Posted on June 24, 2016 by Renee Cipriano
In the United States, Environmental Justice (EJ) began to take shape in the mid-1990s with the signing by President Clinton of Executive Order 12,898, “Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations.” Over the years, the commitment to EJ has ebbed and flowed. However, in 2011, EPA unveiled “EJ 2014,” the Obama Administration’s comprehensive plan for EJ. The plan breathed new life into the EJ movement and focused on incorporating EJ concerns into EPA’s regulatory arenas.
EJ 2014 produced a number of very detailed implementation plans with targeted action. For example, EPA developed its National Enforcement Initiatives for fiscal year 2011-2013 by targeting enforcement in communities considered “overburdened”. In EPA’s permitting programs, the Agency sought to ensure that it provided EJ communities potentially impacted by the permitting decision a meaningful opportunity to participate. Moreover, EPA asked permittees to provide “supported analysis” that no unacceptable, disproportionate impact to the community would result from the permitted activity.
Sounds good, right? Some would say “just ok.” Although EPA could point to what it identified as successes of EJ 2014, criticisms of EPA’s commitment to the integration of EJ into programmatic decisions in a meaningful way remained. EJ community activists and other interested non-governmental organizations still questioned EPA’s regulatory ability to demand that disproportionate impacts be addressed. Could a permit be denied or conditioned solely because the regulated activity had a disproportionate impact on an overburdened community? What is “an actionable, disproportionate impact” and what does “overburdened” mean? Were EPA’s significant rulemakings truly addressing EJ concerns through clear mandates or restrictions? And what about the countless complaints filed with the EPA Office of Civil Rights under Title VI of the Civil Rights Act? A broken system, some say, claiming that over 95% of Title VI complaints are dismissed.
Arguably, the Obama Administration has achieved the best successes in EJ to date. Not only can EPA point to real impacts at the federal level, but there are also visible signs of EJ integration in state-administered environmental regulatory programs. The Administration probably could have rested easily on its good work with EJ in the remaining months in office with very little push back. Not this Administration, however, and not where environmental justice is concerned.
Two very significant initiatives are underway right now with seemingly little consideration given to the end of the Obama Administration. First, in January 2016, the United States Commission on Civil Rights (Commission) announced its intention to hold a briefing on EPA’s work under Title VI of the Civil Rights Act and Executive Order 12,898 with a focus on the civil rights implications of siting coal ash disposal facilities near minority and low-income communities. With this announcement and briefing, the Commission has sought to further its 2016 statutory reporting project on EJ. In particular, the Commission has identified its work to address and reduce the “backlog of Title VI complaints” handled by EPA’s Office of Civil Rights. The Commission has also tasked its State Advisory Committees (SACs) to undertake a similar review. The Commission’s activities with respect to EJ are clearly underway in earnest, as is the work of the SACs.
Second, in May 2016, EPA released the final draft of its EJ2020 Action Agenda. According to the Agency, “EJ2020 is EPA’s EJ plan of action that will involve every EPA office and region. EJ2020 consists of “eight priority areas and four significant national environmental justice challenges.” The Action Agenda, currently open for public comment until July 7, 2016, builds on EJ 2014 and specifically includes addressing national challenges, including lead disparities, drinking water systems, air quality, and hazardous waste sites, as a way to measure success.
In addition to EPA’s work on the national challenges, the Agency’s rulemaking and permitting efforts under EJ2020 should be of great interest to environmental regulatory practitioners. EPA has released new guidance (June 2016) presenting its “analytical” approach for EJ review of significant rules. Also, EPA plans to use permit terms and conditions to address EJ concerns and has folded into its agenda “next generation-esque” community-based monitoring approaches.
With no indication of slowing down, the Obama Administration is certainly looking to leave the lights on for environmental justice through the next administration. The EJ2020 agenda and the results of work by the Commission may very well set a tone and approach that cannot easily be undone. Yet significant challenges remain to incorporate EJ considerations in regulatory decision making. Questions also exist: are the EJ policies truly advancing the interests of overburdened communities? In May 2016, for example, the U.S. Court of Appeals for the Ninth Circuit upheld EPA’s broad discretion in settling Title VI actions, even after the Agency had excluded the overburdened community members from participating in the settlement negotiations. Whether EPA can address this and other challenges remains to be seen. For now, any commitment by this Administration to tackle EJ challenges is overshadowed by the presidential election and the uncertain future direction of EPA. We can only wait and see if the lights will dim or burn brightly on this important initiative.