Addressing the Problem: The Executive Branches
| Author | Barry E. Hill |
| Pages | 217-308 |
Page 217
Chapter 4
Addressing the Problem:
The Executive 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 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 allegations 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 briey
discusses one tool that the A gency, during the George W. Bush Administration, developed, the Environ-
mental Justice Geographic Assessment Tool, which allows EPA employees to search various d atabases for
additional information about a community in order to make more informed environmental decisions. 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, t he planning and
budgeting processes, the permitting process, and the regulatory process. Finally, the chapter provides three
decisions by the Environmental Appeals Boa rd (EAB) regarding EPA’s eorts to address environmental
justice concerns under various statutes administered by the Agency, consistent with President Clinton’s
Executive Order.
With respect to activity on the state level, the chapter reviews the eorts of the governors of Mar yland,
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 ha s 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 a nd 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 relat ionship between race a nd t he i ncidence of environmental hazards. Reilly, the EPA
Administ rator during the George H.W. Bush Administration (rst Bush Administrat ion), attended t he
conference and later said that it was a watershed event for him in raising his concern about environmenta l
Page 218 Environmental Justice: Legal Theory and Practice, 3rd Edition
inequity.2 ree months later, he told the National Mi nority 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 risk from a socioeconomic perspective. is
review pointed out signica ntly disproportionate health impac ts on minorities due to higher rates of exposure
to pollution.3
Professors 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 will-
ing participant in the dia logue on environmental justice.
In July 1990, as a direct result of the M ichigan conference, Administrator Reilly formed EPA’s Work-
group to examine, among other things, three questions: (1) How is environmental risk distributed across
population groups?; (2) How have EPA programs addressed dierential risks in the past?; and (3) How can
we do so in the future?5 Administrator Reilly established the Workgroup “to review the evidence 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 a s Professors Bunyan Bryant and
Paul Mohai, who had convened the Michigan conference, and 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 Natu ral Resources Defense Council, and Deeohn Ferris, at the
time director 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 t he environ-
mental justice movement; and (5) art icles by toxicologist Ken Sexton, director of EPA’s Oce 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 Oce Is Needed, argued that a fu nda-
mental change was necessary, and that EPA “must revise its policies in the interest of protecting everyone’s
quality of life.”7 Specically, she stated:
EPA can develop a model program and t he time for action is now. e rst step is to establish a high-level
Oce of Environmental Justice w ith functiona l responsibilities and the budget su cient to implement them.
EPA spending should match its commitment to parit y.
As a principal objective, this oce 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 Oce of Environmental Justice would integrate its t heme into EPA’s operating g uidance and strategic
plans, a s well as t he Agency ’s research and data collect ion agenda s. e oce could spearhead formation of
consortiums with ac ademic institutions for people of color, including Historical ly 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 Oce Is Needed, EPA J., Mar./Apr 1992, at 28.
8. Id. at 28-29.
Addressing the Problem: The Executive Branches Page 219
Ferris’ challenge to EPA to establish an oce 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 Oce of Hazardou s Wastes
and Racia l and Ethnic Aai rs to address problems posed by the la rge number of hazardous wa ste sites found
in racia l and ethnic communities. is oce should monitor t he siting of new haza rdous waste facil ities to
insure that ade quate consideration is given to the racial socio-economic char acteristics 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 Oce of Environmental Equity within EPA.
e name of the oce was later changed to the Oce of Environmental Justice during the Clinton Admin-
istration to coordinate the Agency’s eorts to address t he issue of environmental justice.
In numerous ways, EPA waded into the early dia logue on environmental just ice. 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 eects by race and income. e one
notable exception is data on the eects of lead poisoning.
• Whi le there are large gaps in data on a ctua l health ee cts, it is p ossible to document di erences
in observed and potential exposure to some environmental pollutant s by socioeconomic fac tors
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
eects, or multiple and dierent 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 eorts in two-way communication can all
be improved.
• EPA’s program and regional oces vary considerably in how they address environmental equity. Even
though some regional oces 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 Ad mini stra-
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 eorts to involve them in environmental policy making.
• 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.
To continue reading
Request your trial