Environmental Justice Enforcement: Using Old Tools for New Problems

by James R. Wheaton, Esq.

Attorneys in the plaintiffs’ environmental bar traditionally use citizen enforcement tools derived from the environmental movement’s successes. Examples include cases brought under the National Environmental Policy Act, California Environmental Quality Act, or the federal Emergency Planning and Community Right to Know Act, Clean Water Act, Clean Air Act, Comprehensive Environmental Response Liability and Cleanup Act, or the Resource Conservation and Recovery Act. In addition, several California statutes have become increasingly prominent weapons in environmental groups’ arsenals. A principal example is Proposition 65, Health and Safety Code 25249.5 et seq.

Such citizen enforcement measures can provide for expanded standing, provide for liability and remedies without allegations or the (expensive) evidentiary need for injury to person or property, and often provide for monetary relief in the form of penalties, irrespective of injury. As a corollary, NEPA and CEQA are intended to ensure that information about adverse environmental impacts are not only considered but mitigated before a decision is made to approve certain government actions.

As such, these statutes have been very powerful tools for traditional environmental groups to protect natural environments, prevent environmentally harmful projects, ensure complete disclosure of environmental consequences of decisions, and to ensure vigorous enforcement of environmental laws, lest they be honored only in the breach.

The key thing about all of these tools, however, is that they are purely statutory based claims, for injuries to process, or to land air or water. The lack of a traditional “injury” to persons or private property was a critical bridge to developing a body of law to protect the natural world, and to ensure adherence to sound environmental decision making process. That same bridge, however, is what distances such statutes from the types of concerns raised and remedies needed, in environmental justice cases.

Attorneys presented with environmental justice issues are faced with more difficult problems than typical environmental cases. Principally this is because they have real clients who are real people. Spotted owls and trees don’t have to answer interrogatories, their memories don’t fail, they don’t move, they don’t call you up in the middle of the night, they don’t have worries about children, jobs, schools, day care and money. They also don’t have all the rights and remedies that people do. While environmental law needed to expand the definitions of what was litigable, what was an injury, in order to protect the environment, in environmental justice the practitioner needs to be mindful not to remain at the borders environmental law stretched, but to return to first principles.

In short, plaintiffs’ bar environmental justice lawyers should not fail to reach back to their first year law classes, and arm themselves with the surprisingly potent tools that find their origin in the common law, or other source not traditionally thought of as within the ambit of the already vast speciality called “environmental law.”

Put another way, just as the attorney or firm who approaches an environmental justice case must do so with a set of understandings and client relationships that are very different from that found in traditional environmental groups, they must also be prepared to use legal tools that may be different from the familiar administrative procedure or statutory enforcement models.

The Environmental Law Foundation has brought a series of enforcement cases in the field of environmental justice, and this article is intended to be only an introduction to some of the legal claims ELF has used to achieve complete relief for those it serves. For purposes of simplicity and clarity, this article will use only California’s Proposition 65 as the environmental law paradigm, and then contrast the additional claims and remedies that can complement it.

This article will highlight some of those cases, with the theories used and remedies obtained. What is important to understand in each of these cases is that they are not brought solely on behalf of an environmental group, nor based solely on traditional environmental law theories. In each case, real people were involved. It is this touchstone that makes the environmental justice movement different from traditional environmental law, and which serendipitously opens up the additional theories and remedies.

Community Protections

Alviso is a low-income, Latino community in San Jose adjacent to a Superfund site. The Superfund site consists of over 20 landowners and twice as many businesses that illegally filled the wetlands north of town with local fill that contains asbestos. EPA determined that the trucking, cement, palette and other heavy industrial operations on those lots disbursed the asbestos into the neighboring community, and created a risk of cancer for Alviso residents 1000 times greater than for you and me. In addition, most if not all of the businesses were operating without all the necessary permits, and some were operating in violation of zoning laws.

Traditional environmental protection laws (e.g., for illegal filling of wetlands, or the Clean Water Act, the Clean Air Act or Prop 65), would provide only partial relief. Instead, ELF filed suit on behalf of the local community organization and local residents. The eventual operative complaint alleged three class actions: one for personal injury, one for nuisance for property owners, and one for nuisance for all residents. In addition to the personal injury and nuisance claims, Prop 65 was alleged, and a variety of unfair business practices for violations of other statutes, including local zoning and permit laws.

Two of these claims need additional explanation. The unfair business practices act was very important, and not one perhaps well-known by the private environmental bar. California Business and Professions Code 17200, et seq. allows any person to bring an action to enjoin any unfair business practice, which has been defined as any violation of any other statute. No individual harm need be alleged or proven, and standing is universal.

A word also about nuisance. This 1000 year old legal doctrine can be described as the original environmental protection law. It stands for the proposition that underlies all modern environmental law: use your property as you wish, but not in ways that harm your neighbors or the community at large. In California, nuisance has been codified in Civil Code 3479 et seq. Critical to the Alviso case, violations of local ordinances regarding zoning, or site or building permits, constitute a nuisance per se.

What was interesting is that, for the local community, laws designed to protect the environment— clean water, clean air, against dumping hazardous materials—were of little help in protecting people. Rather, the combination of the other, nonenvironmental claims was the key. In particular, the nuisance and unfair business practices claims were powerful enough to secure a preliminary injunction to order the largest operator—who had exactly none of the required site or building permits despite 25 years of illegal operation— to relocate the entire operation outside of Alviso within 7 days. Enforcement was stayed in favor of a compromise settlement: payment of several hundred thousand dollars to the class, and additional time to find a new site. The operator has since relocated (hopefully legally this time) outside of Alviso.

The other key development was that common law claims triggered insurance coverage, which typically contains exclusions for environmental claims or unfair business practices.

The eventual result was a near complete sweep for the community: the largest businesses relocated elsewhere; remaining businesses were required to apply for all missing permits, to bring them to the city’s attention; all were required to change their operations to prevent any future asbestos or dust deposition in the community; all future business changes are barred without proper permits. And, a million dollar fund has recently been approved by the court for distribution to each of the classes, providing the first tangible relief from all of the harms, not just the asbestos. Surprisingly (and happily) no Prop 65 relief was necessary, because the asbestos exposure was ended.

Lead in Housing

A local university maintains housing for its married students. The housing, built before 1978, has leaded paint in places accessible to children, and in some places deteriorated. Tests revealed potential for lead exposures to children, not only in the apartments, but also high lead levels in the complex’s playgrounds, on the swings and in the day care center.

Prop 65 was an obvious statute, but it provides only for warnings, which the university had given after a fashion. However, again by using nuisance (a tenant can state a claim against his or her landlord for nuisance), unfair business practices, and by adding a claim for a breach of the warrant of habitability, as well as class claims for back rent and other relief, an action filed on behalf of one of the tenants provided widespread and complete relief.

The university abated the lead in the day care center (which protected not only the apartment residents, but also the faculty and other staff whose children were present); removed the swingsets and the lead-laden sand; removed play yard benches with lead paint; now provides warnings to all tenants both when they apply for housing and again before signing any lease; has agreed to create an early warning and response mechanism for any signs of deteriorating or child-accessible paint hazards; and, in a gesture that did much to relieve parental concerns, volunteered free semiannual blood lead tests for all children in the complex.

Again, environmental statutes alone were insufficient to create the range of remedies that could afford complete relief, and create a model for other housing for immediate protection, prevention and long term solutions that are targeted and not prohibitively expensive.

Occupational toxics exposures

In an industrial plant in which workers machined brass parts, the lead in the brass was a ubiquitous feature of the worklife. It was airborne in concentrations exceeding OSHA’s Lead Standards, was deposited on food, was disposed of in rinse water into an open drain off the back of the loading dock, and resulted in employees with dangerously high blood lead levels.

A generic workplace sign posted in tergiversatory compliance with Prop 65 warned only of unspecified chemicals that may cause cancer or birth defects somewhere “in or around this facility.”

Rather than relying solely upon Prop 65, which would secure only a better warning program and potential penalties, ELF lawyers fashioned a three part complaint to bring complete relief for all the employees and the entire community. The suit was filed on behalf of four employees at the plant, alleging claims under Prop 65, and for violations of the CalOSHA Lead Standard and for improper disposal of hazardous material. The key to the latter—neither of which provides for private enforcement—was using the unfair business practices act, referenced earlier.

The relief secured both by court orders and in settlement was correspondingly broad. Prop 65 got the workers a clear warning about lead in a language they could understand, as well as warnings to plant visitors. In addition, the CalOSHA claim secured a CalOSHA consultant, who was brought in for a comprehensive review of the plant’s (non)compliance with the Lead Standard, and an agreement for full future compliance. Thus all of the workers obtained a measure of relief, although the actual plaintiffs had since retired. The hazardous waste claims brought in the California Department of Toxic Substances Control, which drew samples, issued a notice of violation and intended fine, and secured a supervised cleanup to remove the lead-laden ground, which as it happened was directly above the city’s aquifer, and less than half a mile horizontally from one of the city’s pumps. Thus the entire community was protected.

As a useful corollary to the action, the settlement also secured handsome monetary relief for the retired employees, to resolve the totality of their workers’ compensation claims.

In a similar suit, a largely immigrant and non-English speaking population was exposed to very high levels of toluene in glues used in a plant. Ventilation was inadequate or nonexistent. One employee was diagnosed in a local hospital emergency room with acute chemical poisoning. When she complained she was fired. Although the company had also been cited by Cal OSHA (its entire compliance with worker health and safety laws consisted of a sign reminding workers to wash their hands), no further enforcement occurred.

Again, a Prop 65 by ELF to secure adequate warnings and civil penalties was not enough. Rather, suit was filed on behalf of the fired worker as well, alleging claims under Prop 65, as well as unfair business practices and for wrongful termination. After vigorous litigation and extended settlement talks, the eventual relief protected the entire workforce: complete Prop 65 compliance for all toxics; a switch from the toluene- based glue to a nontoxic alternative; court-monitored OSHA compliance through an independent consultant empowered to review the plant, create a state of the art program, and a follow up site visit to ensure compliance; and, resolution of the employee’s wrongful termination claim.

Again, the employee, although no longer present at the site, and the environmental group, although limited in the relief it could seek, fashioned a multipart strategy that secured compliance with not only the environmental laws, but also complete protections for all the workers.

The lesson to be drawn from these examples is plain: for the plaintiffs’ bar in environmental justice cases, one must look beyond what is found in texts and treatises under the heading “environmental law.” The landmark statutes of the 1970s and 1980s are excellent tools for protecting the air, water and species. But when your clients are people, there are many more arrows in your quiver and you will find that only by using them all can you do the best for your clients.

Published in the Environmental Law News, a publication of the State Bar’s Environmental Law Section