Devil in the Details: Structural Racism in Administrative Hearings, by Jerry L. Anderson
Research in the 1980s confirmed what everyone already suspected: People of color bear a disproportionate share of environmental harms. For example, in 1987 a major national study concluded: “Race proved to be the most significant among variables tested in association with the location of commercial hazardous waste facilities.” After citing numerous studies, Luke Cole concluded in 1992 that race seemed to play a more significant role than poverty in the siting of environmentally dangerous activities.
In response to the growing recognition of this problem, President Clinton issued Executive Order 12,898 in 1994, which required federal agencies to collect data on these health and environmental impacts and to develop policies incorporating the principles of environmental justice into their mission. The agencies also stepped up their compliance with Title VI of the Civil Rights Act of 1964, which prohibits discrimination in government programs.
Almost ten years later, the U.S. Commission on Civil Rights found that the Executive Order and Title VI had not made the desired impact on the agencies. Agency officials had done little to incorporate the mandates into their decision-making processes, and the affected communities continued to be shut out of those decisions.
In 2016, despite decades of focus on environmental justice and the efforts of EPA’s Office of Civil Rights and its Office of Environmental Justice, the U.S. Commission on Civil Rights again concluded that little progress had been made. Reading the report, it becomes clear that legal mandates against bias cannot overcome the powerful forces of politics and economics: “Statistical research … suggests that companies tend to site facilities that can negatively impact human health in these communities because they lack the political clout and resources necessary to fight siting decisions.” The report stands as a stark indictment of the ineffectiveness of broad directives promising to reduce discrimination; the harder work, which has not been done, lies in identifying and eliminating the structural barriers that frustrate or prevent effective change.
I want to highlight just one of those barriers today: how “public hearing” requirements in various statutes are defined in ways that prevent the effective organization of political opposition to harmful projects.
Social movement theory suggests that opinions held by individuals alone will be ineffective to foment change; instead, the best way to build opposition to harmful projects is through “resource mobilization.” Resource mobilization requires actors to seek support from others and inspire collective action. Effective mobilization involves attracting financial support, establishing an organization, and creating political relationships.
Minority and low-income groups face numerous barriers to the creation of such social movements. They typically suffer from a lack of resources, limited free time, and restricted access to political networks. Therefore, administrative procedures can provide crucial platforms for mobilizing opposition. As currently structured, however, those procedures seem to purposefully disaggregate opposition in order to prevent movements from organizing.
Let’s consider an example to illustrate the point. Imagine a new interstate highway project, currently planned to go through a predominately African-American neighborhood. The Federal Highway Administration (FHWA) will of course have a public hearing on the proposed route, as required by statute. Several neighborhood community leaders plan to go to the hearing to point out alternative routes that were not considered and to rally support for their claims that the highway would be devastating to their community and detrimental to the health of their citizens. They believe that, once these opposition points are articulated before an audience, they can inspire their neighbors to join their cause, and the repetition and support of their claims by others at the hearing will show government officials the depth and passion of the opposition. Media outlets may pick up on the fervent display of opposition, which will lead to further support from the public.
When they get to the “hearing,” however, they encounter a scene more reminiscent of a high-school science fair than a pep rally. They are led through a series of poster board displays, which make the case for the highway project. At the end of the row, there is a table where citizens may write comments and put them into a box or can provide an “oral comment” by recording a statement in a private recording booth.
Notably, the “hearing” does not provide these activists with the opportunity to educate others in their community about the problems with this proposal. It does not allow them to rally support. It prevents a display for media coverage. It does not allow them to have any kind of give-and-take with those in charge of the decision-making process. “Divide and conquer” seems to be the theme of the government’s approach. While this may be optimal for getting things done, it prevents meaningful public involvement, especially among low-resource groups.
Neither the governing statutes and regulations nor the Administrative Procedure Act specify exactly how public hearings of this nature should be conducted, and most courts find no reason to mandate anything more robust. As famously set out in Vermont Yankee Nuclear Power Corp. v. NRDC, Inc., 435 U.S. 519, 524-25 (1978): “Agencies are free to grant additional procedural rights in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them.” The formation of those procedures was “basically to be left within the discretion of the agencies.” Id. at 524.
Following that edict, many lower courts have found nothing wrong with hearings that provide no opportunity for meaningful, collective engagement. In Bergen County v. Dole, 620 F. Supp. 1009 (D. N.J. 1985), for example, challengers claimed a highway location hearing “was a “charade,” a one-way street designed to convince the public of an agency fait accompli. The court held that the only purpose of a hearing was to “inform the community about the proposed project and elicit community views on the design and route.” Id. at 1058. Nothing more could be required.
One notable exception to this deferential trend is Highway J. Citizens Group, U.A. v. Dept. of Transp., 656 F. Supp. 2d 868 (E.D. Wisc. 2009), in which the court found that an “open house” format similar to my example described above was inadequate, precisely because it discouraged true public discourse:
[T]he open house afforded no direct opportunity for citizens to make their views generally known. It offered no opportunity for one citizen to learn about the views of a fellow citizen, no opportunity for one citizen to influence another.
Id. at 896. Citing the dictionary definition of “public” as something “shared by or accessible to” the community, the court concluded: “Such an open house is not what is called to the mind of a reasonable person when he or she reads or hears the words ‘public hearing.’” Id. at 897. Hopefully, other courts will agree.
The lack of a true public hearing is only one example of structural barriers to equality in administrative procedure. A thorough inventory would find many more.
For example, many state environmental agencies will accept comments on draft water or air pollution permits, but will not allow opponents an adversarial hearing, thereby preventing them from expanding the record at the administrative level. Once the final permit is issued, opponents generally have no avenue to appeal within the agency. The contested case opportunity or administrative appeal right is reserved for permit applicants who are either denied permits or whose permit contains limitations they object to. Opponents must, instead, file a case in court if they want to challenge the permit. That avenue takes more resources, of course, and faces the deferential standard of review afforded to agency action, as well as significant limitations on the introduction of new evidence. So, again, the cards here seem to be stacked against anyone from a low-income area who tries to fight the environmental impacts affecting their community.
Broad mandates for the promotion of environmental justice, such as E.O. 12,898, are doomed to failure without addressing the structural barriers to equal justice in administrative procedure. It should hardly be a surprise, then, that many decades after the problem of environmental racism was first identified, little real progress has been made on this issue.
Jerry Anderson is Dean and Richard M. and Anita Calkins Distinguished Professor of Law at Drake University Law School. He thanks Carlie McCleary (Drake Law ’22) for her helpful research assistance. Follow him on Twitter here.
 See, e.g., Commission for Racial Justice, United Church of Christ (UCC), Toxic Wastes and Race in the
United States: A National Report on the Racial and Socioeconomic Characteristics of
Communities with Hazardous Waste Sites. New York: United Church of Christ, 1987.
 Luke W. Cole, Empowerment as the Key to Environmental Protection: The Need for Environmental Poverty Law, 19 Ecol. L. Q. 619, 625-27 (1992).
 U.S. COMM. ON CIVIL RIGHTS, NOT IN MY BACKYARD: EXECUTIVE ORDER 12,898 AND TITLE VI AS TOOLS FOR ACHIEVING ENVIRONMENTAL JUSTICE (2003).
 U.S. COMM. ON CIVIL RIGHTS, ENVIRONMENTAL JUSTICE: EXAMINING THE ENVIRONMENTAL PROTECTION AGENCY’S COMPLIANCE AND THE ENFORCEMENT OF TITLE VI AND EXECUTIVE ORDER 12,898 (2016).
 Id., at 6.
 Steven M. Beuchler, New Social Movement Theories, 36 Soc. Q. 441, 441 (1995).
 Many scholars have noted the failure of hearing procedures to ensure meaningful participation. See, e.g., Douglas A. Jorden, Michele A. Hentrich, Public Participation is on the Rise: A Review of the Changes in the Notice and Hearing Requirements for the Adoption and Amendment of General Plans and Rezonings Nationwide and in Recent Arizona Land Use Legislation, 43 Nat. Resources J. 865 (2003); Lisa Brodoff, Proof, Social Justice, and Public Assistance Administration Hearings, 30 J. Nat’l Ass’n Admin. L. Judiciary 601 (2010); Leroy Paddock, Environmental Accountability and Public Involvement, 21 Pace Envtl. Rev. 243 (2004). Leroy Paddock, in particular, identified the lack of “authentic” public participation in agency decisions, quoting one administrator who concluded: “The public hearing is not about communication, it is about convincing.” 21 Pace Envtl. L. Rev., at 251. Paddock notes that public hearings have been unsuccessful at building relationships to the public and trust in institutions; instead the procedures simply confirm that the agency has already made up its mind and that public input is irrelevant.
 See, e.g., Bernau v. Iowa Dept. of Transp., 580 N.W.2d 757, 767 (Iowa 1998)(opponents of highway bypass had not right to contested case proceeding).