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Biomass discrimination claim could prove challenging

Tue, Dec 9, 2008

Misc

Burlington Electric’s McNeil station in Burlington, Vt., featured a biomass-gasification demonstration project that has since been completed. (Photo by Dave Parsons, courtesy of the National Renewable Energy Laboratory). At right, Leon County Commissioner Bill Proctor meets with other opponents of a proposed biomass gas electric plant in Tallahassee.

By Bruce Ritchie

Florida’s first biomass electric plant, proposed in Tallahassee and touted as green energy technology by Gov. Charlie Crist and some environmentalists, faces explosive accusations of racial discrimination.

But some legal experts say proving such claims of discrimination in court is tough challenge.

Biomass Gas & Electric of Norcross, Ga. proposes building the 42-megawatt plant on 21 acres of FSU land off Roberts Ave. The plant would electricity to the city and produce enough power for about 24,000 homes.

The Tallahassee City Commission is scheduled to vote Wednesday on a development agreement with FSU that includes the plant site.

Attorney David Ludder, representing the NAACP and four local residents, said the in a letter to the Florida Department of Environmental Protection last week that the area has a higher proportion of blacks and non-white residents than overall Leon County.

“The proposed biomass facility will have a disparate impact on nearby African-American and non-White residents,” Ludder wrote.

He threatened to file a racial discrimination claim under Title VI of the Civil Rights Act of 1964. That federal law, Ludder wrote, states: “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.”

But Jim Rossi, a Florida State University law professor, said that just showing a different racial makeup for an area isn’t enough to prove such a legal claim.

“If that were alone sufficient evidence that would stop any development on the south side (of Tallahassee),” he said.

And he said he agrees with Joan Flocks, director of the Social Policy Division of the University of Florida Levin College of Law, who said proving such claims of discrimination in environmental justice cases can be difficult in court.

BG&E; received approval from the Cabinet in 2006 to build on the site. But some area residents say they didn’t know about the project until late October, after the DEP said it intends to issue a permit for the plant.

In response to Ludder’s letter, DEP spokeswoman Amy Graham said last week that the department has not issued a permit.

In his letter, Ludder states that 43 percent of residents living within a mile of the proposed plant are black compared to 29 percent for all of Leon County.

Ludder agreed the Supreme Court has required intent to discriminate be proven in such cases in court. But he added that rather than going to court, residents would be asking EPA investigate and to consider whether there were alternatives to locating the plant off Roberts Avenue.

“All the citizens have to do is bring the issue to EPA,” he said.

Flocks, who said she was not familiar with the biomass plant in Tallahassee, said the age-old argument that it’s cheaper to build landfills or industrial plants in low-income areas with higher minority populations doesn’t negate a discrimination claim.

“A lot of where the environmental justice argument comes in is whether people had access to the decision making process: Whether they were denied some kind of procedural justice. Whether they were able to participate in any type of public meeting or had any say in the decision,” she said.

Company spokesman James VanLandingham said numerous public meetings have been held to discuss the plant. He said pollution on Tallahassee’s south side would be reduced because the plant will supply hydrogen to FSU to operate buses, thereby reducing vehicle traffic in the area.

Leon County Commissioner Bill Proctor and 10 other residents filed hearing requests on the proposed DEP permit. The department granted the requests of Proctor but initially denied the others until last week, when it approved five revised requests — including three of those represented by Ludder. A hearing date has not been set.

Contact reporter Bruce Ritchie at brucebritchie@gmail.com or at 850-385-1774.

2 Responses to “Biomass discrimination claim could prove challenging”

  1. Hi Bruce,
    I’m certainly not an attorney, but a very good one told me:

    Those FSU professors are unnecessarily confusing the issue. The racial discrimination claim is NOT a lawsuit in court, does NOT require intent, and does NOT rely on a denial of procedural justice. It is an administrative claim to EPA to deny FDEP funding and requires only discriminatory impact or effect.

  2. Thanks for the comment. I have David Ludder quoted in my story saying that:

    Ludder agreed the Supreme Court has required intent to discriminate be proven in such cases in court. But he added that rather than going to court, residents would be asking EPA investigate and to consider whether there were alternatives to locating the plant off Roberts Avenue.

    “All the citizens have to do is bring the issue to EPA,” he said.