LAW CENTER CO-SPONSORS FILM SCREENING AND PANEL DISCUSSION OF LAID TO WASTE - AN ENVIRONMENTAL JUSTICE DOCUMENTARY
On February 9, 2008, The Law Center joined the Delaware County Alliance for Environmental Justice and other grassroots organizations to present an Environmental Justice advocacy event at Widener University. The film "Laid to Waste" was screened, followed by a panel discussion featuring Mike Ewall of ActionPA and Energy Justice Network, Delores Shelton and Francis Whittington, Chester residents and activists, Diane Sicotte of Drexel University Law School, and David Gibson of the Coalition for Peace Action.

"Laid to Waste," made by Drexel students Robert Bahar and George McCollough in the late 1990's, centers on the struggles of Chester Residents Concerned for Quality Living (CRCQL) an organization led by the indomitable Zulene Mayfield, as they protest the companies that place a disproportionate and severely harmful burden on the low-income and predominantly minority community of Chester by bringing in health-threatening waste and pollution. This film is considered, "the best case study of environmental injustice and racism available on video." The Law Center's retired environmental justice attorney Jerry Balter is featured prominently in the film, as he worked closely with CRCQL during his career, representing the organization in law suits against the companies that polluted their neighborhoods. Mr. Balter was in attendance and helped fuel the discussion after the screening.

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The Law Center announced that its distinguished environmental and civil rights attorney Jerome Balter is retiring from active practice. Balter, 84 years old, joined the Law Center in 1979, shortly after graduating from Rutgers Law School following a first career as a civil engineer and civil rights activist in Rochester, N.Y.

At the Law Center Balter shaped its urban environmental health and justice project. He was responsible for drafting and then negotiating the passage of the first "Community Right to Know" law, which was adopted by the City of Philadelphia. The law gave communities the right to know what toxic and hazardous chemicals were being stored and used in their community. The ordinance was passed with the strong assistance of PHILAPOSH, at that time led by Jim Moran and Rick Engler.

Shortly thereafter Balter shepherded a similar bill through the New Jersey legislature. Those enactments proved to be the model for approximately 20 other city and state laws. The Law Center successfully defended the New Jersey legislation in the federal courts against claims that it was pre-empted by federal OSHA laws which did not give notice to the community. Because of the impact of differing local provisions, companies which had vigorously opposed local ordinances then endorsed national legislation which provided uniform disclosure rules.

In the early 19070's Balter was involved in a legal shoot out with the state over the implementation of automobile exhaust inspection and maintenance to reduce the pollution in Pennsylvania's air. Although the state had agreed to settle a suit brought by the Law Center to enforce the clean air act by establishing automobile exhaust inspection and maintenance as part of the registration process, the Thornburg administration and the state legislature refused to go forward with the system. Balter sued to enforce the agreement, and asked District Court Judge Bechtle to cut off million in federal highway funds in order to coerce compliance. Judge Bechtle did so, in an opinion which was upheld by the Third Circuit and which the Supreme Court declined to review. The legislative leaders then obtained a ruling from the state Commonwealth Court enjoining adoption of any implementing regulations, which the federal court struck down. Finally, the state vigorously fought payment of any fees, and was successful in getting the Supreme Court to restrict the payment, despite the District Court's finding that the efficient and tenacious legal work of Balter to vindicate the public interest warranted a multiplier for the quality of work.

Balter brought more private Clean Air Act citizen enforcement proceedings than any other lawyer in the country, successfully forcing the City to clean up and then close its incinerators. He also brought successful actions to stop hazardous air pollution from the City's sewage treatment plant, from the Delcora incinerator in Chester, from Philadelphia Coke, Franklin Smelting, and numerous other polluters. In the course of this work, Balter came to realize that communities would be willing to allow industrial operations if they could monitor the emissions and control the enforcement process to assure they were in compliance with best available technology, but would oppose enforcement left in the hands of bureaucrats and politicians.

Ironically, the opposition of Balter and many community groups to a huge new Philadelphia trash incinerator, which was supposed to have been needed in order to cut landfill costs, eventually saved the city millions of dollars as the price of landfill disposal dropped lower than incinerator prices throughout the 1990s. As a member of the City's Sewage and Waste Treatment Advisory Committee Balter was influential in getting the Department of Streets to take advantage of the declining prices.

In the mid 1990s Balter became a national leader in Environmental Justice as he sought to remedy the common industrial practice of locating polluting facilities in minority neighborhoods which had less political clout to keep them from getting the necessary permits than more affluent and whiter communities. Working with Zulene Mayfield and the Chester Residents he quickly learned that state courts would not halt environmental polluters at the request of citizens when Justice Castile told him in open court that the law was whatever the Justices said it was and overturned a stay of a permit which Balter had won in the lower court. He then found out that even EPA analysis would not be enough to stop permits when he instigated the first ever EPA analysis of the cumulative impact of air pollution which they undertook for the City of Chester. The report found that given the poor health of the City's residents and the high level of polluting facilities already there, no further permits ought to be given. Nevertheless, the state DER continued to grant permits in Chester, including one for a facility licensed to be the largest infectious waste treatment facility in the country, able to handle more infectious waste than produced in the entire state and designed to serve the entire east coast.

He then turned to federal courts to enforce the regulations developed by the Robert Kennedy Justice Department to implement Title VI of the Civil Rights Act of 1964, which prohibited recipients of federal funds from operating their programs in a manner which would have a disproportionate racial impact. Balter first brought suit against the Pennsylvania Department of Environmental Resources for granting an incinerator permit in the predominately minority City of Chester, where the state had granted permits for handling two million tons of waste compared to the rest of the county which was predominately white and which had permits for only 1,400 tons of waste. The District Court held that claims of disparate impact were not enforceable. On appeal, with the assistance of Professor Gilbert Carrasco, then of Villanova Law School, Balter convinced the Third Circuit that the Title VI regulations were enforceable. While an appeal was pending in the Supreme Court the applicant withdrew its permit request and the case was vacated as moot.

The next opportunity to assist a minority community arose in Camden, where Balter had successfully worked to reduce odor violations of the Camden Municipal Utility Authority sewage treatment plant. St. Lawrence Cement wanted to put a slag grinding plant right in the middle of the minority community, releasing very small and dangerous particulate matter in an area already overburdened with significant pollution and dangerous air quality. When New Jersey considered granting a permit, Jerry persuaded Camden Legal Services which had not been willing to sue on the sewage treatment plant, to request the state and EPA to deny the permit on the grounds of disproportionate impact on minorities. When the permit was granted, PILCOP, New Jersey Legal Services and the Center for Poverty, Race and the Environment sued to halt operation of the plant. Judge Orlofsky found that New Jersey had never investigated whether there was a Title VI disparate impact violation and enjoined operation of the plant until they did. Unfortunately the victory was short lived because the Supreme Court ruled that the regulations could not be enforced by private parties. The plant began operation; the case continues on the issue, inter alia, of whether the state had intentionally discriminated in granting the permit.

Balter found a similar situation in connection with the permit granted by Pennsylvania for an incinerator bringing the trash from predominately white Cumberland and Dauphin counties into a minority community in Harrisburg. Again the state agency refused to conduct any investigation, either of the disparate impact or of the steps necessary to ameliorate the impact of the dangerous ambient levels of very small particulate matter. Balter asked the Environmental Hearing Board to declare that the state had wrongly failed to investigate the impact of locating the facility in a minority neighborhood and to investigate the impact of dangerous particulate matter. Instead the Board dismissed the case on procedural grounds, failing to rule on the issues presented.

Balter is the drafter of the "Vulnerable Communities Protection" protocol which would limit new air pollution permits in communities with the greatest existing health problems. The protocol is designed to avoid the enforcement problems of the Title VI regulations. Developed by Balter with the research assistance of Lionel Dyson, the protocol is under consideration by the Advisory Committee on Environmental Justice of the Pennsylvania Department of Environmental Protection.

The Law Center's mission under this agenda is to provide legal and technical assistance to minority and low-income communities seeking to overcome polluting emissions from existing facilities and halt the development of new polluting facilities in the region.

The Law Center has represented successfully community groups seeking to reduce pollution from numerous facilities throughout the region including the Philadelphia Waste Treatment Plant, Northwest Philadelphia Incinerator, Franklin Smelting, Philadelphia Coke, Camden County Municipal Utilities Authority, Sun Refinery and the Delcora Waste Treatment Facility. With a neighborhood group, the Law Center forced a demolition waste grinding facility to cease operating in a North Philadelphia neighborhood. In the City of Chester, Pennsylvania, the Law Center stopped a soil remediation plant from opening, ended the operations of an infectious waste treatment facility, and most recently, worked with Local 413 of the Laborers International Union successfully to oppose the use of tire derived fuel in the boilers of a large paper manufacturer. In another recent case in Philadelphia, the Law Center successfully took action against a local chemical plant with a history of air emission violations.

While the Law Center earned its reputation in the field of environmental health and justice through its successful representation and advocacy work on behalf of the residents of countless neighborhoods and grass roots organizations, it has also played a critical role in effectuating change at the policy level by drafting new laws and recommending practices that have improved dramatically urban environments.

In the last ten years, the Law Center innovatively has sought to translate President Clinton's Executive Order on Environmental Justice into concrete reality by challenging the proliferation of polluting facilities in low-income and minority neighborhoods. In Chester Residents Concerned for Quality Living v. the Pennsylvania Department of Environmental Protection, the Law Center brought the first civil rights lawsuit in the country charging a state with discriminatory permitting policies. Chester, Pennsylvania is comprised of 40,000 residents, the majority of whom are minorities. Mortality rates in Chester are 40% higher than in the white suburbs and infant mortality rates and low birth rates 100% higher. The case was set to be argued before the Supreme Court when the polluting facility withdrew its permit application.

In 2000, the Law Center filed South Camden Citizens in Action v. the New Jersey Department of Environmental Protection, a case that received national attention when a District Court judge ruled that the state had violated the civil rights of the residents by failing to investigate the impact of the facility in accordance with EPA regulations. The city, already home to a regional incinerator, a regional sewage treatment plant and two Superfund sites, is comprised of a 91 percent minority population whose residents suffer from some of the worst health problems in the state. This decision was overturned on appeal, however, when the Supreme Court, ruling in a separate matter, eliminated citizen lawsuits to enforce civil rights regulations of this kind. The case continues as we try to show that the failure to investigate was a form of intentional discrimination.

In addition to the Camden case, the Law Center presently is working with minority residents in Harrisburg, Pennsylvania to stop a new incinerator in their community. Over 500 persons signed a petition declaring their willingness to intervene in the proceeding, now pending before a state Environmental Hearing Board. The complaint alleges a failure to investigate any environmental justice impact before granting the permit, as well as a failure to consider the impact of very fine (PM-2.5) particulate emissions.

In response to the EPA's historical, lax enforcement of civil rights laws and regulations intended to advance environmental justice by preventing low-income and minority areas from being overburdened with waste and industrial facilities, the Law Center just last year conducted the very first survey of Environmental Justice activities among the 50 State Departments of Environmental Protection. Of the 31 states that responded, only three states had Environmental Justice (EJ) programs and 28 states had none. Under federal civil rights laws, each state annually assures the EPA that its permits do not have a discriminatory impact but the survey reveals that 90 percent of the states have no basis for their assurances.

On a long-term basis, the Law Center seeks to combat the problem of environmental injustice through a public engagement campaign that explores and focuses on the concept of creating health zoning districts based on existing census tract public health data in an effort to protect communities with existing poor health from additional polluting facilities. The Law Center has spent considerable time developing a protocol to identify and protect vulnerable communities with the poorest health in each state. There is an increasing literature that supports the need for protecting these communities, including a recent EPA publication, that speaks to the heightened vulnerability of persons with poor health to pollution assault. The Law Center is continuing to explore public discussion and local legislative adoption where circumstances seem favorable.

With regard to the educational component of this project, the Law Center participates in environmental justice work as a member of the PADEP's Environmental Justice Advisory Committee, as a participant in local, regional and national meetings on environmental justice and as speakers before law schools, high schools and community groups.