In my tenure at Ohio EPA, no issue was as vexing as Environmental Justice (EJ). In a nutshell, there is a legitimate issue behind the concept of EJ- low income and minorities are exposed to more pollution. Here is how EPA presents the EJ issues:
Fair Treatment means that no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.
The root causes of disproportionate impacts can be traced to the history of how our country developed and expanded. Lower income housing can typically be found near areas zoned industrial. In our past, this occurred for easy access to plant and factories. However, this history has carried forward and people living in these communities are disproportionately impacted by pollution.
However, the difficulty was trying to address this social problem through EPA rulemaking or decision making on permits for new industrial facilities. EJ issues come into conflict with concepts of urban redevelopment, brownfield redevelopment and creating jobs in low income communities.
Are we really prepared to declare an industrial area off limits to new factories or manufacturing because the pollution burden is too great? How would someone establish a standard for what is deemed too great an exposure?
How does EPA "regulate away" this social issue? EPA struggled with answer to these questions for so long that is has released and than retracted EJ policies over time. For long stretches the Agency simply put EJ issues on the back burner.
EPA is required to develop procedures to evaluate EJ issues in its decision making process as a result of Executive Order 12898 which directs agencies such as EPA to do the following:
“[t]o the greatest extent practicable and permitted by law,” to “identify[…] and address[…], as appropriate, disproportionately high and adverse human health or environmental effects” of agency programs, policies, and actions on minority populations and low-income populations.
EPA’s new fifty page guidance document walks through a complex process for evaluating EJ issues in EPA decision making. I think the chart below says it all. Is this really helpful in addressing a complex social issue?
Reading the document, the EJ document is strinkingly similar to past efforts by EPA. It really seems to boil down to two requirements that fall onto EPA staff.
1. Ensure participation by low income and minority groups in the EPA decision making process- the guidance offers suggestions for how to reach out to communities and make sure they are informed regarding EPA actions.
2. Document that EJ issues were considered in the decision making process- When EPA issues is response to public comments, it must include a description of the EJ issues that were identified and how those impacted the decision making process.
What the guidance document doesn’t address- When EPA is required to take alternative action as a direct result of EJ considerations? The reason EPA avoids setting such standards is that a uniform "regulation" would be nearly impossible to develop. Therefore, the new guidance appears to be very similar to past EPA approaches to incorporate EJ considerations in its decision making-
- Consider the alternatives; and
- Document how EJ issues were considered in the decision making process