Addressing the problem: the legislative branches

• Author: Barry E. Hill
• Pages: 127-186

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 issue 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 College of Law to study the environmental justice legislation, policies, and other initia-

tives in the 50 states. In 2004, the ABA released the first study, Environmental Justice for All: A

Fifty-State Survey of Legislation, Policies, and Initiatives.2It found that since the ABA’s environ-

mental justice policy resolution was issued in August 1993, “more than 30 states have expressly ad-

dressed environmental 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 continue to mature over the coming years.”3The ABA’s August 1993, environmental jus-

tice policy resolution supported, among other things, “the implementation and enforcement of exist-

ing 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.” The ABA environmental justice policy

resolution is discussed in detail in Chapter 6.

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

tures that: (1) the disproportionate exposure of minority and/or low-income communities to environ-

mental harms and risks is directly related to social, economic, and racial indicators; and (2) the ineq-

uities 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, according to environmental jus-

tice activists, the Republican party had been in control of Congress from time to time, and the Demo-

cratic party has been unable to move proposed environmental justice legislation out of committee.

From the 102nd Congress (1992) through the 111th Congress (2010), there have been 21 environ-

mental justice bills introduced in the House and/or the Senate by Democrats. All of the environmen-

tal justice bills died in committee.

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2. 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/www.uchastings.edu/public-law/docs/ejreport-fourthedition.pdf (last visited Mar. 31, 2012).

3. Id. at iii.

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-

lying question was whether environmental justice, as a goal to be achieved for all communities by the

federal government, was imbedded in existing environmental laws that the Agency administers. The

law review articles and EPAdocuments 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

resolution. 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

enforceable “hard law” in the United States.4He argued that both concepts have to evolve through

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

fully transformed 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 Tai published an article that laid the foundation for

further examination of EPA’s statutory authorities.6Their article examined how existing environ-

mental laws would allow EPA to use its discretionary authority to address environmental justice

concerns by placing certain conditions in a permit to operate a pollution-generating facility.Their ar-

ticle, and the Ruhl article, led to the release of an important memorandum by EPA’sOffice of Gen-

eral 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, the Clean Water Act, the Safe Drinking Water Act, the Marine Protection, Re-

search, and Sanctuaries Act, and the Clean Air Act that the [OGC] believes are available to address

environmental justice issues during permitting.”7This was the first time that the Agency’schief le-

gal officer stated in writing that environmental justice, as a goal to be achieved for all communities,

was imbedded in existing environmental laws. The 2000 legal opinion was the culmination of pre-

vious efforts by the OGC to explore the issue internally. On February 25, 1994, there was an inter-

nal 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 EPA Administrator and Deputy Administrator in a legal

memorandum entitled, “Environmental Justice Law Survey,” stating that: “The survey serves as a

128 ENVIRONMENTALJUSTICE: LEGALTHEORY 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 Authority,26 Ecology

L.Q. 617 (1999).

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).

basis for identifying the range of possible legal options available to the program offices to promote

environmental justice.”9

In 2001, continuing with the legal argument that environmental justice, as a goal to be achieved

for all communities, was imbedded in existing environmental laws, EPAAdministrator Christine

Todd Whitman in the GeorgeW. Bush Administration issued a memorandum to senior staff on en-

vironmental justice where she stated: “Environmental statutes provide many opportunities to ad-

dress environmental risks and hazards in minority communities and/or low-income communities.

Application of these existing statutory provisions is an important part of this Agency’s effort to pre-

vent those communities from being subject to disproportionately high and adverse impacts, and envi-

ronmental 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) provided funds to support several publications

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

the OEJ commissioned the Environmental Law Institute (ELI), the nation’s leading think tank in en-

vironmental law and policy, to prepare a treatise entitled, “Opportunities for Advancing Environ-

mental Justice: An Analysis of U.S. EPAStatutory Authorities.” It “review[ed] the provisions con-

tained in the principal federal environmental laws administered by EPA,in order to identify authori-

ties 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 envi-

ronmental justice is important because the public has a vital role to play in the effective implementa-

tion of EPA’senvironmental protection programs.”12 The OEJ then commissioned ELI to prepare, in

2002, “A Citizen’sGuide to Using Federal Environmental Laws to Secure Environmental Justice.”13

In the same year, the OEJ enlisted the Commission for Racial Justice of the United Church of Christ

to develop, with ELI, a video entitled, “Communities and Environmental Laws.” Finally,the OEJ led

the effort to develop training for permit writers working in the RCRA program to integrate environ-

mental justice considerations into the permitting processes.

All of these steps by EPA—what Professor Ruhl referred to as “administrative reform”—have

contributed 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 Professors Lazarus and Tai mentioned above, EPA

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

THE LEGISLATIVEBRANCHES 129

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).

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

Environmental Justice 2 (Aug. 9, 2001).

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

Authorities ii (2001), available at http://www.elistore.org/reports_detail.asp?ID=41.

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/ej/resources/reports/annual-project-reports/citizen_

guide_ej.pdf.

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

available at http://youtube.com/watch?v=OdlWDuHDyco.