The theory and reality of community-based environmental decisionmaking: The failure of California's Tanner Act and its implications for environmental justice

Ecology Law Quarterly

Volumn 25, Issue 4, 1999, Pages 733-755

  Cole, Luke W ^a  

^a Center on Race Poverty and the Environment   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 22644450817     PISSN: 00461121     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (140)

1. See First National People of Color Environmental Leadership Summit, Principles of Environmental Justice (Oct. 24-27, 1991),
2. reprinted in Toxic STRUGGLES: THE THEORY AND PRACTICE OF ENVIRONMENTAL JUSTICE, app. at 237-39 (Richard Hofrichter ed., 1993) [hereinafter Principles of Environmental Justice].
3. See WE SPEAK FOR OURSELVES: SOCIAL JUSTICE, RACE AND ENVIRONMENT (Dana Alston ed., 1990).
4. See, e.g., Principles of Environmental Justice, supra note 1;
5. Charles Lee, From Los Angeles, East St. Louis and Matamoros: Developing Working Definitions of Urban Environmental Justice 3/4 RACE, POVERTY & THE ENVIRONMENT 3, 3, 5 (1993);
6. Clifford Rechtschaffen, Fighting Back Against a Power Plant: Some Lessons From the Legal and Organizing Efforts of the Bayview-Hunters Point Community, 3 HASTINGS W.-NW. J. ENVTL. L. & POL'Y 407, 418 (1996)
7. ("[T]he desired community decisionmaking process when considering the siting of a new facility would be one in which the local community is 'recognized as an equal partner and sitting at the decision-making table' . . . .") (citing Carl Anthony, Community-Based Approach to Redevelopment: The Case of West Berkeley, 3 HASTINGS W.-NW. J. ENVTL. L. & POL'Y 371(1996)).
8. See Mark Schlesinger, Paradigms Lost: The Persisting Search for Community in U.S. Health Policy, 22 J.HEALTH POL. POL'Y & L. 937, 938 (1997).
9. See generally Frank I. Michelman, The Supreme Court, 1985 Term - Foreword: Traces of Self Government, 100 HARV. L. REV. 4 (1986);
10. Jonathan Poisner, A Civic Republican Perspective on the National Environmental Policy Act's Process for Citizen Participation, 26 ENVTL. L. 53 (1996);
11. Cass R. Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29 (1985).
12. See, e.g., REPUBLICAN NATIONAL COMMITTEE, CONTRACT WITH AMERICA: THE BOLD PLAN BY REP. NEWT GINGRICH, REP. DICK ARMEY AND THE HOUSE REPUBLICANS TO CHANGE THE NATION (1994) (discussing the legislative strategy to devolve federal control to state and local level);
13. Steven Felsenthal, Superfund Reauthorization: Program Funding, Dispute Resolution, Local Control and Tax Incentives, 7 FORDHAM ENVTL. L.J. 515, 539 (1996) (noting that Congressional leaders have recognized the attraction of local control of environmental laws such as Superfund).
14. See New York v. United States. 505 U.S. 144 (1992); United States v. Lopez, 514 U.S. 549 (1995); Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996).
15. See Josh Meyer et al., Militia Members' Threats, Attacks on Officials Escalate Violence, L.A. TIMES, Apr. 27,1995, at A-1.
16. See also Margaret Baldwin, Public Women and the Feminist State, 20 HARV. WOMEN'S L.J. 47, 51 (1997) (locating the current push for local control within "familiar" calls for decentralization and ethnic nationalism).
17. See Robert Bullard, Decision Making, in FACES OF ENVIRONMENTAL RACISM: CONFRONTING ISSUES OF GLOBAL JUSTICE 3, 4-6 (Laura Westra & Peter S. Wenz eds., 1995);
18. Sheila Foster, Justice from the Ground Up: Distributive Inequities, Grassroots Resistance, and the Transformative Politics of the Environmental Justice Movement, 86 CAL. L. REV. 775, 788-807 (1998) (discussing the need to move beyond distributive paradigm and evaluate environmental decisionmaking processes and socio-economic forces as they influence discriminatory outcomes);
19. SHEILA FOSTER & LUKE W. COLE, JUSTICE FROM THE GROUND UP (forthcoming 1999) (discussing institutional discrimination infused in decisionmaking processes and socio-economic forces).
20. See Foster, Justice from the Ground Up, supra note 9, at 831-35. Other starting points might include examining historical zoning and segregation practices, access to decisionmakers and the political arena, or other socio-economic forces. See generally FOSTER & COLE, supra note 9.
21. CAL. HEALTH & SAFETY CODE §§ 25199-25199.14 (1997). The Act was principally authored by Assembly Member Sally Tanner, who lent it her name.
22. In using the term "community," I seek not to essentialize "the community" or to imply that any community is monolithic, but merely to describe a group of people in a particular geographic location who share some common experiences. As Angela Harris notes, "[I]t is important to be clear about what one means by 'community.'" Angela P. Harris, Criminal Justice as Environmental Justice, 1 J. GENDER, RACE & JUST. 1, 34 (1997).
23. Harris provides a useful definition of the word, which I adopt here: First, a "community" is something that has the potential to emerge from a "neighborhood," in other words, a geographically defined area within the larger legalized borders of a city, town, or village . . . . The value added from the word "community" is partly subjective: the sense of neighborhood residents that they are part of a larger entity with the power to determine its fate. It is also partly objective: a neighborhood is not really a community unless Its residents actually have some collective power and are aware of and able to use It. Id. Harris later adds a second definition, "a group of people with a common race-ethnic identity," id. at 38, which is not the sense in which I am using the word in this Article. On the hazards of essentialism, of "the community" or otherwise, see Richard Delgado, Rodrigo's Twelfth Chronicle: The Problem of the Shanty, 85 GEO. L.J. 667, 685-686 (1997) [hereinafter The Problem of the Shanty].
24. Although the Tanner Act has been evaluated by two other articles, neither approaches the evaluation from the community's perspective. See Marie A. Kirk & Christine L. Wade, A Taxing Problem for Environmental Justice: The Tax Money from Hazardous Waste Facilities, Where it Goes, and What it Means, 16 STAN. ENVTL. L. J. 201 (1997) [hereinafter A Taxing Problem]; Michelle L. Schwartz & Mark R. Wolfe, Reevaluating the California Tanner Act: Public Empowerment v. Efficient Waste Disposal 13 CAL. REAL PROP. J. 44 (1995) [hereinafter Reevaluating the Tanner Act].
25. See Foster, supra note 9; Eileen Gauna, The Environmental Justice Misfit: Public Participation and the Paradigm Paradox, 17 STAN. ENVTL. L.J. 3, 57-65 (1998) (exploring the more deliberative aspects of advisory committees);
26. John S. Applegate, Beyond the Usual Suspects: The Use of Citizens Advisory Boards in Environmental Decisionmaking, 73 IND. L.J. 903 (1998) (discussing elements of successful citizen advisory boards).
27. CAL. HEALTH & SAFETY CODE § 25199(c) (1997).
28. According to one student of the Act, "The legislation was a compromise which gave industry the prospect of simplified approval and a powerful appeals mechanism, in return for which citizens' groups obtained far more access to the decision process than before." Paul P. Craig, Siting a Liquid Hazardous Waste Incinerator: Experience with California's Tanner Act, 12 J. ENVTL. POL'Y ANALYSIS 363 (1993) [hereinafter Siting a Liquid Hazardous Waste incinerator].
29. CAL. HEALTH & SAFETY CODE § 25173.5(a) (1997).
30. See Kirk & Wade, A Taxing Problem, supra note 13, at 218-219, for an evaluation of the Tanner Act's tax provisions. The Tanner Act's 10% tax on hazardous waste facilities' gross revenues, designed to mitigate the impact of the facilities on their host communities, has largely failed to meet this goal. See id. at 219. Kirk and Wade found that - like the LAC process - the tax section of the Tanner Act has been subverted by county governments interested in the revenue from the tax, little to none of which is then spent in the communities actually hosting the toxic facility. See id. at 225-226. Perhaps not coincidentally, two of the counties that Kirk and Wade found to be ignoring the letter of the Tanner Act were Kings and Kern Counties. See infra Part II.B. & II.C.
31. CAL. HEALTH & SAFETY CODE § 25199(a)(3) (1997).
32. Id. §§ 21000-21177 (1997).
33. Id. § 25199(c) (1997).
34. See id. § 25199.7(d) (1997).
35. Id. § 25199.7(d)(2) (1997).
36. Id. § 25199.7(d)(2)(E) (1997).
37. See id.; Laidlaw Envtl. Serv., Inc. Local Assessment Committee v. County of Kern. 51 Cal. Rptr. 2d 666. 670 (Ct. App. 1996).
38. CAL. HEALTH & SAFETY CODE § 25199.7(d)(2) (1997).
39. Id. § 25199.7(d)(1) (1997).
40. Id. § 25199.7(d)(2)(A)(i) (1997).
41. Id. § 25199.7(d)(2)(A)(ii) (1997).
42. Id. § 25199.7(d)(2)(B) (1997).
43. Id. § 25199.7(g)(1) (1997). The costs of such consultants are to be paid by the facility proponent, not the local agency. See id. § 25199.7(g)(2). Schwartz and Wolfe opine that this provision exists because the legislature recognized "that local citizens might not always possess the knowledge and expertise to negotiate effectively with facility proponents[.]" Schwartz & Wolfe, Reevaluating the Tanner Act, supra note 13, at 45.
44. Schwartz & Wolfe, Reevaluating the Tanner Act. supra note 13, at 45.
45. The structure of the law itself, with its focus on "conditions under which the project will be acceptable to the community," puts opponents of toxic waste facilities in a difficult situation. For many facing the prospect of living near a toxic waste facility, there are no conditions under which such a facility is acceptable. Opponents of a facility are thus left with two choices: ignore or boycott the LAC process and thus risk not getting any favorable conditions through the LAC process if the facility is ultimately approved, or take part in the LAC process and perhaps compromise the overall opposition to the facility. Nevertheless, some groups have aggressively taken part in similar administrative fora to demand changes in permits such as testing and monitoring of emissions from a facility. See Peggy M. Shepard, Issues of Community Empowerment, 21 FORDHAM URB. L.J. 739, 741 (1994) (discussing successful demands by a West Harlem community group).
46. The dilemma of whether or not to take part in administrative environmental decisionmaking processes is further explored in Luke W. Cole, Macho Law Brains, Public Citizens, and Grassroots Activists: Three Models of Environmental Advocacy, 14 VA. ENVTL. L.J. 687, 694-703, 705-708 (1995):
47. Lawrence E. Susskind, Overview of Developments in Public Participation, in PUBLIC PARTICIPATION IN ENVIRONMENTAL DECISIONMAKING 2, 3 (Elissa Lichtenstein & William T. Dunn eds., 1994).
48. See Anne Simon, Valuing Public Participation, 25 ECOLOGY L.Q. 758.
49. CAL. HEALTH & SAFETY CODE § 25199.7(d) (1997).
50. Id. § 25199(c) (1997).
51. Id. § 25199(c) (1997).
52. I represented residents of Kettleman City in their successful struggle against Chem Waste's incinerator and residents of Buttonwillow in their fight against the expansion of the Laidlaw toxic dump.
53. Telephone interview with Cathy Ivers in Martinez, CA (April 30, 1998) [hereinafter "Ivers interview"] (Ms. Ivers attended almost every LAC meeting over the four-year term of the LAC); Schwartz & Wolfe, Reevaluating the Tanner Act, supra note 13, at 46.
54. Telephone interview with Paul Craig, member of the Martinez LAC, in Martinez, CA (May 7, 1998) [hereinafter "Craig interview"].
55. Settlement Agreement and Mutual Release between the City of Martinez and Rhone-Poulenc Basic Chemicals Co., October 26, 1992, ¶ I (on file with the author) [hereinafter Settlement Agreement] ("At the LAC's request many presentations and other activities were funded and/or conducted by [Rhone-Poulenc], addressing issues which have ranged over such diverse topics as the nature and control of fugitive emissions to the sociological factors which may affect a community's perceptions.").
56. GRUEN GRUEN & ASSOCIATES, ECONOMIC AND FINANCIAL ASSESSMENT OF THE IMPACT OF THE PROPOSED OPERATION OF A HAZARDOUS WASTE STORAGE AND INCINERATION FACILITY IN MARTINEZ, CALIFORNIA: A REPORT TO THE MARTINEZ LOCAL ASSESSMENT COMMITTEE (February 1990). The Assessment predicted that residential property values "are likely to decrease by about 2 percent over what they would be without the project" and that the incinerator would make would-be home buyers think of the community as more industrial. Id. at xii.
57. Open Letter to City Residents, MARTINEZ NEWS-GAZETTE, Sept. 12, 1992, at 4 (open letter from the Mayor, Vice Mayor, and three City Council members praising the LAC for its "conduct and professionalism").
58. See also Ann Abreu, Many Feel Local Opposition Real Reason R-P Plan Killed, MARTINEZ NEWS-GAZETTE, Sept. 3, 1992, at 1, 2 (noting city council praise for the LAC);
59. Ann Abreu, R-P Drops Plans for Toxic Waste Incinerator, MARTINEZ NEWS-GAZETTE, Sept. 1, 1992, at 1-2 ("City officials were unanimous in applauding LAC for their dedication and tenacity.") .
60. Rhone-Poulenc's failure to pay some $450,000 in fees led local officials to deem its application withdrawn. See Louise Solomon, Incinerator Plans Burn Out in Martinez, PLEASANT HILL-MARTINEZ RECORD, Sept. 3, 1992, at 1.
61. Ivers interview, supra note 38; Craig, Siting a Liquid Hazardous Waste Incinerator, supra note 16, at 386.
62. The City Council was acting to pre-empt a citizen initiative, put on the local ballot by petition, which would have similarly banned incineration. See id. After the incinerator proposal was withdrawn, elected officials expressed relief. See Erin Hallissy, Plans Dropped for Toxic Waste Incinerator: Martinez Mayor, Community Organizers Cheer Company's Decision, S.F. CHRON., Sept. 1, 1992, at A-11;
63. Ann Abreu, R-P Drops Plans for Toxic Waste Incinerator, MARTINEZ NEWS-GAZETTE, Sept. 1, 1992, at 1.
64. See Daniel Borenstein, Huge Acid Spill Ignites: Two Workers Burned at Plant in Martinez, CONTRA COSTA TIMES, June 23, 1992, at 1A, 4A.
65. The fire, which "sent flames 200 feet into the air and billowing black smoke drifting toward East County," forced the closing of several major freeways and the evacuation of thousands of residents, according to news accounts. Id.; see also Lany Hatfield & Don Martinez, Acid Spill Feared in Martinez Blaze: Chemical Plant Spews Toxic Cloud: 'Possibly Toxic' Substance Burns 2, Closes Highways, Bridges in Region, S.F. EXAMINER, June 22, 1992, at A-1, A-11. Although Rhone-Poulenc had earlier tried to have the State of California intervene and take over the permitting process from Martinez, the Mayor of Martinez suggested that the fire underscored the need for public input into the permitting process. "This incident points out the fact that we should not be short-circuiting the system, but whould [sic] keep local control. "
66. Ann Abreu, Explosions Rock Rhone-Poulenc Plant, MARTINEZ NEWS-GAZETTE, June 23, 1992, at 2.
67. Ivers interview, supra note 38. Ivers notes that the accident happened during routine operations even before the prosposed incinerator was built.
68. See Donna Hemmila, Rhone-Pouienc Withdraws Plan for Incinerator: Foes Claim Fire a Key Factor in Firm's Decision, CONTRA COSTA TIMES, Sept. 1, 1992, at 1.
69. See Settlement Agreement, supra note 40, at ¶ 3.2.1.
70. See Ivers interview, supra note 38. Ms. Ivers serves on the board of the foundation.
71. CAL. HEALTH & SAFETY CODE § 25199(c) (1997).
72. Ivers interview, supra note 38. Community residents made a considerable commitment to taking part in the LAC process, and report actually enjoying the experience. "I looked so forward to Monday nights - it was better than whatever was on television," says Ivers. "It was the Birkenstock crowd vs. the suit crowd." Id.
73. See Ivers interview, supra note 38.
74. See Craig, Siting a Liquid Hazardous Waste Incinerator, supra note 16, at 386. Craig amplifies, "The process had been unbelievably time consuming. Frustrations have been high, and frequent. Yet there is no doubt that the process is allowing the public to have input. It is an open process. An enormous amount of information has been placed in the public domain." Id. at 383.
75. Schwartz and Wolfe regard the Martinez LAC as a failure, as the facility was not sited. See Schwartz and Wolfe, Reevaluating the Tanner Act, supra note 13, at 46. In evaluating the Tanner Act, I am more neutral about the outcome, if the process that the Act codifies works as designed.
76. For a more complete discussion of this case (but not the LAC), see Luke W. Cole, The Struggle of Kettleman City: Lessons for the Movement, 5 MD. J. CONTEMP. LEGAL ISSUES 67 (1993-94) [hereinafter Kettleman City].
77. See also Luke W. Cole, Empowerment as the Key to Environmental Protection: the Need for Environmental Poverty Law, 19 ECOLOGY L.Q. 619, 674-679 (1992).
78. Even Chem Waste, the facility proponent, recognized the LAC's failure. "While this [LAC] process might appear to be comprehensive and responsive to the community's needs, it failed to achieve community understanding and support." Chuck McDermott, Balancing the Scales of Environmental Justice, 21 FORDHAM URB. L.J. 689, 703 (1994).
79. Joe Maya, a member of the LAC for its entire two-year existence, notes one conflict of interest in the staffing of the LAC that would later hamper the LAC empanelled in Kern County, as well. "Our attorney was the County Counsel, who was in Chem Waste's hip pocket because he figured the more money the project brought in, the bigger the [County's] budget would be." Interview with Joe Maya in Kettleman City, CA (May 6, 1998).
80. El Pueblo para el Aire y Agua Limpio v. County of Kings, No. 366045, 22 Envtl. L. Rep. 20357 (Cal. Super. Ct., Sacramento County, Dec. 30, 1991).
81. Maya interview, supra note 57.
82. Id.
83. Id. Maya, who later became an outspoken opponent of the project, laughed when recounting how he was chosen for the LAC. "I told them I was for it [the project], so I was chosen. When they found out I was against it, they couldn't do a damn thing about it." Id.
84. Maya felt it was a mistake to have only one Kettleman resident on the LAC. "It would be good to have Kettleman City residents on the LAC, then you would have people with a lot more interest - as it was, nobody but two of us questioned anything about the project." Id.
85. Interview with Mary Lou Mares in Kettleman City, CA (May 6, 1998).
86. Interview with Jesus Camacho in Kettleman City, CA (May 6, 1998).
87. See interview with Maricela Alatorre in Kettleman City, CA (May 6, 1998).
88. Maya interview, supra note 57.
89. McDermott, Balancing the Scales, supra note 56, at 704.
90. See id. at 703. See also El Pueblo para el Aire y Agua Limpio, 22 Envtl. L. Rep. 20357.
91. See Id.
92. See Cole, Kettleman City, supra note 55, at 80.
93. See Kern County Local Assessment Committee-Laidlaw, Meeting Minutes, Sept. 27, 1994 at 6 (on file with author).
94. See, e.g., Kern County Local Assessment Committee-Laidlaw, Meeting Minutes, May 14, 1992 at 2 (audience member states, "Again, we ask you today to provide an interpreter. You are here to respond to all sides. Most of the people that are here do not understand what you are saying.") (on file with author).
95. See Sub-committee Report, Spanish-English Meeting Interpretation Subcommittee, June 11, 1992; Kern County Local Assessment Committee-Laidlaw, Meeting Minutes, June 25, 1992, at 1-2 (on file with author).
96. See Complaint Under Title VI of the Civil Rights Act of 1964 at 40, Padres Hacia una Vida Mejor v. Laidlaw, Inc., U.S. Department of Housing and Urban Development (filed December 12, 1994).
97. See Petition For Writ of Mandamus and Complaint for Injunctive and Declaratory Relief at 27, Padres Hacia Una Vida Mejor v. County of Kern (Cal. Super. Ct. filed January 13, 1995).
98. See Kern County Local Assessment Committee-Laidlaw, Meeting Minutes, Sept. 27, 1994 at 1 (on file with author).
99. See id. at 6.
100. "The County blocked every option we had," says LAC member Montoya. "Every single thing we asked the County to do for us, they denied it." Interview with Eduardo Montoya in Buttonwillow, CA (May 7, 1998). Mr. Montoya was a member of the LAC from September through December, 1994 and was a plaintiff in the LAC's lawsuit against Kern County. See Laidlaw Envtl. Serv., Inc. Local Assessment Committee v. County of Kern, 51 Cal. Rptr. 2d 666, 668 (Ct. App. 1996).
101. Montoya Interview, supra note 78.
102. Id.
103. "The Board ended the [LAC] process almost before it started," lamented LAC member Montoya. Id. "Looking back on it, the whole committee process was just a travesty," says local farmer Dennis Palla, who also served on the LAC. "It was doomed from the beginning. . . . We had very little time to do what we were supposed to do. It was just a rubber stamp." Interview with Dennis Palla in Bakersfield, CA (August 9, 1995).
104. Id. Montoya was bitter about the experience with the County: "The Board doesn't care what people in Buttonwillow think. They did what the Planning Department recommended to do, not what the LAC recommended to do." Id.
105. Interview with Rosa Solorio-Garcia in Buttonwillow, CA (May 7, 1998). "We believed we could make a difference, but as the process went longer and longer we realized it wouldn't matter." Id.
106. Id.
107. Palla interview, supra note 81. Palla, a self-described conservative Republican, continues, "that's unfortunate. Very, very unfortunate. In fact, it makes me bitter." Palla's disillusionment with the county led him, along with other members of the LAC, to file suit against the county. See infra note 88.
108. Id. See also Luke W. Cole, Environmental Justice and the Three Great Myths of White Americana, 3 HASTINGS W.-NW. J. ENVTL. L. & POL'Y 449, 454 (1996): [T]here's a kind of false expectation that can be created by the government coming in, even when the government purports to be on your side. The raising of false expectations teaches these communities to distrust government and not to participate in its processes - which then exacerbates the problem of community powerlessness. The community is then blamed for not participating, when the government is actually the cause of that non-participation. Id.
109. Buttonwillow residents' experience is, unfortunately, not isolated: Many groups have taken part in the permitting process for a proposed facility, and earnestly presented damning evidence about a company, project, or technology that all experts agree is bad, only to see the permit approved by their elected representatives. Such communities learn the hard way that the public participation process is not designed to hear and address their concerns, but instead to manage, diffuse, and ultimately co-opt community opposition to projects. Cole, Macho Law Brains, supra note 32, at 701.
110. See Laidlaw Envtl. Serv., Inc. Local Assessment Committee v. County of Kern, 51 Cal. Rptr. 2d 666, 671 (Ct. App. 1996).
111. See Palla v. County of Kern, No. 227735-RDR (Cal. Super. Ct., Apr. 29, 1996); Padres Hacia una Vida Mejor v. County of Kern, No. 229670-RDR (Cal. Super. Ct., Apr. 29, 1996).
112. See id., slip op. at 10-12.
113. See Palla v. County of Kern, No. F026533. slip op. at 73 (Cal. Ct. of Appeal, Jul. 23, 1997).
114. Schwartz and Wolfe note that the "Act also sought to provide a means to avoid litigating permit decisions by allowing affected communities to voice their concerns to developers before any permits are issued and construction begins." Schwartz & Wolfe, Reevaluatlng the Tanner Act, supra note 13, at 44. By this standard, the LACs in Kings and Kern Counties were abject failures; Kern County's handling of the LAC process drew not one but three lawsuits, including one by the LAC itself.
115. LAG member Paul Craig notes that the City Council was "extremely careful never to comment" on its views on the project, but that "as individuals living in the community they were not enthusiastic." Craig Interview, supra note 39. The City Council was also pleased when the project was finally withdrawn by Rhone-Poulenc. See, e.g., Ann Abreu, R-P Drops Plans for Toxic Waste Incinerator, MARTINEZ NEWS-GAZETTE, Sept. 1, 1992, at 1 (City Council member described as "ecstatic");
116. Erin Hallissy, Plans Dropped for Toxic Waste Incinerator: Martinez Mayor, Community Organizers Cheer Company's Decision, S.F. CHRON., Sept. 1, 1992, at A-11.
117. Members of the LAC argue that its actual working life was only two months, as the LAC met for five months in early 1992, before any of the environmental review documents were prepared, before being suspended for 27 months by Kern County. The LAC was reempanelled in late September 1994, when the County informed it that it would have to provide recommendations to the Board within 10 weeks. See Kern County Local Assessment Committee-Laidlaw, Meeting Minutes, Sept. 27, 1994 at 6 (on file with author).
118. Several other factors found in Table I distinguish the Martinez situation from those in Kern and Kings Counties. The Martinez City Council strongly supported the LAC in its wide-ranging investigation of the impacts of the proposed incinerator; in Kern County, the Board of Supervisors denied every request from the LAC for technical assistance grants. In Martinez, the LAC remained publicly neutral throughout the process. LAC member Paul Craig believed that "for the LAC to be credible, members must avoid taking strong positions on the proposal." Craig, Siting a Liquid Hazardous Waste Incinerator, supra note 16. Craig sees the necessity for neutrality as a detriment to getting skilled people to serve on an LAC, especially years into the process: "as the review process continues most local citizens have developed commitments. There is a real shortage of non-committed, qualified persons to serve on the Committee."
119. Craig, Siting a Liquid Hazardous Waste Incinerator, Id. In Kings County, the LAC supported the project; in Kern County, the LAC's neutrality evolved into exasperation with County officials, which led the LAC to recommend that the Board of Supervisors reject the dump proposal. This request was framed in the alternative, with the LAC requesting more time to finish its work, and, if that were not granted, recommending that the County disapprove the project. LAC members were first and foremost committed to the LAC process, however, and had not previously opposed the facility. "That's why we wanted more time, to find out about the project," explained LAC member Eduardo Montoya. Montoya interview, supra note 78.
120. Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545, 1549-1550 (1991).
121. Based on census data. See BUREAU OF THE CENSUS, U.S. DEPARTMENT OF COMMERCE, 1990 CENSUS OF POPULATION, 1 GENERAL POPULATION CHARACTERISTICS, CALIFORNIA 42, 69, 79 (1990).
122. The Buttonwillow LAC had 11 members over its 36-month tenure, one of whom was Latino. The Latino was appointed 34 months into the LAC process, and served for 10 weeks before the LAC was disbanded by the County. See Local Assessment Committee, Meeting Minutes Nov. 22. 1994;
123. Kern County Local Assessment Committee-Laidlaw, Meeting Minutes, Sept. 27, 1994 at 6 (on file with author).
124. Maya Interview, supra note 57.
125. Id.
126. See supra notes 51-53 and accompanying text.
127. See Trina Grillo, The Mediation Alternative, supra note 96.
128. See, e.g., Local Assessment Committee, Meeting Minutes, October 11, 1994, at 2 (County Counsel informs LAC that "the LAC does not have any independent authority to require the translation of documents into a language other than English nor may it hire any consultant for that purpose without the approval of the Board of Supervisors, and . . . the Board took action yesterday to indicate that it is its policy that it will not translate the documents nor will it hire a consultant for that purpose."); Memorandum to Laidlaw Environmental Services (Lokern) Inc. Local Assessment Committee from Board of Supervisors, County of Kern (October 11, 1994).
129. See also Local Assessment Committee-Laidlaw, Meeting Minutes, May 14, 1992 at 2 (County official tells Spanish speakers, "We can't do it any other way at this time, except in English.").
130. CAL. HEALTH & SAFETIY CODE § 25199(c) (1997).
131. Foster, supra note 9, at 833.
132. See Applegate, supra note 14, at 952-53.
133. See Schwartz & Wolfe, Reevaluating the Tanner Act, supra note 13, at 47.
134. See sources cited supra notes 2-4.
135. The LAC's suit was ultimately rejected by the Court of Appeal on standing grounds. Laidlaw Envtl. Serv., Inc. Local Assessment Committee v. County of Kern, 51 Cal. Rptr. 2d 666, 671 (Ct. App. 1996). The Court ruled that the LAC, as an appointed body that existed at the whim of the Board of Supervisors, was a "subordinate ministerial appendage" of the Board and thus could not legally sue itself (the Board). Id. at 669. This is the only reported decision interpreting the public participation provisions of the Tanner Act.
136. Complaint before the U.S. Department of Housing and Urban Development at 10, Padres Hacia una Vida Mejor v. County of Kern (filed December 12, 1994). The complaint is still under active investigation by HUD.
137. See, e.g., United States v. Duke, 332 F.2d 759 (5th Cir. 1964).
138. See Luke W. Cole, Remedies for Environmental Racism: A View from the Field, 90 MICH. L. REV. 1991, 1996 (1992).
139. Delgado, The Problem of the Shanty, supra note 12, at 680.
140. Id. at 681; see also PATRICIA WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS (1991).