WLF Urges Withdrawal of Environmental Justice “Thought Paper” in Comments to EPA

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As we’ve mentioned before, the EPA has been stepping up its focus on “environmental justice.”  Recent evidence of EPA’s methods of EJ advocacy came with the quiet release of a draft policy paper concerning their enforcement of Title VI Civil Rights Act violations, entitled “Adversity and Compliance with Environmental Health-Based Thresholds.” (“Paper”)  WLF has serious concerns regarding both the wisdom and propriety of the draft policy paper and has submitted comments urging its withdrawal.

As we outline in our comments, the proposed change in the method by which EPA will measure “adversity” is highly significant, yet the Paper fails to provide any meaningful explanation regarding why the change is being proposed. A persistent criticism among stakeholders regarding EPA enforcement of its Title VI regulations has been the agency’s failure to provide clear guidance regarding how it intends to carry out its enforcement responsibilities. Such guidance is necessary so that state regulators and targeted industries can take steps to ensure that they conform to the regulations.

Here’s a point-by-point summary of WLF’s comments:

The Draft Policy Paper on Adversity Is a Step in the Wrong Direction

  • The Paper reduces the level of guidance when what is needed is more predictability
  • The Paper does not reduce uncertainty among stakeholders by addressing what constitutes “significant adverse impact” or “significant disparate impact”
  • The Paper proposes the elimination of the 2000 Draft Investigation Guidance’s NAAQS rebuttable presumption, the result of which would be increases in uncertainty by depriving stakeholders  of the ability to predict in advance when environmental effects will be deemed “adverse”
  • Proposed changes would only serve to put a thumb on the scale in favor of those raising Title VI challenges

The Draft Policy Paper Is Inconsistent with the Title VI Regulations

  • The Paper focuses solely on recipients’ actual decisions to issue permits, rather than the “criteria or methods” associated with such decisions as is outlined by Title VI
  • If EPA’s Office of Civil Rights is to be given authority to review permit decisions for disparate impact, then it must be done through changes to Title VI or EPA’s implementation of regulations

EPA Has Not Adhered to the APA’s Notice-and-Comment Requirements

  • All proposed rules must be published in the Federal Registrar in accordance with APA standards
  • The Paper is a proposed “rule” and not an “interpretive rule” because it seeks to eliminate an existing rule as well as expand the agency’s regulatory footprint

The Invalidity of Disparate Impact Regulations

  • The Paper does not appreciate the substantial changes in judicial understanding of Title VI since EPA’s 2000 draft proposal
  • Alexander v Sandoval and other decisions have held that Title VI regulations concerning disparate impacts are forbidden
  • EPA should narrow, not broaden as the Paper proposes, the scope of their 2000 Draft Investigation Guidance in light of such developments

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