Statistical approaches to assessing charges of environmental racism and classism against the U.S. Environmental Protection Agency

• DOI: https://doi.org/10.1016/S0193-5895(00)19001-3
• Published date: 06 September 2000
• Date: 06 September 2000
• Pages: 1-45
• Author: Adam Karp

STATISTICAL APPROACHES TO

ASSESSING CHARGES OF

ENVIRONMENTAL RACISM AND

CLASSISM AGAINST THE U.S.

ENVIRONMENTAL PROTECTION

AGENCY

Adam Karp 1

ABSTRACT

Discrimination law has evolved from litigating or prosecuting overt,

individual cases of egregious behavior solely by means of anecdotal

evidence and eyewitness testimony. Statistical evidence came to bear the

imprimatur of the United States Supreme Court in the Seventies as a

probative means of discerning guilt or liability, and has been used to shore

up patterns of prejudice at a systemic level since. Courtrooms of the

Twenty-First Century have struggled to define discrimination through a

quantitative lens, nonetheless relying on qualitative evidence to assist the

factfinder in rendering a verdict. Some definitions carry more precision

and accuracy than others. Consider the inflammatory National Law

Journal's indictment of the United States Environmental Protection

Agency ('EPA') as an example of the latter. In 1992, the National Law

Journal ran a Special Investigation of the EPA, claiming that the federal

Research in Law and Economics, Volume 19, pages 1-45.

Copyright O 2000 by JAl/FAsevier Inc.

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ISBN: 0-7623-0308-5

2 ADAM KARP

government had fostered a racist imbalance in hazardous site cleanup and

its pursuit of polluters. Kudos to the columnists for bringing environ-

mental equity into the spotlight of public debate and for forewarning and

encouraging the EPA to conduct its enforcements reflectively, in order to

avoid being on the receiving end of a Title VI lawsuit. Nonetheless, the

methodology used by the National Law Journal belies a total under-

standing of the bureaucratic structure that pursued these actions and of

the notion of statistical significance. This Article confines itself to Region

X's actions between 1995 and 1999, applying linear regression and other

statistical tests to determine whether biases, found using the National Law

Journal's naive methodology, stand after due consideration of chance. The

NLJ approach finds evidence of bias, but the author also conducts more

complicated and appropriate analyses, such as those contemplated by the

National Guidance. After issuing some provisos, the author dismisses

charges of racism or classism. While the National Guidance represents a

positive first step in identifying environmental justice communities, those

with an above-average proportion of lower-class or non-Caucasian

inhabitants, it lacks statistical sophistication and econometric depth. This

Article concludes by recommending the use of normalized racial

distributions, Gini coefficients, and Social Welfare Functions to the EPA

and to other organizations conducting environmental justice analysis.

I. INTRODUCTION

The National Law Journal ('NLJ') published a 1992 report citing vast penalty

and waiting time differentials as clear evidence of disparate racial impact (and

almost went so far as to impugn racist motives to EPA attorneys and

enforcement officers)) Unfortunately, this study provided very little other than

means and sample sizes. Furthermore, there was no consideration of confidence

intervals or p-values, statistical tools that capture standard error as well as

mean, and thereby help to provide a more complete picture of how seemingly

appalling results may fall within the bounds of chance. The stories of

victimized individuals and classes needed to be told, but the fashion in which

the editors published this study gave short shrift to statistical analysis and

sparse, if any, presentation of computation and methods. The numbers and

percentages they did manipulate, however, showed an inadequate under-

standing of geographical distribution of race and income throughout the United

States, as well as a working knowledge of how penalty ranges vary depending

on which statute is used to clobber the polluter. Nonetheless, their study raised

key points. I am optimistic that this analysis, though limited, will provide some

Statistical Approaches to Assessing Charges of Environmental Racism and Classism 3

insight into the way Region X conducts its own enforcements. Part II proceeds

in the spirit of the NLJ analysis, applying their techniques to Region X's

penalty-bearing enforcement actions between 1 October 1995 and 30 June

1999. It then appeals to the National Guidance as a basis for identifying

environmental justice ('EJ') communities and uses a variety of more advanced

statistical methods to test for significant disparities (e.g. chi-square, normal

approximation to binomial, linear regression, and nonparametric tests). Part III

recommends more sophisticated measures to the EPA for future EJ analyses in

the hope that the extra computational burden will lead to credible and powerful

conclusions.

II. NLJ AND NATIONAL GUIDANCE APPROACHES

A. NLI Redux

While the NLJ looked at 1091 of the 1214 national cases that the EPA

concluded between 1985 and March 1991, I studied 436 of the 447 actions

conducted by EPA Region X between 1 October 1995 and 30 June 1999. 3 The

NLJ further omitted 162 cases because they had no penalties. 4 I omitted an

additional 220 no-penalty cases for proposed and 230 no-penalty cases for

assessed penalty analysis. Eleven cases were removed because their ZIP codes

did not exist back in 1990, an important year given that all the demographic

information used to perform these analyses was based on the 1990 Census. It

may come as a surprise to some that the United States Postal Service routinely

swaps and redefines the boundaries of its ZIP codes irrespective of the

geographical grid (county, tract, block group) put in place by the Census

Bureau. Though it is unlikely that the boundaries shifted during the fifteen

months since the 1990 Census was taken, one might find error in the NLJ

analysis for Docket listings in the five-year period preceding 1990. An identical

critique could be leveled at my analyses and other ZIP code-based studies

conducted in the latter half of this decade. Notwithstanding this potential for

miscalculation, please consider the following EPA Region X results. They are

based on the same naive methodology used in the NLJ report - contrasting the

average penalty for the least ethnically diverse quartile (1Q) with the average

penalty for the most ethnically diverse quartile (4Q), with each penalty-beating

action ranked in ascending order by proportion of people of color.

• For all the federal environmental laws aimed at protecting citizens from air,

water and waste pollution, proposed penalties in white communities