EPA Shifts its Legally Suspect “Environmental Justice” Agenda into Higher Gear

EPA-LogoIn one of our first WLF Legal Pulse posts five years ago, we wrote about efforts at the Environmental Protection Agency (EPA) to revitalize “environmental justice” (EJ), which had essentially laid dormant since the Clinton Administration. The EJ movement’s influence has gradually spread, with EPA citing “EJ concerns” among its reasons for opposing the Keystone XL pipeline, and activists utilizing EJ to successfully oppose express toll lanes in Arlington, Virginia and agitate for severe development limits in the Los Angeles area.

Several recent developments at EPA aim to inject the environmental justice movement even further into federal regulatory policy-making.

Formal Integration of EJ into Rulemaking. Since the Clinton Administration’s 1994 environmental justice Executive Order and a series of EPA draft guidances for investigating violations of the Title VI civil rights law, most federal EJ activity has centered around complaints that state emissions permits have an unlawful “disparate impact.” Under the reasoning of a 2001 Supreme Court ruling, allegedly aggrieved individuals and communities could not directly sue state permitting authorities or private businesses under Title VI. EPA has thus been bombarded with EJ complaints, few of which it has resolved to this day.

EJ activists have long urged EPA to address their grievances preemptively during the front end of environmental policy-making–the drafting of rules, guidances, and other policy documents. EPA signaled its interest in doing this early in President Obama’s first term. This May, EPA took formal action, releasing “Guidance on Considering Environmental Justice During the Development of Regulatory Actions.” The consideration of “EJ concerns” when drafting rules vastly expands the concept’s influence and impact on government regulation. The Guidance calls for gauging “disproportionate impact” on minority populations, low-income populations, and indigenous peoples. It also urges EPA staff to interpret “low income” very broadly by looking not only at income but also at “additional socioeconomic characteristics such as educational attainment, baseline health status, and health insurance coverage.”

The Guidance advises EPA staff to assess EJ concerns in every policymaking instance, even in situations where a proposed action will clearly provide adequate protection to all affected communities and individuals. The resulting information may help inform EPA “choices between different regulatory options.” EPA staff are also to inform senior agency officials about EJ concerns even if the “Agency’s ability to explore a regulatory response is limited.” That information allows senior staff to “look for other resources and tools to address potential EJ concerns.” EPA rule-writers should also “design actions to maximize appropriate public availability of post-promulgation compliance information,” and use “approaches such as enhanced monitoring, reporting, and record-keeping requirements.”

Expanding Activists’ Role in EJ Complaints. On May 4, 2015, EPA’s Office of Civil Rights released the final version of a policy paper discussed in a WLF Legal Pulse post over two years ago. “Role of Complainants and Recipients in the Title VI Complaints and Resolution Process” grants complainants, i.e. EJ activists, unprecedented influence over the disparate-impact claims they have asked EPA to pursue. Even though the formal dispute under Title VI is between EPA and the recipient of federal funds (state permitting authorities), the policy paper grants complainants access to a taxpayer-funded alternative dispute resolution (ADR) process with state officials. The policy also encourages EPA staff to “engage complainants who want to provide input on potential remedies” during resolution negotiations with the accused state.

Title VI complaints, and their resolution, will, of course, impact other interested parties, namely businesses that operate in (and likely employ people living in) the allegedly affected communities. Yet, EPA’s policy paper offers them no seat at the table, no free ADR, and no say in settlement negotiations.

A Need for Oversight. If elected officials with oversight authority are looking for activity at the EPA that reduces economic opportunity without providing any tangible environmental benefit, environmental justice should be high on their list.

Also published by Forbes.com at WLF’s contributor site

One thought on “EPA Shifts its Legally Suspect “Environmental Justice” Agenda into Higher Gear

  1. Pingback: Environment roundup - Overlawyered

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