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Spring 1996

Building Environmentally Just Projects: Perspective of a Developer’s Lawyer

Environmental Law News
The traditional method for picking sites for controversial construction projects has been called "decide/announce/defend." The developer selects the location; tells the world; and hopes to withstand the political and legal arrows that follow.
This method has proven self-defeating. Modern environmental law has evolved a series of sequential veto points. Today, if enough people are sufficiently unhappy about a project, they can often find at least one fatal flaw that will allow them to sink it. For example, in the last 20 years not a single new hazardous or radioactive waste landfill has opened in a community in the United States where there was sustained opposition consistently backed by the local government.
The environmental justice movement has expanded and strengthened the forces of project opponents. In addition to the usual objections over endangered species habitat, regulated wetlands, contaminated soils and the like, opponents can now look to the demographics of the nearby community as another basis for resistance.
More is at stake here than builders' profits. If many low-income communities are to lift themselves out of poverty, they must support the construction of job-creating projects. Moreover, many of our environmental goals can be realized only through construction projects. Recycling plants, sewage treatment plants, sewage sludge treatment units, facilities to dispose of asbestos and lead from remediated buildings, mass transit facilities, and many others are, ironically, environmentally both necessary and controversial. It is past time to abandon the reflexive notion that every major construction is an evil that must be fought.
Project developers must learn to navigate in this treacherous ocean. Regardless of whether they are personally sympathetic to it, they must recognize the reality that the environmental justice movement, in conjunction with more conventional environmentalism, can be fatal to their plans. This article attempts to provide some navigational guidance, from the perspective of an environmental lawyer who has represented numerous developers on such journeys.
Site Selection
A central, though hotly contested, argument of many in the environmental justice movement is that communities of color have been intentionally targeted for hazardous facilities. Without entering into that debate, it goes without saying that, if such a practice ever took place, it should no more. To take it a step further, facility siting should not attempt to target white communities, either, in an attempt to redress perceived past inequities. Use of any kind of racial or demographic criteria in facility siting is likely, once discovered, to be suicidal, because the targeted group -- whatever it is -- will be justifiably outraged.
Instead, siting should be resolutely color-blind. The standard considerations in site selection are always appropriate -- e.g., proximity to raw materials and markets; sufficiency and cost of water, energy, and other infrastructure; land availability and price; labor supply. Ample environmental due diligence is also advisable before proceeding very far with a candidate site. But theorizing that the neighbors will be more amenable if they are white, black or green is both politically and empirically suspect.
It is certainly true that different communities will regard a given proposal in much different lights. Various people and groups of people perceive risk in diverse ways, largely as a matter of local culture. Waste disposal facilities, for example, are reviled by most communities, even though they tend to be much less polluting than many kinds of factories that some people willingly accept -- such as fossil fuel power plants or steel mills. Places with one of those kinds of units, or with a military installation, especially one that is closing, are often willing to accept a waste disposal facility.
Numerous psychological studies have shown that people will accept voluntary risks that are several orders of magnitude greater than involuntary risks. People will parachute out of an airplane or race a car, but they don't want to live ten miles from a secure landfill. By attempting to ram a facility down the throats of an unwilling community, the physical risks involved -- even if objectively small -- become involuntary and therefore magnified a hundredfold in the minds of the neighbors. It becomes a war - and a war that the facility advocates cannot win.
Local variations in risk perceptions, and the resistance to involuntary risks, combine to suggest that a voluntary approach to site selection can be successful for projects that are not by their nature pinned to a particular location. If a company announces publicly that it wants to build such-and-such facility; that x hundred jobs will be created; that its site must meet certain specified physical characteristics; and that it is seeking invitations from interested communities, it is likely to find a line at the door.
A voluntary approach has worked in Canada. The provinces of Alberta and Manitoba both successfully site hazardous waste disposal complexes by calling for volunteers; both were besieged with offers. Similar results were obtained when the U.S. government wanted to build the superconducting supercollider, and when certain automakers sought to build new assembly plants.
When a community invites in a developer, the political and psychological dynamics change entirely. Communities whose dominant culture of risk perception is to accept such a facility will select themselves and volunteer, without any demographic targeting. The project proponent is an invited guest rather than a resented intruder.
Permitting Strategy
Once a site is tentatively selected, the developer's lawyer is (or at least should be) called upon to help devise a strategy for securing the necessary governmental approvals. For controversial projects, the motto should be: avoid shortcuts. The environmental impact review process, in particular, provides an invaluable opportunity to demonstrate, with some scientific rigor, that the project will not have the dire effects that opponents may suggest. Finding ways to sidestep this and other approval processes will raise public suspicions that the developers have something to hide. Sometimes market demands or other considerations will not allow the full, lengthy process to be played out, but attempts to short-circuit the process should be treated very gingerly.1
Despite frequent calls for one-stop-shopping laws that would preempt the layers of permits and reviews and ram through a project despite legal challenges, there appears to have been only one such statute in recent decades, at least at the federal level. It was a rider to an appropriations bill that directed the Tennessee Valley Authority to build the Tellico Dam, all legal challenges notwithstanding.2 This law was enacted, however, only after many years of litigation, in which the dam was blocked by a U.S. Supreme Court ruling based on its threat to an endangered species of fish, the snail darter.3
All other attempts to enact such ramrod laws seem to have failed to meet their objective. Congress in 1968 directed the U.S. Department of Transportation to build the Three Sisters Bridge across the Potomac River between Virginia and the District of Columbia, but the U.S. Court of Appeals for the District of Columbia found the law was part of a crude political deal and blocked the project; the bridge still has not been built.4 Another law designated Yucca Mountain, Nevada for the nation's repository for spent nuclear fuel,5 but that project is still decades from fruition.
Efforts to use the legislative ramrod allow opponents to paint themselves as martyrs of due process. If, nonetheless, the short-circuiting statute is somehow enacted, the opposition tends to pop up again in some effective political or technical forum. Especially if a plausible environmental justice argument can be raised against a project, then the fact that standard procedures were bypassed can become a powerful rallying cry. Opponents will demand studies of the project's perceived health threats and other feared impacts, and ultimately some official body is likely to grant this request, thereby robbing the developer of the time advantage.
Developer's counsel sometimes devote all their attention to the substance of the review process -- for example, making sure that the traffic and air quality modeling are performed properly -- while giving less scrutiny to the procedural details. This is a serious mistake, because the courts tend to be far more deferential to administrative agencies about the technical aspects of environmental reviews than about the procedural requirements. Forgetting to send out a particular public notice can be much more dangerous than using a disputed variable in a computer model.
Political Strategy
The political strategy is closely linked to the permitting strategy, because (among other reasons) the attitudes of the regulatory agencies can often be heavily influenced by those of the elected officials. Politicians' views are, in turn, often shaped by community leaders.

Efforts to use the legislative ramrod allow opponents to paint themselves as martyrs of due process. If, nonetheless, the short-circuiting statute is somehow enacted, the opposition tends to pop up again in some effective political or technical forum. Especially if a plausible environmental justice argument can be raised against a project, then the fact that standard procedures were bypassed can become a powerful rallying cry.

If "avoid shortcuts" is the motto of the permitting strategy, "meet early and often" is the motto of the political strategy. Building mutual trust and respect with the numerous relevant groups and individuals is very time intensive. This is not a business for those who hope to have dinner at home with their families most evenings.
During these numerous meetings, it is important to be as open and straightforward as possible. Relevant information that is concealed or colored will invariably come to light and become an open wound.
Depending on the nature of the project, it is worth considering making an offer to establish a community review team for the facility once it is operating. The team members would be able to inspect the facility and its records to assure themselves that it is operating properly. Public opinion polls have shown that this degree of local oversight can go a long way in assuaging public fears.
Offers of compensation to the community must be treated very carefully. If the community fears that the project will be harmful to public health, and particularly to the health of children, compensation may be viewed as a bribe and lead to more rather than less opposition; the idea of accepting money in exchange for endangering the health of one's child is horrific, and one who makes such an offer will be branded as a monster. However, compensation may well be viewed as appropriate if the concerns are for property values, demand on public services, traffic congestion, and other impacts that can be reduced to dollars without giving offense.
It is also important to emphasize the need for the project. Where a compelling case can be made that a project is required to meet fundamental human needs, or to serve important societal values, a project proponent can overcome much legal and neighborhood resistance. Homeless shelters, drug treatment centers, low-income housing projects, group homes, and other social service facilities have typically prevailed in the face of legal challenges brought by unwelcoming neighbors. Many courts have found opposition to such uses to be based on irrational fears or on impermissible racial motivations.6
It is much more difficult to make a similarly compelling moral case for waste disposal facilities, power plants, highways, and the like. These are seen as fulfilling economic goals rather than deeper human needs, and the courts are more likely to entertain challenges to their construction. However, a compelling case can be made for some of these projects as well. Often they are built to replace old substandard facilities (frequently in minority communities) that violate the environmental laws but are allowed to continue in operation because they enjoy grandfathered status. Or the project may be necessary to meet another important environmental objective, such as recycling waste rather than incinerating or landfilling it, or processing sewage sludge for agricultural use rather than dumping it in the ocean.
Project Design
Reduction in the generation of pollution and hazardous waste is an important goal of the environmental justice movement, as well as of the conventional environmental movement. In a project that raises environmental justice concerns, it is especially important to be able to demonstrate that all reasonable steps have been taken to keep pollution and waste generation as low as possible.
This effort to minimize adverse environmental effects creates important opportunities for project sponsors. Since the dawn of modern environmental law a quarter century ago, there has never been greater governmental receptivity to flexibility in regulation. If a developer can demonstrate that its project can reduce its overall environmental impact by the use of unconventional methods, it may well be able to persuade the regulators to allow it to, for example, utilize a low cost, highly effective treatment process for one unregulated waste stream in exchange for avoiding an expensive, marginally effective treatment process for a different, regulated waste stream.
Non-environmental ways to make a facility a more benevolent neighbor should also be explored. Offering on-site day care for the children of plant employees is one example.
Set Realistic Expectations
Many of the expectations that the environmental justice movement may hold for new facilities -- that they be developed in an open, honest manner, with community participation-- can be fulfilled. However, at least three common demands may not be realized, and it is important to be frank about that from the start so as not to build up false expectations.
The first is that there be total community agreement on a project. Unanimous support is a laudable goal, but it is unachievable for a controversial project. The expectation should be for widespread but not total agreement. To demand otherwise is to ensure paralysis.
The second is that the facility not generate any pollution or hazardous waste at all. Technology has not advanced to the point where most complex industrial processes can operate without becoming, at a minimum, small quantity generators of hazardous waste. (Indeed, most households generate hazardous waste.) The developer can promise to minimize what is generated, and to handle its hazardous waste in a lawful manner that protects workers and neighbors from harm.

Homeless shelters, drug treatment centers, low-income housing projects, group homes, and other social service facilities have typically prevailed in the face of legal challenges brought by unwelcoming neighbors. Many courts have found opposition to such uses to be based on irrational fears or on impermissible racial motivations.

The third possibly unachievable demand is that, if the selected site currently has some soil or groundwater contamination from prior uses, it will automatically be cleaned up to natural levels before construction begins. Preexisting contamination should be cleaned to meet applicable legal standards and to ensure that the project will not endanger workers or neighbors, but making the site utterly pristine can involve a very high expenditure with little or no benefit. In fact, it can hurt more people than it helps by exposing cleanup workers, and those who travel the highways used by the trucks that haul away the dirt, to unnecessary dangers.7 Digging up and hauling away massive amounts of dirt -- often the only way to totally eliminate contamination - can also violate the principles of environmental justice by dumping waste in another (often minority) community that does not want it.
Applying the Principles
Many of the principles discussed above have been applied in a project now under development in New York City. The Natural Resources Defense Council (NRDC), a nationwide environmental group, reached the conclusion that the environment and the economy would both benefit from construction of a deinking mill that would take in some of the huge volumes of waste paper generated in the city and recycle it. NRDC did not have a site in mind and did not want to come into a community uninvited. Through a summer intern who had won one of the New York State Bar Association's Minority Fellowships in Environmental Law, NRDC was introduced to the Banana Kelly Community Improvement Association, a well-established South Bronx group. After extensive consultations, NRDC and Banana Kelly together formed the Bronx Community Paper Company (BCPC) to develop such a deinking mill.8
BCPC secured financing from several major paper companies. It found a suitable site in the South Bronx, a predominantly Latino area, and set about to prepare a detailed environmental impact statement. It also insisted on a plant design that would not employ chlorine and that would otherwise minimize use or creation of toxic substances.
The project has secured widespread support. President Bill Clinton, Governor George Pataki and Mayor Rudolph Giuliani - three men who otherwise may have little in common with each other - have all praised the project, and it is being lauded as a model of how environmental and community organizations can work together. It would be the first major industrial facility to be built in New York City in several decades, and would create hundreds of badly needed blue collar jobs in a depressed area.
The road has not been without bumps. The project was challenged by some who said the site, which had been used many years earlier as a rail yard, should revert to that purpose. A trial court agreed; it was unanimously reversed by the appellate court, but not before the project lost some of its financial backing. Some Bronx environmental groups disagreed with Banana Kelly about the costs and benefits of the project.
Thus the BCPC project has enjoyed widespread but not universal support. It is minimizing but not eliminating environmental impacts. Unquestionably it has had far easier sledding in the political and regulatory process than if it had been unilaterally imposed on a community, rather than coming in, as it did, upon the invitation of a community organization. As this article is written, the project is approaching the final stages of the permitting process.
The environmental justice movement certainly complicates the lives of project developers. However, as the Bronx paper recycling project shows, it can also create great opportunities. Through color-blind site selection, full cooperation and communication with community groups, and open and honest permitting and political strategies, developers may find that they can build environmentally sound projects in even the most contentious areas.
1 The California Environmental Quality Act (CEQA) and the New York State Environmental Quality Review Act (SEQRA) are very similar in most respects. However, legislative exemptions for particular projects are very common under CEQA and quite rare under SEQRA. It would be an interesting study to see how, if at all, this difference has affected the development processes in the nation's two most populous states.
2 See Sequoyah v. Tennessee Valley Authority, 480 F. Supp. 608 (E.D. Tenn. 1979), aff'd, 620 F.2d 1159 (6th Cir.), cert. denied, 449 U.S. 953 (1980).
3 Tennessee Valley Authority v. Mill, 437 U.S. 153 (1978).
4 D.C. Fed. of Civic Ass'ns v. Volpe, 434 F.2d 436 (D.C. Cir. 1970).
5 42 U.S.C. § 10172.
6 E.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985); Ass'n of Relatives & Friends of AIDS Patients v. Regulations & Permits Admin., 740 F. Supp. 95 (D.P.R. 1990); Baxter v. City of Belleville, 720 F. Supp. 720 (S.D. Ill. 1989).
7 Michael B. Gerrard and Deborah Goldberg, "Fatalities in Hazardous Waste Cleanup," New York Law Journal, September 22, 1995, at 3.
8 The author represents BCPC in certain environmental matters.