Environmental Justice and Underlying Societal Problems

Nelson Smith and David Graham

Nelson Smith is a partner in Smith & Diamond, Vienna, Virginia. Smith & Diamond is a minority-owned firm specializing in environmental and employment law. David Graham is a partner in Howrey & Simon, Washington, D.C. He has more than 25 years experience as an environmental lawyer. The authors wish to acknowledge Matthew Fogelson, an associate at Howrey & Simon, for his contributions to this Dialogue.

[27 ELR 10568]

Over the past several years, legal scholars have been theorizing about the disproportionate number of environmental problems in urban and minority areas.¹ Many view the entire issue of environmental justice² or, depending on the writer, "environmental racism"³ as a matter of air, water, or soil contamination, or other industrial conditions amounting to environmental blight in and around communities made up of less advantaged, if not abjectly poor, people. They have attacked corporations for polluting these communities and assailed government enforcement agencies for failing to protect these communities.⁴ But this is too narrow an understanding of the issue.

Environmental justice should be viewed as a panoply of problems ranging from the growth of the welfare class to the exit of the middle class because of poor city schools, lack of employment opportunities, and increased street crime to more traditional environmental conditions.⁵ All of these problems are interlinked. Communities where the welfare system flourishes and the middle class has fled usually lack political influence and, thus, are much less likely to protest effectively when they are taken advantage of by environmentally insensitive commercial and industrial concerns.

To achieve environmental justice, we must develop creative solutions to revitalize our inner cities. Most current prescriptions for cleaning up urban areas fail to address the fundamental economic causes of urban blight. To rebuild the urban economy, businesses must be offered incentives to relocate to the city, contaminated properties must be redeveloped, the middle class must be lured back, and welfare systems must be redesigned and privatized.

[27 ELR 10569]

The Focus of Environmental Justice

The flaw in current attempts to clean up urban America is that the focus of the parties involved, including legal scholars, environmental activists, and industry, is on environmental justice not as a market force problem, but as a social or racial problem.⁶ Consequently, the solutions offered are often based on sociology rather than economics.⁷ For example, a number of legal and other academic scholars have argued for years that race is the driving factor in the selection of the placement of waste disposal sites in urban areas. Yet, a recent study by the University of Chicago on the environmental justice issue in Chicago suggests otherwise. The four-year study was conducted to establish statistical evidence that would support the belief that minorities are more likely to live near dumps and toxic waste sites. It concluded the exact opposite, finding "no good evidence that African Americans of any income class are more likely to live in areas with more concentrated waste sites in the City of Chicago."⁸

The study did note several other significant and related reasons for the disproportionate number of minorities in areas where a large percentage of waste sites are located. When Caucasians worked in the factories in the city, they lived near their jobs. When African Americans later migrated north to Chicago, segregation kept them out of those areas. As a result, the neighborhoods where AfricanAmericans lived were far from the factories and, thus, far from the heavily contaminated properties. In fact, these areas remain relatively free of hazardous waste sites to this day.⁹

When industry began leaving the city, the Caucasian workers followed. In some areas on the northwest and southwest sides of Chicago, they were replaced by an influx of Hispanics. Thus, today a disproportionate number of Hispanics live near the waste sites. At the same time, a number of areas where industrial and commercial facilities were once located have been converted to expensive lofts into which many upper middle class Caucasians are moving.¹⁰

In sum, the University of Chicago study suggested a key distinction that must be considered when discussing environmental justice. While waste disposal sites may be in minority communities in disproportionate numbers, that does not necessarily translate into environmental racism. As the study indicated, the disproportionate ratios may be based more on economics than race. The resulting implication is that to obtain the maximum results in eradicating environmental problems in urban areas, the proposed solutions must be based on economics. Economic solutions will, in turn, produce social or racial results—in other words, cleaning up urban areas that disproportionately affect minorities because of the location of minorities in these urban areas.

Tax Benefits for Urban Corporate Relocations

Urban revitalization of environmentally challenged neighborhoods will be virtually impossible without investment by corporate America.¹¹ Yet, politicians and policymakers must recognize that, while corporations may want to "do the right thing," their ultimate loyalty must be to their shareholders. They must protect the interests of those shareholders even at the expense of making decisions for socially just reasons. A perfect example of where socially just actions may be superseded by the demands of shareholders is in the decision to invest or not to invest corporate resources in revitalizing urban areas that are environmentally contaminated.

[27 ELR 10570]

Under current law, the marginal benefit gained by purchasing less expensive contaminated property is minimized, if not eliminated, by the fact that the corporation will probably be forced to amortize its cleanup costs over several years rather than take an immediate deduction.¹² The potential to incur liability for environmental cleanup costs and the lack of tax incentives to relocate to urban areas compel corporations to locate in the suburbs, where overall costs are lower and high quality municipal services are available.

To attract corporate America back to urban areas, Congress should consider using tax policy rather than expenditure policies to accomplish the social goal of revitalizing the urban core. A significant benefit of such an approach is that it would not involve bureaucratic meddling in private decisions. In the tax area, Congress should follow the path taken by the U.S. Environmental Protection Agency (EPA) with its enlightened adoption of the concept of "prospective purchaser agreements."¹³ Prospective purchaser agreements are agreements between EPA and purchasers of certain contaminated properties that protect the new purchaser from liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)¹⁴ for contamination associated with prior owners or operators on the contaminated property.¹⁵ Congress should enact legislation in a similarly progressive vein that would allow corporations to deduct environmental cleanup costs in the year incurred, as well as other tax incentives that will lure corporations into relocating to urban areas.

Furthermore, to ensure that purchasers will develop the land in ways that benefit the urban community, Congress should give to corporations tax incentives that increase in proportion to the number of people hired from the community. If the tax incentives are large enough, businesses will return to the urban areas, and will hire and train local people to fill jobs, thus helping to reduce the welfare rolls. In short, the federal government may provide a large tax break for wealthy corporations, but the tax break is contingent, and increases, upon the corporation's actions "trickling down" to the disadvantaged community.¹⁶

There are those who would argue that statutory immunity from liability and new tax breaks merely grant the purchaser of contaminated property an undeserved windfall. This argument apparently assumes that without these incentives, contaminated urban properties would still be bought, cleaned up, and developed, and local residents would still be hired. One need only look at the widespread decay and blight in urban America today to determine the validity of this argument.

In short, the real beneficiary of these incentives would be the urban communities themselves. More money would become available for private cleanup, thus making contaminated urban property a more attractive location for new businesses. Moreover, such incentives benefit all taxpayers, as long-term job growth leads to a decline in social service costs.

Companies that relocate to urban areas should also be awarded large tax incentives for helping urban residents create businesses within the community. Such a program should coincide with the Community Reinvestment Act (CRA), which requires banks to reinvest in the communities in which they are located.¹⁷ Interestingly, the CRA has been criticized as not being as effective as many would like because the federal government has apparently failed to enforce it.¹⁸ To the degree this is true, the approach of "incentives" versus "enforcement" could be more effective in urban areas (i.e., incentives do not require bureaucratic intervention). Again, by encouraging members of urban communities, plagued by a broad array of environmental problems, to start their own businesses, residents would gain a vested interest in protecting the neighborhoods from crime and other environmental concerns ranging from littered streets and lots to air pollution. Thus, when new businesses are created in the urban communities, a self-designated community watch group is created. Furthermore, pride is created by giving residents from urban communities a chance to operate and control their own businesses. Finally, children in the community would have successful and positive role models to look up to and admire. Positive role models could help to reduce the attractiveness of street gangs, another form of urban environmental pollution that one could argue is an element of the environmental justice problem.

"Brownfields" Investment

One relatively new field that is receiving much attention today, the redevelopment of contaminated inactive or abandoned properties or "brownfields," holds promise for making urban areas economically viable. Here too, tax incentives are likely to play a role, as illustrated by President Clinton's proposal in March 1996 to provide $ 2 billion in tax breaks to leverage some $ 10 billion in private cleanups nationwide.¹⁹ Moreover, the President proposed making [27 ELR 10571] cleanup expenses fully deductible in the year in which they are spent.²⁰ This tax incentive would be available in areas that are already part of EPA's brownfields pilot areas, in areas with a poverty rate of 20 percent or more, in adjacent industrial or commercial areas, and in "Empowerment Zone/Enterprise Communities" as designated by the Administration. Sen. Carol Moseley-Braun (D-Ill.) has introduced legislation to modify the Internal Revenue Code to implement President Clinton's proposal.²¹

Equally important, however, is the fact that over 30 states have enacted voluntary cleanup programs that are particularly well-designed to enable those interested in cleaning up and redeveloping properties that formerly housed industrial or commercial facilities to do so.²² When new businesses are established in brownfields redevelopments, jobs are created. Members of the local community, with appropriate training, will be able to fill many of these jobs. Thus, the brownfields movement should prove to be an effective tool to bring about the revitalization of urban communities.

Accordingly, the brownfields area has brought forth environmental justice issues that must be addressed. Community concerns along the following lines will be raised concerning any brownfields redevelopment. First, to what degree will the contamination be remediated (e.g., will cleanup levels be required that are comparable to those in predominantly Caucasian communities)? Second, will the economic stimulus the community should experience benefit members of the community or mainly outsiders? Third, will the local inhabitants be displaced by the brownfields redevelopment (e.g., will new residential or commercial developments be beyond the means of most members of the community and, thus, eventually force them out of their own neighborhoods)?²³

Such questions are not easily answered. Nonetheless, one of the best ways to gain the backing of the local community for brownfields redevelopment projects is to provide a means for the community to participate effectively in the process of redevelopment. The National Environmental Justice Advisory Council (NEJAC), a working group set up by EPA, has utilized public dialogues in an attempt to encourage public participation in brownfields redevelopment.²⁴ In forums conducted in 1996, residents in five cities around the country had the opportunity to voice their concerns about brownfields redevelopment as well as their ideas on how to revitalize their communities. Representatives from government agencies were asked to indicate how their agencies might assist the community in achieving the goals suggested by the local residents. A period of discussion and debate followed.²⁵ Thereafter, NEJAC published a report that set forth recommendations on the topics and concerns raised during the dialogues.²⁶

How to involve the local community effectively in a particular brownfields project is beyond the scope of this Dialogue. It is clear, however, that such development is preferable to urban properties remaining abandoned and contamination unremediated. Where environmental justice issues are raised, brownfields redevelopment offers another mechanism for improving the conditions in urban communities that create the underlying societal problems of the local inhabitants.

The Return of the Middle Class

In redeveloping environmentally challenged urban areas, one major but necessary task is enticing the middle class to move back to the community. Many who have addressed environmental justice issues have failed to comprehend the fundamental importance of the middle class flight from urban areas in the downward spiral of those communities. In other words, the approach of some who are concerned about environmental justice issues has been one of attacking corporations for "polluting."²⁷ However, this argument fails to address the fundamental problem: urban America lacks the financial resources both to protect the community and to absorb financially the displacement of industries that provide a substantial number of jobs and contribute significantly to the tax base of the community. In short, decreasing the number and severity of environmental problems in urban areas requires increasing alternative forms of revenue in those communities. Simply attacking polluting industries, and thus forcing companies to leave without sufficient sources of substitute income for local residents, will only exacerbate the problems.

In determining how to encourage the middle class to return to the cities, the environmental justice movement must face the fact that a key issue for middle class Americans is education, and that most urban schools are in a horrific state. In many city schools, crime and dropout rates are high, while scholastic scores and morale are low. Unless their children can attend good, safe schools, many middle class parents will not relocate to urban areas, regardless of [27 ELR 10572] the incentives provided.²⁸ Thus, urban leaders should consider decidedly nontraditional approaches to achieving environmental justice, such as providing school vouchers for new residents to attend the school of their choice.²⁹

In addition to school vouchers, other measures to attract the middle class back to cities are being discussed actively in some metropolitan areas. In the District of Columbia, where the population has decreased by several hundred thousand people over the last decade, approaches being considered include revisions to the manner in which income taxes are imposed on individuals (variations on a "flat tax" to elimination of personal income taxes for District residents); reductions of individual homeowners' property taxes (urban homeowners maintain that high property taxes are forcing them out of the community); enforcement of more effective crime fighting measures (more police "walking a beat," installation of surveillance cameras to deter potential criminals, etc.); and improving municipal service (street cleaning and maintenance of pavement, trash collection, etc.).

The Welfare System

Another controversial issue that must be examined as an element of environmental justice is the welfare system. The welfare legislation signed by President Clinton in 1996³⁰ limits the number of months that a person can stay on welfare. This approach assumes that people will be forced to find jobs. Of course, Congress need only have spent a matter of weeks in several urban areas to realize that the jobs are not there.³¹ Even better, Congress should have compared the 1960 and 1990 Census data to recognize that much of business and the middle class have moved out of urban America, taking with them jobs and a large tax base. Thus, while the welfare statute requires individuals on welfare to seek employment or face removal from the welfare rolls, what is lacking are jobs in the vicinity of welfare recipients and enforcement by the government officials of rules and regulations designed to implement work requirements.³²

The solution may lie in looking at welfare (like environmental justice) not as a social problem amenable to social solutions, but as an economic problem amenable to economic solutions. Viewed as such, welfare may best be overhauled by privatizing the entire system.³³ The federal government should encourage state and local governments, through incentives, to contract out the administration of welfare.

Prior to a state or local government awarding such a contract, bidders would be required to explain how their proposals would result in the removal of welfare recipients from the rolls through job placement, training, and enforcement of rules and regulations. The state or local government would provide the winning bidder with the same amount of money currently paid to welfare recipients, and then would pay the contractor additional incentives for reducing that amount from year to year. Larger incentives should be granted for job creation, as opposed to welfare termination, since the long-term benefit of job creation is greater than the long-term benefit of welfare termination. Unlike the welfare reforms adopted by Congress, privatization of the welfare system would give the market a vested interest in reducing the welfare rolls.

The strength of the relationship between privatizing the welfare system and addressing environmental justice concerns cannot be overemphasized. Revitalizing the economic life of urban areas is inextricably linked with revitalizing residents' environmental surroundings. Private welfare contractors' financial success should be dependent on creating employment opportunities for the residents of environmentally and economically depressed urban communities.

The new welfare legislation provides a golden opportunity to test the efficacy of privatization. The substantial devolution of welfare responsibilities to the states opens up new possibilities for broad experimentation.³⁴ Moreover, [27 ELR 10573] the statute authorizes states to utilize private job placement agencies that provide employment services to individuals receiving assistance.³⁵ The Clinton Administration should not block states that wish to accept this invitation and create bold new partnerships between government and the private sector.³⁶

Conclusion

Many involved in the environmental justice movement have focused, rather myopically, on the direct causes and effects of environmental pollution. Unfortunately, while they look at the effects that polluting factories and commercial establishments may have on an area, these advocates fail to address certain other types of "pollution" that, in some instances, are more real to the community than any smokestack churning out sulfur dioxide. Examples of this urban pollution include boarded-up factories and housing facilities where rats, vagrants, and drug dealers run rampant.³⁷

Depending on the quality and quantity of toxins emitted, driving unresponsive and unrepentant businesses out of town sometimes may be advisable. But we should never lose sight of the long-term effects that losing businesses will have on the community. When major employers leave, small businesses that relied on their workers also die. In addition, the tax base decreases, the infrastructure deteriorates, and service businesses that do not pollute decamp for more economically viable communities, further eroding the infrastructure and job prospects. So long as we see the environmental justice movement solely within the narrow context of what factories are dumping into rivers or releasing into the atmosphere, we will continue to drive businesses out of urban areas, while undermining any real ability to address the environmental problems omnipresent in those communities.

If there is one fault shared by the environmental justice movement and industry, it is that both often fail to take into consideration the long-term effects of their actions. Industry makes this mistake when it does not consider how its hiring and expansion efforts affect local residents. Environmental justice advocates make the same mistake when they do not consider what closing a facility might do to the environmental health of a community.

Together with residents of environmentally and economically disadvantaged communities, industry and the environmental justice movement must work to develop market-based solutions that will create economic opportunities for residents while preserving and protecting the environmental health of the community. Otherwise, many urban areas will continue their long, painful deterioration.

1. See Douglas L. Anderson et al., Hazardous Waste Facilities: "Environmental Equity" Issues in Metropolitan Areas, 18 EVALUATION REV. 123 (1994); Robert D. Bullard, Grassroots Flowering: The Environmental Justice Movement Comes of Age, AMICUS J., Spring 1994, at 32; Karl Grossman, From Toxic Racism to Environmental Justice, E MAG., May/June 1992, at 28; Environmental Justice, BOSTON GLOBE, Dec. 1, 1994, at 22 [hereinafter Boston Globe Editorial]; Kenneth J. Hollenbeck & Stephen J. Hudik, Environmental Justice: When Minorities and Poor Live in Toxic Parts of Town, Is It Because of Discriminatory Intent, or the Effects of Broader Social Forces?, RECORDER, Autumn 1994, at 8; Julian McCaull, Discriminatory Air Pollution: If Poor Don't Breathe, ENV'T, Mar. 1976, at 26; Marianne Lavelle & Marcia Coyle, Unequal Protection: The Racial Divide in Environmental Law, NAT'L L.J., Sept. 21, 1992, at S1; Andy B. Anderson et al., Environmental Equity: Evaluating TSDF Sitting Over the Past Two Decades, WASTE AGE, July 1994, at 83; Douglas A. McWilliams, Environmental Justice and Industrial Redevelopment: Economics and Equality in Urban Revitalization, 21 ECOLOGY L.Q. 705 (1994); Rachel D. Godsil, Remedying Environmental Racism, 90 MICH. L. REV. 394 (1991); Vicki Been, Locally Undesirable Land Uses in Minority Neighborhoods: Disproportionate Sitting or Market Dynamics?, 103 YALE L.J. 1383 (1994).

2. See McWilliams, supra note 1; Bullard, supra note 1; Grossman, supra note 1; Boston Globe Editorial, supra note 1; Hollenbeck & Hudik, supra note 1; see also Environmental Justice Review Finds Race, Not Income, to Be Major Factor, ENVTL. POL'Y ALERT, May 25, 1994, at 34; Catalina Camia, Poor, Minorities Want Voice in Environmental Choices: In Pressing Their Case for "Environmental Justice," Civil Rights Advocates Look to Congress for Help, for Ensuring Environmental Justice: The Debate Continues, ENVTL. SOLUTIONS, June 1995, at 48.

3. See Godsil, supra note 1; Grossman, supra note 1; see also Jane Kay, EPA: Stop Dumping Toxics on Minorities—Administration Aims to Protect the Poor, S.F. EXAMINER, Feb. 21, 1994, at A8; Frank Clifford, Charge of Environmental Racism Puts Plant on Hold, L.A. TIMES, Aug. 1, 1994, at A1; Cheryl L. McAdams, Recent Research Finds No Significant National Evidence of Environmental Racism, WASTE AGE, May 1994, at 24. Interestingly, while the terms "justice" and "racism" are antonyms, they are used by industry and environmental groups to address the same concerns. To many, the ambiguous terminology used to address environmental concerns in urban areas may appear trivial. However, in reality, the lack of definition is fundamental in outlining why the environmental justice movement receives a great deal of attention from legal pundits and scholars, yet noticeable help has not been provided to most urban areas. In other words, if we cannot agree on a definition of what the problem is, how can we legitimately expect to arrive at a meaningful solution? One author noted the distinction between environmental racism and environmental justice thus: "The practice of placing disproportionate shares of pollution in minority communities is environmental racism. The cure to this practice is environmental justice." Camia, supra note 2, at 53.

4. For studies showing that environmental laws are enforced less vigorously in poor and minority communities, see Lavelle & Coyle, supra note 1, at S1; Rae Zimmerman, Social Equity and Environmental Risk, 13 RISK ANALYSIS: AN INT'L J. 649 (1993); Richard J. Lazarus, Pursuing "Environmental Justice:" The Distributional Effects of Environmental Protection, 87 NW. U. L. REV. 787, 818-19 & nn. 125-33 (1993) (surveying literature).

5. Former Secretary of Housing and Urban Development Henry Cisneros has made the connection between the economic decline of urban areas and environmental degradation. Specifically, Secretary Cisneros has commented: "When manufacturing went to the suburbs, or went offshore, or went south, the cities were left behind. And not only were they left; they got stuck with the residue—toxic waste, empty lots, broken-down factories with no possible use." William Raspberry, Urban Comeback, WASH. POST, Jan. 24, 1997, at A23.

6. See Pam Tau Lee, Frontline Viewpoint, AMICUS J., Spring 1994, at 34. There, she noted:

The environmental justice movement is forcing those with power to see these problems as part of a larger epidemic affecting almost all people of color and much of the workforce regardless of race. We must search for creative solutions using the common threads that tie us together. Classes in English as a second language, for example, provide a single classroom in which we can educate workers from many nations about their rights in the home and workplace. We must seek out other common fora to empower all people of color in the fight for a safe, clean environment.

Id.; see also Kay, supra note 3, at A8 (where she quotes Clarice Gaylord, director of EPA's Office of Environmental Equity as stating: "Unfortunately, people of color and low-income communities face a much higher environmental exposure and risk than the majority population. These communities bear a disproportionate share of the nation's air, water and waste contaminant problems."). In the Anderson article, it was acknowledged that "evidence of environmental racism ought to alarm any person. Racism and the degradation of the environment arguably are two of the most serious social problems facing our country and the thought of their intersection is especially alarming." Andy B. Anderson et al., supra note 1, at 83; see also, COMM'N FOR RACIAL JUSTICE, UNITED CHURCH OF CHRIST, TOXIC WASTE IN THE UNITED STATES (1987).

7. Specifically, the problem, assert many advocates of the environmental justice movement, is that minority citizens are denied the equal protection of the law under the Fourteenth Amendment. The solution, it follows, is constitutional litigation to remedy the discrimination. See R.I.S.E., Inc. v. Kay, 768 F. Supp. 1144, 22 ELR 20199 (E.D. Va. 1991) (challenging siting of solid waste landfill, in part, on equal protection grounds); East Bibb Twiggs Neighborhood Ass'n v. Macon-Bibb County Planning & Zoning Comm'n, 706 F. Supp. 880 (M.D. Ga.), aff'd, 896 F.2d 1264 (11th Cir. 1989); Bean v. Southwestern Waste Management Corp., 482 F. Supp. 673 (S.D. Tex. 1979), aff'd, 782 F.2d 1038 (5th Cir. 1986). In this way, the economic factors underlying the phenomenon of environmental inequity are obscured, and potential solutions, derived from an understanding of those factors, are left unexplored. Of course, thoughtful economic policy is not a panacea—this Dialogue does not mean to suggest that the revitalization of economically depressed urban areas will resolve all the questions posed by the environmental justice movement. Indeed, as a formally depressed area becomes gentrified, concerns about the fate of the local community are raised. See, e.g., James Brooke, In Santa Fe, Residents Turn Cold Shoulder to Newcomers, N.Y. TIMES, Jan. 19, 1997, at A16 (noting that gentrification of Santa Fe has caused the average price of a home there to reach $ 250,000, forcing many Hispanic families to move to trailer parks outside the city). However, this Dialogue does suggest that attention must be paid to the economic foundations of the current urban blight if those areas are once again to thrive.

8. Peter Kendall, Report Calls "Environmental Racism" Garbage. U of C Study Finds Yuppies by Toxic Sites, CHI. TRIB., Apr. 4, 1997, § 1, at 1.

9. See id. at 22.

10. See id.

11. The need for corporate America to help rejuvenate urban areas is further supported by the fact that many cities are required to provide more services with a diminishing tax base. The effect is that such cities are in financial trouble. For example, due to budgeting and funding problems, many roads that need repair are ignored in Washington, D.C. Moreover, when it snows in Washington, there are not enough sand and salt trucks that operate to remove the snow from the roads. In the 1980s, cities such as Philadelphia and New York City were on the verge of filing for bankruptcy because they lacked the funding necessary to provide essential services. Ironically, if cities do not possess the funding to provide minimal services to their communities, it is logical to assume that repair of areas that have been blighted for years will not occur anytime soon.

12. See 26 U.S.C. § 263 (providing generally that capital expenditures are not deductible).

13. See EPA Guidance on Agreements With Prospective Purchasers of Contaminated Property (David B. Graham et al. eds., 1995), reprinted in AMERICAN BAR ASS'N, CERCLA ENFORCEMENT: A PRACTITIONER'S COMPENDIUM OF ESSENTIAL EPA GUIDANCE AND POLICY DOCUMENTS, at Tab 31 (1996).

14. See 42 U.S.C. § 9607, ELR STAT. CERCLA § 107.

15. This approach raises the question of who would be responsible for the cleanup if the new purchaser is not required to remediate the site. The answer: either the previous owner or the U.S. government. Many would argue that the federal government does not have the money to clean up all of the sites. However, the federal government is obliged to use the Superfund for abandoned sites. See 42 U.S.C. § 9611, ELR STAT. CERCLA § 111. Furthermore, one major complaint by many community citizens in the environmental justice movement is that EPA has been very slow in cleaning up urban areas or pursuing potentially responsible parties in urban areas. See supra note 13. Thus, the requirement that EPA now step in and clean up these sites or locate the parties responsible for the contamination is not a new or unduly burdensome request. Even if it were, it is a price worth paying because of the benefits that would accrue in blighted urban areas.

16. President Clinton's recent proposal to provide tax credits to businesses that hire long-term welfare recipients is perhaps one mechanism through which to implement this vision. See Robert Pear, Clinton Will Seek Tax Break to Ease Path Off Welfare, N.Y. TIMES, Jan. 28, 1997, at A1.

17. 12 U.S.C. §§ 2901-2907 (1994).

18. Recently, in California, the minority community has asked for the government to investigate Home Savings of America Bank, arguing that Home Savings has failed to comply with the CRA. See Allen J. Fishbein, The Community Reinvestment Act After Fifteen Years: It Works, But Strengthened Federal Enforcement Is Needed, 20 FORDHAM URB. L.J. 293, 296-97 (1993) (discussing historical problems with enforcement of the statute).

19. See Basil Talbott, President Suggests Tax Incentives for Industrial Cleanup, CHI. SUN-TIMES, Mar. 12, 1996, at 12.

20. See id.

21. See S. 235, 105th Cong. (1997). Rep. Charles Rangel (D-N.Y.) has introduced similar legislation in the House of Representatives. See H.R. 505, 105th Cong. (1997). At least five other bills with possible implications for brownfields policy are pending in Congress. See Brownfields and Environmental Cleanup Act, S. 18, 105th Cong. (1997); Superfund Cleanup Acceleration Act, S. 8, 105th Cong. (1997); New Urban Agenda Act, S. 23, 105th Cong. (1997); Commercial Revitalization Tax Act, S. 411, 105th Cong. (1997); Commercial Revitalization Tax Act, H.R. 465, 105th Cong. (1997).

22. For a comprehensive discussion on the subject of brownfields and on individual state laws on the topic, see TODD S. DAVIS & KEVIN D. MARGOLIS, AMERICAN BAR ASS'N, BROWNFIELDS: A COMPREHENSIVE GUIDE TO REDEVELOPING CONTAMINATED PROPERTY (1997).

23. See John C. Chambers & Michelle A. Meertens, Community Participation in Brownfields Redevelopment, ABA SECTION OF NATURAL RESOURCES, ENERGY, AND ENVIRONMENTAL LAW, 26TH ANNUAL CONFERENCE ON ENVIRONMENTAL LAW, Mar. 13-15, 1997, at Tab 9.

24. See id. at 11.

25. See id. at 11-12.

26. For the interim draft version of this report, see WASTE AND FACILITY SITTING SUBCOMMITTEE OF THE NATIONAL ENVIRONMENTAL JUSTICE ADVISORY COUNCIL, ENVIRONMENTAL JUSTICE URBAN REVITALIZATION, AND BROWNFIELDS: THE SEARCH FOR AUTHENTIC SIGNS OF HOPE (1996); see also ENVIRONMENTAL JUSTICE URBAN REVITALIZATION, AND BROWNFIELDS: THE SEARCH FOR AUTHENTIC SIGNS OF HOPE (visited Sept. 4, 1997) http://www.prcemi.com/nejac/publicat/dialog/toc.html.

27. This attitude is reflected in the so-called NIMBY syndrome—Not In My Back Yard. See KENT E. PORTNEY, SITTING HAZARDOUS WASTE TREATMENT FACILITIES: THE NIMBY SYNDROME (1991); Lawrence S. Bacow & James R. Milkey, Overcoming Local Opposition to Hazardous Waste Facilities: The Massachusetts Approach, 6 HARV. ENVTL. L. REV. 265 (1982).

28. For a survey of the evidence that residents choose a community in part because of the amenities it offers, particularly educational amenities, see Vicki Been, "Exit" as a Constraint on Land Use Exactions: Rethinking the Unconstitutional Conditions Doctrine, 91 COLUM. L. REV. 473, 517-28 (1991).

29. "Voucher" plans, in a nutshell, provide public funding for students who attend private schools. The amount of individual funding is equivalent to the per pupil spending in the student's school district. The economist Milton Friedman first devised the idea of school vouchers some 35 years ago, arguing that an injection of competition would promote variety and flexibility in the educational system. See MILTON FRIEDMAN, CAPITALISM AND FREEDOM 93-96 (1962). For an extended treatment of school voucher programs, see PETER W. COOKSON JR., SCHOOL CHOICE: THE STRUGGLE FOR THE SOUL OF AMERICAN EDUCATION (1994). For an argument that private school vouchers provide an effective remedy for violations of students' state education rights under state constitutions, see Private School Voucher Remedies in Education Cases, 62 U. CHI. L. REV. 795 (1995). For an argument that private school vouchers provide an effective mechanism for desegregating inner-city schools, see Jenkins v. Missouri School Choice as a Method for Desegregating an Inner-City School District, 81 CAL. L. REV. 1029 (1993); see also Howard L. Fuller, New Research Bolsters Case for School Choice, WALL ST. J., Jan. 21, 1997, at A18 (discussing recent study finding significant benefits from voucher system in Milwaukee).

30. Personal Responsibility and Work Opportunity Reconciliation Act, Pub. L. No. 104-193, 110 Stat. 2105 (1996).

31. Of course, to the extent such reforms force state and local governments to create jobs, the reforms could potentially succeed. See Comments of Secretary Cisneros, quoted in William Rasberry, Urban Comeback, WASH. POST, Jan. 24, 1997, at A23 ("[President Clinton's] signing the welfare bill pushes the cities, and for that matter, the federal government, to the wall. If jobs are not created to take up the people coming off welfare, social chaos is the result. That's unacceptable. Therefore, there's no alternative but to address the problems of jobs in the cities.").

32. See Bradley R. Schiller, All Welfare Is Local, N.Y. TIMES, Jan. 28, 1997, at A21 (commenting that individual caseworkers over the past five years have exempted 50 to 60 percent of adult Aid to Families With Dependent Children recipients from work requirements "despite reams of federal and state regulations to limit their discretion").

33. Privatization of traditional government functions is becoming a popular policy tool. For example, some school districts have adopted privatization as a potential solution to the shortfalls of public education. See Lewis D. Solomon, The Role of For-Profit Corporations in Revitalizing Public Education: A Legal and Policy Analysis, 24 U. TOL. L. REV. 883 (1993) (advocating further experimentation); Rene Sanchez, For-Profit Public Schools Show Hope After First Year, WASH. POST, Dec. 10, 1996, at A1; Peter Applebome, Grading For-Profit Schools: So Far, So Good, N.Y. TIMES, June 26, 1996, at A1. But see TWENTIETH CENTURY FUND, HARD LESSONS: PUBLIC SCHOOLS AND PRIVATIZATION (1996) (concluding that while privatization efforts have not improved education, they have contributed to backsliding in terms of social equity and local control of education).

34. For another approach, see Dana Milbank, Michigan Now Relies on Churches to Help People Leave Welfare, WALL ST. J., Mar. 17, 1997, at 1 (noting that mentors from the Good Samaritan Ministries provide guidance and stress values in working with those on welfare, while creating concern among those worried about the separation of church and state).

35. Pub. L. No. 104-193, § 404(f), 110 Stat. 2125 (1996).

36. See David Kuo, No More Excuses; Now, Conservatives Like Me Need to Do More for the Poor, WASH. POST, Feb. 9, 1997, at C1 (advocating a robust role for the private sector in helping to implement social policy); Gerald F. Seib, North Carolina's Welfare Reform Gets Corporate Help, WALL ST. J., Feb. 20, 1997, at A22 (discussing contract between county welfare office in Charlotte and local Chamber of Commerce "to push the idea of moving welfare recipients into jobs").

37. For the authors' discussion of the term "environmental justice," see supra notes 2-5 and accompanying text.