Environmental Justice: Equality in Environmental Decision Making

Kenneth J. Warren

Environmental justice is the name commonly given to the concept that minority and low income populations should be treated fairly in environmental decision making. Numerous environmental choices such as whether a permit should be issued for a waste facility, how and to what standards brownfields should be remediated, where to focus agency enforcement resources, and how transportation alternatives and mobile sources should be regulated, are just a few examples of the wide range of environmental decisions that may significantly affect minority and low income populations.

As in other equal protection contexts, some approaches to environmental justice are based on the proposition that decisions made in a "color blind" fashion without discriminatory intent are inherently unbiased. Advocates of this standard contend that the adverse impact inquiry suggested by some environmental justice advocates unfairly introduces, rather than removes, racial, national origin or income bias in the decision making process. Under this approach, decisions that impose disproportionate risk on protected groups are fair and lawful if made without consideration of racial, national origin or income factors. Indeed, the relevance of income to the environmental justice inquiry may itself be disputed.

In contrast, others assert that the legacy of past discriminatory conduct requires a race- conscious approach to avoid perpetuation of disproportionately harmful risks to members of minority communities. For example, sociologist Robert D. Bullard has noted that as a result of past discriminatory practices in housing, schools, employment, insurance, and lending, minorities are concentrated in urban centers. See, e.g., R. Bullard, Race, Equity and Smart Growth, Envtl. Just. Center Newsl., Vol. 3, No. 1, Fall/Winter 2000. Government decision makers who do not consider the characteristics of minority communities may well perpetuate or worsen the adverse health and other conditions that these communities suffer. Many advocates of this approach also believe that the participation of minority communities in the decision making process is an essential ingredient to reaching a just result.

One of the Environmental Protection Agency’s ("EPA’s") greatest challenges over the past several years has been to develop procedures and obtain outcomes that satisfy environmental justice concerns. EPA’s Title VI regulations prohibit a recipient of federal funds from administering a program that has the intent or effect of subjecting individuals to discrimination because of their race, color, national origin or sex. See 40 C.F.R. § 7.35(b). See also Exec. Order No. 12,898 (including low income populations among the protected classes). Nevertheless, the wrangling among members of the minority and business communities over the rules for determining whether a governmental action will produce a disproportionately heavy burden on a minority community has been intense. Despite the standard set forth in its regulations, EPA has been reluctant to find violations when faced with administrative complaints. See, e.g., In re Select Steel Corporation of America, Docket No. PSD 98-21, September 10, 1998 (holding that no adverse impact resulted when a permit for a steel mini-mill complied with the health-based National Ambient Air Quality Standards ("NAAQs")).

Two very recent judicial decisions have injected even greater uncertainty into the environmental justice analysis. In South Camden Citizens in Action v. New Jersey Department of Environmental Protection, C.A. No. 01-702 (D. N.J. April 19, 2001), residents of South Camden brought an action under Section 602 of Title VI challenging air permits that the New Jersey Department of Environmental Protection ("NJDEP") had issued to St. Lawrence Cement Co. for construction and operation of a facility to grind and process granulated blast furnace slag. Based on air modeling results and other analyses, NJDEP had concluded that the facility would contain sufficient controls so as to avoid causing or significantly contributing to a violation of the NAAQs for particulate matter ("PM-10"). Because the applicable environmental requirements were satisfied, NJDEP issued the permits.

Plaintiffs contended that EPA’s disparate impact regulations promulgated pursuant to Section 602 of Title VI required NJDEP to look beyond the environmental regulations and analyze whether the effects of the permit fell disproportionately on minority populations. Plaintiffs asserted that NJDEP had improperly ignored such alleged factors as the poor health conditions in the community, the cumulative effect of all regulated and unregulated emission sources, the impact of small particulate matter not sufficiently regulated by the PM-10 standard, the classification of the area as "severe non-attainment" for the ozone NAAQs, and the impact of additional emissions from trucks transporting slag and product to and from the facility. The district court agreed, vacated the permits, and enjoined operation of the facility until NJDEP performs an appropriate adverse disparate impact analysis.

The success of the South Camden plaintiffs may, however, be short-lived. On April 24, 2001, the United States Supreme Court held that Title VI does not create a private right of action to enforce disparate impact regulations. Alexander v. Sandoval, 2001 U.S. LEXIS 3367 (U.S. April 24, 2001). Sandoval brought a class action under the Department of Justice’s regulations prohibiting recipients of federal funds from utilizing criteria or administrative methods having the effect of subjecting individuals to discrimination based on race, color or national origin. Sandoval contended that by administering state driver’s license examinations only in English, the Alabama Department of Public Safety discriminated on the basis of national origin. The Supreme Court in a 5 to 4 ruling reversed the Eleventh Circuit on the ground that Title VI does not create a private right of action to enforce disparate impact regulations that an agency promulgates under Section 602 of Title VI. In addition, parts of the majority opinion question, without deciding, whether regulations proscribing activities that have a disparate impact on the basis of race are valid. Consequently, the future of environmental justice is uncertain.

During the period that the implications of South Camden and Sandoval are being tested, EPA’s administrative reviews of Title VI challenges are likely to gain increasing importance. On June 16, 2000, EPA released two draft guidances designed to add clarity and specificity to its Title VI approaches. The first guidance, Draft Title VI Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs ("Recipient Guidance"), is intended to provide suggestions to recipients of federal funds who wish to design environmental programs in a manner likely to avoid Title VI complaints and violations. The second related guidance, Draft Revised Guidance for Investigating Title VI Administrative Complaints ("Investigation Guidance"), explains how EPA will investigate and resolve complaints that are submitted to it pursuant to its Title VI regulations. The Investigation Guidance is designed to replace an interim guidance issued in February, 1998, which has been subject to much criticism.

EPA’s statement of guiding principles in its Recipient Guidance adopts at least some of the view points that had been expressed by the minority community. Not only does EPA restate its strong commitment to civil rights enforcement, it emphasizes the need to evaluate potential adverse cumulative impacts from all stressers (i.e. factors that adversely affect the minority population), rather than simply the impacts from the activity for which the particular permit at issue is sought. The Recipient Guidance also advocates use of a risk assessment process whereby scientific methodologies would be utilized to identify the potentially affected population, examine its demographic characteristics, and evaluate the significance of any adverse impact from the activity in question.

EPA offers three non-exclusive approaches to incorporating Title VI concerns in permit evaluations. First, the permitting agency can adopt a comprehensive plan, much like a management system, that integrates several Title VI activities into a broad-based program. Second, the permitting agency may choose to employ an area-specific approach by identifying geographic areas where adverse disparate health impacts or other Title VI concerns may exist and working with the affected communities and stakeholders to reduce or eliminate adverse disparate impacts within these areas. Finally, a state agency may choose to employ a case-by-case approach which highlights potential unequal impacts flowing from the particular permit in question.

Regardless of the approach selected, EPA suggests that the public be afforded a meaningful opportunity to participate in decision making in an early and inclusive fashion. Thus, the permitting process should be open and transparent with information readily and clearly available to community members. In addition, the state agency should conduct its own analysis of potential disparate impacts.

EPA’s Investigation Guidance sets forth the following six steps that EPA will take when a person claiming that he or she is aggrieved by a permitting decision seeks to challenge that decision based upon its alleged discriminatory effects:

1. EPA will determine whether the permit action is sufficient to trigger an investigation.
2. EPA will define its scope of investigation based upon the apparent nature of the stresses, sources of stressors and/or impacts.
3. EPA will determine whether the permitted activities either alone or in combination with other relevant sources are likely to cause an impact. The strongest evidence of causation would be a link between the alleged discriminatory act and an adverse health effect. This type of health outcome data is rarely available. In its place, EPA might look at toxicological data, toxicity-weighted emissions, or modeled or monitored ambient concentrations of chemicals.
4. EPA will determine whether the estimated risk or measure of impact is adverse.
5. EPA will assess whether an adverse impact falls disproportionately on minorities by characterizing the affected population and an appropriate comparison population in terms of race, color or national origin. Census data can be combined with Global Information System ("GIS") mapping techniques to visually depict the ethnic composition of the affected population. Once the affected population is defined, it is then compared to a reference group, i.e. a non-impacted population defined by a reference area such as the recipient’s permitting jurisdiction.
6. EPA will determine whether the adverse impact is significant based on the comparison between the two populations.

If a significant adverse disparate impact is found, EPA will then examine whether the impact is justified, for example by public health or environmental benefits (e.g. wastewater treatment plant) or economic development. This high wire policy balance rarely produces consensus among the various interested stakeholders. Even where EPA concludes that justification for a discriminatory action has been demonstrated, the action is nonetheless unlawful if a less discriminatory alternative exists. Alternatives might involve practicable mitigation measures such as pollution reduction or prevention, environmental remediation (for example, lead abatement), emission offsets or caps, emergency planning and response measures and measures to promote equality in monitoring and enforcement.

The guidances do not resolve the many complex and competing environmental justice concerns in a manner mutually acceptable to industry, the impacted communities, and state agencies. For example, many industry stakeholders have concluded that the guidances provide insufficient certainty and predictability for business decisions, may trigger investigations or require process unnecessarily, inappropriately entertain considerations beyond an individual permit or even the permitting agency’s authority, and confer insufficient rights on the permittee. Some minority representatives object to the non-binding nature of the guidances, the lack of sufficient protection for the health of stressed communities, insufficient participation rights and the deference to state decisionmaking. Finally, states object to the absence of a safe harbor. In fairness to EPA, however, consensus among all stakeholders, if possible at all, will require a long period of dialogue. This dialogue is underway within the National Environmental Justice Advisory Council and in other forums. Although solutions to environmental justice concerns may not be easily found, the importance of seeking fair results through a transparent process in which all stakeholders have confidence make continued efforts in this area an essential component of our commitment to equal justice.

Kenneth J. Warren is chair of the environmental group at Wolf, Block, Schorr & Solis-Cohen LLP in Philadelphia, Pennsylvania. He is a member of the Council of the Section of Environment, Energy, and Resources and chair of its Rapid Response Committee. In December, 2000 he was appointed by EPA Administrator Carol Browner to a three-year term on the National Environmental Justice Advisory Council.