by
Suzanne
Lowe
Bill Analysis
Coordinator
and Legal Counsel
October 1999
The author wishes to thank Patricia Spitzley, formerly of the Michigan Department of Environmental Quality, for providing information about environmental justice complaints in Michigan and the Department's environmental justice working group. Word-processing was performed by Linda Scott, Bill Analysis Secretary of the Senate Fiscal Agency.
-- Executive Order 12898 and Title VI of the Civil Rights Act
RESPONSE TO EPA'S INTERIM GUIDANCE
-- James M. Seif, et al. v Chester Residents Concerned for Quality Living
-- State Legislative Responses
-- Scope of Environmental Justice
Generally speaking, environmental justice refers to the concept that the enforcement of environmental regulations should not discriminate against minorities, ethnic groups, or low-income populations. The environmental justice movement originated from community activism approximately 20 years ago, and was fueled by research showing that incinerators and landfills were disproportionately located in minority and low-income neighborhoods. In 1994, President Clinton signed an environmental justice executive order. Subsequently, in February 1998, the U.S. Environmental Protection Agency (EPA) issued Interim Guidance for investigating environmental justice complaints. At this time, the EPA is in the process of rewriting the Interim Guidance, and is expected to issue final guidance perhaps by the end of 1999. It is unclear whether the Interim Guidance remains viable, or whether the final guidance will be an enforceable regulation or simply advisory.
At first blush, the concept of environmental justice would seem to have wide appeal. Most people presumably would agree that all individuals are equally entitled to a safe and clean environment in which to live, work, and raise families. Nevertheless, the implementation of this concept has resulted in considerable adversity at the local, state, and Federal levels. While disagreement over environmental issues is neither new nor uncommon, the debate about environmental justice has been rather vehement. Much of the discontent has stemmed from the role of the EPA, and much of the opposition has involved the economic impact of environmental justice on both industry and the workforce. In addition, many people remain unconvinced that pollution-causing activities have a disparate impact on specific populations.
This paper reviews the background of the environmental justice movement, the role of the EPA, the surrounding controversy, environmental justice complaints and litigation, and governmental involvement in the issue.
Definition
Although environmental justice sometimes is referred to as "environmental equity" or "environmental racism", it actually combines those concepts. Environmental equity holds that all populations should bear a proportionate share of environmental risks, while environmental racism refers to a policy or practice that affects the environment of an individual or group on the basis of race.1)
For purposes of this paper, "environmental justice" is used primarily in the context of the EPA's definition:
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. Fair treatment means
that no group of people, including racial, ethnic, or socioeconomic group
should bear a disproportionate share of the negative environmental consequences
resulting from industrial, municipal, and commercial operations or the
execution of federal, state, local, and tribal programs and
policies.2)
Said to be the first report to demonstrate the relationship between risk, race, and income, the Council on Environmental Quality's 1971 Annual Report to the President indicated that discrimination based on race adversely affected economically disadvantaged individuals' ability to raise the quality of their environment. In 1979, the environmental justice movement began at a more grassroots level when a Houston community group sued over a landfill. Although the group eventually lost the court case, its work produced some of the first research on environmental justice showing that most incinerators and landfills built in that city were in African-American neighborhoods.3)
The event that brought national attention to the movement took place in 1982, when African-American residents of Warren County, North Carolina, protested the decision to place a polychlorinated biphenyl (PCB) landfill in their community. This protest not only led to the arrests of hundreds of people, but also resulted in a 1983 study by the U.S. General Accounting Office (GAO) of hazardous waste sites in EPA's Region IV. The GAO study showed that three of the four largest hazardous waste sites in the Southeast were in African-American communities.4)
The next environmental justice milestone occurred in 1987, with the publication of a study by the United Church of Christ Commission on Racial Justice. "This national study identified a relationship between the locations of hazardous and toxic waste sites and communities of people of color, and that race was the predominant factor in the decision to place or expand a facility in a given location."5)
According to the National Conference of State Legislatures, the first national gathering on environmental justice was at the 1990 University of Michigan School of Natural Resources Conference on Race and the Incidence of Environmental Hazards. "The Michigan Coalition, composed of civil rights leaders, social scientists and environmentalists, was formed at this conference", and sent a letter to the EPA, "...demanding action on environmental risks in minority and low-income communities and on tribal lands". In response to this letter, then-EPA Administrator William Reilly established the Environmental Equity Work Group.6)
In 1992, the EPA's enforcement and remediation activities were analyzed and reported in a highly influential article in The National Law Journal. "The study revealed that there are significant disparities between fines levied against polluters located in people of color and non-people of color areas. In addition, EPA cleanups took longer to complete in poorer people of color communities."7)
In 1993, the EPA accepted its first environmental justice complaint: a Louisiana case filed by the Tulane University Environmental Law Clinic (the same group that later filed another Louisiana case, involving the Shintech Inc. PVC plant, which received national attention). At approximately the same time, the EPA formed the National Environmental Justice Advisory Council, a group of activists, local officials, and industry experts intended to serve as advisers.8)
On February 11, 1994, President Clinton
issued Executive Order 12898, entitled, "Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations". This order
and an accompanying memorandum require all Federal agencies to take environmental
justice into account. On February 5, 1998, the EPA issued its "Interim
Guidance For Investigating Title VI Administrative Complaints Challenging
Permits". In October 1998, Congress prohibited the EPA from spending funds
to implement the Interim Guidance with respect to complaints previously
filed (P.L. 105-276). In January 1999, the GAO found that the EPA's Interim
Guidance was a rule subject to the Congressional Review Act. 9)
Executive Order 12898 and Title VI of the Civil Rights Act
Executive Order 12898 essentially incorporates environmental justice into Federal agencies' decision-making criteria: "...each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations...". Among other things, the Executive Order created an interagency working group on environmental justice, required each Federal agency to develop an agency-wide environmental justice strategy, and prescribed Federal agency responsibilities. The order also specifies that it applies equally to Native American programs.
The Executive Order was accompanied by a memorandum directing the heads of all departments and agencies to take appropriate and necessary steps to ensure the immediate implementation of specific directives. The first directive is as follows:
In accordance with Title VI of the Civil Rights Act of 1964, each Federal agency shall ensure that all programs or activities receiving Federal financial assistance that affect human health or the environment do not directly, or through contractual or other arrangements, use criteria, methods, or practices that discriminate on the basis of race, color, or national origin. Each Federal agency shall analyze the environmental effects, including human health, economic and social effects, of Federal actions, including effects on minority communities and low-income communities, when such analysis is required by the National Environmental Policy Act of 1969 (NEPA)... [Emphasis added.]
Additional directives require each Federal agency to provide opportunities for community input in the NEPA process; require the EPA, when reviewing environmental effects of proposed actions of other Federal agencies under the Clean Air Act, to ensure that the involved agency has fully analyzed environmental effects on minority and low-income communities; and require each Federal agency to ensure that the public has adequate access to public information relating to human health or environmental planning, regulations, and enforcement.
Title VI of the Civil Rights Act states
the following: "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" (42 USC 2000d). The
definition of "program or activity" includes the operations of a department,
agency, or other instrumentality of a state or a local government, and
of the state or local entity that distributes Federal financial assistance
and each such department or agency to which the assistance is extended
(42 USC 2000d-4a).
The EPA's Interim Guidance states that it is, "...intended to provide a framework for the processing by EPA's Office of Civil Rights (OCR) of complaints filed under Title VI...alleging discriminatory effects resulting from the issuance of pollution control permits by state and local governmental agencies that receive EPA funding". As the Interim Guidance points out, the EPA awards grants to many state and local agencies that administer continuing environmental programs under the EPA's statutes. "As a condition of receiving funding..., recipient agencies must comply with the EPA's Title VI regulations...". Moreover, "...unless expressly exempted from Title VI by Federal statute, all programs and activities of a department or agency that receives EPA funds are subject to Title VI, including those programs and activities that are not EPA-funded".
The Interim Guidance contains specific steps for processing complaints. These include determining whether to accept a complaint; investigating whether a permit will create or increase a disparate impact on a racial or ethnic population; giving the permit recipient an opportunity to rebut a finding of a disparate impact, or to justify or mitigate a disparate impact; making a preliminary finding of noncompliance, which may include recommendations for voluntary compliance; and making a formal determination of noncompliance, after which the recipient has 10 days to achieve voluntary compliance. If the recipient is unable to come into compliance voluntarily, the EPA is required to initiate procedures to deny, annul, suspend, or terminate EPA funding. The EPA also may use any other means authorized by law to obtain compliance, including referring the matter to the Department of Justice for litigation, and may seek injunctive relief in appropriate cases.
In June 1998, Region V of the EPA (which includes Michigan) issued "Region 5 Interim Guidelines for Identifying and Addressing a Potential Environmental Justice Case". This document explains how Region V will determine (according to a "process flowchart") when it will treat a permitting, enforcement, or other action as a potential environmental justice case, and describes the consequences if a given matter is determined to be such a case.
According to an article in Michigan Lawyers Weekly10), the Region V guidelines provide little concrete guidance on how to determine whether a given area has suffered a disparate impact or disproportionate adverse effects from environmental pollution. Presently, the status of the Region V guidelines, like the EPA's Interim Guidance, is uncertain.
RESPONSE TO EPA'S INTERIM GUIDANCE
As one author put it, many politicians
and business organizations, as well as some state and local environmental
officials, are "unsympathetic" to environmental justice claims.11)
In
fact, the EPA's Interim Guidance raised considerable protest among many.
Being recipients of Federal funds, state and local environmental agencies
evidently have been subject to numerous Title VI complaints filed with
the EPA. As early as June 30, 1998, the Western Governors' Association
adopted a resolution urging the EPA to withdraw the guidance and develop
a new one in cooperation with state environmental agencies.12)
Also, a potential lawsuit against the EPA was being considered by a number
of state environmental officials across the country, including Russell
Harding, the Director of the Michigan Department of Environmental Quality.13)
Such
a lawsuit apparently was not filed, however. In addition, a state's lawsuit
against the EPA is unlikely unless the state can demonstrate that it has
been harmed by the policy--for example, as the result of an industry's
decision to locate a plant in a different state.14)
According to another Detroit News article, "Plans to pump billions of taxpayer dollars into the economies of America's large cities may be undermined, too."16) For example, empowerment zones that give tax breaks to businesses locating in poor areas could lose much of their appeal, and brownfield programs designed to encourage development of abandoned industrial land could be critically threatened. As a result, by shifting industry from older neighborhoods to less populated sites, the environmental justice policy could remove manufacturing jobs from the people who need them, contribute to urban blight, and jeopardize valuable greenspace.
Another matter of uncertainty is what to do if minorities voluntarily move into the area around an existing plant. "Often, the land in areas around a polluting factory will fall in value. As it falls, disproportionately poor and often minority people move into the neighborhood. At some point, that factory will have to renew its pollution permits and then environmental justice questions can derail the permits."17)
Also, the actual cost of complying with the policy could be staggering. Industry groups reportedly believe that compliance could cost more than a hundred billion dollars, while the EPA has put the cost at $10 billion spread across America's economy.18)
Part of what angered officials was the EPA's exclusion of state and local governments from its policy deliberations, as well as the agency's failure to consider the consequences of its environmental justice policy. In testimony before the U.S. House Commerce Committee, the EPA's civil rights chief, Ann Goode, reportedly conceded that the agency had no idea what impact its policy would have on economic growth in Detroit. Furthermore, "...Goode admitted that plants obeying all environmental laws and making no changes in their operations could still face environmental justice challenges under the new rules that 'could delay' much-needed permit renewals."19)
An additional reason for the adversity
was the EPA's refusal to release more than 1,000 pages of environmental
justice documents requested by a congressional committee investigating
the issue. This material apparently included a previously undisclosed analysis
casting serious doubt on charges that environmental laws were enforced
more strictly in predominantly white communities than in African-American
neighborhoods. According to a
Detroit News article, statistician
Bernard Sisken had been hired to analyze the statistics used by The
National Law Journal in its pivotal 1992 article. "[T]he EPA research
reveals every charge in the Journal report was either 'statistically insignificant'
or false. In one case, the Journal reported a 'racial gap in Clean Air
Act enforcement' but Sisken's analysis found that black neighborhoods actually
benefitted from stricter enforcement." Nevertheless, the 1992 study has
continued to be influential both within and outside the EPA.20)
In response to concerns raised about the EPA's Interim Guidance, particularly in a series of Detroit News articles, Congress placed limitations on the EPA's ability to implement the policy. A budget bill enacted in October 1998, making fiscal year 1999 appropriations for the EPA and other Federal entities, includes the following language: "...none of the funds made available in this Act may be used to implement or administer the interim guidance issued on February 5, 1998 by the Environmental Protection Agency relating to title VI of the Civil Rights Act of 1964...with respect to complaints filed under such title after the date of the enactment of this Act and until guidance is finalized" (P.L. 105-276). (It is anticipated that similar language also will be enacted for fiscal year 2000.22)) As it states, however, this restriction applies only to new claims; the EPA still has the authority to investigate previously filed civil rights complaints. This language also does not prevent new complaints from being filed.
A broad discussion of environmental justice complaints and litigation is beyond the scope of this paper, but several noteworthy cases are described below. This State has been the venue of two of the cases, one involving a lawsuit against the Michigan Department of Environmental Quality (DEQ), and the other involving a civil rights complaint filed with, and ultimately dismissed by, the EPA. Both of these cases, as well as a case out of Pennsylvania, received widespread attention. The EPA's dismissal of the civil rights complaint marked the Agency's first final environmental justice decision in the nation. The Pennsylvania case reached the U.S. Supreme Court, although the Court did not substantively decide the issue.
In 1992, the DEQ approved an application
of the Genesee Power Station Unlimited Partnership for a permit to operate
a wood waste incinerator, which began functioning in 1995.23)
In July 1995, the plaintiffs filed a complaint in the Genesee Circuit Court
alleging that the permit violated Title VI, the Equal Protection clause
of the Michigan Constitution, and the Michigan Environmental Protection
Act (which was subsequently recodified in the Natural Resources and Environmental
Protection Act). The plaintiffs' amended complaint also alleged a violation
of the provision for equal enjoyment of public services under Michigan's
Elliott-Larsen Civil Rights Act, and sought broad equitable relief to enjoin
the incinerator's operation and require the DEQ to alter the permit.
In January 1997, the Genesee Circuit Court granted the defendants summary judgment on the equal protection claim, and in February the parties stipulated to a dismissal of the claim under the Michigan Environmental Protection Act. The only remaining issue was the plaintiff's claim that the DEQ's policy had a disparate impact on minority communities in violation of the Elliott-Larsen Civil Rights Act. After a bench trial, the court denied this claim.24)
Nevertheless, the court held that the policies and regulations enforced by the State did not go far enough to carry out the State's constitutional duty to protect the health, safety, and welfare of its citizens.25) On May 29, 1997, the court enjoined the DEQ from granting permits to major air pollution sources until the DEQ performed a risk assessment, notified the interested parties and governmental units that would be affected, and gave them an opportunity to be heard before the Department.26)
The Michigan Court of Appeals vacated the injunction. The Court held that the trial court had no authority to issue an injunction sue sponte (of its own will) based on a claim that the parties had neither pleaded nor litigated. That is, the plaintiffs had not requested an injunction on the ground that the permitting process violated the State Constitution or the Natural Resources and Environmental Protection Act. The only claim that had been presented to the trial court was the plaintiffs' theory under the Elliott-Larsen Civil Rights Act. In regard to that claim, the Court of Appeals held, "...allegation that the DEQ failed to consider race in issuing the permit is simply not a denial of the full and equal enjoyment of the goods, services, privileges, advantages, or accommodations of a place of public accommodation or public service".
The decision of the Court of Appeals was not appealed to the Michigan Supreme Court.
On June 9, 1998, two individuals filed a complaint about the DEQ's issuance of a clean air permit to the Select Steel Corporation of American for a proposed steel recycling mini-mill in Genesee County. On August 17, 1998, the EPA Office of Civil Rights accepted the complaint for investigation. The complaint alleged that the issuance of the permit would lead to a discriminatory impact on minority residents, and that the DEQ's permitting process was conducted in a discriminatory manner.
Regarding the discriminatory impact, the
complaint claimed that the permit would violate Title VI of the Civil Rights
Act because "'the vast majority of the people within 3 miles of the proposed
site are minority Americans and will be burdened with a disparate impact
of pollution in an already deeply polluted area'".27) (The DEQ
argued, however, that the EPA's analysis should be limited to the impact
within one mile of the facility, where the population was approximately
94% white.) The allegation regarding the permitting process raised concerns
about the timing of the permit's issuance28), the notice and
location of a public hearing, and the relationship between the DEQ and
Select Steel, which had hired a former DEQ employee as a consultant.
Despite the EPA's dismissal of the complaint, the steel mill will not be built in Genesee County, after all. According to news reports, Select Steel Inc. will locate the 200-worker mill in Delta Township, just west of Lansing, instead.31) In addition, a number of environmental groups apparently have petitioned the EPA Office of Civil Rights to reverse its decision.32)
James M. Seif, et al. v Chester Residents Concerned for Quality Living
This lawsuit was filed in Federal district court by residents of Chester, Pennsylvania, who claimed that the Pennsylvania Department of Environmental Protection (DEP) violated Title VI by issuing a solid waste permit for a facility in Chester. The plaintiffs alleged that the facility would have a discriminatory impact on their minority community, which already was burdened by polluting facilities. In 1996, the Federal district court dismissed the suit because the plaintiffs had failed to allege intentional discrimination. The U.S. Court of Appeals for the Third Circuit then reversed, and the DEP petitioned the U.S. Supreme Court to hear the case.
In June 1998, the Supreme Court accepted the case for review, but dismissed it on August 17, 1998. The dismissal apparently was requested by the plaintiffs, after they learned that the DEP had revoked the permit for the proposed facility at the request of the permittee. Since nothing remained for the Supreme Court to decide, the case was moot. Although they had requested dismissal, the plaintiffs argued that the Supreme Court should not vacate the Court of Appeals decision, because the case became moot after that decision was made but before the Supreme Court had accepted the case for review. The Supreme Court, however, followed its usual practice of vacating the judgment below, in order to preserve the rights of the parties in future litigation.33)
Before the U.S. Supreme Court's dismissal,
the Third Circuit's action had been considered an important precedent for
a private right of citizens to sue their state for environmental discrimination.34)
Then, according to the National Chamber Litigation Center, "...business
and the cause of creating economic opportunities in urban areas won a big
victory..." with the Supreme Court's decision to dismiss.35)
It may be a mistake, however, to characterize the decision in this way.
Although the Supreme Court did remove the potential precedent of the Third
Circuit's ruling, the dismissal did not in any way rule on the merits of
the issue. The Supreme Court still has not addressed the question of whether
a private party may sue to enforce the Title VI regulation that prohibits
discriminatory effects.
State Legislative Responses
According to the National Conference of State Legislatures (NCSL), as of September 1995, at least 21 states had either introduced or enacted environmental justice legislation or had shown an interest in addressing the issue.36) At that time, 38 bills had been introduced and eight enacted. Three additional bills were enacted during 1997 and 1998.
The legislation cited by the NCSL varies widely in topic and scope. The measures range from a resolution adopted by the Michigan House of Representatives in 1994 (HR 662) memorializing Congress to enact environmental justice legislation, to bills establishing buffer zones around specific facilities or creating state investigatory or advisory bodies.
The more recently enacted measures come from Florida, Louisiana, and Maryland. In 1997, Maryland enacted House Bill 1350 to establish an advisory council on environmental justice, which was required to report and make recommendations to the governor and the general assembly by January 1, 1999. Also in 1997, Louisiana enacted House Bill 1826, which requires the environmental justice section in that state's Department of Environmental Quality to conduct a study on the discharge of toxins in minority communities. In 1998, Florida enacted House Bill 945 creating the Center for Environmental Equity and Justice, and requiring each state agency to include an environmental justice element in its agency functional plan.
The NCSL has suggested possible environmental justice actions that states can take. These pertain to information (e.g., gathering information through studies and commissions, and exchanging information through technical assistance and clearinghouses); prevention (e.g., involving stakeholders in planning and decision-making, and improving risk communication and community involvement); and mitigation (e.g., increasing enforcement, relocating undesirable land uses, and establishing buffer zones).
In Michigan, other than the House Resolution
mentioned above, it appears that no environmental justice legislation per
se has been enacted. One measure from the 1997-98 session, however, proposed
comprehensive environmental justice legislation. House Bill 5925 would
have defined "environmental justice" as it was defined by the EPA; required
public notice of an application for a permit that could adversely affect
human health or the environment; required the DEQ to hold a public hearing
upon the request of a citizen in the affected community; required enhanced
public participation if a potentially affected community included a minority
or low-income population; created the Office of Environmental Ombudsman
to provide technical assistance to affected communities; required the DEQ
to respond to citizen complaints about pollution or Department procedures;
required environmental and social impact assessments of potential effects
on affected communities; and created several rebuttable presumptions against
permitting the construction, modification, or operation of a pollution
source if certain conditions existed. This bill was introduced in June
1998 and referred to the House Committee on Conservation, Environment and
Recreation, which did not report the bill.
Although much of the environmental justice discussion focuses on the Federal government and the states, local units of government play a key role in environmental justice decision-making. In fact, while all levels of government must balance the economic benefits of certain land uses against potential health and environmental risks, the initial decisions often come at the local level. For example, a decision to grant a permit, waive a land use restriction, offer a tax exemption, or enact a zoning ordinance, may be the first thing to trigger environmental justice considerations. This in turn may lead to community activism, litigation, and/or a Title VI complaint, as demonstrated by the Select Steel and Genesee Power Station cases.
Obviously, the demography of a particular community or neighborhood may determine whether environmental justice, as interpreted by the Federal government, is even an issue. The factors that influence this determination are less obvious. It is not clear, for instance, what distance (e.g., one mile or three miles) from a proposed facility should be used to measure a neighborhood's racial composition; whether it matters that a neighborhood grew up around an existing facility that wants to renew its permit; or whether preexisting pollution from other sources should be considered.
Another factor is the impact that one local unit's decision can have on the residents of an adjacent local unit. This is an issue that influenced the trial court's decision in the Genesee Power Station case. As the court pointed out, the DEQ "...does not have rules that give it authority to set policies that are designed to give protection to the adjacent community".37)
While conflicts between local units of government may require state intervention, either to address specific situations or to enact a regulatory framework, cooperation among local units also may resolve or prevent environmental inequities. Furthermore, when a final decision must be made at the state level, the local unit's participation in the decision-making process could avert future claims of discrimination. According to Ann Goode, Director of the EPA Office of Civil Rights, "...EPA believes that many of the issues raised in the context of Title VI administrative complaints could be better addressed through early involvement of affected communities in the permitting process. Such consultations will better ensure that communities are fairly and equitably treated with respect to the quality of their environment and public health, while providing State and local decision makers and businesses the certainty they deserve."38)
Executive Order 12898 specifies, "Each
Federal agency responsibility set forth under this order shall apply equally
to Native American programs." In other words, when Federal agencies, such
as the Bureau of Indian Affairs, make decisions affecting Native Americans,
the agencies must include environmental justice in their decision-making
criteria. Since Native Americans are both people of color and members of
affected communities, it stands to reason that environmental justice concerns
should be extended to this population. As sovereign entities, however,
tribes and their governing bodies have unique powers of self-determination.
In addition, many economic and cultural factors may influence Native American
perspectives. For example, the potential revenue from leasing land for
mineral extraction or waste storage may conflict with the desire to preserve
cultural integrity. According to the NCSL, "It is important that other
stakeholders realize the depth of the roots of Native American culture,
religion, history and psyche in the natural environment."39)
Scope of Environmental Justice
Environmental justice means many things to many people. For the most part, this paper has focused on the interpretation used by the Federal government. Even this relatively narrow context can give rise to certain misapprehensions, however. For example, not all undesirable land uses take the form of pollution-spewing factories, incinerators, or landfills. Seemingly innocuous uses, such as churches and hospitals, can raise environmental justice concerns because of the increased traffic or medical waste they may generate. Moreover, the targets of environmental justice complaints are not always industrial or governmental entities. In 1990, charges of environmental discrimination were made against the 10 largest environmental organizations in the United States, including the Sierra Club, for allegedly setting their agendas without including people of color or low-income populations.40)
In addition, pesticide use and occupational health and safety issues can fall within the purview of environmental justice. An Internet site created at the University of Michigan describes diverse situations under the heading of "environmental justice cases". These include reports on inner-city residents' use of methyl parathion (an illegal insecticide commonly used as a roach killer); and a lawsuit brought against the Gerber Products Company by employees who were exposed to a methyl bromide pesticide (a gas used to fumigate fruits, nuts, and grains). Another already sensitive topic--the liability of responsible parties to pay for cleanup costs--is called "a hot topic in environmental justice".41)
Although the parameters of "environmental justice" may seem virtually unlimited, not every potential environmental justice issue turns out to be one. According to an article in Governing, in response to claims that minority neighborhoods bore a disproportionate share of environmental risks, Albuquerque officials in 1996 directed the city's Environmental Health Department to conduct a two-year study employing digital mapping technology to match the location of nearly 1,400 facilities to racial, income, and other characteristics of surrounding residential neighborhoods. "To officials' surprise, the data showed that neither neighborhoods with large populations of Hispanics nor areas with concentrations of poor people were disproportionately impacted... The strongest correlation the study turned up was to the level of political participation: Few of the sites are located in precincts--regardless of ethnic, poverty or other social characteristics--where at least two-thirds of the eligible voters turn out in an average election." 42)
On January 20, 1999, the General Counsel
of the GAO issued a letter stating that the EPA's Interim Guidance is a
"rule" under the Congressional Review Act portion of the Small Business
Regulatory Enforcement Fairness Act, and is subject to congressional review
in accordance with that Act.43) Under the law, the agency promulgating
a rule must submit certain documents to each house of Congress and to the
Comptroller General; once a rule is submitted, special procedures for congressional
consideration of a joint resolution of disapproval are available. Clearly,
the EPA failed to follow this process in issuing the Interim Guidance,
but the General Counsel's letter did not address the consequences of this
failure. For example, it is not clear whether the Interim Guidance remains
valid, whether the EPA's decisions made pursuant to the Interim Guidance
are enforceable, or whether the final guidance must be promulgated in compliance
with the Congressional Review Act.
In 1998, Russell Harding, Director of the DEQ, established an environmental justice working group that includes representatives of major industry (such as General Motors and Ford), environmental law firms, trade associations, and environmental groups, as well as community representatives.47) The group began meeting in August 1998, and formed a number of subgroups in such areas as disparate impact, local government and zoning, and community outreach. The purpose of the group has been to develop guidance for the DEQ to follow at the beginning of the permitting process, rather than responding to complaints once the process is under way. The guidance will identify specific actions for the Department to take, such as contacting community leaders and affected residents, at the time a permit application is submitted. As of the end of September 1999, the working group was finalizing a compilation of the subgroups' recommendations. After an opportunity for public comment, the DEQ will review the results and decide how to proceed.48)
The DEQ believes that this proactive approach will be more effective than the EPA's guidance in addressing environmental justice issues. Considering the nationwide reaction to the Interim Guidance, the letter from the GAO, and the uncertainty about the EPA's final guidance, it appears likely that the DEQ's approach will be both more effective and far more popular.
1) National Conference of State Legislatures, Environmental Justice: A Matter of Perspective, September 1995.
2) "Final Guidance For Incorporating Environmental Justice Concerns in EPA's NEPA Compliance Analyses", U.S. Environmental Protection Agency Office of Federal Activities, April 1998.
3) Op. Cit.-Note1).
4) "Environmental Justice Highlights", The Detroit News, June 28, 1998.
5) Calloway, C.A., Decker, J.A., "Environmental Justice in the United States - A Primer", Michigan Bar Journal, January 1997.
6) Op. Cit.-Note1).
7) Op. Cit.-Note5).
8) Op. Cit.-Note4).
9) Letter from Robert P. Murphy, General Counsel, General Accounting Office, to The Honorable David M. McIntosh, U.S. House of Representatives, January 20, 1999.
10) Dunskey, C.J., "'Environmental Justice' Issues Facing Michigan", Michigan Lawyers Weekly, June 29, 1998.
11) Calloway, C.A., "EPA, Title VI, Permits & 'Environmental Justice'", Michigan Lawyers Weekly, December 18, 1998.
12) "Environmental Justice Developments May Affect State Programs", National Governor's Association Center For Best Practices, August 1998.
13) Mastio, D., "Revolt Brews Against EPA: States Plan Lawsuits", The Detroit News, September 18, 1998.
14) Telephone conversation with Gary Hughes, Michigan Department of Environmental Quality, February 11, 1999.
15) Mastio, D., "'Environmental Justice' impact threatens Rust Belt", The Detroit News, June 29, 1998.
16) Mastio, D., "EPA plan risks Metro growth", The Detroit News, April 19, 1998.
17) Pepper, J., "Pollution rules stink for urban cities, minorities who need jobs", The Detroit News, May 31, 1998.
18) Mastio, D., "Lobbyists meet
over EPA rules", The Detroit News, February 7, 1999.
20) Mastio, D., "EPA keeps key documents secret", The Detroit News, July 17, 1998.
21) Mastio, D., "EPA race policy under fire again", The Detroit News, August 24, 1998.
22) Telephone conversation with Jeff Onizuku, office of Congressman Joe Knollenberg, September 29, 1999.
23) The description of the Genesee Power Station case was derived primarily from the unpublished opinion of the Michigan Court of Appeals, NAACP-Flint Chapter, et al. v Governor of Michigan and Department of Environmental Quality, No. 205264, November 24, 1998.
24) The plaintiffs claimed that, "...the policies of the Michigan Department of Environmental Quality violate the public accommodations and services section of the Michigan Elliott-Larsen Civil Rights Act by causing a disparate environmental impact on minority communities in Genesee County when those policies do not take into account the race of a community when decisions are made to grant permits to pollution facilities."
The Genesee Circuit Court held that the plaintiffs had failed to show by a preponderance of the evidence that the DEQ's policy of not considering race in granting permits to polluting facilities caused African-Americans to be located near major polluting facilities in Genesee County, or that this policy had caused a disparate impact on African-Americans in the county. (Transcript of the proceedings of May 29, 1997, Case No. 95-38228-CV.)
25) Article IV, Section 51 of the State Constitution provides, "The public health and general welfare of the people of the state are hereby declared to be matters of public concern. The legislature shall pass suitable laws for the protection and promotion of the public health." Article IV, Section 52 states, "The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction."
26) Transcript of the proceedings of May 29, 1997, Case No. 95-38228-CV.
27) Investigative Report for Title VI Administrative Complaint File No. 5R-98-R5 (Select Steel Complaint), U.S. Environmental Protection Agency Office of Civil Rights.
28) The complainants alleged
that the DEQ issued the permit on an expedited basis in order to avoid
the permitting requirements imposed by the Genesee Circuit Court in the
Genesee Power Station case, which was then under appeal. The EPA found
that the five months between receipt of the complete application and permit
approval actually was slower than the average time of one and a half months
for the previous 26 clean air permits approved by the DEQ. (U.S. Environmental
Protection Agency Office of Civil Rights letter from Ann E. Goode to Fr.
Schmitter, Sr. Chiaverini, and Mr. Harding, October 30, 1998.)
30) Op. Cit.-Note 27).
31) Martin, T., "Steelmaker Chooses Delta Site", Lansing State Journal, April 7, 1999.
32) Telephone conversation with Patricia Spitzley, Michigan Department of Environmental Quality, March 19, 1999.
33) "Chester Lawsuit Declared Moot by U.S. Supreme Court", http://www.penweb.org/chester/moot.html.
34) "Environmental Justice Developments May Affect State Program", National Governors Association Center for Best Practices", August 1998.
35) Business Alert, National Chamber Litigation Center, August 19, 1998.
36) Op. Cit.-Note1).
37) Op. Cit.-Note26).
38) Op. Cit.-Note29).
39) Op. Cit.-Note1).
40) Op. Cit.-Note1).
41) "The Environmental Justice Information Page", http://www-personal.umich.edu/~jrajzer/nre/index.html.
42) Arrandale, T., "Albuquerque GIS Turns Up Some Environmental-Risk Surprises", Governing, January 1999.
43) Op. Cit.-Note9).
44) Op. Cit.-Note32).
45) Telephone conversation with Lynn Buhl, Michigan Department of Environmental Quality, September 29, 1999.
46) Op. Cit.-Note22).
47) Op. Cit.-Note32).
48) Op. Cit.-Note45).