Water and Environmental Justice By Ryke Longest Water

Water and Environmental Justice By Ryke Longest

Water Rights Law • • • Rights of Access Rights to Use Rights to Own Reasonable Use/Prior Appropriation Public Trust Doctrine Human Right to Water

Water as a Commodity

Water as a Human Right

Water as a Human Right • Between 7. 5 and 15 liters per day • Drinking, cooking, basic hygiene • American household uses more than 370 liters person per day • Death from waterborne illness key driver

International Treaties • 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, Art. 14(2)) • 1989 Convention on the Rights of the Child (CRC, Art. 24) • Implied in International Covenant on Economic Social and Cultural Rights

Roman Water Rights “Thus, the following things are by natural law, common to all: the air, running water, the sea and consequently the sea-shore…all rivers and harbors are public, so that all persons have a right to fish therein. ” Institutes Of Justinian, Book 2, Title 1

Water as a Human Right • Access to safe water and basic sanitation is a legal entitlement • Not just a commodity • United Nations human rights system report on realizing the right to water and sanitation

Water Env’l. Justice Issues • Privatization of public water supplies • Lack of access to basic amenities • Corrective (in)action for groundwater cleanups at swine, coal ash, sludge, etc. • Preference for agriculture and hydropower over domestic water supply • Interbasin transfers from rural sources to urban consumers

NC Env’l. Justice Issues

Environmental Injustice Dr. Wing CBP Research 2000 -example

Title VI, Civil Rights Act of 1964 § 601: – No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. § 602: – Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of [section 601] of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objective of the statute authorizing the financial assistance in connection with which the action is taken.

“Subjected to Discrimination” • Two components: – Intentional Discrimination (aka “disparate treatment”) Recipient of federal funds treats similarly situated persons differently because of their race, color, national origin. Requires proving challenged action was motivated by intent to discriminate. – Disparate Impacts or Effects Recipient uses neutral procedure/practice, but this ends up having an unequal and disproportionate impact on a group protected by Title VI. • Disparate Impact cause of action generally set forth under agency regulations implementing Title VI

Alexander v. Sandoval, 532 U. S. 275 (2001) • No private right of action for disparate impact claims. – The theory: 601 creates rights, 602 just empowers agencies to effectuate the purpose of 601 • After Sandoval: Communities and advocates seeking to advance a disparate impact claim are left only to file administrative complaints with federal agencies

Title VI Administrative Complaints • File administrative complaint with federal agency that provides financial assistance to the program/activity in question • Complaint must be filed within 180 days of disputed action • Generally, disputed action cannot be subject of pending litigation or other administrative proceeding

EPA’s Investigation and Prosecution of Title VI Complaints • EPA’s “chronically unresponsive” Title VI program – 2011 internal audit revealed no case management system, many staff without environmental law or civil rights backgrounds • EPA has only made 1 formal finding of discrimination – Most complaints rejected without investigation, many languished for years without any action

The highest good is like water. Water gives life to the ten thousand things and does not strive. It flows in places men reject and so is like the Tao. —Lao Tzu

Ryke Longest Clinical Professor @rykelongest@law. duke. edu