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Environmental Challenge Bars Construction of California Prison

by Rose Braz, Esq.

A Kern County, California, supperior court judge has barred the state from proceeding with plans to build a $335 million, 5,160 bed maximum-security prison slated for Delano. The groundbreaking ruling came in an environmental lawsuit filed by Critical Resistance, the National Lawyers Guild Prison Law Project, and the Friends of the Kangaroo Rat, in coalition with the California Prison Moratorium Project, the NAACP and numerous organizations across the state. ( Critical Resistance, et al v. California Department of Corrections, Case No. 211365 RDR, Kern County Superior Court, Bakersfield.) Critical Resistance is a national organization working to put an end to the prison- industrial complex.

In a decision issued June 7, 2001, Judge Roger Randall concluded that the California Department of Corrections' (CDC) environmental review of the "cumulative impacts" of the proposed prison was inadequate and ordered the Department to complete a new environmental review which must include an analysis of the impact of past, present and future projects in the area.

The unique litigation was brought under the California Environmental Quality Act (CEQA), codified at California Public Resources Code §21000 et seq ., and the California Code of Regulations ("CCR") Title 14, §15000 et seq. ("CEQA Guidelines"). Under CEQA, the term "environment" is defined extremely broadly; it includes the effect of the prison not only on scarce resources like water in California's Central Valley, but also the impact of the proposed prison on schools, traffic and air quality.

Represented by Babak Naficy of the Environmental Defense Center and Celeste Langille, formerly of the Environmental Law Foundation, the Petition for a Writ of Mandate and Injunctive Relief contained numerous causes of action, succeeding on its claim that the CDC failed to adequately analyze the cumulative impacts of the project. The Court denied the Petitioners' alternative grounds for relief, which included claims that the CDC failed to adequately describe the project, failed to adequately mitigate and analyze its significant impacts, and failed to adequately analyze alternatives to the project.

Additional causes of action focused on the CDC's decision to build its own waste water treatment plant for the prison, rather than link the prison to the City of Delano's waste water treatment facility. The lawsuit argued that the CDC's decision to build a separate waste water treatment plant, rather than helping the City expand its waste water treatment plant, was not supported by substantial evidence.

Petitioners also sought attorneys' fees under California's Private Attorney General Statute, California Code of Civil Procedure §1021.5. That claim remains pending.

Over two dozen organizations from across the state signed on to an amicus (friend of the court) brief filed in support of the petitioners. The broad-based coalition, represented by the law firm of Heller, Ehrman, White and McAuliffe, and Ellen Barry of Legal Services for Prisoners with Children, included environmental organizations such as the Delano Center on Race, Poverty and the Environment; the Ecology Center; the Rainforest Action Network; and civil rights organizations, such as the NAACP chapters from Fresno, Los Angeles, and Santa Cruz; and La Raza Centro Legal; as well as prisoners' advocacy groups, including California Prison Focus; the Prison Activist Resource Center; and the Youth Force Coalition.

Anti-prison activists, environmentalists, and residents of Delano have waged an unceasing campaign questioning the need for the proposed prison and the purported economic benefits of prisons, while raising larger issues about this nation's growing reliance on prisons, prisons and more prisons. Their arguments have been bolstered by new prisoner population projections from the CDC itself.

The CDC's most recent (Spring 2001) prisoner population projections forecast 18,000 fewer inmates than the CDC's Fall 2000 projections issued only six months earlier. These dramatic new projections confirm previous forecasts from both the state's Legislative Analyst's Office and the Governor in his 2001_02 State Budget. "It is undisputed: Growth of the state's prison population is on the decline, is projected to continue to decline, and the state's prison population is below the CDC's current capacity. California simply does not need another prison," said Craig Gilmore of the California Prison Moratorium Project. "If they build it, the CDC will fill it," added Gilmore.

Activists also used the campaign to challenge California's "no parole" policy, noting that every year, the Parole Board denies parole in more than 99% of the approximately 2000 cases it reviews. According to the state's Legislative Analysis's Office (LAO), there are currently 4,000 prisoners eligible for parole and an additional 20,000 will soon be eligible for parole, but subject to the state's "no parole" policy". The LAO report specifically linked the parole issue to the proposed Delano prison, noting that the "no parole" policy "has added to the pressure on the state to build additional maximum security bed space, such as the $335 million prison ... near Delano."

Opposition in Delano has been mounting over the past year. "Delano schools are desperately overcrowded, and the city needs a new high school. Sacramento has set aside a maximum of $4 million, to be divided between the city and Kern County, to offset a $335 million project. This inadequate `mitigation' will put a strain on city services and Delano's budget for years, hampering the city's ability to provide services or to promote other economic development which, unlike the prison, might provide significant job opportunities for Delano residents," said Joe Morales of the Delano Center on Race, Poverty and the Environment, part of the coalition fighting the proposed prison.

"The State of California needs to focus on finding alternative models for positive growth in the rural and low income areas of the Central Valley. Another prison in Delano will only further depress the local economy and discourage other types of economic growth," said Cruz Phillips, Director of Community Organizing for the United Farm Workers (UFW) in Delano, the birthplace of the UFW.

As the National Urban League's Hugh B. Price recently wrote, "It does not speak well of American society that the only ... engines of economic development state officials can seem to come up with for [rural] areas are prisons."

The proposed 480-acre site is currently used for agriculture and is designated as "Farmland of Statewide Importance," bringing farmers and their allies into the fight against the prison. "Farming is the base industry and largest employer for our community. We view another prison, the fourth in the area, as a loss of jobs for the average citizen in Delano, and a loss of way of life for many people. We are concerned about loss of water revenue and increase demand on groundwater," said William Carlisle, General Manager of the Southern San Joaquin Municipal Utility District in Delano.

Finally, the campaign has also debunked the myth that prisons are economic drivers for impoverished rural communities. "Delano's unemployment, a sobering 26%, has been the same for the entire decade since the first prison came to the city. Moreover, the Department of Corrections itself projects that of the 1600 new jobs which will be created by the new prison, only 72 will go to residents of Delano. Prisons simply do not bring economic prosperity," said U.C. Berkeley professor Ruth Wilson Gilmore.

After the court's decision, the CDC, attempting to avoid public participation, questioned whether it was required to circulate the newly prepared cumulative impacts analysis for public comment. Judge Randall again ruled in the Petitioners' favor, ordering the CDC to accept public comment on its revised environmental analysis of the proposed 5,160 bed prison. (The new public comment period ended October 1, 2001.)

For more information contact: Critical Resistance, 1212 Broadway, Suite 1400, Oakland, CA 94612.

Telephone: (510)444-0484; or send email to:

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Related legal case

Critical Resistance, et al v. California DOC