Air Date: Week of November 27, 1992

Steve talks with attorney Luke Cole, of California Rural Legal Assistance, about the difficulties of applying civil rights law to cases of alleged environmental racism. Cole recently scored a rare victory on behalf of a group of Hispanic Californians fighting a new hazardous waste incinerator.

Transcript

CURWOOD: Despite what many see as a clear pattern of racial discrimination in both the placement of environmental hazards, and the enforcement of environmental laws, US courts have generally rejected charges of environmental racism. A notable exception is the case of Kettleman City, California. There, Latino residents have won the first round in a bid to stop the construction of a toxic waste incinerator. They argued successfully that the county had discriminated against them as Spanish speakers. Luke Cole is the lawyer for California Rural Legal Assistance who brought the case. He says he didn't use civil rights laws for his suit; rather he used what he calls the civil rights approach.

COLE: There's a difference between a civil rights approach and a civil rights lawsuit, in that one strategy seeks to get a local community involved in a decision-making process, and when that fails because of government action, then you can use whatever laws you have at your disposal, whether they're civil rights laws or environmental laws, to go after that local government, and that's what we did. A strategy that only relies on civil rights law is going to be very difficult to succeed under, because the Supreme Court has increasingly narrowed the remedies for civil rights violations, and what the Supreme Court has said in a case called Washington v. Davis and again in a case called Arlington Heights , is that plaintiffs have to show intent to discriminate to prevail. What that's meant is that if a local government can show any other reason for a decision, such as lower land values, the county is off the hook in terms of intent.

CURWOOD: So are you saying that under the civil rights law, there really is no way to get relief against a toxic hazard in a community of color?

COLE: No, I wouldn't say that at all. I am saying that getting over the hurdle of proving intent is very difficult. I think that in our Kettleman City case, if it comes to it, if they actually start building that incinerator, we will bring our case again against Chemical Waste Management. And I'm confident that we'll be successful, because this is a really egregious case.

CURWOOD: How can you prove this?

COLE: One of the ways that we can prove intent is that members of the Kings County Board of Supervisors voted not to translate these documents into Spanish. There's your intent. I think we can also show, by looking at the pattern of Chemical Waste Management's sitings of these facilities around the country, that there was certainly something going on in their minds when they located in the South Side of Chicago in a 75 percent Black neighborhood, when they located in downstate Illinois, in an 80 percent Black neighborhood, and when they located in Port Arthur, Texas, in a 75 percent Latino and Black neighborhood -- something was going on there, when they then showed up in Kettleman City and are trying to build an incinerator in a 95 percent Latino community.

CURWOOD: How is this civil rights approach different from one taken by the mainstream environmental lawyers?

COLE: Mainstream environmental groups have what I call kind of a "macho law brain" approach, where they will not even include the local community but merely argue on the technical merits of the case.

CURWOOD: Can you give me a for instance here?

COLE: Well, a classic example came when we were preparing comment on the environmental review documents in the Kettleman City case. The "macho law brain" approach would be for me to take that document back to San Francisco and split it up and give it to my scientists, and my expert attorneys, and write very technical comments on it. Our approach was somewhat different. We held a series of house meetings throughout the community of Kettleman City, gathering 8 to 10 people at a time in somebody's living room. Discussion would ensue, and then we would get each of the people present to write a letter of comment on the environmental review documents. This type of strategy had the benefit of educating the community about what was going on, and including the community in solving their own problems. Now this plays directly into our success in the lawsuit. When I stood up in court and said, Kings County has excluded Spanish speakers, and the county stood up and said, no we haven't, the judge was able to very easily look at the 120 letters in Spanish that were answered only in English that were in the administrative record of this case.

CURWOOD: Predict for me a moment, please, Luke Cole, what you see as the future of civil rights law in the environmental movement?

COLE: Well, I think one of the problems that the environmental justice movement may face is that it may try to over-rely on the law. Most of the success in the environmental justice movement, in the civil rights movement, in the anti-Vietnam War movement, in any of these broad social movements, has been achieve when people at the grassroots are active around problems which directly affect them. A reliance on the law tends to exclude people, because they have to focus all their attention and their energies into just one person, the lawyer, in order to achieve results. A focus instead on organizing or grassroots activism is what's going to ultimately lead us to success.

CURWOOD: Luke Cole is an attorney with California Rural Legal Assistance. We spoke with him from member station KQED in San Francisco. Chemical Waste Management denies discrimination, and has appealed the Kettleman City decision.