Environmental Justice and the Law

Introduction

Still relatively little “hard” EJ lawMany decisions made at the local levelState law of growing importanceMuch of the movement for legal change

comes from grass roots activism and growing evidence about disparities in environmental harms and benefits

Agencies have concerns about the sources of their authority to address EJ issues

Introduction

To some activists, environmental law has been part of the problem, not the solution Many laws have focused on achieving

“net social benefits” without regard to distributional consequences

Environmental laws have focused on pollution control rather than prevention

Context for Legal Controversies

SitingPermittingStandard SettingEnforcementCleanup of Contaminated Sites

STATUTES & REGULATIONS

• A statute is a type of law – they exist @ the federal, state, county and local levels

– federal statutes are written by Congress and signed by the President

• Regulations support statutes

– they are issued by governmental agencies to carry out the law

– they are the details that state how a law will be implemented

EXECUTIVE ORDER

An Executive Order is an order issued by a government’s chief executive

–it is not a statute or regulation

–it is not written or passed by a legislative body

–it is intended to give attention to a certain law or body of laws & directs federal agencies how to implement them

–agencies to which an Executive Order applies have a legal and political obligation to fulfill the requirements of the order

Executive Order 12898

• Directs EPA & other federal agencies:•[t]o the greatest extent practicable and permitted by law…[to] make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.

•Addresses income, race, & ethnicity

•Doesn’t expand an Agency’s authorities beyond existing law

•Not enforceable in judicial proceedings (but can be the basis of administrative challenge)

Executive Order 12898

• Agencies required to develop environmental justice strategies that at a minimum:

• Promote enforcement in areas with minority and low-income pops.

• Ensure greater public participation

• Improve research & data collection relating to health & env.

• ID multiple and cumulative exposures

• Identify differential patterns of natural resource consumption

Applicability to States

States administer 75% of major federal env. programs

“Delegated” - EO applies “Authorized” – in lieu of EPA – by

adopting state law vs. fed. Statutes, EO does not apply to states

Permitting By Environmental Agencies

Legal authority clearly exists for agencies to address EJ issues in deciding whether to grant a permit

Includes addressing issues of cumulative and disproportionate risk

Examples CAA Section 173: Permits in nonattainment

areas require analysis of social costs of proposed site and alternative sites

Omnibus clauses

THE INTERAGENCY WORKING GROUP

• Pulled together leadership of many federal agencies

• Required agencies to develop EJ strategies and commitments and to share information

Offices using existing laws to achieve environmental justice:

• DOI

• DOL

• DOD

• DOJ

• HUD

• USDA

• EPA

• HHS

• DOT

• DOC

• DOE

Departments & Agencies

Science & Technology Policy

President’s Deputy Assistants for Domestic & Env’t

Policy

Council of Economic Advisors

National Economic Council

OMB

Other Offices

THREE KINDS OF LAWS

EJ

PUBLIC ADMIN. LAWS

• EPCRA• FOIA• The Sunshine Act

EJ

EMERGENCY PLANNING & COMMUNITY RIGHT TO KNOW ACT

• provide communities and local governments with information to help them deal with chemical emergencies

• requires companies and other facilities that use toxic chemicals, over a certain amount, to file an inventory of their toxic releases every year (A Toxic Release Inventory, or TRI)

• Residents in low-income and minority communities have used TRI to find out what chemicals are around them

FREEDOM OF INFORMATION ACT

• FOIA gives people access to government information

• People have the right to information on demand

• Most states have similar laws

THE SUNSHINE ACT

• Provides for meetings and proceedings to be open to public scrutiny with no closed door decision making

• The government has an obligation to disseminate information that affects low-income and minority communities

• There are minimum requirements for public notification via the Federal Register

CIVIL RIGHTS LAWS

• Title VIEJ

CIVIL RIGHTS ACT of 1964: Title VI

• Intended to prevent intentional discrimination (on the basis of race) by programs that receive federal funding

•Unlike EO, doesn’t include income

• Typically, this means federal financial assistance to states

• Most federal agencies have regulations under Title VI that prohibit discriminatory effects, without regard to intent

CIVIL RIGHTS ACT of 1964: Title VI

Remedy for violation: Withdrawal of federal funds or referral to Department of Justice to seek injunction

CIVIL RIGHTS ACT of 1964: Title VI

Judicial: No private right of action to enforce Title VI’s discriminatory effect regulations Alexander v. Sandoval, 532 U.S. 275 (2001)

Administrative: As of 9/30/02 3 decided on merit (1 publicly) 72 dismissed on procedural grounds 19 referred elsewhere, dismissed after

acceptance, or resolved 42 pending review

Select Steel Decision (1999)

Only full EPA opinion addressing administrative complaint on merits

Proposed facility required permit under CAA from Michigan DEQ, emitted Pb & VOCs

EPA found no “adverse impact” from facility because emissions would not affect area’s compliance with NAAQS

EPA dismissed complaint

South Camden Citizens v. NJ Dept. Envtl. Protection, 145 F. Supp. 2d 446 (2001)

Application for facility that grinds, processes granulated blast furnace slag

Affected community 91% minority Court held that reliance on compliance with existing

environmental regulations insufficient for Title VI compliance Adverse impact from PM even though facility will be in

compliance with the NAAQS Court found disparate adverse health impacts and

violation of Title VI Issued injunction against facility Vacated & later overturned by 3rd Circuit appeals

because no right of judicial action

ENVIRONMENTAL LAWS

• CWA • RCRA • NEPA •CAA

EJ

National Environmental Policy Act (NEPA)

Mandates a detailed EIS for every major federal action significantly affecting human health or the environment

Includes ecological, historic, cultural, health, cumulative

Requires Agencies to provide for meaningful public involvement in the review process.

EIS must be written in plain language

CEQ Guidance (1997)

Agencies should determine whether an area impacted by a proposed project may include low-income populations, minority populations, or Indian tribes, and whether the proposed action is likely to have a disproportionately high and adverse human health or environmental impact on these populations.

CEQ Guidance

Agencies should consider the potential for multiple or cumulative exposure, historical patterns of exposure to environmental hazards, and cultural differences which may lead certain communities to experience impacts more severely than the general population.

CEQ Guidance

The distribution and magnitude of any disproportionate adverse effects should be a factor in the agency’s ID of the “environmentally preferable alternative” for a project

In developing mitigating measures, agencies should solicit the view of the affected populations throughout the public participation process, and mitigation measures should reflect the view of affected low-income populations, or Indian tribes to the maximum extent practicable.

Environmental Justice Authorities

•EPCRA•The Sunshine Act•FOIA

• Title VI

• CAA • RCRA • NEPA • CWA

EJ

Interpretations of Federal Legal Authority

• EPA OGC - Memo OGC (G. Guzy to AAs) regarding EJ and permitting (12/1/01)

• Env. Law Institute – Opportunities for Advancing Environmental Justice: An Analysis of U.S. EPA Statutory Authorities (2002)

• NAPA – EJ in EPA Permitting: Reducing Pollution in high-risk communities is Integral to the Agency’s Mission (December 2001)

• Richard J. Lazarus and Stephanie Tai – Integrating EJ into EPA permitting authority (26 Ecology L. Q. 617 (1999))