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PRI's Environmental News Magazine

November 27, 1992

Air Date: November 27, 1992

SEGMENTS

Racial Split in EPA Enforcement? / Laura Knoy

Laura Knoy reports from Washington on charges of EPA discrimination in its enforcement of environmental laws. A study by the National Law Journal found that the average fine for pollution violations in communities of color are one-sixth those in white communities. The agency disputes the Journal's conclusions. (03:40)

The Consequences of Lax Enforcement / Terry Fitzpatrick and George Hardeen

Terry Fitzpatrick and George Hardeen report on the long battles of two urban communities against industrial pollution and what they say is governmental inaction. In West Dallas, Texas, black and Hispanic residents say the city and the EPA have done little to address the contamination of their neighborhood by lead from nearby smelters. And in Tucson, Arizona, an Hispanic neighborhood is pressing for stronger action to clean up their water supply, which has been contaminated for more than 40 years. Both communities accuse government officials of environmental racism. (12:07)

The Legal Battle Against Environmental Racism

Steve talks with attorney Luke Cole, of California Rural Legal Assistance, about the difficulties of applying civil rights law to cases of alleged environmental racism. Cole recently scored a rare victory on behalf of a group of Hispanic Californians fighting a new hazardous waste incinerator. (05:33)

Show Credits and Funders

Show Transcript

HOST: Steve Curwood
NEWSCASTER: Jan Nunley
REPORTERS: Julian Isherwood, John Keefe, Chris Crocker, Laura Knoy, Terry Fitzpatrick, George Hardeen
GUESTS: Luke Cole

(Theme music intro)

CURWOOD: From National Public Radio, this is Living on Earth.

(Music up and under)

CURWOOD: I'm Steve Curwood.

Race divides the way the US Environmental Protection Agency polices toxic waste and punishes polluters. According to a new study, whites get tougher enforcement, faster action, and better results than people of color, regardless of income.

Tape: When it comes to hazardous waste laws, then we're talking fines that are six times higher in white communities than in minority communities.

CURWOOD: In poisoned minority communities around the country, the costs of delay are high.

AUGUSTINE: First we saw the trees were dying. Then we saw our pets die. Then we saw our neighbors die. Then, our families die. It's been over a decade now and the city of Tucson has done nothing.

CURWOOD: On Living on Earth. First, this news.

Environmental News

NUNLEY: I'm Jan Nunley with this week's environmental news.

Some ozone-depleting chemicals will be phased out more quickly, but negotiators have decided not to strengthen other key parts of the international ozone protection treaty known as the Montreal Protocol. From Copenhagen, Julian Isherwood has the details.

ISHERWOOD: Agreement has been reached on a total phaseout of halons, which are used in fire extinguishers, by next year. And that's six years earlier than was envisaged under the current rules. Similarly, the date for the total phaseout of chlorofluorocarbons, such as the chemicals used in refrigeration and aerosol propellants, has been brought forward to January 1st, 1996. In these respects, at least, the three-day conference of ministers of the Montreal Protocol can be called a success. But it was not all rosy at the conference. Two of the chemicals it had been hoped would be curtailed -- methyl bromide and hydrochlorofluorocarbons, or HCFC's -- were left hanging in the air, so to speak. HCFC's are a substitute for CFC's, and here, rather than caps, the conference agreed to freeze production in 1996, and to wait to cap them and methyl bromide out until the next century. For Living on Earth, I'm Julian Isherwood in Copenhagen.

NUNLEY: The rapid increase in the number of the world's rural poor is bad news for the environment. That's according to the first United Nations report on world rural poverty. In order to survive, the poor are forced to use natural resources without any regard for conservation, and that contributes to a destructive cycle of poverty and environmental degradation. The UN says that rural poverty has increased by 40 percent since 1972. The study says the growth in poverty demonstrates that the benefits of development aid generally don't "trickle down" to society's poorest members.

The effort to protect both the environment and jobs has created an unlikely new alliance. Greenpeace and the Oil, Chemical and Atomic Workers Union are joining together to promote new national energy programs. From Washington, John Keefe has the story.

KEEFE: Greenpeace and the union plan to work together lobbying the incoming Clinton Administration on two major issues. First, they want money shifted from defense spending to clean-energy programs, such as use of alternative fuels. Second, both groups support the creation of a so-called "workers' Superfund." This would be similar to the GI Bill, providing money and education for workers displaced by an expected shift away from fossil fuels. Representatives from both groups acknowledge that their partnership may seem a bit unusual, and union president Bob Wages says the marriage isn't perfect.

WAGES: There are certainly things that Greenpeace and the OCAW are probably going to disagree on. But I think it's high time that every now and then, when you agree on some things, that you at least promote that agreement.

KEEFE: Wages says collaborating with Greenpeace will ensure that employees are considered in future energy policy changes. At the same time, Greenpeace officials say the union can help them craft proposals that satisfy a powerful labor lobby. For Living on Earth, I'm John Keefe in Washington.

NUNLEY: This is Living on Earth.

Days after being ordered closed because of a gas leak, Oklahoma's troubled Sequoyah Fuels Uranium Reprocessing Plant says it will shut down for good. Chris Crocker of member station KOSU reports.

CROCKER: This is the fourth time the Sequoyah Fuels facility has been ordered shut down by the Nuclear Regulatory Commission in the past six years. Officials with the plant's parent company, General Atomics, decided to keep it closed this time, claiming they're being out of the market by Federal regulatory demands that companies in other countries do not have to contend with. Sequoyah Fuels officials labeled the shutdown a 'long-term standby,' but say they will only attempt to restart if there was a major increase in demand in the uranium production market. The more than 350 Oklahomans who work at the plant are hoping the NRC will shut Sequoyah Fuels down permanently, so they can keep their jobs during the estimated decade-long cleanup phase. For Living on Earth, I'm Chris Crocker in Stillwater, Oklahoma.

NUNLEY: The Russian government has revealed the exact locations and amounts of radioactive material lying in Arctic waters. Newly-released documents show that sixteen Soviet Navy reactors, and up to 15 thousand containers of radioactive waste, either sank or were dumped in the Kara Sea between 1960 and 1990. Russia will allow outside monitors into the region next summer. Oceanographer Charles Hollister says there's concern that the nuclear material could leak into the ocean.

HOLLISTER: We're trying to get an idea as to what, the magnitude of the problem, and before we do anything expensive, or perhaps even stupid like stirring up the bottom that may be left, best left undisturbed.

NUNLEY: Hollister says it will take several years to determine what should be done at the sites.

A new ranking of the country's 75 biggest cities says Honolulu is the greenest metropolis. San Diego placed second in the survey, which measured air and water quality, energy use, toxic hazards, and transportation. The Tampa-St. Petersburg area came in last in the report, published in the World Resources Institute's new Environmental Almanac.

That's this week's environmental news. I'm Jan Nunley.

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Racial Split in EPA Enforcement?

CURWOOD: This is Living on Earth. I'm Steve Curwood.

Race and pollution: according to a number of studies, people of color in the US bear a disproportionate burden of pollution. It's in the air and water, and it's from toxic waste sites and neighboring industries. We'll hear this week from minority communities faced with high levels of contamination. And we'll talk to a lawyer who's using strategies from the civil rights movement to raise questions of environmental racism in the courts.

But first. . . Some charge environmental racism is practiced by the government, as well as industry. This view is backed by a recent study in the National Law Journal. It shows widespread discrimination by the US Environmental Protection Agency in its enforcement of anti-pollution laws. From Washington, Laura Knoy reports.

KNOY: Journal researchers looked at all 1200 Superfund sites around the country, and studied 1600 civil fines levied on polluters by the EPA. Repeatedly they found the EPA discriminated against minorities in enforcement. The Journal's Mary Ann Laval says the agency is far more diligent in carrying out pollution law in white neighborhoods.

LAVAL: When it comes to hazardous waste law, we're talking fines that are six times higher in white communities than in minority communities. What that means is there's not as great a price to pay for violating the law, and over the years, hazardous waste polluters have congregated in minority communities.

KNOY: Looking at all kinds of pollution, the Law Journal found companies that violated laws in white neighborhoods were fined almost fifty percent more than those in minority communities. And Laval said it didn't matter whether the areas were rich or poor.

LAVAL: Somehow low income white communities are getting the response from the Federal Government that minority communities are not.

KNOY: But what's a minority community? The Law Journal had to use zip code data for its study; more detailed census tract numbers were not available. The EPA says zip codes are not an accurate measure, but a source inside the agency says while the Journal's methods were flawed, more precise data still would have shown EPA enforcement discriminates against minority neighborhoods. Agency officials admit they need to do more research themselves, but the head of EPA's enforcement office, Herb Tate, says the Journal overstates the problem by looking at only civil penalties imposed on polluters. Tate says the Journal missed a whole body of criminal cases and administrative settlements worth tens of millions of dollars.

TATE: By ignoring these cases, it does call into question whether their analysis was comprehensive. Now, this is not to say that it doesn't exist, and that there might not be bias. But their analysis was not done, we felt, in a fair and comprehensive way to make that charge.

KNOY: The Law Journal study comes on top of years of pressure from minority groups over environmental equity. Tate says the EPA is concerned about the issue.

TATE: Again, we don't know whether or not the problem is as the National Law Journal has said it is. But we definitely should not ignore it and we should deal with it up front and head on.

KNOY: The agency created a new Office of Environmental Equity this fall, and dozens of studies on the subject are under way. Environmental equity is expected to receive even more attention with Al Gore as Vice-President. As a Senator, Gore sponsored the Environmental Justice Act. The bill went nowhere last year, but is expected to be reintroduced in January. For Living on Earth, I'm Laura Knoy in Washington.

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The Consequences of Lax Enforcement

CURWOOD: The EPA and other government agencies have been slow to take action in many communities of color -- sometimes, very slow. For example, in West Dallas, Texas, and Tucson, Arizona, Latinos and African-Americans say they're still being poisoned by pollution which began as far back as the 1940's. We have two reports, the first from Terry Fitzpatrick in Dallas.

(Sound of train)

FITZPATRICK: West Dallas was originally a place where cowboys loaded cattle onto trains. As an unregulated, unincorporated region just outside the city limits, West Dallas eventually attracted dozens of factories that handle hazardous chemicals.

(Dog barking)

FITZPATRICK: Hundreds of modest homes were built in West Dallas too. One day, when he was 11 years old, Luis Sepulveda learned his neighborhood was not a healthy place to live.

SEPULVEDA: I was swinging out here in this backyard, and I was swinging back and forth and ran inside the house and told Mom and Dad, "it's snowing!" And that's when I noticed all the glittering that was coming in, it was just beautiful glitter that was coming, like somebody just threw up glitter and it was coming down all over us.

FITZPATRICK: The glitter turned out to be lead, from three smelters that recycled old batteries.

SEPULVEDA: This is my second daughter, she got so sick. . . (fade under)

FITZPATRICK: The dangers of lead weren't acknowledged by authorities back in the 1950's and '60's. But Julia Sepulveda, Luis' mother, could see the toll it was taking on her family.

FITZPATRICK: How many children do you have?
SEPULVEDA: I have nine children, and they're all affected by this lead in one way or another.

FITZPATRICK: The neighborhoods that eventually grew to surround the lead smelters are predominantly Hispanic and African-American. There's a large public housing project nearby. Jim Schermbeck is a community organizer for the group Texans United.

SCHERMBECK: And if you look back at the documents of the time, when they're starting to build the housing project in West Dallas, you'll see statements like, you know, there's a lead smelter over there and we probably shouldn't put people over there but we're gonna do it anyway. As they knew more and more about the problems of the lead smelter, they moved white elderly folk out of that West Dallas project and into other locations around the city and left behind primarily African-American, some Hispanic residents there.

FITZPATRICK: The City of Dallas publicly recognized the dangers of lead in the 1970's. Vic Argento, who ran the city's newly-formed air pollution department, asked the EPA to establish limits to help restrict lead pollution.

ARGENTO: There were tremendously high lead emissions that were coming out of the plant every day it operated. And at that time the EPA actually had no interest in doing anything at all to control lead emissions, said it was just a localized problem and that we should deal with it ourselves.

FITZPATRICK: Ultimately the city used new zoning laws to shut the smelters down. Buck Wynne is now the regional administrator for the Environmental Protection Agency. He was on the commission that changed the city's zoning laws.

WYNNE: It looks to me like it was simply a matter of frankly inadequate land use controls that have caused problems throughout the City of Dallas.

FITZPATRICK: Residents of West Dallas took the problem to court in the mid-1980's on behalf of 370 lead-poisoned children. They won $20 million dollars from one of the lead smelting companies, and an area within one mile of its plant was supposedly cleaned up. Regulators considered the case closed. But many West Dallas residents did not.

(Sound of protest marchers: "No more pollution . . . no more pollution.")

FITZPATRICK: Years of continued protests eventually got the city and the EPA to begin a new round of lead testing throughout West Dallas. The smelters allowed residents to take lead-tainted battery casings to use as fill dirt, and now the EPA has documented dangerously high lead levels at three schools and nearly 200 homes. Contaminated soil is being trucked away to a landfill in Illinois. Luis Sepulveda claims even this latest cleanup won't be enough.

SEPULVEDA: They're not doing cleanup. They're just dusting. It's a big act, is what I say, here in West Dallas.

FITZPATRICK: Sepulveda's coalition of West Dallas residents has filed another lawsuit, alleging a pattern of neglect by federal, state and local agencies that amounts to environmental racism. Community organizer Jim Schermbeck says the group isn't seeking damages. Instead, it wants blood screening of residents, medical checkups, and a buffer zone between factories and homes.

SCHERMBECK: Those kinds of things are being asked for , just in part to get an accounting of what all has happened, but also to make sure that it doesn't happen again.

FITZPATRICK: Buck Wynne won't discuss the EPA's actions years ago, but denies there's racism inside the agency today. He points out that the EPA is using Superfund money to clean up West Dallas, even before the region is approved as a Superfund site.

WYNNE: Most of the things that they're asking for, that they're asking the judge to order us to do, are being done already. And that's something that, you know, ultimately they'll have to prove at the courthouse. So let's go to the courthouse and let's see what they've got. I don't think they've got the evidence to back their claims.

FITZPATRICK: As the cleanup continues and the lawsuit winds through court, West Dallas residents are divided over efforts to have the region listed a Superfund site. Some of the activists who helped close the lead smelters years ago say Superfund listing would close the door on future economic development. But activists such as Sepulveda and Schermbeck say that efforts at urban renewal won't mean much if the neighborhood's lead contamination isn't cleaned up once and for all. For Living on Earth, I'm Terry Fitzpatrick in Dallas.

HARDEEN: I'm George Hardeen in Tucson, Arizona.

SOSA: In this house, the lady also had, across the street had cancer. She's living but she gets chemotherapy. In this house the lady died of cancer. In that brick house right there, the gentleman had testicular cancer, and he died of respiratory problems, it reached his lungs, the cancer. In that house across the street . . . (Fade under)

HARDEEN: When 53-year-old Marie Sosa describes her neighborhood in Tucson's Latino Southside, it's a horror story of death and disease. Babies born without fingers, ears or brains . . . teenage girls with leukemia, having hysterectomies, and boys with testicular cancer. In the 30 homes on her street alone, 27 people have cancer, or have died from it. Sosa herself had a double mastectomy in 1985, and like many women around here, has developed the nerve disease lupus. Now her daughters are sick with thyroid cancer and Graves disease, and something's wrong with her son. After 11 years, and thousands of cases like these, naming a cause still leaves scientists uncertain and cautious. But not the people.

WHEELER: I feel very strongly that tricholoroethylene is a carcinogen and therefore it causes problems and causes cancer in human beings.

HARDEEN: Bruce Wheeler is a Tucson city councilman whose district is 60 percent Hispanic. Like many others, he says long-term exposure to trichloroethylene, or TCE, in the city's drinking water explains the strange illnesses of 20,000 residents of Tucson's Hispanic Southside. As far back as the 1940's, TCE was used by the aircraft and defense industries here to clean grease from airplane parts and machinery. The Air Force and the Hughes Aircraft Company routinely poured hundreds of thousands of gallons of the used solvent in the open desert south of town. It soaked into the ground and eventually contaminated Tucson's only water source, an aquifer 125 feet deep. A contaminated plume of water went undetected for years and spread directly under Southside Hispanic neighborhoods adjacent to the airport, where it was pumped from city wells and piped into 50,000 homes, most of them Latino. Back then, desert dumping was the accepted method of TCE disposal. There was nothing illegal about it until 1977. But by then, clusters of people were already sick and dying. Rose Augustine lost her aunt to cancer in 1978. Ill now herself, Augustine remembers what it was like when people first began to suspect a problem.

AUGUSTINE: First we saw the trees were dying. Then we saw our pets die. Then we saw our neighbors die. Then, our families die. It's been over a decade now and the city of Tucson has done nothing to start the water cleanup.

MILLER: I think what you have to start with is a premise a lot of people seem to forget, and that is that the city water department didn't put the TCE into the wells, didn't put it into the ground.

HARDEEN: Tucson mayor George Miller says the city has acted, by closing 11 municipal wells since 1981 -- although it was ordered to do so by the Environmental Protection Agency. A lengthy personal-injury lawsuit against the city, the Air Force, Hughes, and the Tucson Airport ended last year in an $88-million dollar settlement for 1600 people and their lawyers, but so far, little has been done to get the water cleaned up. The city assures residents that no one on municipal wells is getting contaminated water anymore. But the mayor still wonders whether TCE is the cause of these illnesses. The chemical was used in the past for such things as an anaesthetic and to decaffeinate coffee. Dan Opalski is the EPA's Tucson Airport Superfund manager. The EPA lists TCE as a probable carcinogen, he says, but . . .

OPALSKI: There has been nothing that has drawn a cause-and-effect relationship between exposures here in Tucson and the illnesses that we're seeing.

HARDEEN: Southside residents don't believe it. They angrily call the years since TCE contamination was discovered in their water "the decade of denial," when most health officials blamed their smoking, drinking and eating too much chili as reasons for their cancers. They say the EPA didn't go far enough by just closing the wells, but should have at least studied their health and gotten them some medical care. Pima County Supervisor Raul Grijalva, who grew up on the Southside, says people have a strong sense why this has not already been done.

GRIJALVA: This would not be happening to us, we would have better action, things would be being done, if this was a white affluent area. And like it or not, that is a truth, but more importantly here in the political sense, it's a belief.
HARDEEN: Here in the airport district, Hughes Aircraft has spent $32 million dollars since 1987 to build and operate this water treatment plant. In a process called "air stripping," water is pumped into six 40-foot-high towers, where it's shot full of air and the TCE is vacuumed off as it quickly evaporates. With the EPA's help, Tucson wants to build its own air stripper plant. But even if it could treat a million gallons of water a day, it would take 15 to 20 years to remove all of the TCE from the aquifer. After years of delay and damage to their lives and property values, Southside Latino residents say the EPA added insult to injury by failing to include them in the plans to get rid of the tainted water. The current design is to build a pipeline along their busiest commercial street to carry contaminated water to a treatment site. Rose Augustine says after all she and families like hers have been through, this idea will only further harm the community.

AUGUSTINE: The pipeline's going to kill the business on 12th Avenue. These people cannot afford that pipeline going down that street.

HARDEEN: An alternative route can be used, city and EPA officials say, but it will add a year's delay to the start on getting Tucson's tainted water supply cleaned up. For Living on Earth, I'm George Hardeen in Tucson, Arizona.

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The Legal Battle Against Environmental Racism

CURWOOD: Despite what many see as a clear pattern of racial discrimination in both the placement of environmental hazards, and the enforcement of environmental laws, US courts have generally rejected charges of environmental racism. A notable exception is the case of Kettleman City, California. There, Latino residents have won the first round in a bid to stop the construction of a toxic waste incinerator. They argued successfully that the county had discriminated against them as Spanish speakers. Luke Cole is the lawyer for California Rural Legal Assistance who brought the case. He says he didn't use civil rights laws for his suit; rather he used what he calls the civil rights approach.

COLE: There's a difference between a civil rights approach and a civil rights lawsuit, in that one strategy seeks to get a local community involved in a decision-making process, and when that fails because of government action, then you can use whatever laws you have at your disposal, whether they're civil rights laws or environmental laws, to go after that local government, and that's what we did. A strategy that only relies on civil rights law is going to be very difficult to succeed under, because the Supreme Court has increasingly narrowed the remedies for civil rights violations, and what the Supreme Court has said in a case called Washington v. Davis and again in a case called Arlington Heights , is that plaintiffs have to show intent to discriminate to prevail. What that's meant is that if a local government can show any other reason for a decision, such as lower land values, the county is off the hook in terms of intent.

CURWOOD: So are you saying that under the civil rights law, there really is no way to get relief against a toxic hazard in a community of color?

COLE: No, I wouldn't say that at all. I am saying that getting over the hurdle of proving intent is very difficult. I think that in our Kettleman City case, if it comes to it, if they actually start building that incinerator, we will bring our case again against Chemical Waste Management. And I'm confident that we'll be successful, because this is a really egregious case.

CURWOOD: How can you prove this?

COLE: One of the ways that we can prove intent is that members of the Kings County Board of Supervisors voted not to translate these documents into Spanish. There's your intent. I think we can also show, by looking at the pattern of Chemical Waste Management's sitings of these facilities around the country, that there was certainly something going on in their minds when they located in the South Side of Chicago in a 75 percent Black neighborhood, when they located in downstate Illinois, in an 80 percent Black neighborhood, and when they located in Port Arthur, Texas, in a 75 percent Latino and Black neighborhood -- something was going on there, when they then showed up in Kettleman City and are trying to build an incinerator in a 95 percent Latino community.

CURWOOD: How is this civil rights approach different from one taken by the mainstream environmental lawyers?

COLE: Mainstream environmental groups have what I call kind of a "macho law brain" approach, where they will not even include the local community but merely argue on the technical merits of the case.

CURWOOD: Can you give me a for instance here?

COLE: Well, a classic example came when we were preparing comment on the environmental review documents in the Kettleman City case. The "macho law brain" approach would be for me to take that document back to San Francisco and split it up and give it to my scientists, and my expert attorneys, and write very technical comments on it. Our approach was somewhat different. We held a series of house meetings throughout the community of Kettleman City, gathering 8 to 10 people at a time in somebody's living room. Discussion would ensue, and then we would get each of the people present to write a letter of comment on the environmental review documents. This type of strategy had the benefit of educating the community about what was going on, and including the community in solving their own problems. Now this plays directly into our success in the lawsuit. When I stood up in court and said, Kings County has excluded Spanish speakers, and the county stood up and said, no we haven't, the judge was able to very easily look at the 120 letters in Spanish that were answered only in English that were in the administrative record of this case.

CURWOOD: Predict for me a moment, please, Luke Cole, what you see as the future of civil rights law in the environmental movement?

COLE: Well, I think one of the problems that the environmental justice movement may face is that it may try to over-rely on the law. Most of the success in the environmental justice movement, in the civil rights movement, in the anti-Vietnam War movement, in any of these broad social movements, has been achieve when people at the grassroots are active around problems which directly affect them. A reliance on the law tends to exclude people, because they have to focus all their attention and their energies into just one person, the lawyer, in order to achieve results. A focus instead on organizing or grassroots activism is what's going to ultimately lead us to success.

CURWOOD: Luke Cole is an attorney with California Rural Legal Assistance. We spoke with him from member station KQED in San Francisco. Chemical Waste Management denies discrimination, and has appealed the Kettleman City decision.

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