Addressing the Problem: The Legislative Branches

AuthorBarry E. Hill
Pages157-216
Page 157
Chapter 3
Addressing the Problem:
The Legislative Branches
3.1 Overview
Since 1990, environmental justice legislation has been introduced in Congress and in state legislatures with
increasing frequency. On the whole, state legislatures have been more successful than Congress at enact-
ing legislation, issu ing proclamations, or establishing commissions and task forces to address the issue of
environmental justice.
e American Ba r Association’s (ABA’s) Environmental Justice Committee (within the ABA Section
of Individual Rig hts and Responsibilities) commissioned the Public L aw Resea rch Institute of Hastings
College of Law to study the environmental justice legislation, policies, and other initiatives in the 50 states.
In Janua ry 2004, the A BA released the rst study, Environmental Justice for All: A Fifty-State Survey of
Legislation, Policies, and Initiatives.3 It found that since the ABA’s environmental justice policy resolution
was issued in August 1993, “more than 30 states have expressly addressed environmental justice, demon-
strating increased attention to the issue at a political level. e wide-range and variety of policy strategies
and approaches used by states, however, suggests that the issue will continue to mature over the coming
years.”4 e ABA’s Augu st 1993, environmental just ice policy resolution 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 disproportionate share of the burden of environmental
harm does not fall on minority and/or low-income individuals, communities, or populations.” e ABA
environmental justice policy resolution is discussed in detail in §6.2.1.1, “ABA Resolution on Environmen-
tal Justice and the Report to the House of Delegates.”
Since the ABA released the rst sur vey in Januar y 2004, there have been several editions. e ABA ,
in collaboration with the Hastings College of Law, released the fourth edition on February 15, 2010. e
measures highlighted in t he A BA surveys reect the realization by a number of state legislatures that:
(1)t he disproportionate exposure of minority and/or low-income communities to environmental harms
and risks is directly related to social, economic, and racial indicators; and (2) 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 la rgely to the fact that, according to environmental justice activists, the Republican
Party had been in control of Congress from time to time, and t he Democratic Part y has been unable to
move proposed environmental justice legislation out of committee. From the 102nd Congress (1991-1992)
through the 112th Congress (2011-2012), there have been 29 environmental justice bills or community
environmental equity bills introduced in the House and/or the Senate by Democrats. All of the environ-
mental justice bills died in committee.
3. ABA Section of Individual Rights & Responsibilities, Environmental Justice Committee (2004), available at http://www.csu.edu/cerc/
researchreports/documents/EnvironmentalJusticeForAll2004.pdf. On February 15, 2010, the ABA, in collaboration with the Hastings College
of Law, released the fourth edition of the 50-state survey, which is available at http://gov.uchastings.edu/public-law/docs/ejreport-fourth edition.
pdf (last visited Dec. 31, 2013).
4. Id. at iii.
Page 158 Environmental Justice: Legal Theory and Practice, 3rd Edition
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 federa l level, the question was what
could be done by EPA, using its discretionary authority, to address environmental justice concerns using
existing environmental statutes. e u nderlying question was whether environmental justice, as a goal to
be achieved for all communities by t he federal government, was imbedded in existing environmental laws
that the Agency administers. e law review articles and EPA documents in this section will demonstrate
how the federal government has responded to that central question.
Prior to the federa l government fully embracing t he notion that existing environmental laws could be
used successf ully to address environmental justice concerns, there were a series of law review articles and
other documents, which built upon the Aug ust 1993, ABA environmental justice policy resolution. In a
1998 law review article, Professor J.B. Ru hl of the Florida State University College of Law described how
both environmental justice and sustainable development were evolving toward enforceable “hard law” in
the United States.5 He argued that both concepts have to evolve through seven degrees of real-world rel-
evance, with the seventh degree being dened as when “[t]he norm is fully transformed into law to apply
measurable, rationalized, routine standards of environmental evaluation, authorization, and performance.”6
Professor Ruhl concluded that environmental justice had not reached the seventh degree but was in the
sixth degree of relevance.
In 1999, Professors Richard Lazarus a nd Stephanie Tai published an article that laid the foundation
for further examination of EPA’s statutory authorities.7 eir article examined how existing environmental
laws would allow EPA to use its discretionary authority to address environmental justice concerns by plac-
ing cer tain conditions in a permit to operate a pollution-generating facility. eir article, and the Ruhl
article, led to the release of an importa nt memorandum by EPA’s Oce of General Counsel (OGC).
In 2000, the EPA general counsel in the Clinton Administration issued a legal opinion that analyzed “a
signicant number of statutory and regulatory authorities under the Resource Conservation and Recovery
Act, the Clean Water Act, the Safe Drinking Water Act, the Marine Protection, Research, and Sanctuaries
Act, and the Clean Air Act that the [OGC] believes are available to address environmental justice issues
during permitting.”8 is was the rst time that the A gency’s chief legal ocer stated in writing that envi-
ronmental justice, as a goal to be achieved for all communities, was imbedded in existing environmental
laws. e 2000 legal opinion was the culmination of previous eorts by the OGC to explore the issue inter-
nally. On February 25, 1994, t here was an internal OGC lega l memorandum entitled, “Environmental
Justice Law Survey,” which was “an initial ana lysis of EPA’s statutory and regulatory authority to promote
environmental justice.”9 On May 6, 1994, the general counsel advised the EPA Administrator and Deputy
Administrator in a legal memorandum entitled, “Environmental Justice Law Survey,” stating that: “e
survey serves as a basis for identifying the range of possible legal options available to the program oces to
promote environmental justice.”10
In 2001, continuing with the legal argument that environmental justice, as a goal to be achieved for all
communities, wa s imbedded in existing environmental laws, EPA Administrator Christine Todd Whit-
man in the George W. Bush Administration issued a memorandum to senior sta on environmental justice
where she stated: “Environmental statutes provide many opportunities to address environmental risk s and
hazards in minority communities and/or low-income communities. Application of these existing statutory
5. J.B. Ruhl, e Seven Degrees of Relevance: Why Should Real-World Environmental Attorneys Care Now About Sustainable Development Policy?,
8 D E. L.  P’ F. 273 (1998).
6. Id. at 289.
7. Richard J. Lazarus & Stephanie Tai, Integrating Environmental Justice Into EPA-Permitting Authority, 26 E
L.Q. 617 (1999).
8. Memorandum from Gary S. Guzy, General Counsel, OGC, to Steven Herman, Assistant Administrator, Oce of Enforcement and
Compliance Assistance, U.S. EPA, EPA Statutory and Regulatory Authorities Under Which Environmen tal 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.
9. Memorandum from OGC, to sta, Environmental Justice Law Survey 1 (Feb. 25, 1994)
10. Memorandum from Jean C. Nelson, General Counsel, OGC, to Carol M. Browner, Administrator, U.S. EPA, Environmental Justice
Law Survey 1 (May 6, 1994).
Addressing the Problem: The Legislative Branches Page 159
provisions is an important part of this A gency’s eort to prevent those communities from being subject to
disproportionately high and adverse impacts, and environmental eects.”11
As a result of the 200 0 OGC lega l memorandum and Ad ministrator Whitman’s 2001 memorandum,
EPA’s Oce of Environmental Justice (OEJ) provided funds to support several publications and videos to
delineate the statutory authority of EPA as it related to environmental justice. In 2001, the OEJ commis-
sioned the Environmental Law Institute (ELI), the nation’s leading think tank in environmental law and
policy, to prepare a treatise entitled, “Opportunities for Advancing Environmental Justice: An Ana lysis of
U.S. EPA Statutory Authorities.” It “review[ed] the provisions contained in the principal federal environ-
mental laws administered by EPA, in order to identify authorities that potentially could be used to advance
a variety of environmental justice goals in the a gency’s programs.”12 e treatise stated that “[a] fu ller
understanding of EPA’s authorities to promote environmental justice is important because the public has a
vital role to play in t he eective implementation of EPA’s environmental protection programs.”13 e OEJ
then commissioned ELI to prepare, in 2002, “A Citizen’s Guide to Using Federal Environmental Laws to
Secure Environmental Justice.”14
In the same year, the OEJ enlisted the Commission for R acial Justice of
the United Church of Christ to develop, with ELI, a video entitled, “Communities and Environmental
Laws.” Finally, the OEJ led the eort to develop training for permit writers working in the RCRA program
to integrate environmental justice considerations into the permitting processes.
In December 2011, the EPA general counsel in the Obama Administration issued a docu ment entitled
“EJ Legal Tools.” e document reviewed all of the legal authorities under the environmental statutes
administered by EPA “that may have contributive application in the eort to advance environmental justice
under Plan EJ 2014—the Agency’s overarching strategy for advancing environmental justice.”15
All of these steps by EPA—what Professor Ruhl referred to as “administrative reform”—have contrib-
uted to the development of t he “body of environmental justice law” as the federal government employed
“other legal reg imes as su rrogates” in order to address environmental justice issues in the absence of fed-
eral legislation.
Because Congress had not pa ssed environmental justice leg islation, Professor Ruh l stated that “[f]or
now, government authorities must employ other legal reg imes as surrogates in order to take an environ-
mental just ice focus. Although that approach doe s not preclude explicit consideration of environmental
justice issues, it provides only an indirect way of formi ng hard law out of the policy context.”16 e fol-
lowing readings—t he art icle by Professors La zarus and Tai mentioned above, the EPA docu ments, and
the ELI handbook for citizens to use existing environmental laws to address their environmenta l justice
concerns/issues—explore the que stion of how eective these other legal regimes have been in address-
ing environmenta l justice issues on the feder al level in the absence of specic environmental justice leg-
islation. e reading s highlight, for the sa ke of consistency, how environmental justice for all can be
addressed t hrough interpretations of the federal Resource Conser vation and Recovery Act a nd its imple-
menting regulat ions. Finally, this portion of the chapter includes the 2013 law review article by Professor
Alice Kaswan that examines the fundamental tension between the environmental justice paradigm and
the dominant environmental law paradigm. e chapter then proceeds with a potpourri of environmental
justice state legislation.
11. Memorandum from Christine Todd Whitman, Administrator, U.S. EPA, to senior sta, EPA’s Commitment to Environmental Justice 2
(Aug. 9, 2001).
12.
ELI, O  A E J: A A  U.S. EPA S
A  ii (2001),
avail able at http://www.elistore. org/reports _detail.asp? ID=41.
13. Id.
14. ELI, A C’ G  U F E L  S E J (2002), available at http://www.epa.
gov/compliamce/ej/resources/reports/annual-project-reports/citizen_guide_ej.pdf.
15. Available at http://www.epa.gov/compliance/environmentaljustice/resources/policy/plan-ej-2014/ej-legal-tools..
16. Videotape: Communities and Environmental Laws (Commission for Racial Justice, United Church of Christ 2002), available at http://youtube.
com/watch?v=OdlWDuHDyco.

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