WHAT IS ENVIRONMENTAL JUSTICE?
Environmental justice was first expressed during the early 1980s as "environmental racism" as an apparent rallying cry to mobilize civil rights activists. The obvious intent was to cast the issues as matters of overt discrimination. When "environmental racism" issues were first brought to the U.S. Environmental Protection Agency's ("EPA") attention during the Bush Administration, EPA Administrator William Reilly assembled a task force that assessed the issues as a matter of "environmental equity" in how risks were distributed across population groups. EPA Office of Environmental Justice now defines environmental justice in terms of "fair treatment."
On February 11, 1994, President Clinton issued Executive Order 12898, "Federal Action to Address Environmental Justice in Minority Populations and Low-Income Populations." The Presidential memorandum accompanying this Order directs Federal agencies to use Title VI of the Civil Rights Act of 1964 ("Title VI"), (See Footnote 1) or the National Environmental Policy Act of 1969 ("NEPA") to implement the Order. (See Footnote 2.) Although there was a flurry of federal agency activities right after the executive order was issued, federal environmental justice efforts were fairly dormant until 1998.
ENVIRONMENTAL JUSTICE TURMOIL
During 1998, there were significant events that substantially increased interest in environmental justice but also generated strong reactions. One of the most controversial areas is the way Title VI is being used to address environmental justice issues.
What is Title VI?
Section 601 of Title VI, (See Footnote 3) prohibits intentional discrimination based on race, color or national origin under programs or activities that receive federal financial assistance. Title VI applies to state environmental programs and activities receiving EPA funds and does not apply to private regulated entities nor to federal agency decisions.
Under Section 601, both a discriminatory effect and discriminatory intent must be shown to substantiate a finding of discrimination. However, the Supreme Court has interpreted Title VI to authorize federal agencies to issue regulations under Section 602 of Title VI, (See Footnote 4) which allows a federal agency to support a finding of non-compliance with Title VI without proving an intent to discriminate. (See Footnote 5.) Hence, under a Section 602 discriminatory effect standard, only a showing of discriminatory effect is needed.
EPA issued a discriminatory effect standard, which provides in part that "[a] recipient shall not use criteria or methods of administering its program, which have the effect of subjecting individuals to discrimination because of their race, color, national origin or sex...." (See Footnote 6.)
At the start of 1998, approximately 50 administrative complaints had been filed with EPA under its discriminatory effects regulation.
EPA Issued Interim Guidance Using Discriminatory Effects Regulation to Promote Environmental Justice
On February 13, 1998, EPA announced its Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits ("interim guidance") to provide a framework for processing the reportedly 50 complaints filed under EPA's discriminatory effects regulation. The interim guidance is aimed at state pollution control permits issued by state environmental agencies under EPA authorized programs. The interim guidance applies to the issuance of new permit and modification or renewal of existing permits. The interim guidance treats renewals as if they are new permit applications for purposes of mitigating any purported disparate impacts. A state environmental agency is required to develop a mitigation plan to address the purported disproportionate environmental impacts on minority populations if a Title VI administrative complaint challenging the state's permitting decision has been filed with EPA. The mitigation measures are likely to be beyond what is required to comply with the permit conditions or federal and state environmental laws and regulations.
By encouraging the parties from the outset to adopt mitigation measures, the interim guidance promotes a substantially different remedy than provided for in Title VI. The remedy under Title VI is termination of federal funds.
After EPA finds that a complaint properly states a Title VI claim, it will conduct a factual investigation to determine whether the permit will have a "disparate" impact on a minority community. The disparate impact analysis examines the affected population, the demographics of the affected population, the universe of facilities and affected populations, a comparison of the affected populations to the general population and the non-affected populations, and the differences, if any, in impact rates.
The disparate impact analysis basically uses an arithmetic or statistical analysis to determine whether the disparity is legally significant. If EPA concludes there is a disproportionate environmental impact on a minority population, the state has the opportunity to rebut the preliminary finding of disparate impact or submit a mitigation plan.
If the disparate impact cannot be mitigated or EPA does not approve the mitigation plan, the state will then have the opportunity to "justify" the decision to issue the permit despite the disparate impact. The state must base the justification on a "substantial, legitimate interest" which must be more than the permit complies with applicable environmental regulations. EPA will not consider the purported justification if a less discriminatory alternative exists. If a less discriminatory alterative is practicable, then it must be adopted to avoid a finding of non-compliance. If the state is unable to justify the permit decision, EPA will issue a preliminary finding of non-compliance, which then triggers the state's procedural rights to challenge the finding.
EPA Interim Guidance Met With Very Negative Reactions
EPA did an admittedly inadequate job of consulting with the states or other interested parties before issuing the guidance. As a consequence, it has received substantial opposition to its interim guidance. The Environmental Council of the States, U.S. Conference of Mayors, Western Governors' Association, U.S. Chamber of Commerce, and the National Black Chamber of Commerce are among the groups that have asked EPA to either withdraw or suspend the interim guidance.
In response, EPA formed a new federal advisory subcommittee under the National Advisory Council for Environmental Policy and Technology to examine the interim guidance in light of the concerns that were raised. The advisory committee is expected to submit a report to the EPA by summer 1999. EPA has committed to reissuing a revised interim guidance for public comment before issuing final guidance. However, it is using its interim guidance to investigate pending Title VI administrative complaints.
On October 29, 1998, the Washington Legal Foundation filed petitions with the EPA asking for dismissal of 26 Title VI complaints alleging that it has no authority to investigate Title VI complaints unless intentional discrimination is alleged. EPA has rejected these petitions for lack of standing.
In the EPA's FY 1999 appropriations act, Congress restricted EPA from using its interim Title VI guidance to investigate new Title VI complaints filed after October 21, 1998, and until the interim guidance is made final. EPA has proposed the deletion of this restriction in its FY 2000 budget proposal as being unnecessary since it states that actions would not be taken that would contravene the purpose and clear meaning of the restriction.
In February 1999, the General Accounting Office ("GAO") notified the EPA that the GAO's General Counsel had issued a ruling that the interim guidance alters existing regulations and should have been issued as a formal regulation. EPA has yet to decide whether it will issue its interim guidance as a rule.
Private Parties Sought to Bring Implied Private Right of Action Against State Agency to Enforce Discriminatory Effects Regulation Issued Under Title VI
The Supreme Court has found an implied right of action to enforce the prohibition against intentional discrimination provided in Section 601 of Title VI. (See Footnote 7.) Hence, a private party plaintiff can bring a lawsuit against a state agency alleging discrimination under Section 601 but must show that the discrimination is intentional. The issue of whether there is an implied right of action to enforce the prohibition against discriminatory effects under Section 602 was raised by Chester Residents Concerned for Quality Living ("Chester Residents"), which is a community group composed of residents of Chester, Pennsylvania. They filed a lawsuit against the Pennsylvania Department of Environmental Protection ("PADEP") under EPA's discriminatory effect regulation without first filing an administrative complaint under EPA's administrative compliance procedures. (See Footnote 8.)
Chester Residents allege that PADEP's issuance of a waste permit to Soil Remediation Services, Inc. ("SRS"), to operate a contaminated soil treatment facility in the City of Chester, violated the civil rights of Chester Residents' members because PADEP had already granted five waste facility permits for sites in the City of Chester since 1987 as compared to granting only two permits for sites in the rest of Delaware County. Chester Residents claimed that by granting the SRS permit PADEP violated the EPA's discriminatory effect regulation. The district court found that there is no implied private right of action to enforce EPA's discriminatory effect regulation. (See Footnote 9.)
Chester Residents appealed the district court's dismissal to the U.S. Court of Appeals for the Third Circuit alleging, inter alia., that Chester Residents can bring a private lawsuit against PADEP on the basis of the EPA's discriminatory effects regulation, without first seeking relief from the administrative compliance procedures. The Third Circuit reversed the district court's ruling and held that Chester Residents may maintain an action under EPA's discriminatory effect regulations. (See Footnote 10.)
PADEP filed a petition for certiorari, which the Supreme Court granted. (See Footnote 11.) Just before PADEP's brief was to be filed, Chester Residents filed a motion suggesting mootness because SRS had withdrawn its permit. The Court granted the motion on August 17, 1998, by remanding the case to the Third Circuit with instructions to dismiss and vacated the Third Circuit decision. (See Footnote 12.) The Court invoked its established practice to reverse or vacate the judgment below because the case had become moot before a decision on the merits could be rendered. (See Footnote 13.) By vacating the Third Circuit decision the Supreme Court reinstated the district court's finding that there was no implied private right of action to enforce EPA's discriminatory effect regulation.
EPA Review of Environmental Justice Issues Raised in State Permit Decisions
EPA's review of two state permit decisions provide guidance as to how it intends to use its Title VI authority. The two cases are commonly referred to as the "Shintech" and "Select Steel" cases.
Shintech Case. Community groups challenged a Louisiana Department of Environmental Quality ("LDEQ") decision to issue four air permits to Shintech, Inc. for a new polyvinyl chloride plant. The community groups filed a petition with the EPA alleging the permits failed to meet Clean Air Act ("CAA") requirements. In addition, the community groups filed a Title VI administrative complaint against the LDEQ based on environmental justice concerns.
In September 1997, the EPA Administrator partially granted the petition to the extent that one of the permits failed to regulate processing vents. The Administrator's decision also rejected the environmental justice concerns because petitioners did not show how their particular environmental justice concerns demonstrated that the Shintech permits did not comply with applicable CAA requirements. Within the required 90-days of EPA's decision, LDEQ submitted a revised permit to control the processing vents. EPA put on hold its decision on the petition challenge while moving forward with its Title VI investigation. As part of its investigation and relying on the interim guidance, it developed and applied a relative burden analysis ("RBA"), which focuses on the allegedly discriminatory distribution of routine air emissions from stationary sources.
The RBA was severely criticized as being technically flawed. In June 1998, EPA decided to have the RBA peer reviewed by the Science Advisory Board ("SAB") and to postpone its decision on the Title VI administrative complaint pending SAB's review. The SAB reviewed the EPA's disparate impact methodology during a two-day September 1998 meeting. In December 1998, SAB reported to the EPA Administrator that the risk method used to investigate Shintech was flawed and recommended that a three-step risk approach be adopted.
In the meantime, Shintech informed LDEQ that it proposed to move the location of its facility to another Louisiana location and asked to have its CAA operating permit application suspended while it seeks approval for the new facility.
Select Steel Case. This decision is important because it is EPA's first decision on the merits of an administrative complaint filed under its discriminatory effects regulation. In this October 1998 decision, EPA rejected a Title VI complaint filed against the Michigan Department of Environmental Quality ("MDEQ") for issuing a CAA Prevention of Significant Deterioration ("PSD") permit to the Select Steel Corporation of America.
The Complainants alleged that the Select Steel facility's potential emissions of volatile organic compounds, lead, air toxics and dioxin would lead to a discriminatory impact on minority residents in Genesee Township, Michigan. In conducting its investigation, EPA first considered the potential adverse effect from the facility. It concluded that because the national ambient air quality standards for ozone and lead are protective of public health, there would be no "affected" population that would suffer "adverse" impacts within the meaning of Title VI or EPA's discriminatory effects regulation. EPA reviewed information relating to airborne toxics, including existing TRI data, and concluded that there was no "adverse" impact. Because EPA has not issued performance specifications for continuous emissions monitoring systems to monitor dioxins, it found no discriminatory effect associated with MDEQ's decision not to include monitoring requirements for dioxin.
The Complainants also alleged public participation violations by challenging the amount of time that it took MDEQ to approve the PSD permit as being too fast allowing MDEQ to avoid permitting requirements; the use of newspapers to inform the minority community of the permit hearing; the failure to provide more individual notice of the hearing; and the location of the public hearing made it difficult for minority members to attend. EPA found that MDEQ had satisfied the regulatory public participation requirements.
Because EPA determined that the Select Steel facility would not pose an "adverse" effect on the community, it did not have to determine whether the effects would be "disparate." EPA concluded that neither the Complainants' concerns regarding air quality nor those regarding public participation had a discriminatory effect within the meaning of Title VI and its discriminatory effects regulation. EPA dismissed Complainants' allegations.
In April 1999, Select Steel announced that it decided to build its facility at another location in Michigan.
SUGGESTED WAYS TO REDUCE UNCERTAINTY FOR PERMIT APPLICANTS
Environmental justice advocates have asked EPA to reconsider its Select Steel decision. EPA has signaled uncertainty as to what the decision means. It appears that EPA will continue to rely on Title VI as its primary enforcement forum in which state and permit applicants are to address environmental justice issues.
Until issues relating to the use of Title VI and other federal civil rights laws to challenge state permit decisions are sorted out, uncertainty in state permit programs is likely to increase substantially. There are steps that a permit applicant can take to reduce this uncertainty.
- Know the demographics (e.g. racial composition) of the community surrounding the facility.
- Be prepared to answer environmental justice questions as part of the permit application process. Anticipated questions can be patterned around the suggested environmental justice factors in EPA's Final Guidance for Incorporating Environmental Justice Concerns in EPA's NEPA Compliance Analyses, April 1998.
- Outreach to the community for support where necessary.
- Be careful to avoid bidding against yourself in adopting mitigation measures.
- Avoid a blanket waiver of the time schedule established by regulations. Where the EPA or state environmental agency is expected to exceed an established deadline, ask for a written extension letter specifying a new date.
- Resist efforts to merge decisions that are solely within the local land use authority into decisions made by the state environmental agency.
- Tailor a responsive public participation strategy to the needs of the project and the identified concerns of the community.