any analyses of the effects on nonwhite women and only 7% addressed the effects on nonwhite men. Shelia H. Zahm et al., Inclusion of Women and Minorities in Occupational Cancer Epidemiological Research, 36 J. OCCUPATIONAL MED. 842-43 (1994). See also Charles Lawrence, The Id, the Ego, and Equal Protection: Reckoning With Unconscious Racism, 39 STAN. L. REV. 317 (1987) (discussing race, culture, and intent).

22. Paul Cotton, Environmental Estrongic Agents Area of Concern, 271 J. AM. MED. ASS'N 409 (1994).

23. Steven F. Arnold et al., Synergistic Activation of Estrogen Receptor With Combinations of Environmental Chemicals, 272 SCIENCE 1489 (1996).

24. See John A. McLachlan & Steven F. Arnold, Environmental Estrogens, 84 AM. SCI. 452-61 (1996).

25. Kathy Bunting, Risk Assessment and Environmental Justice: A Critique of the Current Legal Framework and Suggestions for the Future, 3 BUFF. ENVTL. L.J. 129, 134-39 (1995). See Robert R. Kuehn, The Environmental Justice Implications of Quantitative Risk Assessment, 1996 U. ILL. L. REV. 103 (1996).

26. Charles Lee, Developing the Vision of Environmental Justice: A Paradigm for Achieving Healthy and Sustainable Communities, 14 VA. ENVTL. L.J. 571, 574 (1999).

27. See Marion Moses, Farmworkers and Pesticides, in CONFRONTING ENVIRONMENTAL RACISM: VOICES FROM THE GRASSROOTS 161-78 (Robert Bullard ed., 1993).

28. See Clarisse E. Gaylord & Geraldine W. Twitty, Protecting Endangered Communities, 21 FORDHAM L.J. 771 (1994). These issues are more thoroughly addressed in the forthcoming book, see supra note 15, FOREVER WILD, FOREVER FREE.

29. These issues are more thoroughly addressed in the forthcoming book, see supra note 15, FOREVER WILD, FOREVER FREE.

30. John Mark Stensvaag, The Fine Print of State Environmental Audit Privileges, 16 UCLA J. ENVTL. L. & POL'Y 69 (1997).

31. See LUKE W. COLE & SHELIA R. FOSTER, FROM THE GROUND UP: ENVIRONMENTAL RACISM AND THE RISE OF THE ENVIRONMENTAL JUSTICE MOVEMENT 19-33 (2001) (discussing a history of the environmental justice movement).

32. Robert Collin et al., Environmental Racism: A Challenge to Community Development, 25 J. BLACK STUDIES 355-76 (1995) (describing the curricular division in planning education between housing and community development, and environmental planning).

33. See infra note 105 and accompanying text. This type of legislation erodes the ability of city planning staffs to control information in a way that excludes citizens and neighborhoods.

34. See Edward Patrick Boyle, It's Not Easy Bein' Green: The Psychology of Racism, Environmental Discrimination, and the Argument for Modernizing Equal Protection Analysis, 46 VAND. L. REV. 937, 945 (1993) (discussing direct and aversive racism in the context of the U.S. environmental movement).

35. See ROY MORRISON, ECOLOGICAL DEMOCRACY 25-44 (1995) (discussing industrialism as civilization).

36. See INITIAL REPORT, supra note 9.

37. WCED, supra note 2; ROBIN ATTFIELD, THE ETHICS OF ENVIRONMENTAL CONCERN (1983).

38. Paul Hawken, Natural Capitalism, MOTHER JONES, Mar./Apr.1997, at 42. We discuss concepts of "duty," "obligation," and "responsibility" in the context of environmental decisionmaking in the forthcoming book, see supra note 15, FOREVER WILD, FOREVER FREE.

39. See supra note 13 and accompanying text.

40. Robert W. Collin & Robin Morris Collin, The Role of Communities in Environmental Decisions: Communities Speaking for Themselves, 13 J. ENVTL. L. & LITIG. 37 (1998).

41. As noted by Richard A. Howarth:

A deontological (or Kantian) approach to intergenerational fairness suggests that sustainability criteria should be imposed as prior constraints on the maximization of social preferences concerning the distribution of welfare between present and future generations. In particular, it is plausible to assert that each successive generation holds a duty to ensure that the expected welfare of its offspring is no less than its own perceived wellbeing. This moral rule implies a bias against actions that generate present benefits but impose the risk of irreversible future losses if the preservation of options would allow for improved decisions as new information became available.

Richard B. Howarth, Sustainability Under Uncertainty: A Deontological Approach, 71 LAND ECON. 417, 417 (1995).

42. Robert & Robin Collin, Where Did All the Blue Skies Go?: Sustainability and Environmental Justice as the Emerging Paradigm, 9 J. ENVTL. L. & LITIG. 399, 458-60 (1994) (discussing an ecological paradigm).

43. The U.S. Environmental Protection Agency (EPA) summoned cancer researchers together to discuss a research strategy on environmental causes of childhood cancer because of shocking data about recent increases in childhood cancers. While the death rate from childhood cancer is lower, more children are getting cancer. About 8,000 children under 15 are diagnosed with cancer each year, and cancer is the second leading cause of death in children. Testicular cancer is up by almost 68%, acute lymphoblastic leukemia is up 27% since 1973, tumors in the kidney up 46%, and brain turnors up 40%. Some treatments for cancer may also cause a second generation of cancer. Chronic and low-level long-term exposure to chemicals accumulating in the environment are suspected as causes. In announcing the formation of the Office of Children's Health Protection, Carol Browner, then EPA Administrator, said it was important to move beyond the chemical by chemical approaches of the past and now to examine children's total cumulative risk from all exposures to toxic chemicals. EPA's Office of Children's Health Protection will coordinate establishing health and safety standards to protect children who, because of their smaller body size, face higher exposures to pesticides and other environmental toxins where they live and play.

44. See supra notes 25-27 and accompanying text.

45. Robert W. Collin, Environmental Equity: A Law and Planning Approach to Environmental Racism, 11 VA. ENVTL. L.J. 495, 506-16 (1992) (discussing land use law and minority neighborhoods).

46. Robert W. Collin & Robin Morris Collin, Urban Environmentalism and Race, in URBAN PLANNING AND THE AFRICAN AMERICAN COMMUNITY (June Manning Thomas & Marsha Ritzdorf eds., 1997). See also Dorceta E. Taylor, Can the Environmental Movement Attract and Maintain the Support of Minorities?, in RACE AND THE INCIDENCE OF ENVIRONMENTAL HAZARDS: A TIME FOR DISCOURSE (Bunyan Bryant & Paul Mohai eds., 1992); Paul Mohai, Black Environmentalism, 71 SOC. SCI. Q. 744 (1990) (discussing the relationships between black concern for the environment and activism).

47. ROBERT D. BULLARD, DUMPING IN DIXIE: RACE, CLASS, AND ENVIRONMENTAL QUALITY (1990); COMMISSION FOR RACIAL JUSTICE, UNITED CHURCH OF CHRIST, TOXIC WASTES AND RACE IN THE UNITED STATES: A NATIONAL REPORT ON THE RACIAL AND SOCIOECONOMIC CHARACTERISTICS OF COMMUNITIES WITH HAZARDOUS WASTE SITES (1987).

48. Collin et al., supra note 32; UNEQUAL PROTECTION: ENVIRONMENTAL JUSTICE AND COMMUNITIES OF COLOR (Robert Bullard ed., 1994); CONFRONTING ENVIRONMENTAL RACISM: VOICES FROM THE GRASSROOTS (Robert Bullard ed., 1993); U.S. EPA, REDUCING RISK FOR ALL COMMUNITIES, VOL. 1: WORKGROUP REPORT TO THE ADMINISTRATOR (1992).

49. COMMISSION FOR RACIAL JUSTICE, supra note 47.

50. See, e.g., Joel B. Eisen, Toward Sustainable Urbanism: Lessons From Federal Regulation of Urban Stormwater Runoff, 48 WASH. U.J. URB. & CONTEMP. L. 1, 1 (1995) (discussing the search for sustainable urbanism).

51. See Sustainability and Social Justice: The Changing Face of Land Use and Environmentalism, in LAND USE IN AMERICA: THE REPORT OF THE SUSTAINABLE USE OF LAND PROJECT 261, 266-70 (1996) (discussing the need for inclusion of urban land use in environmental advocacy and policy).

52. MILLION FAMILY MARCH, THE NATIONAL AGENDA: PUBLIC POLICY ISSUES, ANALYSES, AND PROGRAMMATIC PLAN OF ACTION 2000-2008, at 53-56 (2000) (describing environmental justice concerns of African Americans and other poor and distressed communities).

53. As Phillip Shabecoff noted, "unfortunately, it is true that the leadership of national environmental groups is largely white, male, and well educated, with incomes above the national average." PHILLIP SHABECOFF, A FIERCE GREEN FIRE: THE AMERICAN ENVIRONMENTAL MOVEMENT 281 (1993).

54. Robert D. Bullard, Anatomy of Environmental Racism and the Environmental Justice Movement, in CONFRONTING ENVIRONMENTAL RACISM, supra note 48, at 222-24.

55. COMMISSION FOR RACIAL JUSTICE, supra note 47.

56. See, e.g., Cerrell & Associates, Political Difficulties in Waste-to-Energy Conservation Plant Siting (1984) (discussing fact that older, conservative, and lower socioeconomic neighborhoods as least likely to express opposition) (copy available from authors).

57. See Taylor, supra note 46; Mohai, supra note 46.

58. DIORI L. KRESKE, ENVIRONMENTAL IMPACT STATEMENTS 46 (1996).

59. Oliver A. Houck, On the Law of Biodiversity and Ecosystem Management, 81 MINN. L. REV. 869, 870-71 (1997).

60. When the Environmental Justice Action Group, a grass-roots urban environmental group in Portland, Oregon, shared their expertise with the Oregon Environmental Council, one of the oldest environmental organizations in Oregon, they produced the first environmental baseline information on an historically African-American neighborhood. HEALTHY ALBINA: A PRACTICAL GUIDE FOR RESTORING NEIGHBORHOODS AND WORKING FOR ENVIRONMENTAL JUSTICE IN NORTH AND NORTHEAST PORTLAND (2000), available at http://www.teleport.com-ejag/.

61. See, e.g., Eileen Guana, The Environmental Justice Misfit: Public Participation and the Paradigm Paradox, 17 STAN. ENVTL. L.J. 3 (1998) (discussing how traditional public participation models may be inadequate for some environmental decisions); William D. Araiza, Democracy, Distrust, and the Public Trust: Process-Based Constitutional Theory, the Public Trust Doctrine, and the Search for a Substantive Environmental Value, 45 UCLA L. REV. 385, 430-32 (1997) (discussing the lack of a substantive value in public trust doctrine).

62. Michele Morrone, Walking a Tight Rope: Planning and the Environmental Movement, 7 J. PLANNING LIT. 100, 104 (1992) (noting that environmental decisions stand the best chance of being implemented when there is little local opposition to them, and describing the importance of this fact in the context of planners having no set model to follow in implementing decisions from the state level).

63. David H. Harris, The Battle for Black Land: Fighting Eminent Domain, NAT'L BAR ASS'N MAG., Mar./Apr. 1995, at 12.

64. See infra note 85 and accompanying text.

65. ALDO LEOPOLD, A SAND COUNTY ALMANAC (1949).

66. Mari N. Jensen, Ecology Moves Downtown, PLANNING, July 1999, at 4.

67. Information that is deemed of "use" to planners often means information that will facilitate land development. In this traditional context, environmental information may not be considered "useful" if it will hinder land development.

68. Rachel Kaplan & Janet Frey, Ethnicity and Preference for Natural Settings: A Review and Recent Findings, 15 J. URB. PLANN. & LANDSCAPE ARCHITECTURE 107, 114-16 (1988) (explaining how African Americans in U.S. urban areas perceive the environment more holistically than whites).

69. The separation of city and suburb is blurring. See Florence Wagman Roisman, Sustainable Development in Suburbs and Their Cities: The Environmental and Financial Imperatives of Racial, Ethnic, and Economic Inclusion, 3 FALL WIDENER L. SYMP. J. 87, 89-96 (1998) (explaining how sustainability in the suburbs is linked to sustainability in the cities).

70. Of course, environmentalists in the United States are not monolithic. We refer to the large nonprofit and legal defense groups that tend to be based in Washington, D.C., or in state capitols. Moreover, some environmental groups and movements have begun urban engagements. See, e.g., Pri Mitivist, Earthfirst! In the Cities, 21 EARTH FIRST! J. 98-103 (2000) (discussing EarthFirst! engagement with urban environments).

71. Thomas Jefferson, Letter to Benjamin Rush, in 4 WORKS OF THOMAS JEFFERSON, 146-47 (P. Ford ed., G.P. Putnam's 1905).

72. THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA, 1785, at 158 (Univ. of N. Carolina Press 1955).

73. UPTON SINCLAIR, THE JUNGLE (1906).

74. TIMOTHY BEATLEY, GREEN URBANISM: LEARNING FROM EUROPEAN CITIES 1 (2000) (specifically abhorring any analysis of demographics, government structure and politics, and historic development patterns).

75. "Takings" generally refers to the use of the constitutional power of eminent domain, which requires that land be taken for a public purpose and by the payment of just compensation. See infra note 111 and accompanying text.

76. See 6 RACE, POVERTY, AND THE ENVIRONMENT (Summer 1993) (special issue reporting environmentalists debate about population and immigration); National Black Women's Health Project, Political Environments (Spring 1994) (discussing eugenics and the antipopulation parallels with environmentalists in the United States) (complete document available from NBWHP, 1211 Connecticut Ave. NW, Ste. 310, Washington DC 20036 (202) 835-0117); Sumi Cho, The Roots of Population Control Politics: The Greening of the Eugenics Movement (unpublished manuscript, available from the authors).

77. See STEPHEN GRANT MEYER, AS LONG AS THEY DON'T MOVE NEXT DOOR: SEGREGATION AND RACIAL CONFLICT IN AMERICAN NEIGHBORHOODS 30-47 (2000) (discussing the migration of African Americans).

78. See Douglas P. Wheeler, Ecosystem Management: An Organizing System for Land Use, in LAND USE IN AMERICA: THE REPORT OF THE SUSTAINABLE USE OF LAND PROJECT 155-71 (1996) (discussing the bioregional approach of the California Resources Agency). See also Houck, supra note 59.

79. See Todd G. Olson, Biodiversity and Private Property: Conflict or Opportunity? in BIODIVERSITY AND THE LAW 67-92 (William J. Snape III ed., 1996) (discussing private property as a force for conservation).

80. See Marc R. Poirier, Property, Environment, Community, 12 J. ENVTL. L. & LITIG. 43 (1997) (discussing the relationship of private property interests and environmental protection from a community and legal perspective).

81. See A. Dan Tarlock, Residential Community Associations and Land Use Controls 75-84; Robert H. Nelson, The Privatization of Local Government: From Zoning to RCAs 45-54, both in ADVISORY COMMITTEE ONINTERGOVERNMENTAL RELATIONS, RESIDENTIAL COMMUNITY ASSOCIATIONS: PRIVATE GOVERNMENTS IN THE INTERGOVERNMENTAL SYSTEM? (1989).

82. For practical guidance on residential and industrial neighborhood agreements, see SANFORD LEWIS, THE GOOD NEIGHBOR HANDBOOK (1993).

83. See Earl Finbar Murphy, Euclid and the Environment, in ZONING AND THE AMERICAN DREAM: PROMISES TO KEEP (Charles M. Haar & Jerold S. Kayden eds., 1989).

84. Currently, many urban waste transfer stations are at overcapacity. Waste transfer stations may be regulated less stringently than a landfill, as they technically are not disposal sites. However, as landfills reach capacity, waste "backs up" into transfer stations.

85. Brownfields policy deals with land that needs to be cleaned before it can be used. Often the land is urban, near poor people or people of color, and unclean due to past and sometimes present industrial contamination. One of the main issues in addressing brownfields is which standards of cleanup to use. If the land is cleaned to only benefit industrial use, then it may still be contaminated for other community uses such as housing, child care, hospitals, and schools. If it is cleaned to residential standards, the property may be too expensive for use by industry. The underlying policy premise of brownfield remediation is the protection of what greenfields we have left. The vast majority of greenfields are in white, suburban, and exurban areas. For discussions of several of the numerous issues associated with brownfields, see Patrick J. Skelley II, Public Participation in Brownfield Remediation Systems: Putting the Community Back on the (Zoning) Map, 8 FORDHAM ENVTL. L.J. 389, 406-07 (1997) (discussing how public participation in land use is used in brownfield cases); Bradford C. Mank, Reforming State Brownfield Programs to Comply With Title VI, 24 HARV. ENVTL. L. REV. 115 (2000) (discussing how state agencies engaged in brownfield programs could do so without causing disproportionate, adverse impact on people of color).

86. See generally Marsha Ritzdorf, Locked Out of Paradise: Contemporary Exclusionary Zoning, the Supreme Court, and African Americans, 1970 to the Present, in URBAN PLANNING AND THE AFRICAN AMERICAN COMMUNITY: IN THE SHADOWS 43 (June Manning Thomas & Marsha Ritzdorf eds., 1997) (discussing the legal and political realities of racism in current land use) [hereinafter URBAN PLANNING].

87. Yale Rabin, Expulsive Zoning: The Inequitable Legacy of Euclid, in ZONING AND THE AMERICAN DREAM: PROMISES TO KEEP 101-22 (Charles M. Haar & Jerold S. Kayden eds., 1989) (describing racism in land use policy in Selma, Alabama; Baltimore County, Maryland; Detroit, Michigan; Hamtramck, Michigan; Mount Laurel, New Jersey; Charlotte, North Carolina; Nashville, Tennessee; Pulaski, Tennessee; El Paso, Texas; and Alexandria, Virginia).

88. See, e.g., Trinity Episcopal Sch. Corp. v. Romney, 387 F. Supp. 1044 (S.D.N.Y. 1974), aff'd in part & rev'd in part, 523 F.2d 88, 5 ELR 20497 (2d Cir.), on remand, 422 F. Supp. 179, 7 ELR 20189, injunction dissolved sub nom. Trinity Episcopal School Corp. v. Harris, 445 F. Supp. 204, 8 ELR 20394 (S.D.N.Y. 1978), rev'd sub nom. Karlen v. Harris, 590 F.2d 39, 9 ELR 20001 (2d Cir. 1978), rev'd sub nom. Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 10 ELR 20079 (1980) (the propensity of certain ethnic or racial groups to commit antisocial behaviors are not factors to be considered in an environmental impact statement).

89. See, e.g., P.T. Kivell, Land Use Policy and Sustainability, in SUSTAINABILITY: LIFE CHANCES AND LIVELIHOODS 58-62 (Michael Redclift ed., 2000).

90. See DONALD A. GRINDE & BRUCE E. JOHANSEN, ECOCIDE OF NATIVE AMERICA: ENVIRONMENTAL DESTRUCTION OF INDIAN LANDS AND PEOPLES 3-20 (1995) (discussing how the destruction of nature relates to the destruction of people); WINONA LaDUKE, ALL OUR RELATIONS: NATIVE STRUGGLES FOR LAND AND LIFE (1999) (documenting Native-American struggles of the Akwesasne, the Buffalo People, Hawaii, Nitassinan, Northern Cheyenne, Seminoles, and Western Shoshon in the context of the White Earth Recovery project).

91. Peter Steinhart, What Can We Do About Environmental Racism?, AUDUBON MAG. May 1991, at 20.

92. These issues are more thoroughly addressed in the forthcoming book, see supra note 15, FOREVER WILD, FOREVER FREE.

93. William E. Rees, Defining Sustainable Development (Vancouver, B.C.: UBC Centre for Human Settlements, 1989).

94. See Kenneth W. Bond, Toward Equal Delivery of Municipal Services in the Central Cities, 4 FORDHAM L. REV. 263 (1976).

95. See generally Christopher Silver, The Racial Origins of Zoning in American Cities, in URBAN PLANNING, supra note 86, at 23 (discussing the explicit and implicit use of race by planners at the inception of zoning implementation); CHARLES S. JOHNSON, PATTERNS OF NEGRO SEPARATION 8-12, 173-78 (1943) (detailing residential segregation patterns and the history of legally sanctioned segregation from the late 19th century to 1943).

96. Reverend Charles Lee, Environmental Justice: Creating a Vision for Achieving Healthy and Sustainable Communities (unpublished manuscript, on file with authors); Lee, supra note 26, at 576 (discussing "the development of healthy and sustainable communities through new community paradigms that are holistic and integrative, empowering and equitable, inclusive and participatory, culturally diverse and spiritually nourishing, economically just and regenerative").

97. Marianne Lavelle & Marcia Coyle, Unequal Protection: The Racial Divide in Environmental Law, NAT'L L.J, Sept. 21, 1992, at S1.

98. See David G. Oedel, The Legacy of Jim Crow in Macon, Georgia, in JUST TRANSPORTATION: DISMANTLING RACE & CLASS BARRIERS TO MOBILITY 97 (Robert D. Bullard & Glenn S. Johnson eds., 1997).

99. For guidance on cultural accommodation, see NATIONAL ENVIRONMENTAL JUSTICE ADVISORY COUNCIL, INDIGENOUS PEOPLES SUBCOMMITTEE, GUIDE ON CONSULTATION AND COLLABORATION WITH INDIAN TRIBAL GOVERNMENTS AND PUBLIC PARTICIPATION OF INDIGENOUS GROUPS AND TRIBAL MEMBERS IN ENVIRONMENTAL DECISION MAKING (2000) (EPA/300-R-00-009), available at http://www.epa.gov/oeca/ej. See also ROBERT D. BULLARD, PEOPLE OF COLOR ENVIRONMENTAL GROUPS (2000), available at http://www.ejrc.cau.edu.

100. See Craig Anthony (Tony) Arnold, Land Use Regulation and Environmental Justice, 30 ELR 10395, 10408 (Apr. 2000) (developing and discussing the case study discussed in this section).

101. Yale Rabin, The Persistence of Racial Isolation: The Role of Government Action and Inaction, in URBAN PLANNING, supra note 86, at 93 (discussing how a range of government activity affects racism in cities).

102. See, e.g., Robert A. Catlin, Gary Indiana: Planning, Race, and Ethnicity 126; Jacqueline Leavitt, Charlotta A. Bass, the California Eagle, and Black Settlement in Los Angeles 167; Sigmund C. Shipp, Winning Some Battles but Losing the War? Blacks and Urban Renewal in Greensboro, NC, 1953-1965, at 187; Charles E. Connerly & Bobby Wilson, The Roots and Origins of African American Planning in Birmingham, Alabama 201, all in URBAN PLANNING, supra note 86.

103. Arnold, supra note 100, at 10408-09.

104. See RICHARD F. BABCOCK, THE ZONING GAME (1966); RICHARD F. BABCOCK & CHARLES L. SIEMON, THE ZONING GAME REVISITED (1985).

105. Measure 7 was approved by the voters of Oregon on Nov. 7, 2000. It was preceded by other measures that required actual notice to landowners of any zoning changes that could diminish the value of their land. Measure 7 requires state and local governments to notify and compensate landowners for land use regulations that reduce the value of their land. To date, the measure has been stayed by a preliminary injunction issued by a county circuit court judge.

106. The Taking Clause states "nor shall private property be taken for public use, without just compensation." U.S. CONST. amend. V.

107. Nollan v. California Coastal Comm'n, 483 U.S. 825, 17 ELR 20918 (1987) (holding that a required easement to the beach as a condition for expansion of a residence was a taking of property); Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 22 ELR 21104 (1992) (holding that beachfront development controls amounted to a taking of property); Dolan v. City of Tigard, 512 U.S. 374, 24 ELR 21083 (1994). Of particular note, in Dolan the Court shifted the burden of proving the need for the regulation to the municipality. In all other cases of municipal land use regulation, the burden is on the individual challenging the decision of the municipality. The Court gave no explanation for its action. See generally Jerold S. Kayden, Land-Use Regulations, Rationality and Judicial Review: The RSVP in the Nollan Invitation (Part I), 23 URB. LAW. 301 (1991).

108. See also James Flynn et al., Gender, Race, and Perception of Environmental Health Risks, 14 RISK ANALYSIS 221 (1994); I. Savage, Demographic Influences on Risk Perceptions, 13 RISK ANALYSIS 413 (1993); D. DeJoy, An Examination of Gender Differences in Traffic Accident Risk Perception, in ACCIDENT ANALYSIS AND PREVENTION 237 (1992); C.J. Brody, Differences by Sex in Support for Nuclear Power, 63 SOCIAL FORCES 209 (1984); CAROL MERCHANT, THE DEATH OF NATURE: WOMEN, ECOLOGY, AND THE SCIENTIFIC REVOLUTION (1980).

109. Gerald Torres, Environmental Burdens and Democratic Justice, 21 FORDHAM URB. L.J. 431 (1994); Richard Lazarus, The Meaning and Promotion of Environmental Justice, 5 MD. J. CONTEMP. L. ISSUES 1 (1994); Donald T. Hornstein, Reclaiming Environmental Law: A Normative Critique of Comparative Risk Analysis, 92 COLUM. L. REV. 562, 592-93 (1992); E. Donald Elliott Jr., A Cabin on the Mountain: Reflections on the Distributional Consequences on Environmental Protection Programs, 1 KAN. J.L. & PUB. POL'Y 5 (1991); Denis Brion, An Essay on LULU, NIMBY, and the Problem of Distributive Justice, 15 B.C. ENVTL. AFF. L. REV. 437 (1988).

110. See, e.g., Rae Zimmerman, Classification in Environmental Equity: How We Manage Is How We Measure, 21 FORDHAM URB. L.J. 633 (1994); Michael Greenberg, Proving Environmental Inequity in Siting Locally Unwanted Land Uses, 4 RISK 235 (1993); Naikang Tsao, Ameliorating Environmental Racism: A Citizen's Guide to Combating the Discriminatory Siting of Hazardous Waste Dumps, 67 N.Y.U. L. REV. 366 (1992).

111. Samara F. Swanston, Race, Gender, Age, and Disproportionate Impact: What Can We Do About the Failure to Protect the Most Vulnerable?, 21 FORDHAM URB. L.J. 577, 577 (1994).

112. William K. Stevens, Pesticides May Leave Legacy of Hormonal Chaos, N.Y. TIMES, Aug. 23, 1994, at C1. See generally Donald T. Hornstein, Paradigms, Processes, and Politics: Risk and Regulatory Design, in WORST THINGS FIRST: THE DEBATE OVER RISK-BASED NATIONAL ENVIRONMENTAL PRIORITIES 147 (Adam M. Finkel & Dominic Golding eds., 1994) (discussing inescapable process concerns with any substantive environmental reform based upon risk paradigm).

113. U.S. EPA, CONSTRUCTIVE ENGAGEMENT RESOURCE GUIDE: PRACTICAL ADVICE FOR DIALOGUE AMONG FACILITIES, WORKERS, COMMUNITIES, AND REGULATORS 13 (1999).

114. See generally Timothy O'Riordan & James Cameron, The History and Contemporary Significance of the Precautionary Principle 1; Timothy O'Riordan & James Cameron, The Precautionary Principle in U.S. Environmental Law 203, both in INTERPRETING THE PRECAUTIONARY PRINCIPLE (1994).

115. See CHRIS MASER, ECOLOGICAL DIVERSITY IN SUSTAINABLE DEVELOPMENT 360 (1999) (discussing preserving diversity through the land use planning process).

116. See Norman Krumholz, Urban Planning, Equity Planning, and Racial Justice, in RURAL ENVIRONMENTAL PLANNING FOR SUSTAINABLE COMMUNITIES 148 (Frederick O. Sargent et al. eds., 1991) (discussing how to evaluate equitable issues in planning); Harvey M. Jacobs, Social Equity in Agricultural Land Protection, 17 LANDSCAPE & URB. PLAN. 21 (1989) (developinga social equity framework which emphasizes intergenerational, tenure, and process issues).

117. For a discussion of disparities in exposure to environmental hazards by race, see INSTITUTE OF MEDICINE, TOWARD ENVIRONMENTAL JUSTICE: RESEARCH, EDUCATION, AND POLICY NEEDS 14 (1999).

118. WILLIAM E.B. DuBOIS, THE SOULS OF BLACK FOLK (1989).

119. See A. LEON HIGGINBOTHAM JR., IN THE MATTER OF COLOR: RACE AND THE AMERICAN LEGAL PROCESS (1978).

120. DANIEL HUDSON BURNHAM & FRANCIS DAVIS MILLET, WORLD'S COLUMBIA EXPOSITION: THE BOOK (1894).

121. STEPHANIE M. WILDMAN, PRIVILEGE REVEALED: HOW INVISIBLE PREFERENCE UNDERMINES AMERICA (1996).

122. See generally BARBARA ROSE JOHNSTON, WHO PAYS THE PRICE? THE SOCIOCULTURAL CONTEXT OF ENVIRONMENTAL CRISIS (1994) (providing an international overview of the relationship between social justice issues and environmental crises).

123. This has not silenced literary expressions of nature by people of color. See, e.g., MELVIN DIXON, RIDE OUT THE WILDERNESS: GEOGRAPHY AND IDENTITY IN AFRO-AMERICAN LITERATURE (1987); Barbara Christian, Community and Nature: The Novels of Toni Morrison, in BLACK FEMINIST CRITICISM: BLACK WOMEN WRITERS (1985).

124. The phrase "Invisible Empire" is indelibly linked to a well-known terrorist organization, the Ku Klux Klan. See WILLIAM HARVEY FISHER, THE INVISIBLE EMPIRE: A BIBLIOGRAPHY OF THE KU KLUX KLAN (1980); STANLEY HORN, THE INVISIBLE EMPIRE: THE STORY OF THE KU KLUX KLAN, 1866-1871 (1939); DAVID LOWE, KU KLUX KLAN: THE INVISIBLE EMPIRE (1967).

125. See WILLIAM G. BOWEN & DEREK BOK, THE SHAPE OF THE RIVER: LONG-TERM CONSEQUENCES OF CONSIDERING RACE IN COLLEGE AND UNIVERSITY ADMISSIONS (1998) (discussing historical context of race in higher education).

126. 42 U.S.C. § 2000e-2000e-17. Writing about the Civil Rights Act in 1972, researchers noted:

These amendments opened the door for college and university faculty who thought their institutions discriminated against them: they could now seek redress in federal courts …. These cases are substantively important because they touch the vital personnel process of academic institutions.

GEORGE R. LaNOUE & BARBARA A. LEE, ACADEMICS IN COURT: THE CONSEQUENCES OF FACULTY DISCRIMINATION LITIGATION vi (1987).

127. See Kirstein v. University of Va. Bd. of Visitors, 309 F. Supp. 184 (D. Va 1970) (citing the new amendments as the basis of admitting females to a white male state university).

128. The phrase was utilized in a deposition given in a lawsuit brought, unsuccessfully, against the University of Virginia. See also Mari Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 MICH. L. REV. 2320, 2374-80 (1989) (contending that the legal system's protection of racist speech validates racism).

129. See Richard Delgado, Minority Law Professors' Lives: The Bell-Delgado Survey, 24 HARV. C.R.-C.L. L. REV. 349 (1889); see generally Marina Angel, Women in Legal Education: What It's Like to Be Part of a Perpetual First Wave or the Case of the Disappearing Women, 61 TEMP. L.Q. 799 (1988); NIKKI GIOVANNI, RACISM 101 (1994) (discussing how black students can survive on predominantly white campuses).

130. See Derrick A. Bell, Diversity and Academic Freedom, 43 J. LEGAL EDUC. 371 (1993) (discussing the racial oppression that occurs even with current concepts of academic freedom).

131. See Clint Bolick, Subverting the American Dream: Government-Dictated "Smart Growth" Is Unwise and Unconstitutional, 148 U. PA. L. REV. 859 (2000) (challenging assumptions planners have made about growth control and private property). See also Gerald E. Frug, Euphemism as a Political Strategy, 30 ELR 11189, 11189 (Dec. 2000) (challenging "euphemistic appeals of smart growth").

132. Similarly, programs of "urban renewal" became the urban "removal" of people of color. These issues are more thoroughly addressed in the forthcoming book, see supra note 15, FOREVER WILD, FOREVER FREE.

133. JOSEPH L. SAX, DEFENDING THE ENVIRONMENT: A STRATEGY FOR CITIZEN ACTION (1971).

31 ELR 10968 | Environmental Law Reporter | copyright © 2001 | All rights reserved