Addressing the Problem: The Executive Branches

• Author: Barry E. Hill
• Pages: 383-488

Page 383

Chapter 4

Addressingthe Problem: TheExecutive Branches

4.1 Overview

e executive branches of government on the federal and state levels have sought to address the issue of

environmental justice through a variety of initiatives. is chapter represents Professor Ruhl’s fth degree

of relevance: “Important governmental authorities establish the norm as an explicit policy goal.”

is chapter begins with an examination of EPA Administrator William K. Reilly’s activities from 1990

to 1992 during the George H.W. Bush Administration, and the Environmental Equity Workgroup (the

Workgroup) that he convened. It then provides a comprehensive review of President William J. Clinton’s

Executive Order No. 12898 on environmental justice, issued in February 1994, as well as the “Memoran-

dum of Understanding on Environmental Justice and Executive Order 12898” signed by federal agency

heads in the Barack H. Obama Administration in August 2011. From there, the chapter examines how

EPA has attempted to comply with the Executive Order through two documents, one involving the imple-

mentation of a basic methodology used by Agency employees for assessing potential a llegations of envi-

ronmental injustice, the other involving a methodology used by enforcement personnel for incorporating

environmental justice considerations into targeting and inspection activities. Moreover, the chapter briey

discusses one tool that the Agency, during the George W. Bush Administration, developed, the Environ-

mental Justice Geographic Assessment Tool, which allows EPA employees to search various databases for

additional information about a community in order to make more informed environmental decisions.

at tool has been improved signicantly and rened through the dedicated work of EPA employees in

the Obama Administration. e chapter also examines how EPA has incorporated environmental justice

considerations into the Agency’s 2006-2011 Strategic Plan; the 2011-2015 Strategic Plan; the 2014-2018

Strategic Plan; EJ 2014; EJ 2020; the planning and budgeting processes; the permitting process; and the

regulatory process. Finally, the chapter provides three decisions by the Environmental Appeals Board

(EAB) regarding EPA’s eorts to address environmental justice concerns under various statutes adminis-

tered by the Agency, consistent with President Clinton’s Executive Order.

With respect to activity on the state level, the chapter reviews the eorts of the governors of Maryland,

Massachusetts, Michigan, New Jersey, New Mexico, and Oregon, who each issued environmental justice

Executive Orders.

e chapter ends with a discussion of the issue of sustainable development. It discusses how the Ameri-

can Bar Association and EPA have attempted to address the issue, as well as how a community-based

organization has sought to build a sustainable community on Chicago’s West Side. It also examines how

land use planning and zoning laws can contribute to the development and maintenance of sustainable

communities in the United States.

4.2 Federal Government

4.2.1 Early EPA Experience

In January 1990, a conference was convened at the University of Michigan’s School of Natural Resources

to discuss the relationship between race and the incidence of environmental hazards. Reilly, the EPA

Administrator during the George H.W. Bush Administration (rst Bush Administration), attended the

conference and later said that it was a watershed event for him in raising his concern about environmental

Page 384 Environmental Justice: Legal Theory and Practice, 4th Edition

inequity.2ree months later, he told the National Minority Environmental Career Conference at How-

ard University:

Participants in the January 1990 University of M ichigan Conference on Ra ce and the Incidence of Envi ron-

mental Haza rds conducted an intensive review of e nvironmental ri sk from a socioeconomic perspective.  is

review pointed out signica ntly disproportionate hea lth impacts on minorities due to higher rate s of exposure

to pollution.3

Profs. Bunyan Bryant and Paul Mohai have written that Administrator Reilly’s statement was “the rst

public recognition by EPA that environmental hazards disproportionately impact people of color.”4 us,

under the leadership of Administrator Reilly, the executive branch had become a welcome and willing

participant in the dialogue on environmental justice.

In July 1990, as a direct result of the Michigan conference, Administrator Reilly formed EPA’s Environ-

mental Equity Workgroup to examine, among other things, three questions: (1)How is environmental risk

distributed across population groups?; (2)How have EPA programs addressed dierential risks in the past?;

and (3)How can we do so in the future?5 Administrator Reilly established the Workgroup “to review the evi-

dence that racial minority and low-income communities bear a disproportionate environmental risk burden.”6

What followed was a steady stream of EPA publications on the issue of environmental justice. e

March/April 1992 issue of the EPA Journal,entitled Environmental Protection—Has It Been Fair?, was a

landmark, presenting for the rst time a range of views on the subject. In addition to an article by Admin-

istrator Reilly, the EPA Journal included: (1)articles by academics such as Professors Bryant and Mohai,

who had convened the Michigan conference, a nd Professor Robert D. Bullard, the universally recognized

theoretician of the environmental justice movement; (2)articles by environmentalists such as John H.

Adams, executive director of the Natural Resources Defense Council, and Deeohn Ferris, at the time direc-

tor of environmental quality for the National Wildlife Federation; (3)an article by Rep. Ronald V. Dellums

(D-Cal.); (4)articles by activists such as Norris McDonald, then-president of the Center for Environment,

Commerce, and Energy, and Dorceta Taylor, who had written extensively on the environmental justice

movement; and (5)articles by toxicologist Ken Sexton, director of EPA’s Oce of Health Research, and

researchers at the Agency for Toxic Substances and Disease Registry such as Cynthia H. Harris, chief of

the Community Health Branch, and Robert C. Williams, director of Health Assessment. at edition of

the EPA Journal demonstrated that the issue of environmental justice nally resonated with a myriad of

individuals, both inside and outside of government.

Ferris’ article, A Challenge to EPA—An Environmental Justice Oce Is Needed, argued that a funda-

mental change was necessary, and that EPA “must revise its policies in the interest of protecting everyone’s

quality of life.”7 Specically, she stated:

EPA can develop a model program and t he ti me for action is now. e rst step i s to establish a high-level

Oce of Environmental Justice w ith funct ional responsibilities a nd the budget sucient to implement them.

EPA spending should match its commitment to parit y.

As a principal objective, this oce could develop an environmental policy that creates a presumption of justice

by requiring equity impact analyses as part of the process for promulgating major regulations, issuing key poli-

cies, and conducting progra mmatic reviews.

e Oce of Environmental Justice would integrate its t heme into EPA’s operating g uidance and strategic

plans, a s well as t he Age ncy’s resea rch and data c ollection agendas. e oce could spearhead format ion of

consortiums with ac ademic institutions for people of color, including Historica lly Black Colleges and Univer-

sities (HBCUs), focusing on risk asse ssments, research and development needs.8

2. William K. Reilly, Environmental Equity: EPA’s Position—Protection Should Be Applied Fairly in Environmental Protection—Has It Been Fair?,

EPA J., Mar./Apr. 1992, at 18-19.

3. Bunyan Bryant & Paul Mohai, e Michigan Conference: A Turning Point, EPA J., Mar./Apr. 1992, at 9.

4. Id.

5. Id.

6. Id.

7. Deeohn Ferris, A Challenge to EPA: An Environmental Justice Oce Is Needed, EPA J., Mar./Apr 1992, at 28.

8. Id. at 28-29.

Addressing the Problem: The Executive Branches Page 385

Ferris’ challenge to EPA to establish an oce dedicated to the issue of environmental justice was not

the rst time that such a recommendation had been made. In the 1987 United Church of Christ (UCC)

Report (see Chapter 1.2.1.2), the Commission for Racial Justice of the UCC recommended:

e Environmenta l Protection Ag ency (EPA) should immediately establi sh an Oce of Hazardou s Wastes

and Racia l and Ethnic Aai rs to address problems posed by the la rge number of hazardous wa ste sites found

in racia l and ethnic communities. is oce should monitor t he siting of new haz ardous waste faci lities to

insure that ade quate consideration is g iven to the racial socio-economic cha racteristics of potential host com-

munities. It should also monitor the cleanup of uncontrolled sites to insu re that the needs of racial and ethnic

communities are adequately a ddressed.9

In November 1992, Administrator Reilly established the Oce of Environmental Equity within EPA.

e name of the oce was later changed to the Oce of Environmental Justice during the Clinton Admin-

istration to coordinate the Agency’s eorts to address the issue of environmental justice.

In numerous ways, EPA waded into the early dia logue on environmental justice. e Workgroup sub-

mitted a nal two-volume report, Environmental Equity: Reducing Risk for All Communities, to Administra-

tor Reilly in July 1992. It contained the following ndings:

• ere is a general lack of data describing environmental health eects by race and income. e one

notable exception is data on the eects of lead poisoning.

• While there are large gaps in data on actual health eects, it is possible to document dierences

in observed and potential exposure to some environmental pollutants by socioeconomic factors

and race.

• Environmental and health data are not routinely collected and analyzed by income and race. Nor are

data routinely collected on health risk s posed by multiple industrial facilities, cumulative synergistic

eects, or multiple and dierent pathways of exposure.

• Opportunities exist for EPA and other government agencies to improve communication about envi-

ronmental problems with members of low-income and racial minority groups. e language, format,

and distribution of written materials, media relations, and eorts in two-way communication can all

be improved.

• EPA’s program and regional oces vary considerably in how they address environmental equity. Even

though some regional oces have initiated projects to address high risks in minority and low-income

communities, there is a need for environmental equity training.

• Native Americans are a unique racial group with a special relationship to the federal government and

distinct environmental problems. Indian tribes often lack the physical infrastructure, institutions,

trained personnel, and resources necessary to protect their members.10

In addition to the se findi ngs, the Work group presented a list of recommendations to Administra-

tor Reilly :

• EPA should increase its focus on environmental equity.

• EPA should establish and maintain information that provides an objective basis for assessing risks by

income and race, commencing with developing a research and data collection plan.

• EPA should expand and improve its communications with racial minority and low-income commu-

nities and should increase eorts to involve them in environmental policymaking.

• EPA should establish mechanisms to ensure that environmental equity concerns are incorporated

into its long-term planning and operations.

9. C  R J, T W  R   U S 24 (UCC 1987).

10. O  P, P,  E, U.S. EPA, E E: R R  A C 3 (1992) (EPA

230-R-008A), available at http://www.epa.gov/compliance/ej/resources/reports/annual-project-reports/reducing_risk_com_vo12.pdf.