Planning Milagros: Environmental Justice and Land Use Regulation

Craig Anthony (Tony) Arnold^*

I. Introduction

The inequitable distribution of environmental hazards and locally unwanted land uses (LULUs) by race and class in the United States has received much study, reaction, and opposition. Varying, and sometimes competing, conceptions of environmental justice as an empirical, political, legal, environmental, and economic issue have emerged. However, little attention has been devoted to the use of local land use planning and regulation as an environmental justice strategy.¹ This lack of attention ignores the inequitable distribution of land use regulatory patterns according to the racial and socio-economic composition of neighborhoods. This article documents the disproportionately higher amount of industrial and other non-residential land uses in census tracts where low-income people of color live, based on a study of thirty-one census tracts in seven cities nationwide. In addition, empirical evidence shows that environmental justice advocates are beginning to move from reactive strategies—essentially an “opposition” model of environmental justice—to proactive planning and participation in policymaking. In this new land use planning model of environmental justice, residents of minority and low-income neighborhoods identify not only the activities they wish to exclude from their neighborhoods, but also their visions for what they wish to include in their neighborhoods; in other words, their visions of the public good. A variety of land use regulatory tools implement the land use goals of low-income and minority communities. The tools include changes to comprehensive plans, amendments to zoning codes and maps, and the use of sophisticated, specialized, and flexible zoning techniques like performance zoning, overlay zoning, conditional use permits, special districts, negotiated zoning, and exactions.

The land use planning model of environmental justice is represented by a movie: The Milagro Beanfield War.² Directed and produced by Robert Redford and starring Sonia Braga, Chick Vennera, and Panamanian singer and politician Ruben Blades, The Milagro Beanfield War is the story of a small, dying, Hispanic town in New Mexico. The movie’s connection to environmental justice is often ignored. The town stops a major resort development—an unwanted land use that will harm the local community and environment—when Joe Mondragon plants a beanfield and diverts water from the development to the beanfield. As Joe’s beanfield comes to life, so does the local community. Only with alternative plans for the use of the land and local natural resources does the town of Milagro prevent the developer’s LULU.

The Milagro Beanfield War explores many classic themes of environmental justice. Powerful outside interests control and finance the large development, which is supported by politicians from the Governor to the Mayor. The proposed project not only threatens the environment by using scarce water and destroying trees and natural landscape, but also threatens to destroy the local community. The promise of jobs is unmasked; instead of prospering, local residents would wait tables, clean rooms, repair cars, and perform other low-wage service jobs for the wealthy outside vacationers. The developer would buy the local property at cheap prices. So-called economic vitality would bring death to the town of Milagro and its way of life. Racism among the developers, politicians, and federal and state law enforcement officials runs rampant. Some local Hispanics have been co-opted with economic and political incentives. There are two armed stand-offs, one between the locals and the U.S. Forest Service officials; the other between the locals and the state police. The heroes are an unemployed rebel (Joe Mondragon, who plants the beanfield), a Latina community activist and car mechanic, a local Anglo progressive lawyer who is enticed to abandon his self-serving cynicism, a sheriff, and a crazy old man (or is he really that crazy after all?) who talks with saints and a dead friend. Longstanding personal conflicts and local quirks are initial obstacles to united community organizing. Milagro’s victory comes not from litigation to stop the development, but from community activism led by members of the community. Magic abounds, and miracles occur.

Environmental justice is about the growing awareness of, and response to, the distributional inequities of environmental and land use policy in the United States. In the 1980s and 1990s, grass roots community organizers and civil rights activists,³ civil rights lawyers,⁴ government agencies,⁵ legal scholars,⁶ and other academics⁷ began to study and demonstrate that low-income people and people of color bear a disproportionately high burden of exposure to environmental hazards or unwanted land uses, particularly in the neighborhoods in which they live and the environments in which they work.⁸ Much of the attention has focused on “environmental racism,” i.e., the discriminatory impact, and arguably intentional discrimination, of environmental policy decisions on people of color.⁹ However, the term “environmental justice” is used to encompass class discrimination as well as racial discrimination,¹⁰ and soften the divisive, emotionally charged connotation of the term “racism.”¹¹ The term “environmental justice” also suggests actions that respond to injustice, not merely identification of injustice.¹² The response to environmental justice has varied as widely as the range of conceptions that underlie the term.¹³ These responses have included litigation using civil rights law and/or environmental law, opposition to administrative permits, political protests, community organizing, legislative proposals, an Executive Order, empirical studies, and scholarly writings.¹⁴ Minority and low-income communities, like the fictional town of Milagro, N.M., are fighting back.

On the whole, though, the environmental justice movement and the environmental justice literature have been reactive and remedial. It is hardly surprising that neighborhood groups, civil rights activists, progressive lawyers, and grassroots environmentalists have responded to decades of dumping hazards and LULUs in minority and low-income communities with demands to stop and remedy the existing situations. There is a continuing and pressing need to oppose current practices and siting proposals that threaten these communities. Scholars have also largely remained focused on environmental justice as a response to power inequities, race and class discrimination, economic factors, and inadequate environmental protections.¹⁵

However, the next frontier for both the movement and the focus of scholarship is land use planning by communities of color and low-income communities. Local neighborhoods can use land use planning to articulate visions for what they want their communities to be, and negotiate land use regulations to implement these visions. In other words, they would not be merely late participants in using existing rules to stop (or attempt to stop) current proposals for unwanted land uses, but also pre-siting participants in developing the rules that will determine what will and will not go in their neighborhoods. Land use planning is prospective and proactive. It creates opportunities for residents, workers, and other members of local communities to decide and seek what they want, not merely oppose what they do not want. The land use planning and regulatory model, now emerging among a number of low-income and minority communities, contributes to scholars’ understanding of environmental justice problems. It also reflects the reality that the law is about more than litigation, rights, courts, and jurisprudence. The law is about problem-solving, policy-making, participation, and regulation, all of which are part of the land use regulatory model.¹⁶

Part II of this article describes five different conceptions of environmental justice that pervade the actions of activists and the writings of observers:¹⁷ 1) evidentiary, 2) power, 3) legal, 4) environmental, and 5) economic.¹⁸ Part II demonstrates how each of these conceptions is largely reactive and remedial. Each is part of an opposition model of environmental justice, i.e., focused on opposition to specific LULUs.

Part III turns attention from the distribution of specific LULUs to the distribution of land use regulatory patterns. It contains the results of an empirical study of zoning in thirty-one census tracts in seven cities: Anaheim, CA; Costa Mesa, CA; Orange, CA; Pittsburgh, PA; San Antonio, TX; Santa Ana, CA; and Wichita, KS. These results show that low-income, high-minority neighborhoods contain a greater percentage of industrial and other intensive use zones than do high-income, low-minority neighborhoods. This new evidence, not previously documented in the literature, suggests the need for attention to land use planning and regulation in low-income neighborhoods of color and for additional research.

Part IV introduces an alternative model of environmental justice, a planning model built on the idea that land use plans and regulations are needed as emerging strategies for achieving environmental justice.¹⁹ Part IV describes the nature of land use planning and regulation, and how the planning model differs from the opposition model that currently dominates the environmental justice movement and literature. Case studies provide qualitative empirical evidence²⁰ that grass-roots environmental justice advocates and low-income and minority neighborhoods are beginning to develop land use plans and regulations to address the over-concentration of intensive land use designations in their communities and to define what uses they would like to see. The planning model, with its opportunities and challenges, is emerging at the local level.²¹

Part V explores the various land use regulatory mechanisms that environmental justice advocates can use to implement their visions and plans. These mechanisms include comprehensive planning, zoning amendments (i.e., both text amendments and map amendments, but primarily down-zoning), flexible zoning techniques (e.g., conditional uses, overlay zones and special districts, performance zoning, buffer zones, and floating zones), and exactions. Judicial protections of private property interests, state laws that preempt local rejection of LULUs, and the realities of local land use politics limit these tools. Nonetheless, they can be effective when used by a politically active and “negotiation-savvy” neighborhood group with a vision for the local community.

Although this article represents a different way of thinking about environmental justice than the current literature and many activists describe, it does not offer any panaceas or comprehensive answers to environmental injustice. Many communities are looking for milagros (miracles). Much of the current literature about environmental justice demonstrates that no single legal or political strategy will solve the underlying problems. Similarly, land use planning and regulation will not solve the multiple, complex problems behind environmental justice concerns: racism; class inequities; land market dynamics; limited natural, human, and financial resources; the failure of humans to be good environmental stewards; the limits of our legal and political systems; greed; envy; and malice. Land use planning and regulation should be one of several mechanisms we can use as we struggle to learn and embrace what is good and right.

II. Environmental Justice as a Reaction to Environmental Injustice

The range of responses to environmental injustice in the United States²² reflects the variety of conceptions of environmental justice, as well as the complexity of the issues. This article is about the siting of LULUs, which is a major issue in low-income and minority communities, a core focus of the environmental justice movement, and is ripe for new ideas about harm prevention, especially through land use planning and regulation. However, background about environmental justice, in its wide diversity and complexity, aids understanding of the land use issues.

There is confusion about the exact nature of environmental harms or burdens that are distributed inequitably. Exposure to toxic or hazardous substances has received the greatest attention among scholars and activists.²³ This exposure not only comes from neighborhood facilities, like hazardous waste incinerators, petrochemical refineries, lead smelters, solid waste landfills, and radioactive waste disposal sites, but also from lead in home pipes and paint, pesticides in fields where farmworkers work, urban automobile and stationary source emissions that pollute inner city air, and fish from local waters that contain toxic pollutants.²⁴

Others have focused on the siting of locally unwanted land uses in low-income and minority neighborhoods.²⁵ The environmental justice scholar or activist who focuses on LULUs is less concerned with evidence of actual health effects or exposure to known harmful substances than with the siting of land uses that pose risks either to the health and safety of the residents or to quality of neighborhood life.²⁶ Thus, while hazardous waste incinerators and toxic dumps are both LULUs and sources of exposure to hazardous substances, an emphasis on the distribution of LULUs would not include workplace exposures to toxins but would include the siting of prisons, group homes, non-toxic but noisy or unsightly industrial facilities, freeways, and other land uses unwanted by the surrounding neighbors.²⁷

Some environmental justice activists and scholars look at the environmental harm as the degradation or exploitation of natural resources, such as the impact of industrial mining and timbering on Hispanic farmers and ranchers in southern Colorado,²⁸ the impacts of water policy on people of color,²⁹ and the access of low-income and minority people to public beaches.³⁰ Others believe that any exposure to risk of environmental harm is itself a type of harm, rejecting risk management and distribution and instead calling for the elimination of pollution altogether.³¹ The final “environmental harm” that receives attention is process-oriented: the real harm is the lack of full participation, information, and self-determination for low-income and minority communities in environmental decision-making.³²

To some degree, these various ideas about environmental harm are not mutually exclusive. In fact, the First Annual People of Color Environmental Leadership Summit’s Principles of Environmental Justice contains all of them.³³ However, those who speak and write about environmental justice should be scrupulously clear about what problems they are discussing. Indiscriminate inclusiveness tends to confuse the discourse, with different people talking about different problems under the overly-broad truism that societal racism and classism result in many harms to minorities and the poor. More importantly, the same response may not be appropriate for different harms. For example, changes in landfill siting processes to involve potentially affected neighborhoods will do little about the impact of existing landfills on the neighborhoods in which they exist.³⁴ Pollution prevention strategies will not necessarily resolve over-exploitation of natural resources harming low-income communities or communities of color. Therefore, although many types of environmental harms deserve attention, this article focuses on the siting of LULUs. Many of the controversies that have received the most attention from activists, media, government, and scholars are about proposed new or modified toxic land uses in close proximity to the homes of people of color and low-income people.

There is also confusion about what the environmental justice movement is trying to achieve. Environmental justice has elements of both environmentalism and civil rights.³⁵ Merely labeling the environmental justice movement as the juncture of grass-roots environmentalism and the civil rights movement, however, reveals very little about the goals and strategies of the environmental justice advocates. With respect to the definition of goals, noted environmental scholar Vicki Been has pointed out that valence terms like “fairness” are vague and general.³⁶ Behind calls for “fairness,” “justice,” and “equity” are divergent conceptions about what is fair, just, and equitable.³⁷ Furthermore, some in the environmental justice movement have argued not for fairness in the distribution of environmental harms, but for the elimination of the risk of environmental harm for all people, i.e., a universal human right to live, work, and play in communities without exposure to environmental risks.³⁸ Thus, thinking of environmental justice as environmentalist civil rights does not identify whether the goal is to prevent identifiable racism or classism in environmental decisionmaking, or to correct past racism or classism, or to prevent or correct disparate impacts across race or class, or to ensure full access of minorities and the poor to decision making, or to prevent or eliminate pollution, or any number of other possible goals. For example, Richard Lazarus states the environmental justice problem as one of unequal distribution of the burdens and benefits of environmental protection policy.³⁹ In contrast, Been focuses on seven different, and likely competing, theories about the fairness of the substantive inputs, substantive outputs (i.e., results), and process of LULU siting decisions.⁴⁰ Peter Reich urges three principles to eliminate environmental racism: 1) “the equality principle,” which would protect minorities from disproportionate exposure to environmental hazards; 2) “the access principle,” which would remove or minimize barriers to public participation in environmental decision making; and 3) “the community preservation principle,” which would recognize and avoid the disruption and psychological stress of minority neighborhoods stemming from proximity to environmental hazards.⁴¹ Many different goals and theories exist.

With respect to the identification of strategies, the term “civil rights” is equally unhelpful. The civil rights movement historically has organized communities, engaged in political protest and civil disobedience, lobbied for public benefits, participated in policy formulation, implementation and enforcement, educated the public, and pressured private economic actors.⁴² Civil rights strategies are litigated under a wide range of theories: federal and state, constitutional and statutory.⁴³ There is no single civil rights strategy, and there is no single environmental justice strategy.

What, then, are the primary conceptions of environmental justice? This article groups the conceptions generally into five categories: 1) evidentiary, 2) power, 3) legal, 4) environmental, and 5) economic. Despite the differences among the categories, all constitute ways of thinking about environmental justice as a response or reaction to existing or imminent injustice. These responses are respectively: 1) to study the distribution and causes of environmental injustices; 2) to engage in political activism; 3) to use the law to protect the rights of the subordinated; 4) to increase or improve enforcement of environmental laws; and 5) to use market mechanisms to correct market inequities.