The Secondary Effects of Environmental Justice Litigation: The Case of West Dallas Coalition for Environmental Justice v. EPA
By Gregg P. Macey and Lawrence E. Susskind
INTRODUCTION
This case study seeks to explain why environmental justice organizations pursue legal remedies even when pursuit of legal claims continually fails to meet primary organizational objectives. We rely on analytic narrative, the modeling of processes that explain outcomes through the building of complex stories, for our explanation of this phenomenon. Specifically, this research traces the use of a litigation strategy used by the West Dallas Coalition for Environmental Justice, identifying “the actors, the decision points they faced, the choices they made, the paths taken and shunned, and the manner in which their choices generated events and outcomes.” Previous accounts of environmental justice litigation, focusing primarily on legal outcomes, have painted a sobering picture. In reference to the predominant legal strategy of the day, one commentator concluded that “[b]y 1998 no one had yet succeeded in bringing, and winning, a substantive Title VI environmental justice case in court.” Yet, litigation remains a strategy of choice for many environmental justice groups.
Legal scholars continue to search for a cause of action that will remedy the disproportionate environmental harm suffered by communities of color. Other legal experts acknowledge that focusing on legal strategies alone can obscure the nexus between litigation and the long-term effectiveness of communities organized in opposition to undesirable land uses. We offer an alternative approach by shifting the unit of analysis from legal causes of action to the internal dynamics of community organizations that seek legal remedies to address distributional inequities or a lack of procedural access to environmental decision-making. This shift in focus highlights the secondary effects of litigation. Sifting through the complexities of the social, legal, scientific, and other secondary effects of litigation requires a deep understanding of the organizations involved and their propensity to adapt to the changes that accompany the choice of a legal strategy. More pointedly, we argue that the secondary effects of environmental justice litigation can only be understood in light of an organization's ability to make sense of the complex decision-making environments in which it functions.
Organizations are “groups of individuals bound by some common purpose to achieve objectives.” They provide stable social relations that can reduce the transaction costs associated with uncertain environments. A distinction can be drawn between “groups, institutions, laws, population characteristics, and sets of social relations that form the environment” and the “internal life” of organizations. The social structure, or environment in which an organization is formed, conditions the motivations of individuals to organize. The environment also affects the internal choices available to existing organizations. Thus, organizations can be viewed as a series of created and evolving constraints imposed on individual and group choice in return for the establishment of stable structures for human interaction. Given the interactive relationship between organizations and their environments, it is surprising that environmental justice litigation research centers on substantive legal claims and not the impact of the legal claims on the organizations and communities that pursue them.
Thus far, environmental justice litigation research has focused on three primary categories of legislation: the Equal Protection Clause of the 14th Amendment to the United States Constitution, Title VI of the Civil Rights Act of 1964, and traditional environmental law (environmental statutes that were not enacted to address civil rights concerns per se, including the National Environmental Policy Act). Cases in all three categories are typically scrutinized to determine whether or not they have achieved legal remedies (i.e., “the means employed to enforce or redress an injury.”) An examination of relevant decisions reveals that, with the exception of a negotiated settlement, the incorporation of civil rights concerns (i.e., distributive fairness) with claims of environmental harm has failed to provide a legal remedy to address alleged environmental injustices (Tables 2 and 3 in Appendix A). Cases that seek redress for violations of environmental statutes, particularly those concerning procedural violations, have proven more successful at addressing civil rights concerns. However, the legal remedies often only require the simple reissuance of environmental impact assessments with appropriate notice and comment periods.
Title VI claims remain limited in terms of their reach, inclusiveness, and practicality. As to reach, Title VI only establishes nondiscrimination requirements for federally-funded programs. Inclusiveness is limited due to standing requirements. In making standing decisions, courts have applied three different standards: (1) whether the plaintiffs are intended beneficiaries of the federally-funded program, (2) whether plaintiffs can prove harm, and (3) whether the discrimination will injure the intended beneficiaries. Practicality is diminished because Title VI lawsuits are expensive, and plaintiffs often lack sufficient resources to conduct a thorough investigation. In addition, the Title VI cases outlined in Table 3 (Appendix A) consumed as much as a decade's worth of court time and resources. Equal Protection cases have been all but abandoned due to the unreasonably high standard of proof of racial animus.
The cross-sectional approach to evaluating environmental justice litigation, which ignores the political and organizational environment in which these cases proceed, begs the question, why do community organizations continue to rely on litigation even when this strategy appears, at least from the outside, to be ineffective? This approach lies in marked contrast to attempts by historical institutionalists to make sense of the origins of institutions (such as community organizations) and their interactions with their socio-political settings. Rather than determining which factors produce political or legal outcomes at a given moment, historical institutionalism seeks to reinsert these factors in their temporal context. Only through an understanding of historical context can we draw conclusions about the organizational characteristics and constraints that mediate legal and policy outcomes. Pursuant to this approach, a more suitable question regarding environmental justice litigation would concern the characteristics of organizations and their decision-making environments that encourage continued reliance on a potentially sub-optimal course of action.
Shifting the attention of environmental justice litigants to the context in which legal claims are made has important consequences. First, the direct impact of a legal claim (i.e., a legal remedy such as injunctive relief) may be less important than the indirect or secondary effects that litigation can have on a community organization. Lawsuits can be opportunities for the victims of environmental injustice to “join together, outside of the formal boundaries of the litigation...to engage among themselves in reflective conversation and strategic action.” Lawsuits are also complex undertakings, capable of shedding new light on the root causes of environmental injustice through collaborations between legal plaintiffs and local residents. The setting in which environmental justice groups exist can either facilitate the articulation of an organization's mission or heighten the isolation and dependency of poor people through adversarial decision-making. The range of potential secondary impacts of environmental litigation is significantly broader than the primary legal outcomes on which much of the literature is focused.
This case study seeks to explain why environmental justice organizations pursue legal remedies even when pursuit of legal claims continually fails to meet primary organizational objectives. We rely on analytic narrative, the modeling of processes that explain outcomes through the building of complex stories, for our explanation of this phenomenon. Specifically, this research traces the use of a litigation strategy used by the West Dallas Coalition for Environmental Justice, identifying “the actors, the decision points they faced, the choices they made, the paths taken and shunned, and the manner in which their choices generated events and outcomes.” Previous accounts of environmental justice litigation, focusing primarily on legal outcomes, have painted a sobering picture. In reference to the predominant legal strategy of the day, one commentator concluded that “[b]y 1998 no one had yet succeeded in bringing, and winning, a substantive Title VI environmental justice case in court.” Yet, litigation remains a strategy of choice for many environmental justice groups.
Legal scholars continue to search for a cause of action that will remedy the disproportionate environmental harm suffered by communities of color. Other legal experts acknowledge that focusing on legal strategies alone can obscure the nexus between litigation and the long-term effectiveness of communities organized in opposition to undesirable land uses. We offer an alternative approach by shifting the unit of analysis from legal causes of action to the internal dynamics of community organizations that seek legal remedies to address distributional inequities or a lack of procedural access to environmental decision-making. This shift in focus highlights the secondary effects of litigation. Sifting through the complexities of the social, legal, scientific, and other secondary effects of litigation requires a deep understanding of the organizations involved and their propensity to adapt to the changes that accompany the choice of a legal strategy. More pointedly, we argue that the secondary effects of environmental justice litigation can only be understood in light of an organization's ability to make sense of the complex decision-making environments in which it functions.
Organizations are “groups of individuals bound by some common purpose to achieve objectives.” They provide stable social relations that can reduce the transaction costs associated with uncertain environments. A distinction can be drawn between “groups, institutions, laws, population characteristics, and sets of social relations that form the environment” and the “internal life” of organizations. The social structure, or environment in which an organization is formed, conditions the motivations of individuals to organize. The environment also affects the internal choices available to existing organizations. Thus, organizations can be viewed as a series of created and evolving constraints imposed on individual and group choice in return for the establishment of stable structures for human interaction. Given the interactive relationship between organizations and their environments, it is surprising that environmental justice litigation research centers on substantive legal claims and not the impact of the legal claims on the organizations and communities that pursue them.
Thus far, environmental justice litigation research has focused on three primary categories of legislation: the Equal Protection Clause of the 14th Amendment to the United States Constitution, Title VI of the Civil Rights Act of 1964, and traditional environmental law (environmental statutes that were not enacted to address civil rights concerns per se, including the National Environmental Policy Act). Cases in all three categories are typically scrutinized to determine whether or not they have achieved legal remedies (i.e., “the means employed to enforce or redress an injury.”) An examination of relevant decisions reveals that, with the exception of a negotiated settlement, the incorporation of civil rights concerns (i.e., distributive fairness) with claims of environmental harm has failed to provide a legal remedy to address alleged environmental injustices (Tables 2 and 3 in Appendix A). Cases that seek redress for violations of environmental statutes, particularly those concerning procedural violations, have proven more successful at addressing civil rights concerns. However, the legal remedies often only require the simple reissuance of environmental impact assessments with appropriate notice and comment periods.
Title VI claims remain limited in terms of their reach, inclusiveness, and practicality. As to reach, Title VI only establishes nondiscrimination requirements for federally-funded programs. Inclusiveness is limited due to standing requirements. In making standing decisions, courts have applied three different standards: (1) whether the plaintiffs are intended beneficiaries of the federally-funded program, (2) whether plaintiffs can prove harm, and (3) whether the discrimination will injure the intended beneficiaries. Practicality is diminished because Title VI lawsuits are expensive, and plaintiffs often lack sufficient resources to conduct a thorough investigation. In addition, the Title VI cases outlined in Table 3 (Appendix A) consumed as much as a decade's worth of court time and resources. Equal Protection cases have been all but abandoned due to the unreasonably high standard of proof of racial animus.
The cross-sectional approach to evaluating environmental justice litigation, which ignores the political and organizational environment in which these cases proceed, begs the question, why do community organizations continue to rely on litigation even when this strategy appears, at least from the outside, to be ineffective? This approach lies in marked contrast to attempts by historical institutionalists to make sense of the origins of institutions (such as community organizations) and their interactions with their socio-political settings. Rather than determining which factors produce political or legal outcomes at a given moment, historical institutionalism seeks to reinsert these factors in their temporal context. Only through an understanding of historical context can we draw conclusions about the organizational characteristics and constraints that mediate legal and policy outcomes. Pursuant to this approach, a more suitable question regarding environmental justice litigation would concern the characteristics of organizations and their decision-making environments that encourage continued reliance on a potentially sub-optimal course of action.
Shifting the attention of environmental justice litigants to the context in which legal claims are made has important consequences. First, the direct impact of a legal claim (i.e., a legal remedy such as injunctive relief) may be less important than the indirect or secondary effects that litigation can have on a community organization. Lawsuits can be opportunities for the victims of environmental injustice to “join together, outside of the formal boundaries of the litigation...to engage among themselves in reflective conversation and strategic action.” Lawsuits are also complex undertakings, capable of shedding new light on the root causes of environmental injustice through collaborations between legal plaintiffs and local residents. The setting in which environmental justice groups exist can either facilitate the articulation of an organization's mission or heighten the isolation and dependency of poor people through adversarial decision-making. The range of potential secondary impacts of environmental litigation is significantly broader than the primary legal outcomes on which much of the literature is focused.