Issue Management Services
Civil Rights and the Environment
EPA and the States Creating Another
Regulatory Burden
Metropolitan Corporate Counsel,
March 1999
Corporate counsel should take more than a passing interest in the
controversy surrounding environmental justice, the merging of Title
VI of the Civil Rights Act of 1964 with environmental policy. As
the United States Environmental Protection Agency's (EPA) and states
begin creating environmental justice policies, lawsuits have arisen
which could create huge costs and loss of business opportunities.
This has been done by challenging an agency's decision in issuing,
or even renewing, an environmental permit.
The case that has recently placed environmental justice in the national
headlines was over a proposed plastics plant to be built in a low
income area of Louisiana. The environmental justice complaint filed
against Shintech's proposed plastics plant caused great delay in
the permit process and, prior to final judgement, Shintech decided
to move and scale down the proposed plant. Ultimately, the suit
cost the state of Louisiana jobs.
Title VI and the Environment
Environmental justice became a national priority on February 11,
1994 when President Clinton issued Executive Order #12898. The Order
directs federal agencies with programs that effect public health
and the environment to meet the nondiscrimination requirements of
Title VI of the Civil Rights Act of 1964, which prohibits discrimination
on the basis of race, color or national origin under any activity
or program receiving federal funding. While Title VI prohibits intentional
discrimination, the Supreme Court has ruled that federal agencies
may adopt implementing regulations that also prohibit discriminatory
effects. EPA' s Title VI regulations prohibit facially-neutral policies
or practices that result in discriminatory effects unless they are
shown to be justified and there is no less discriminatory alternative.
Many state and local agencies receive federal monies to administer
environmental programs. As a condition of receiving the money, the
agency must comply with EPA's Title VI regulations in all of its
programs and activities.
EPA's Interim Guidance
EPA has received more than 50 civil rights complaints in the past
5 years, half of which are still pending. In February 1998, EPA
released its "Interim Guidance for Investigating Title VI Administrative
Complaints Challenging Permits" (Interim Guidance) to establish
a method for EPA to address Title VI complaints. The Agency did
not allow for comments prior to its release and implementation.
State regulators were deliberately excluded from the drafting of
the Interim Guidance because EPA feared they would delay the release
of the Guidance.
Title VI complaints alleging either discriminatory intent and/or
discriminatory effect are filed with EPA. EPA issued this Interim
Guidance to provide notice of how Title VI complaints would be handled.
The Interim Guidance requires state programs wishing to avoid equity
complaint s to incorporate demographic issues, land use decisions
and other data into their siting and permitting decisions. In addition,
the Interim Guidance allows EPA to review (second guess) permits
written by states if environmental justice complaints are filed.
If EPA finds discrimination in a program receiving EPA monies, EPA
is required by its Title VI regulations to deny, annul, suspend
or terminate EPA funding. EPA may also refer the matter to the Department
of Justice.
EPA began using the Interim Guidance upon its release to handle
pending Title VI complaints. EPA did not seek public comment until
after implementing the Interim Guidance; the comment period closed
May 6, 1998. In addition to receiving comments after release of
the Interim Guidance, E PA formed a Title VI Implementation Advisory
Committee to consider changes to the Guidance. The advisory committee
was comprised of representatives from state and local governments,
industry, academics, tribes and environmental groups.
EPA is still reviewing the comments it received and hopes to publish
draft guidance in late spring. Anne Goode, Director of EPA's Office
of Civil Rights, has been meeting informally with interested parties
to discuss the Interim Guidance. EPA plans to establish a stakeholders
group to work with EPA in drafting new guidance.
In November 1998, EPA committed to scrap language in its Interim
Guidance that would allow investigators to consider outside issues,
such as cultural or social impacts, if a complaint filed against
a state was also based on issues directly under state authority.
EPA and the states have also discussed the possibility of creating
"incentives" for states that have environmental justice
mechanisms built into their decision-making process. EPA hopes to
finalize the guidance in July.
Criticisms to EPA's Interim Guidance
At a spring 1998 meeting, an organization of state environmental
commissioners (the Environmental Council of the States - ECOS) passed
a resolution calling for EPA to withdraw its proposed Title VI Interim
Guidance until a number of issues can be worked out with the states.
According to the Commissioners, EPA's Interim Guidance would "conflict
with current State and local land use laws, including brownfields,
urban redevelopment and revitalization, and zoning; does not provide
definitions, methodologies and standards which are precise or based
on sound, peer-reviewed science; and was not developed with the
input of the States, who have primary responsibility for implementing
most of the nation's environmental protection programs".
ECOS held a workshop for its members on environmental justice and
Title VI September 1998. Texas, New Jersey and Connecticut made
presentations on their environmental justice efforts.
Local officials have also voiced their opposition to EPA's Interim
Guidance. At their 1998 Annual Meeting, the United States Conference
of Mayors (USCM) unanimously adopted a resolution, drafted by Detroit
Mayor Dennis Archer, calling for EPA to suspend its Interim Guidance.
The USCM resolution states that EPA's environmental justice policy
will discourage industry from redeveloping cities, like Detroit,
and does not allow enough opportunity for public input before permits
are issued.
On July 17, 1998, Mayor Archer hosted a conference in Detroit where
EPA Administrator Carol Browner met with mayors and city officials
to discuss the environmental justice policy. Administrator Browner
stated that environmental justice concerns can be addressed early
in the permit process before they become an issue. Administrator
Browner also assured those who attended the conference that the
guidance was "interim" and no final decision would be
made on the policy until input had been received from the mayor
and other interested parties.
EPA's Interim Guidance was poorly received on Capital Hill as well.
Both Republicans and Democrats attacked the Interim Guidance. A
provision of the EPA's FY1999 funding bill prohibits the agency
from using its Interim Guidance to investigate new environmental
justice complaints until the guidance is finalized. The House Commerce
Committee held a hearing on environmental justice August 6, 1998,
where Representative John Dingell (D-MI) blasted EPA for not considering
the potential economic effects and not including other stakeholders
in the drafting of the Interim Guidance.
In addition to opposition from government officials, members of
industry have come out against EPA' s Interim Guidance. On May 1,
1998, the U.S. Chamber of Commerce wrote President Clinton voicing
its opposition to the Interim Guidance. Industry representatives
have expressed concern that Title VI complaints could extend the
already costly and lengthy permit process without improving the
environment. Besides driving industry away from cities, the threat
of a Title VI complaint could discourage modification of permits
even if the modification would be beneficial to the environment.
States offer Alternatives
EPA is not the only regulatory agency that is attempting to address
environmental justice. States are also beginning to develop ways
for their environmental programs to consider environmental justice.
The New Jersey Department of Environmental Protection (NJDEP) is
developing its own "environmental equity" policy, which
it hopes to offer as an alternative to EPA's proposed Title VI Interim
Guidance. Unlike EPA, New Jersey held stakeholder meetings with
selected representatives of the agency, industry and environmental
groups throughout its policy development. NJDEP has produced a draft
environmental justice policy which it hopes to release for public
comment later this year. Eventually, NJDEP plans to modify its rules
to incorporate the environmental equity policy into its programs.
New Jersey has also established a permanent advisory council on
environmental equity to advise the Department of Environmental Protection
as it implements its model program.
The goal of New Jersey's environmental equity policy is to prevent
Title VI complaints, such as the one involving the proposed Shintech
plant in Louisiana. Environmental equity indicators will be developed
and used to determine "environmental equity communities".
When an environmental equity issues could arise, the policy would
provide a way for stakeholders to become involved early in the permitting
process, so that there is an opportunity to work out any problem
before a siting decision is made or a permit is written.
NJDEP hopes that EPA will accept the state's policy as an alternative
method in dealing with environmental justice complaints, and provide
immunity to companies participating in their outreach program from
EPA Title VI siting and permitting challenges. The immunity would
encourage all parties to address environmental equity issues early
in the permitting process and prevent massive delays in permitting
decisions.
In November 1998, New Jersey was awarded a $100,000 grant from EPA
to implement a model program promoting environmental equity in minority
and urban areas. EPA has also awarded $100,000 grants to Vermont,
Tennessee, Texas and the Kalisple Tribe of Indians in the Pacific
Northwest to address environmental justice issues.
Other states are also addressing environmental justice independent
of EPA efforts. Connecticut, Maryland, New Hampshire, Oklahoma and
Texas all have their own environmental justice policies, while Massachusetts
and Pennsylvania have begun to develop their own programs.
Conclusion
It is unclear what form EPA's Final Guidance on Environmental Justice
will take, or how many states will develop their own environmental
justice policy. The bringing together of environmental and civil
rights laws has already had an effect on several permitting decisions
and it could have a dramatic effect on environmental regulation
in the future. Federal, state and local government officials are
debating just how environmental justice issues should be addressed,
and who should address them. The results of these debates will shape
environmental regulation far into the next millennium.
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