Addressing the problem: the executive branches

• Author: Barry E. Hill
• Pages: 187-266

Chapter 4

ADDRESSING THE PROBLEM: THE EXECUTIVE

BRANCHES

4.1 Overview

The executive branches of government on the federal and state levels have sought to address the is-

sue of environmental justice through a variety of initiatives.

This chapter begins with an examination of EPAAdministrator William K. Reilly’sactivities from

1990 to 1992, 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 “Memorandum 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 implementation of a

basic methodology used by Agency employees for assessing potential allegations of environmen-

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

environmental justice considerations into targeting and inspection activities. Moreover, the chap-

ter briefly discusses one tool that the Agency, during the George W. Bush Administration, devel-

oped, the Environmental Justice Geographic Assessment Tool, which allows EPA employees to

search various databases for additional information about a community in order to make more in-

formed environmental decisions. The chapter also examines how EPAhas incorporated environ-

mental justice considerations into the Agency’s 2006-2011Strategic Plan and the 2011-2015 Stra-

tegic Plan, the planning and budgeting processes, the permitting process, and the regulatory pro-

cess. Finally, the chapter provides three decisions by the Environmental Appeals Board (EAB) re-

garding EPA’s efforts 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 efforts of the governors of

Maryland, Michigan, New Jersey, New Mexico, and Oregon, whoeach issued environmental justice

Executive Orders.

The chapter ends with a discussion of the issue of sustainable development. It discusses how the

American Bar Association and EPAhave attempted to address the issue, as well as how a commu-

nity-based organization has sought to build a sustainable community on Chicago’s West Side.

4.2 Federal Government

4.2.1 Early EPA Experience

In January 1990, a conference was convened at the University of Michigan’sSchool of Natural Re-

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

the EPAAdministrator during the George H.W.Bush Administration (first Bush Administration), at-

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

187

environmental inequity.2Three months later, he told the National Minority Environmental Career

Conference at Howard University:

Participants in the January 1990 University of Michigan Conference on Race and the Incidence of En-

vironmental Hazards conducted an intensive review of environmental risk from a socioeconomic per-

spective. This review pointed out significantly disproportionate health impacts on minorities due to

higher rates of exposure to pollution.3

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

first public recognition by EPA that environmental hazards disproportionately impact people of

color.”4Thus, under the leadership of Administrator Reilly, the executive branch had become a wel-

come 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

Workgroup to examine, among other things, three questions: (1) How is environmental risk distrib-

uted across population groups?; (2) How have EPAprograms addressed differential risks in the past?;

and (3) How can we do so in the future?5

What followed was a steady stream of EPApublications on the issue of environmental justice. The

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

was a landmark, presenting for the first time a range of views on the subject. In addition to an article

by Administrator Reilly, the EPA Journal included: (1) articles by academics such as Profs. Bunyan

Bryant and Paul Mohai, who had convened the Michigan conference, and Robert D. Bullard, the uni-

versally recognized theoretician of the environmental justice movement; (2) articles by environmen-

talists such as John H. Adams, executive director of the Natural 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 the environmental justice movement; and (5) articles by toxicologist Ken Sex-

ton, director of EPA’sOffice 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. That edition of the EPA Journal demonstrated that the

issue of environmental justice finally resonated with a myriad of individuals, both inside and out-

side of government.

Ferris’article, A Challenge to EPA—AnEnvironmental Justice Office Is Needed, argued that a fun-

damental change was necessary,and that EPA“must revise its policies in the interest of protecting ev-

eryone’s quality of life.”6Specifically, she stated:

EPA can develop a model program and the time for action is now. The first step is to establish a

high-level Office of Environmental Justice with functional responsibilities and the budget sufficient

to implement them. EPAspending should match its commitment to parity.

As a principal objective, this office could develop an environmental policy that creates a presumption

of justice by requiring equity impact analyses as part of the process for promulgating major regula-

tions, issuing key policies, and conducting programmatic reviews.

The Office of Environmental Justice would integrate its theme into EPA’s operating guidance and

strategic plans, as well as the Agency’s research and data collection agendas. The office could

spearhead formation of consortiums with academic institutions for people of color, including His-

188 ENVIRONMENTALJUSTICE: LEGAL THEORY AND PRACTICE

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, The Michigan Conference: A Turning Point,EPA J., Mar./Apr. 1992, at 9.

4. Id.

5. Id.

6. Deeohn Ferris, A Challenge to EPA: An Environmental Justice Office Is Needed,EPA J., Mar./Apr 1992, at 28.

torically Black Colleges and Universities (HBCUs), focusing on risk assessments, research and de-

velopment needs.7

Ferris’ challenge to EPA to establish an office dedicated to the issue of environmental justice was

not the first 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:

The Environmental Protection Agency (EPA) should immediately establish an Office of Hazardous

Wastes and Racial and Ethnic Affairs to address problems posed by the large number of hazardous

waste sites found in racial and ethnic communities. This office should monitor the siting of new

hazardous waste facilities to insure that adequate consideration is given to the racial socio-economic

characteristics of potential host communities. It should also monitor the cleanup of uncontrolled sites

to insure that the needs of racial and ethnic communities are adequately addressed.8

In 1992, Administrator Reilly established the Office of Environmental Equity within EPA.

In numerous ways, EPAwaded into the early dialogue on environmental justice. The Workgroup

submitted a two-volume report, Environmental Equity: Reducing Risk in All Communities,toAd

-

ministrator Reilly in June 1992. It contained the following findings:

·There is a general lack of data describing environmental health effects by race and income. The one

notable exception is data on the effects of lead poisoning.

·While there are large gaps in data on actual health effects, it is possible to document differencesin ob-

served 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 risks posed by multiple industrial facilities, cumulative synergistic

effects, or multiple and different pathways of exposure.

·Opportunities exist for EPAand other government agencies to improve communication about envi-

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

and distribution of written materials, media relations, and efforts in two-way communication can all

be improved.

·EPA’s program and regional offices vary considerably in how they address environmental equity.

Even though some regional offices have initiated projects to address high risks in minority and low-in-

come 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.9

In addition to these findings, the Workgrouppresented a list of recommendations to Administra-

tor Reilly:

·EPAshould increase its focus on environmental equity.

·EPAshould 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.

·EPAshould expand and improve its communications with racial minority and low-income commu-

nities and should increase efforts to involve them in environmental policymaking.

·EPAshould establish mechanisms to ensure that environmental equity concerns are incorporated

into its long-term planning and operations.

·EPAshould identify and target opportunities to reduce high concentrations of risk to different popu-

lation groups, employing approaches developed for geographic targeting.

In addition to creating the Workgroup, Administrator Reilly embarked on other initiatives to in-

crease the role that minorities played in the processes of environmental decisionmaking and analysis

THE EXECUTIVE BRANCHES 189

7. Id. at 28-29.

8. Commission for Racial Justice, Toxic Wastes and Race in the United States 24 (UCC 1987).

9. Office of Policy, Planning, and Evaluation, U.S. EPA, Environmental Equity: Reducing Risk for All

Communities 3 (1992) (EPA 230-R-008A), available at http://www.epa.gov/compliance/ej/resources/reports/

annual-project-reports/reducing_risk_com_vo12.pdf.