Publications
Merging Civil Rights and Environmental Policy
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 (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.
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 Interim Guidance requires state programs wishing to avoid equity
complaints 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 state permits 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.
Criticisms to EPA's Interim
Guidance
Some of the criticisms leveled against the Interim Guidance are:
it would discourage redevelopment of cities; it is vaguely written;
it was developed without stakeholder input; it does not allow enough
opportunity for public input before permits are issued; and 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
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. 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. When an environmental equity issue
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.
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 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 millenium.
Published 1999
|
