In September 2016, the U.S. Commission on Civil Rights (Commission) issued its annual “Statutory Enforcement Report for 2016”; this year’s topic is the Environmental Protection Agency’s (EPA’s) efforts to protect and promote “Environmental Justice.” The Commission reviews decades of EPA efforts, and criticizes longstanding inadequacies.
What is “Environmental Justice”?
The civil rights struggle and the environmental movement flowed together in the 1990s under the banner of “environmental justice.” Communities of color and low income coupled the techniques of protest honed during the struggles of the 1960s with academic scholarship and legal representation to ensure that government, in its siting and permitting of facilities that manage toxics, considers impacts on adjoining neighborhoods. Although pinpointing the specific moment when the environmental justice movement arose is tricky, the groundbreaking publication of Toxic Wastes and Race in the United States, by the United Church of Christ (UCC) Commission for Racial Justice, in 1987, is noted for documenting the systemic relationship among the siting of hazardous waste facilities, race, and socioeconomic status. The UCC Report summarized extensive analyses, documenting that:
Hazardous waste treatment and disposal facilities (regulated under the Resource Conservation and Recovery Act (RCRA)) are disproportionately sited in areas with lower income and non-white populations.
60% of Black and Hispanic Americans live in areas with at least one uncontrolled toxic waste site (e.g., Superfund sites), compared with half of Americans overall)
These data could not demonstrate the extent to which siting was race-inspired and/or associated with historically low political power of poorer and non-white communities, or the extent to which simple market forces led large industrial facilities and poor people to the same lower-cost areas. But they did focus political attention on the higher environmental and health risks that these sites imposed on their host communities.
The accumulation of evidence supporting the Commission’s findings eventually prompted President Clinton to issue Executive Order No. 12898 in February 1994. This Executive Order directs federal agencies to develop and implement environmental justice strategies designed to identify and address “disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations.”
What is EPA’s Role?
EPA is responsible for applying EO 12898 and other civil rights and justice policies to its regulatory activities.
Notably, EPA applies Title VI of the Civil Rights Act of 1964, which provides that “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.” To the extent that environmental conditions reflect discrimination violating Title VI, individuals can sue or EPA can enforce this protection.
Although there is no single legal definition of “Environmental Justice,” EPA information defines it as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”
What Has the Civil Rights Commission Just Concluded?
The new Commission report offers a variety of Findings, including:
“The recognition of environmental justice as a civil right means the fair treatment and meaningful involvement of all people regardless of race, color, notional origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations and policies.“
“Racial minorities and low income communities are disproportionately affected by the siting of waste disposal facilities and often lack political and financial clout to properly bargain with polluters when fighting a decision or seeking redress.
“If enforced vigorously, Title VI can be a powerful tool for EPA to address environmental justice and remediate discrimination. The EPA has a history of being unable to meet regulatory deadlines, delay in response to and addressing Title VI complaints.”
“EPA’s Office of Civil Rights has never made a formal finding of discrimination, has never denied or withdrawn financial assistance, and has no mandate to demand accountability within the EPA.”
EPA’s regulation of coal ash, which contains toxic metals, reflects the failings in EPA policies and leads to continuing exposures. Siting of coal ash facilities raises environmental justice issues.
To address these Findings, the Commission also provides numerous recommendations, including:
“EPA should bring on additional staff to meet current and future needs, and to clean up its backlog of Title VI complaints. EPA should empower and support the efforts of the Office of Civil Rights (and Deputy Officers), continue sharing expertise among regions, and provide the Office with the necessary tools to hold accountable other EPA entities in minority jurisdictions.”
“EPA should NOT eliminate deadlines related to processing Title VI complaints, nor should it adopt a phased-approach to conducting post-award compliance reviews. The EPA should include affected communities in the settlement process.”
“Coal Ash should be classified as ‘special waste’ and federal funding should be provided for research on health impact of coal ash exposure to humans. The EPA should investigate risks from coal ash disposal, take enforcement action as necessary, and ensure known cases are resolved. EPA should immediately identify coal ash lagoons and coal plants in minority, tribal, and low income communities that rely on groundwater for drinking water. The EPA should provide assistance to these communities to help enforce the Coal Ash Rule. In addition, the EPA should test drinking water wells, and assess high risk coal ash dams and coal ash disposal sites.”
Where Do I Go For More Information?
EPA Environmental Justice website
UCC Toxic Wastes and Race in the United States(1987) report
Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include:
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 13 existing products, including Environmental Compliance: A Simplified National Guide and The Complete Guide to Environmental Law.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: email@example.com.