EPA Issues Revised Environmental Justice Guidance

Kim Lesniak

On June 20, 2000 EPA issued two new draft guidance documents regarding environmental justice claims under Title VI of the Civil Rights Act of 1964. The first document, "Title VI Guidance for EPA Assistance Recipients Administering Environmental Programs," ("Recipient Guidance") recommends voluntary steps that delegated states may take to obtain more community input and avoid future environmental justice claims. The second document, "Revised Draft Guidance for Investigating Title VI Administrative Complaints Challenging Permits," ("Investigation Guidance"), details the steps EPA will take in evaluating and investigating allegations of discriminatory effect of permits issued by a state under a delegated federal program. The fundamental inquiry will be whether, as a result of the state’s permit issuance, there has been an unjustified adverse disparate impact on a community based on race, color or national origin. The Investigation Guidance sets forth more detailed procedures for evaluating adverse disparate impact than earlier draft guidance released in 1998.

Both draft guidance documents are available on the Internet (http://www.epa.gov/civilrights/reviguid2.htm ) and will be published in the Federal Register for public comment. EPA will receive comments at public meetings in Chicago, Dallas, Los Angeles, New York, Oakland and Washington, D.C. EPA is also planning to issue guidance on environmental discrimination claims in enforcement matters and public participation in the future. Companies who plan to site new facilities or seek permit amendments that will increase emission levels may want to review and comment on the present draft guidance.

In particular, companies should consider the lack of direct involvement they may have, under the Investigation Guidance, in defending and resolving an environmental justice complaint, which technically is directed to a state recipient of federal funds. As it is currently worded, only the fund "recipient" can provide information, object to a finding of discriminatory effect, justify the permit notwithstanding disparate impacts, agree upon voluntary compliance steps, or appeal a determination of a Title VI violation. The complaining citizens also do not have appeal rights, but may have a private cause of action under the Civil Rights Act. Even companies whose permits are not the subject of an environmental justice complaint should be aware that the guidance contemplates one method to resolve complaints involving a neighboring facility may be to obtain emission reductions from other facilities in the area. Also, the Recipient Guidance encourages states to identify communities with potential adverse disparate impacts and take pro-active steps to reduce impacts, which may result in agencies seeking localized emission reductions in minority communities. For further information on Environmental Justice issues, see the January 2000 issue of this Newsletter.