Addressing The Problem: The Legislative Branches

• Author: Barry E. Hill
• Profession: Senior Counsel for Environmental Governance, Office of International Affairs, U.S. Environmental Protection Agency
• Pages: 127-182

Chapter 3

ADDRESSING THE PROBLEM: THE LEGISLATIVE

BRANCHES

3.1 Overview

Since 1990, environmental justice legislation has been introduced in Congress and in state legisla-

tures with increasing frequency. On the whole, state legislatures have been more successful than

Congress at enacting legislation, issuing proclamations, or establishing commissions and task forces

to address the issues of environmental justice.

The American Bar Association’s (ABA’s) Environmental Justice Committee (within the ABA

Section of Individual Rights and Responsibilities) commissioned the Public Law Research Institute

of Hastings Law School to study the environmental justice legislation, policies, and other initiatives

in the 50 states. In 2004, the ABAreleased the study, Environmental Justice for All: A Fifty-State Sur-

vey of Legislation, Policies, and Initiatives.2It found that since the ABA’s environmental justice pol-

icy statement was issued in August 1993, “more than 30 states have expressly addressed environ-

mental justice, demonstrating increased attention to the issue at a political level. The wide-range and

variety of policy strategies and approaches used by states, however, suggests that the issue will con-

tinue to mature over the coming years.”3The ABA’s August 1993, environmental justice policy state-

ment supported, among other things, the implementation and enforcement of existing environmental

laws, regulations, and policies by federal, state, territorial, and local governments “so that a dispro-

portionate share of the burden of environmental harm does not fall on minority and/or low-income in-

dividuals, communities, or populations.” The ABA environmental justice policy statement is dis-

cussed in detail in Chapter 6.

The measures highlighted in the ABA survey reflect the realization by a number of state legisla-

tures that first, the disproportionate exposure of minority and/or low-income communities to envi-

ronmental harms and risks is related to social, economic, and racial characteristics; and that second,

the inequities could be addressed through legislation. On the other hand, at the federal level, little had

been done legislatively since the mid-1990s, due largely to the fact that the Republican party had

been in control of Congress.

3.2 Federal Legislation

3.2.1 In the Absence of Specific Environmental Justice Legislation

Since no environmental justice legislation had been enacted at the federal level, the question was

what could be done by the U.S. Environmental Protection Agency (EPA),using its discretionary au-

thority, to address environmental justice concerns using existing environmental statutes. The under-

127

2. Section of Individual Rights & Responsibilities, ABA, Environmental Justice Committee, http://www.abanet.org/irr/

committees/environmental (last visited May 22, 2008).

3. Id.

lying question was whether environmental justice, as a goal to be achieved by the federal govern-

ment, was imbedded in existing environmental laws. The articles and documents in this section will

demonstrate how the federal government has responded to that central question.

Prior to the federal government fully embracing the notion that existing environmental laws could

be used successfully to address environmental justice concerns, there were a series of law review arti-

cles and other documents, which built upon the August 1993, ABA environmental justice policy

statement. In a 1998 law review article, Prof. J.B. Ruhl of the Florida State University College of Law

described how both environmental justice and sustainable development were evolving toward en-

forceable “hard law” in the United States.4He argued that both have to evolve through seven degrees

of real-world relevance, with the seventh degree being defined as when “[t]he norm is fully trans-

formed into law to apply measurable, rationalized, routine standards of environmental evaluation,

authorization, and performance.”5Professor Ruhl concluded that environmental justice had not

reached the seventh degree but was in the sixth degree of relevance.

In 1999, Prof. Richard Lazarus and Stephanie Taipublished an article that laid the groundwork for

further examination of EPA’s statutory authorities.6Authority,18Ecology L.Q. 617 (1999). Their

article examined how existing environmental laws would allow EPA,as a regulatory authority, to use

its discretionary authority to address environmental justice concerns by placing certain conditions in

a permit to operate a pollution-generating facility. Their article, and the Ruhl article, laid the ground-

work for an important memorandum by EPA’s Office of General Counsel (OGC).

In 2000, the EPA general counsel in the Clinton Administration issued a legal opinion that ana-

lyzed “a significant number of statutory and regulatory authorities under the Resource Conservation

and Recovery Act [(RCRA)], the Clean WaterAct [(CWA)], the Safe Drinking WaterAct [(SDWA)],

the Marine Protection, Research, and Sanctuaries Act [(MPRSA)], and the Clean Air Act [(CAA)]

that the [OGC] believes are available to address environmental justice issues during permitting.”7

This was the first time that the Agency’s chief legal officer stated in writing that environmental jus-

tice, as a goal to be achieved, was imbedded in existing environmental laws. The 2000 legal opinion

was the culmination of previous efforts by the OGC to explore the issue internally. On February 25,

1994, there was an internal OGC legal memorandum entitled “Environmental Justice Law Survey,”

which was “an initial analysis of EPA’sstatutory and regulatory authority to promote environmental

justice.”8On May 6, 1994, the general counsel advised the EPAAdministrator and Deputy Adminis-

trator in a legal memorandum entitled “Environmental Justice Law Survey,” stating: “The survey

serves as a basis for identifying the range of possible legal options available to the program offices to

promote environmental justice.”9

In 2001, continuing with the theme that environmental justice, as a goal to be achieved, was im-

bedded into existing environmental laws, EPAAdministrator Christine Todd Whitman in the Bush

Administration issued a memorandum to senior staff on environmental justice where she stated:

“Environmental statutes provide many opportunities to address environmental risks and hazards in

minority communities and/or low-income communities. Application of these existing statutory

128 ENVIRONMENTALJUSTICE: LEGAL THEORY AND PRACTICE

4. J.B. Ruhl, The Seven Degrees of Relevance: Why Should Real-World Environmental Attorneys Care Now About

Sustainable Development Policy?,8Duke Envtl. L. & Pol’y F. 273 (1998).

5. Id. at 289.

6. Richard J. Lazarus & Stephanie Tai, Integrating Environmental Justice Into EPA-Permitting

7. Memorandum from Gary S. Guzy, General Counsel, OGC, to Steven Herman, Assistant Administrator, Office of

Enforcement and Compliance Assistance, U.S. EPA, EPA Statutory and Regulatory Authorities Under Which

Environmental Justice Issues May Be Addressed in Permitting 1 (Dec. 1, 2000), available at http://www.epa.gov/

Compliance/resources/policies/ej/ej_permitting_authorities_memo_120100.pdf.

8. Memorandum from OGC, to staff, Environmental Justice Law Survey 1 (Feb. 25, 1994).

9. Memorandum from Jean C. Nelson, General Counsel, OGC, to Carol M. Browner, Administrator, U.S. EPA,

Environmental Justice Law Survey 1 (May 6, 1994).

provisions is an important part of this Agency’s effort to prevent those communities from being sub-

ject to disproportionately high and adverse impacts, and environmental effects.”10

As a result of the 2000 OGC legal memorandum and Administrator Whitman’s 2001 memoran-

dum, EPA’s Office of Environmental Justice (OEJ) undertook to support several publications and

videos to delineate the statutory authority of EPAas it relates to environmental justice. In 2001, the

OEJ commissioned the Environmental Law Institute (ELI) to prepare a treatise entitled Opportu-

nities for Advancing Environmental Justice: An Analysis of U.S. EPAStatutory Authorities. It “re-

view[ed] the provisions contained in the principal federal environmental laws administered by EPA,

in order to identify authorities that potentially could be used to advance a variety of environmental

justice goals in the agency’s programs.”11 The treatise stated that “[a] fuller understanding of EPA’s

authorities to promote environmental justice is important because the public has a vital role to play in

the effective implementation of EPA’s environmental protection programs.”12 The OEJ then com-

missioned ELI to prepare, in 2002, A Citizen’s Guide to Using Federal Environmental Laws to Se-

cure Environmental Justice.13 In the same year,the OEJ enlisted the Commission for Racial Justice of

the United Church of Christ to develop a video entitled “Communities and Environmental Laws.”

Finally,the OEJ led the effort to develop training for permit writers working under RCRA to integrate

environmental justice considerations into the permitting processes.

All of these steps by EPA—whatProfessor Ruhl referred to as “administrative efforts”—have con-

tributed to the development of the “body of environmental justice law” as the federal government

employed “other legal regimes as surrogates” in order to address environmental justice issues in the

absence of legislation.

Because Congress had not passed environmental justice legislation, Professor Ruhl stated that

“[f]or now, government authorities must employ other legal regimes as surrogates in order to take an

environmental justice focus. Although that approach does not preclude explicit consideration of en-

vironmental justice issues, it provides only an indirect way of forming hard law out of the policy con-

text.”14 The following readings—the article by Lazarus and Tai mentioned above, documents of

EPA, and reports from ELI—explore the question of how effective these other legal regimes have

been in addressing environmental justice issues on the federal level in the absence of specific envi-

ronmental justice legislation.

THE LEGISLATIVEBRANCHES 129

10. Memorandum from Christine Todd Whitman, Administrator, U.S. EPA, to senior staff, EPA’s Commitment to

Environmental Justice 2 (Aug. 9, 2001), available at http://www.epa.gov/oswer/ej/pdf/ejmemo.pdf.

11. ELI, Opportunities for Advancing Environmental Justice: An Analysis of U.S. EPA Statutory

Authorities ii (2001), available athttp://www.epa.gov/compliance/resources/publications/ej/annual-project-

reports/eli-opportunities4ej.pdf.

12. Id.

13. ELI, A Citizen’s Guide to Using Federal Environmental Laws to Secure Environmental Justice

(2002), available at http://www.epa.gov/compliance/resources/publications/ej/annual-project-reports/citizen_

guide_ej.pdf.

14. Videotape:Communities and Environmental Laws (Commission for Racial Justice, United Church of Christ 2002).