Will additional facility expansions or brownfields developments be delayed, or environmental permits adversely affected because of concerns by the permitting agencies or citizens about the facility's impact on poor and minority communities? Pushed by environmental groups and civil rights organizations and fueled by recent court decisions, the White House and Environmental Protection Agency ("EPA") have launched major initiatives focused on achieving environmental justice and equity. The repercussions of these initiatives are only beginning to be felt. The ability of citizens to seek environmental justice through the courts suffered a setback in August, 1998 when the United States Supreme Court vacated the decision of the Third Circuit Court of Appeals which would have allowed private citizens the right to enforce EPA's civil rights regulations against a state or local agency in court. This decision will not be the last word on whether citizens have a private right of action, and regardless of this ruling, EPA has committed to make environmental justice an issue that should be identified and evaluated during all environmental permitting processes in order to minimize the risk of civil rights litigation.
What is Environmental Justice?
Environmental justice and environmental equity are terms that have been used to describe an effort to ensure that poor and minority communities do not bear greater exposure to environmental pollution than other communities. Historically, these communities have lacked the power or opportunity to participate in decisions effecting them.
Recent Federal and State Agency Developments
In February, 1994, the President issued an Executive Order requiring federal agencies "to make environmental justice a part of all they do." EPA then established an Office of Environmental Justice to ensure that all EPA program areas address environmental justice concerns.
More recently, in February 1998, EPA's Office of Civil Rights issued an Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits ("Interim Guidance"). The Interim Guidance, which has been criticized by the United States Conference of Mayors, among others, as being at odds with efforts to clean up and redevelop urban brownfields, establishes a framework for civil rights/environmental organizations to file administrative complaints with EPA's Office of Civil Rights following issuance of a state permit. EPA's broad view of environmental justice includes low income populations. The Interim Guidance is not affected by the Supreme Court's vacating the Third Circuit decision.
Environmental justice may have an adverse impact on facility permits and corporate and local government expectations in that EPA asserts it does not have jurisdiction to investigate civil rights complaints until after the state issues a permit. According to the Interim Guidance, after a state issues an environmental permit, any person may file an administrative complaint with EPA alleging an unfair impact on a minority economically disadvantaged community. Once an administrative complaint is filed, it will add another layer of review at the agency level. EPA's investigation will include examination of the demographics of the effected population and will analyze the cumulative impacts created by all other nearby industrial facilities. If EPA makes a determination in favor of the party raising the environmental justice complaint, then EPA will notify the state permitting agency. The state permitting agency will then have an opportunity to rebut the determination by proposing a plan for mitigating or justifying the disparate impacts.
In light of the tremendous uncertainties in how EPA will evaluate administrative complaints under the Interim Guidance, state agencies likely will begin to include an environmental justice analysis in processing permit applications. Pennsylvania Department of Environmental Protection ("PaDEP") is likely to announce appointment of an advisory committee to study this issue later this year. It is our understanding the New Jersey Department of Environmental Protection ("NJDEP") is developing its own procedures for addressing environmental equity issues in the permitting process. NJDEP objects to EPA's complaint-driven process in the Interim Guidance and believes that addressing environmental equity issues up-front in the permitting process will result in fewer discrimination complaints and expedite resolution of any such complaints. New Jersey's environmental equity policy is due to be final by October 1998.
Recent Court Decisions
At the same time, federal courts are considering environmental justice issues. In 1996, a citizens group in the City of Chester, Pennsylvania brought a civil rights complaint against the PaDEP, alleging that the methods and criteria utilized by the PaDEP when issuing a permit for a proposed soil incinerator resulted in unfair (or disparate) environmental impacts on the predominantly minority community of Chester. The District Court dismissed the Complaint holding that there is no implied private right of action for private citizens to enforce the EPA civil rights regulations. However, in December 1997, a panel of judges of the Third Circuit allowed the case to go forward finding an implied private right of action under Title VI of the Civil Rights Act of 1964. After the Supreme Court granted certiori, the permit was revoked at the request of the permittee. In a stunning development, on August 17, 1998, the United States Supreme Court vacated the judgment of the Third Circuit Court of Appeals and remanded the case with instructions to dismiss.
The Court's disposition, while ending the litigation, does not resolve whether a private citizen may bypass EPA's administrative process and sue a state agency in federal court to enforce EPA's civil rights regulations. Also unresolved is whether PaDEP or any other agency receiving federal funds commits a civil rights violation through the methods and criteria for issuing environmental permits.
Ramifications of Environmental Justice on
New and Existing Facilities and Brownfields Developments
Environmental justice concerns cannot be ignored by the regulated community. State and federal environmental agencies are in the field now identifying communities that may bear disparate environmental impacts -- these areas will be identified on databases that are readily accessible to the public. The Supreme Court case has heightened public awareness of this issue. Environmental groups may use environmental justice as a tool to derail industrial development projects.
Environmental justice complaints may also arise in connection with the issuance of permit modifications and permit renewals. Facilities with any type of environmental permit may be affected -- including, air, water, solid waste, hazardous waste, sewage treatment, and the like. In addition, since under Pennsylvania's brownfields law cleanup standards for brownfields sites located in specialized industrialized areas are more lenient than cleanup standards in nonindustrialized areas, brownfields projects in industrialized areas may be delayed or barred by environmental justice issues. Similar concerns may arise under other states' brownfields laws.
Companies and governmental entities with plans for new facilities or with existing permitted facilities should take steps now to prepare for environmental justice challenges by:
- identifying existing facilities that are within areas delineated by the state and federal environmental agencies as suffering potentially unfair impacts;
- understanding the basis for such delineations;
- developing or enhancing community relations in those areas;
- identifying facilities that in the near term are subject to permit renewals and modifications and developing a strategy for addressing environmental equity issues at each facility;
- developing uniform corporate policies for addressing environmental equity issues;
- identifying vendors qualified to analyze environmental justice concerns; and
- developing an understanding of the aggregate environmental impacts surrounding each existing or proposed facility.
Because the underlying concern is purely a legal one (i.e., civil rights), members of the regulated community are cautioned that environmental equity issues are unique and distinguishable from all other permit issues that are either solely technical issues, or a mix of technical and legal issues.
As with other land use and environmental issues, facility managers should be sensitive to their host community's concerns. Saul Ewing's Environmental Department is looking ahead and can assist you in evaluating environmental justice concerns. For more detailed information on the Supreme Court case, the State of New Jersey's proposed environmental equity program or developments on this issue within Pennsylvania, please contact William Cluck at 717-238-7651 or wcluck@saul.com or Jane Kozinski at 609-452-3108 or jkozinski@saul.com.