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Protecting the right to clean living: in poor and minority neighborhoods, many homes are tainted with pollution. The result: illness and declining property values. Here's how one community is fighting back.

Article Excerpt
The "environmental justice" movement was born of the recognition that poor people and racial minorities encounter environmental hazards particular to their immediate surroundings. (1) African-American children face significantly higher rates of lead poisoning, in part because they frequently live in older, deteriorating homes with lead paint and absentee landlords. (2) Latino farmworkers are regularly exposed to unacceptable levels of pesticides. (3) Disproportionate numbers of poor people live near dangerous polluters like the petrochemical plants lining "Cancer Alley" along the Mississippi River. (4) Compounding the problem, industries are hit with significantly smaller fines for violations of environmental regulations committed in poor communities. (5)

Trial lawyers have long been involved in efforts to compensate the victims of these harmful patterns, usually using traditional common-law damages claims. Toxic tort cases have produced several innovations in the common law, including the remedy of medical monitoring. (6)

During the 1980s and 1990s, environmental justice activists opened another legal front in the battle. They focused on the tendency of government agencies to permit "siting" of the most hazardous industrial activities in communities that are environmentally vulnerable and lack political clout. Ultimately, these activists forced government authorities to recognize the problem.

The EPA endorsed the principle of envirtal justice The agency established it as a cornerstone of federal policy that "no group of people, including racial, ethnic, or socioeconomic groups, should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local, and tribal programs and policies." (7)

Even more significant, the agency issued regulations under Tide VI of the Civil Rights Act of 1964, (8) providing that recipients of federal funding (including most state environmental protection agencies) "shall not choose a site or location of a facility that has the purpose or effect of ... subjecting [individuals] to discrimination under any program or activity ... on the grounds of race, color, or national origin or sex." (9)

These actions kindled the hope that environmental justice would become a civil right enforceable in the federal courts. But that hope has faded in the wake of a slow, steady retrenchment by the courts and in the enforcement philosophy of the federal government.

Most famously, private remedies such as medical monitoring, which environmentalists once hoped would be available under the strict liability standards of the Superfund law, (10) have been curtailed or eliminated. (11) Remediation by the federal government itself has been virtually eliminated due to Congress's failure to reauthorize the industry taxes that provided the funding for all such Superfund activity. As efforts to seek statutory and regulatory remedies stalled, the victims of environmental injustice have turned once again to common law approaches. The citizens of Camden, New Jersey, are a significant case...