Today we are going to take a hard look at EPA’s environmental justice program and its application. EPA’s attempts to interpret the broad and largely undefined concept of environmental justice have been challenging. A series of highly criticized internal guidance documents have created confusion on the practice of executing the duties of President Clinton’s executive order 12898. Today, environmental justice means many things to many people, creating a complicated and inconsistent understanding of its purpose and application. It is not a formal rule, but often it is treated like one. As a matter of law, I am concerned that we may be giving a non-binding, legally unenforceable executive order more official standing than is legally permissible.
EPA does not currently provide an official definition or specific guidance regarding the full effects to consider in environmental justice complaints. The community impact analysis, which takes into account the socio-economic and public heath effects of a targeted population, is complicated and often lacks the required data needed to calculate the net benefits industrial development can have in the community. We must make sure that environmental justice programs don’t discourage Brownfields redevelopment efforts and other programs that would bring jobs to low income areas.
For example, in 1997, a group of environmentalists opposed Louisiana’s issuance of air permits to a $700 million plastics manufacturing facility in Covenant, Louisiana. The coalition argued that the facility would impose a disproportionate pollution burden on the mostly African-American community. The city, its elected officials, and the local chapter of the NAACP supported the project and eagerly awaited the 165 jobs, the $5.6 million in expected school revenue, and the associated health benefits from increased community prosperity. Unfortunately, however, the charges of environmental racism led to EPA’s objection to issuance of the permits. In response, the company decided to relocate the facility to Texas. In this case the environmental justice advocates may have won, but at the expense of the state and the local community. The term environmental justice was used as a rhetorical tool and prevented much needed and desired development in the community. Unfortunately it lacked the cumulative impact analysis required of such a comprehensive sociological issue.
In an attempt to clarify the agency’s policy on environmental justice and in response to the criticisms of inconsistent application, EPA created the Environmental Justice Smart Enforcement Assessment Tool (“EJSEAT”). Although the EJSEAT is considered strictly by the agency as an internal management document for screening agency actions, I am concerned that this internal document alters the rights of outside parties and acts outside its legal reach and its intended purpose.
EPA’s various guidance on environmental justice over the last 13 years is considered an interpretive rule, stating what the agency “thinks” and serves only to remind affected parties of existing duties. The courts have decided that interpretive rules are not subject to the Administrative Procedures Act (“APA”) and are outside the scope of judicial review. This leaves ultimate discretion to the EPA on what are “high and adverse impacts.” The APA, set forth by Congress 60 years ago, created a consistent and transparent process for agency rule makings. An interpretive rule, like the EJSEAT, is not meant to affect substantive change in regulations or serve as a basis for denying permits, as it has effectively done in the past.
EPA’s continued efforts to protect vulnerable communities from intentional discrimination are commendable. But I fear for every success story of where an EPA justice grant made it possible for a community to educate its residents and improve public health, there is an example of where the term environmental racism was used as a rhetorical tool to mobilize activists, cast blame, and generate unfounded pressure on targeted institutions. I look forward to hearing from the Administration on its progress in implementing its Environmental Justice program, and ideas for making the program more uniform and predictable in its application.
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