The late Ralph Santiago Abascal, who worked for years out of California Rural Legal Services and became one of the most admired legal service attorneys of his generation, was co-counsel in a celebrated environmental justice victory, El Pueblo Para Aqua y Aire Limpio v. County of Kings. El Pueblo successfully blocked the proposed siting of a hazardous waste incinerator by holding that the project's proponents had not translated the public review documents into Spanish in a majority monolingual Spanish-speaking community. Despite this victory, however, Abascal later observed, "The handful of reported environmental justice cases that have raised civil rights claims have been litigated under the wrong theories." Instead of the "difficult" theory of Fourteenth Amendment equal protection, Abascal argued, lawyers seeking to achieve environmental justice should bring claims under federal statutes designed to insure equal property rights. In particular, he advocated bringing environmental justice claims under Tittle VIII of the Civil Rights Act of 1968, commonly known as the Fair Housing Act ("FHA"). The FHA is, he suggested, the "statute with perhaps the broadest reach" in environmental justice cases.
This essay will explore Abascal's suggestion, looking in particular at both FHA claims and possible claims under 42 U.S.C. Section 1982. At the outset, it bears emphasizing that no reported cases have successfully advanced such claims in the environmental justice context. However, if carefully drawn, cases using these statutes could help achieve important environmental justice victories. There is another advantage to using these federal property rights statutes to achieve environmental justice. Specifically, the most likely success under these statutes will occur when the federal property rights claims are brought as part of a coordinated community development strategy. Too often, "environmental" issues such as the siting of noxious industrial uses are considered in isolation from other public interest goals. The federal property protection statutes provide one avenue to avoid such intellectual ghetto-ization, and thus make environmental claims an integral part of activists' community organizing goals.
56 Guild Prac. 154 (1999).