I teach at Golden Gate University School of Law, in San Francisco, at our law school’s in-house clinic, which is staffed by lawyers, students and an environmental scientist. The Clinic primarily serves low-income communities bearing disproportionate environmental burdens. Our clients typically come to see us because they live and work near the fourth largest port in the United States, medical waste incinerators, plants that emit unbearable odors, or neighborhood parks being developed atop contaminated sites. Oftentimes, our clients live next to more than one problem source.
Take one of our clients. She and her family have lived in West Oakland for many generations. West Oakland is the oldest district in Oakland, California, with a rich cultural history. It developed in the mid-1800s as a final stop on the Transcontinental Railroad and became home to many of the Pullman Porters hired to work the sleeping cars on the railroad. West Oakland experienced expansions during the two World Wars, as shipbuilding attracted residents from inside and outside the country, resulting in a diverse group of people living in the area. With the end of World War II, West Oakland suffered from severe job losses, and its economic decline continued through the 1980s. West Oakland today bears witness to its social and economic history. Its residents are 64% African Americans, 16% Latinos, and 9% Asian and Pacific Islanders. West Oakland also hosts numerous abandoned waste sites from its industrial past, contaminated with lead and vinyl chloride, among many other chemicals with multi-syllabic names, as well as a large port that attracts diesel truck traffic and polluting marine vessels. The leading causes of death in West Oakland during 1996 to 1998 were heart disease (27%) and cancer (22%), and respiratory illnesses like asthma are a big problem.
Our client first came to the Clinic to clean up toxins from a neighborhood playground. She came again to the Clinic to deal with an odorous yeast manufacturing facility that was also then the largest emitter of acetaldehyde, a hazardous air pollutant, in the Bay Area. She did not know the details of the Clean Air Act as we did. But, more than anything I could teach her with my fancy degrees, she taught me how environmental laws really work – or, in her case, don’t work.
She concretely illustrated for me how the laws are insufficient to deal with her community, where residents are exposed to environmental toxins from multiple sources. The yeast plant was not the only problem in her neighborhood. When we talked about the yeast plant, every pollution source in the neighborhood she worried about made it into the conversation – the playground, the waste site, and the diesel trucks parked and idling in her neighborhood. In the strict legal sense, they were “irrelevant” to the core of our legal claims against the yeast plant.
The Clean Air Act, for example, does not limit air pollution based on risks multiple pollution sources may pose on communities hosting them. Neither does the law limit pollution based on risks multiple chemicals from one source may pose on host communities. The Clean Air Act mostly regulates one pollutant at a time, one source at a time. But our clients do not inhale those pollutants one at a time. The many laws that make multiple sources of pollution irrelevant are wrongheaded.
With the leadership of people who understand too well what cumulative exposure and risks mean (and who are fortunately and miraculously everywhere), our laws will someday change for the better. But this change won’t come easily or quickly. It will take an organized community, funding, and collaborations between impacted communities, academics, scientists, and regulators. Here, grassroots groups and coalitions formed the Bay Area Environmental Health Collaborative to tackle this work, with initial funding from The San Francisco Foundation. The Collaborative’s mission is to work for the adoption of measures to reduce air pollution in heavily impacted communities throughout the San Francisco region.
The lessons from BAEHC’s work are numerous. First, the community must be organized and have sufficient funding. Tackling cumulative risk is an enormously difficult task. It challenges the very framework of many of the basic laws, such as land use laws and environmental laws. When we think that disproportionate impacts might mean no longer being able to segregate polluting industries, the notion is too discomforting to many. The work is also challenging because it brings up race. Pollution maps that result from the work of the Collaborative and others like it show a linkage between race and pollution. To be associated with a system that results in such disparities is also discomforting to many, especially regulators.
Second, regulators will want to study the problem for years before taking action. The California Air Resources Board and South Coast Air Quality Management District initiated their Multiple Air Toxics Exposure Study in 1997; and the Bay Area Air Quality Management District launched its Community Air Risk Evaluation initiative in 2004; they have been studying cumulative impacts for years but have not yet promulgated any rules to control cumulative impacts. To be sure, it is a good thing to develop solid methods for monitoring and modeling cumulative pollution and to quantify it. But even without studies regulators can easily recognize that hot spots exist, and that they can take immediate action to reduce the levels of pollution in those places – all while regulators continue to study and quantify the extent of the problem. For example, regulators can enact enforceable regulations to take cumulative risks from all air pollution sources into account in granting permits. Depending on the risks, the regulators can impose stricter pollution controls. In fact, the Collaborative is asking the local air district to do exactly that.
Third, since regulators will want to study the problem anyway, let them do the study right. Have them include all of the air pollution risks in the study. Instead of simply studying “toxic” air pollution, include particulate matter, which in air parlance is not categorized as a toxic air contaminant but in fact is. Also have the regulators make the study meaningful. Don’t let the regulators produce maps without information about race and income. We as a society must face racial and social injustice squarely. To do that, the studies must include data that enable the basic analysis about race, ethnicity and income.
By the way, our client’s community won in that yeast case that I mentioned. The organizing campaign she and other West Oakland community groups led to create a better neighborhood free of offensive odor did something our Clean Air Act claim never would have done by itself: the yeast plant decided to close its West Oakland plant in the face of community opposition. The area nevertheless remains one of the most polluted in the Bay Area. Unless the regulators push for cumulative risk laws, it will continue to be one of the toxic hot spots.
Article authored by:
Helen H. Kang
Associate Professor of Law
Director, Environmental Law and Justice Clinic
Golden Gate University School of Law
