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Turning the Lights Off on Environmental Justice?—Not this Administration

The U.S. Environmental Protection Agency (EPA) defines “environmental justice” as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The Obama Administration has brought environmental justice (EJ) to the fore of EPA policymaking like no administration before it. Yet the future commitment to EJ is made uncertain by challenges in implementation, the upcoming presidential election, and the uncertain future direction of EPA.

Although EJ has its roots in the civil rights movement, it truly began to take shape in the mid-1990s when former President Bill Clinton signed Executive Order 12,898, “Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations.” President Clinton was committed to incorporating EJ considerations into programs administered by EPA. This commitment, however, continued to ebb and flow until President Barack Obama took office.

In 2011, EPA unveiled “EJ 2014,” the Obama Administration’s comprehensive plan for EJ. The plan, styled as a cross-agency initiative, breathed new life into the EJ movement and focused on incorporating EJ concerns into the following regulatory arenas: rulemaking; permitting; compliance and enforcement; and community-based action programs. EJ 2014 was EPA’s most robust effort to date in its attempt to give meaning to “fair treatment” and “meaningful involvement” of EJ communities in the regulatory decision-making process.

EJ 2014 produced a number of 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” under the Agency’s new screening tools. EPA also focused on benefiting those overburdened communities when it developed remedies and supplemental environmental projects negotiated through settlements. 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 integrating EJ into programmatic decisions 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.

Still, EPA has enjoyed some successes and, 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, even in states where political tides have turned. 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 EJ 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 (the Commission) announced plans 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. The Commission is an independent, bipartisan, fact-finding federal agency whose mission is to inform the development of national civil rights policy and enhance enforcement of civil rights laws. 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 of EJ programs and to report back to the Commission accordingly. (Click here for one such report, an Advisory Memorandum authored by the Illinois SAC.) 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, which concluded public comment on July 7, builds on EJ 2014 and has three main goals:

  1. Deepening environmental justice practices within EPA programs;
  2. Working with partners to expand positive impacts;
  3. Demonstrating progress on EJ national challenges, including lead disparities, drinking water systems, air quality, and hazardous waste sites.

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 set a tone and approach that cannot easily be undone. Indeed, EJ and climate change work has taken on a life of its own outside the walls of EPA. For example, the National Institute of Public Health recently announced and committed funding to more focused community health research on the overburden that pollution may place on minority and low-income persons.

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.

© 2019 Schiff Hardin LLP

TRENDING LEGAL ANALYSIS


About this Author

Renee Cipriano, environmental attorney, Schiff Hardin, law firm
Partner

Renee Cipriano's practice focuses on providing environmental strategic planning and counseling with respect to statutory and regulatory requirements, enforcement and compliance. Her work also includes providing high level assessment of legislative, regulatory, and policy initiatives at the national, state and local levels. Ms. Cipriano's practice includes a heavy emphasis on government relations and public law and policy, particularly in the state of Illinois.

312-258-5720
Alex Garel-Frantzen, Schiff Hardin, Environmental attorney, EPA regulation lawyer, air toxins legal counsel, environment law enforcement
Associate

Alex Garel-Frantzen is an associate at Schiff Hardin who works with the Environmental group on issues like EPA regulations, air toxins, and environmental law enforcement and compliance.

EDUCATION

  • University of Illinois College of Law, J.D., 2015, magna cum laude

    • University of Illinois Law Review, Managing Notes Editor

    • Environmental Moot Court, editor and national team member

    • CALI awards in Legal Writing & Analysis, Legal Research, and Introduction to Advocacy

  • University of Illinois, B.A., History, 2012, magna cum laude

BAR ADMISSIONS:

  • Illinois

312-258-5521