John S. Irving is Senior Counsel in our
Washington D.C. office
Nicholas Targ is a partner in our
San Francisco office
Environmental justice – a mix of environmental and civil rights law and policy – is receiving increased attention in the Obama Administration, bringing with it challenges and opportunities for municipalities, facilities and others operating in low-income and minority communities. Now is the right time to take stock of your environmental justice situation and take any prudent proactive steps.
What Is Environmental Justice – And What Are The Implications For The Obama Administration?
Federal agencies, including the Department of Justice and Environmental Protection Agency, have concluded that low-income and minority communities bear a greater environmental risk than the general population. Environmental Justice advocates also point out that members of these communities frequently do not have comparable, meaningful access to the decision-making process due to a lack of financial and technical resources, and language and cultural barriers.
The Environmental Protection Agency defines "environmental justice" as:
[T]he 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 ... It will be achieved when everyone enjoys the same degree of protection from environmental and health hazards and equal access to the decision-making process to have a healthy environment in which to live, learn, and work.
President Clinton first took action on the issue of environmental justice on February 11, 1994, when he signed Executive Order 128981, "Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations." The Order, which remains in effect, directs "each Federal agency [to] 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 in the United States ... ." In addition, the Order directs each agency to "develop an agency-wide environmental justice strategy."
The Justice Department issued guidelines for EJ cases2 on January 9, 1995, and issued an undated EJ Strategy document3 shortly thereafter.
Federal And State Officials And The Courts Are Increasingly Taking Environmental Justice Seriously Under The Obama Administration.
While the issue of environmental justice received programmatic attention (e.g., grant programs) and efforts were made to better integrate environmental justice into EPA's work under the Bush Administration, environmental justice has received renewed attention under the Obama Administration.
Key Senior Environmental Leadership In The Obama Administration Have A Demonstrated Track Record Of Attention To Environmental Justice.
On November 5, 2009, the United States Senate confirmed Ignacia Moreno as the new Assistant Attorney General (AAG) for the Justice Department's Environment and Natural Resources Division, which enforces a wide variety of both civil and criminal environmental laws. AAG Moreno's Senate questionnaire, 4 among other things, explains that she coordinated the development of the Environment and Natural Resources Division's guidance on and strategy for implementing the executive order on environmental justice, and worked with the Department of Justice's environmental justice team regarding the same when she served as Counsel to Lois Schiffer, who held the AAG position in the Clinton Administration.
EPA Administrator Lisa Jackson, whose mother lived in the Lower Ninth Ward of New Orleans and sought refuge in the Superdome during Hurricane Katrina, made her first public address at a conference sponsored by West Harlem Environmental Action, Inc., a prominent environmental justice advocacy organization. The Administrator has consistently made a point of emphasizing environmental justice in public speeches and policies statements during her tenure.
Administrator Jackson's message has reached EPA leadership and staff. Recently, environmental justice leaders from across the country, including one of the authors of this alert, were invited to participate in a lengthy discussion about the way environmental justice is and should be considered in EPA's enforcement initiatives and priorities.
We anticipate that issues of disproportionate risks and concentrations of pollutants will play a significant role in EPA enforcement decisions – in ways ranging from targeted inspections and case selection to penalty determination and implementation of Supplemental Environmental Projects.
Judicial Review Of EPA Action Will Further Focus Attention On Environmental Justice.
Taking EPA to task for its "consistent pattern of delay" in investigating environmental, civil rights-based claims, the Ninth Circuit Court of Appeals' decision in Rosemere Neighborhood Association v. EPA 581 F.3d 1169 (9th Cit. 2009)5 will focus the Agency's already primed attention to environmental justice. In stark language, the Court ruled that the petitioner's lawsuit, which EPA had argued was moot, should go forward because the petitioners' affected community faced a "realistic danger of sustaining a direct injury as a result of the agency's disregard of its own regulations."
Looking Ahead
During the next few months, municipalities, companies, and other facility owners and operators can expect environmental justice efforts at EPA and Department of Justice to increase. We anticipate that the agencies will integrate environmental justice into their enforcement and regulatory program as follows:
- criminal and civil enforcement actions and initiatives (e.g., inspections and enforcement actions pertaining to storm water discharge, drinking water issues, lead-based paint, and asbestos-related "worker endangerment" criminal cases)
- programmatic work (e.g., evaluating brownfield grant applications, in part, on environmental justice criteria)
- establishment of regulatory standards (e.g., air quality standards for fine particulate matter)
- communications (e.g., press releases)
Further, as documented in a 50-state study of environmental justice law which was published in early November 2009 by the University of California Hastings in conjunction with the American Bar Association, environmental justice laws and strategies will be increasingly implemented at the state level as well. See, Environmental Justice for All: A Fifty-State Survey of Legislation, Policies and Cases.6
Take Action Now
If your company or municipality is located in or around a low-income minority community, we recommend proactive assessment of your environmental justice situation. There are a few simple steps that can be taken. These include:
- identifying low-income and minority communities potentially impacted by your operations; this can be done, at a desktop level, using a tool that EPA has developed, the Environmental Justice Geographic Assessment Tool7
- evaluating your compliance program to ensure that it is effective, updated and that employees are properly trained
- ensuring that any discharges (particularly those involving air and water) are within permitted limits
- preparing for inspections by ensuring that required records are complete and accurate
- initiating or continuing to foster a relationship between your operations and the surrounding community
Holland & Knight attorneys are nationally recognized for their experience in issues related to environmental justice, as well all other areas of environmental and land use law, and government relations.
Footnotes
1. http://www.epa.gov/oswer/ej/html-doc/execordr.htm
2. http://www.justice.gov/enrd/ENRDFiles/79647executiveorder.pdf
3. http://www.justice.gov/enrd/ENRDFiles/79648environmentaljusticestrategy.pdf
5. http://www.rosemerena.org/home/wp-content/uploads/2009/09/EPAAppeal-Decision.pdf
6. http://www.uchastings.edu/centers/public-law/environmental-justice.html
7. http://www.epa.gov/compliance/environmentaljustice/assessment.html
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
