Environmental justice (EJ) is a loosely-defined concept that starts with the view that disadvantaged communities suffer a disproportionate share of negative environmental and public health consequences from industrial, governmental and commercial operations or policies. Because of this historic situation, efforts must be made to offset this inequity and the lesser ability of these communities to advocate for their interests, to ensure fair treatment for all sectors of society. (See http://www.epa.gov/environmentaljustice/basics/index.html.) The Obama Administration has made EJ policies a priority. Some have wondered if this was just a buzzword, but two recent developments make clear that EJ considerations are a potential outcome driver that businesses need to take seriously.
On July 6, 2011, EPA proposed seven specific revisions to its previously final hazardous solid waste definition rule based on the agency’s new EJ impact evaluation methodology. Finding a “potential for disproportionate impact” to EJ communities from the former version of the rule, EPA ramped up waste storage, management, and record-keeping requirements, imposing this more stringent regime generally, but justifying it as necessary to protect disadvantaged communities that often are located near waste facilities. The costs of this increased level of regulation are estimated to range from $7.2 million to $47.5 million per year (affecting 13% to 74% of the recycling facilities).
Also recently, on June 30th, the Center on Race, Poverty and the Environment (Center) filed a lawsuit against the EPA alleging that its failure to respond in a timely manner to two 1994 administrative EJ complaints (alleging violations of Title VI of the Civil Rights Act (42 U.S.C. § 2000d) at landfill sites) was unlawful and is “part of a pattern and practice of illegal agency conduct” of not responding to EJ complaints (e.g., only one out of 247 such complaints have been resolved). The Center’s underlying claim is that EPA’s funding of state, county, and local permitting agencies which have permitted a Class 1 Toxic Waste Dump and a PCB landfill discriminates against the local minority residents living near these landfills (66% Hispanic or Latino populations at one site and 88% Hispanic or Latino at the other). The Center alleges injury from, among other things, toxic air emissions from the dumps, increased emissions by the diesel trucks transporting “toxic waste” to the dump, the cumulative impact on the ambient level of fine particulate matter (PM2.5), lower property values, and the stigma of living near such landfills and states that “[s]ince 2007, fourteen babies have been born with birth defects, including cleft palate and various heart and brain defects … and several have died.” The Center urges the court to order EPA to respond at least to the EJ complaints involving these two landfills.
These two developments are consistent with EPA’s proposed EJ Plan 2014, which requires EPA to incorporate EJ concerns into rulemaking, permitting, enforcement, and even risk assessment methodology, among other actions. Even if there were no prodding from environmental groups, many of EPA’s top officials have environmental justice backgrounds and one has stated that EPA’s goal is “make environmental justice the “core of all the thinking at every stage of … [the rulemaking] process.”
At its most extreme, some EJ advocates argue that EPA and state regulatory agencies should establish “green zones” around environmental justice communities that would limit the ability of companies to expand or build new facilities in these zones and provide that residents of these zones be “first in line for benefits,” such as job training, increasing enforcement of environmental laws, and energy efficiency measures. It remains to be seen whether these new EJ policies will significantly impact day-to-day plant operations or increase susceptibility to unwarranted personal injury suits, although EPA’s EJ process clearly adds a new, complex layer of regulatory review and may make even routine environmental permitting and rulemaking more contentious and polarized because of the nature of the issues.
Faced with these potential challenges, companies (or their trade associations) should consider commenting on EPA’s proposed EJ Plan (on which EPA anticipates receiving stakeholder input even after it is final.) The Plan is available at http://www.epa.gov/environmentaljustice/plan-ej/index.html. Businesses should focus on the Plan’s application in specific rulemakings and permit proceedings. In addition, companies may want to assess whether the priorities in EPA’s EJ Plan appear to target their industry or practices, conduct a review of their EJ vulnerability, and decide whether to include such an evaluation as part of their existing periodic environmental compliance or sustainability reviews. Finally, it may be worthwhile to take proactive steps, such as initiating or expanding outreach to local communities, to engage interested stakeholders at the start of a process that may involve EJ issues.
William J. Walsh, Esq. and Jane C. Luxton, Esq.
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[...] EJ issues– the Council on Environmental Quality and the Environmental Protection Agency (see http://sustainability-counsel.com/2011/07/11/environmental-justice-an-increasingly-significant-facto…). The MOU “requires” each agency to “identify and address, as appropriate, any [...]
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