Are you concerned about delays in the permitting process for your project? Now there is one more wrinkle -- environmental justice. The U.S. Environmental Protection Agency ("EPA") recently promulgated interim guidance for processing complaints that state or local agency permits violate Title VI of the Civil Rights Act by causing disproportionate negative effects on minority communities. In addition to causing uncertainty and costly delays, the guidance could impact state and local land use policies -- particularly brownfield redevelopment.
What Is Environmental Justice?
"Environmental Justice" is a broad term that springs from the principle that all people, regardless of race, national origin, or income, deserve protection from a disproportionate impact of environmental hazards. According to EPA, an environmental justice claim under Title VI of the Civil Rights Act does not require intentional discrimination, but can arise merely from disparate impact or discriminatory effect.
Officials at Shintech, Inc. in Convent, Louisiana are more than familiar with costly delays sometimes associated with environmental justice. The company obtained a Clean Air Act permit from the State of Louisiana in May 1997 to build a $700 million polyvinyl chloride plant. Before construction could begin, a coalition of local environmental activists blocked the project by filing an environmental justice complaint with EPA. The complaints argued that Shintech's permit constituted a civil rights violation simply because the plant was to be located in a predominantly minority community and, thus, would create a "disproportionate burden" of pollution on minorities.
EPA has begun to take environmental justice complaints seriously, and the fate of the Shintech plant and other projects hang in the balance. Construction of the Shintech plant has already been delayed for more than a year while EPA conducts studies. Prominent lawmakers and community activists have rallied around the environmental justice movement, urging EPA to deny permits.
The Environmental Justice Movement is gaining momentum both inside and outside the government. Consider the following:
- The Nuclear Regulatory Commission's Atomic Safety and Licensing Board, relying on President Clinton's 1994 Environmental Justice Executive Order, refused a permit for a uranium enrichment facility.
- Minority plaintiffs are filing, and winning, multi-billion dollar lawsuits based on claims of environmental racism. A Louisiana jury awarded $3.4 billion to residents of a predominantly African-American neighborhood who claimed that they were exposed to toxic chemicals from a railroad tank-car fire.
- An EPA Clean Air Act Advisory Committee is currently considering whether the agency's Emission Trading Program implicates environmental justice concerns.
- California residents have announced they plan to file several environmental justice complaints with EPA, including claims that disparate impacts on minorities are resulting from (i) methyl tertiary butyl ether ("MTBE") releases from reformulated gasoline refineries, (ii) power plants located in low-income and minority communities, and (iii) the siting of low-level nuclear waste dumps.
- The California Department of Toxic Substances Control has agreed to cooperate with EPA to address environmental justice issues and the Bay Area Air Quality Management District Board has indicated that it may soon adopt an environmental justice policy.
Title VI
Authority for EPA's environmental justice strategy derives from Title VI of the 1964 Civil Rights Act. Section 601 of Title VI provides, "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d (1994). EPA takes the position that Title VI requires all relevant permit agencies receiving federal funds to promote environmental justice concerns. Failure to comply could result in a loss of federal funding, thereby delaying and possibly defeating the issuance of a permit.
EPA's Environmental Justice Interim Guidance
EPA recently issued a controversial interim guidance based on Title VI. Under the policy, EPA will conduct a cursory review of all environmental justice complaints to determine whether a particular permit decision could cause a disparate impact on a minority population. If so, EPA will allow the siting or permitting agency a chance to rebut the determination or modify the permit. An agency cannot defend a permit decision merely by arguing that all other environmental regulations have been met. Environmental justice has, in effect, become an independent permitting requirement.
While the guidance is not expected to be finalized until Spring 1999, EPA regional staff are reported to have already begun using it in their review of state permits. If a State or local agency does not comply with EPA's directives, EPA could strip it of federal environmental funds, forward the case to the U.S. Department of Justice for prosecution, or use its authority under federal environmental statutes to veto the permit. Some State officials are concerned that the implementation of the new policy could cost millions of dollars.
Conclusion
While it is not yet clear what form the environmental justice movement will take as it matures, it is clear that the movement has already taken root. Federal and state laws provide for a broad range of claims that can cause costly delays in new and ongoing projects and result in large plaintiffs' verdicts.
However, your project need not fall victim to such delays and costs. Considering environmental justice concerns early in the planning process can pay off. Developing a proactive strategy and the implementation of affordable steps, such as arranging community meetings and producing newsletters, can help to provide protection from community dissent and EPA scrutiny later on.
*article courtesy of Morrison & Foerster LLP