The Environment and Racial Equality

• Author: Elliott P. Laws
• Position: EPA Assistant Administrator and former President for Safety, Health & Environment of Texaco, is a Partner at Crowell & Moring
• Pages: 14-14

Page 14 ❧ THE ENVIRONMENTAL FORUM Copyright © 2011, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, March/April 2011

Title VI of the Civil

Rights Act could be the

“sleeping gia nt” of the

administration’s eorts

By Elliott P. Laws

The Environment

and Racial Equality

With the Republican capture of

the House of Representatives,

the future of many of the environmen-

tal priorities of the Obama adminis-

tration has been called into question.

One that I believe is likely to survive is

the administration’s renewed commit-

ment to environmental justice. Unlike

the ef‌forts in this area in past presiden-

cies, both Republican and Democratic,

the Obama administration is taking a

broader, multi-agency approach to this

initiative.

As an example, the White House

recently hosted a Forum on Environ-

mental Justice. e event featured

f‌ive cabinet-level speakers and four

panels. e panels covered green jobs

and clean energy, led by Hilda Solis,

secretary of labor; the legal framework

for advancing environmental justice,

led by Eric Holder, attorney general;

healthy communities and place-based

initiatives, led by Kathleen Sebelius,

secretary of health and human servic-

es; and climate adaptation, led by Ken

Salazar, secretary of the interior.

EPA Administrator Lisa Jackson

spoke on the broad array of environ-

mental justice problems in the country,

noting that black and Hispanic popu-

lations are disproportionately exposed

to air pollution, and that Hispanics are

disproportionately impacted by pesti-

cide exposure. Jackson also highlighted

several environmental justice initiatives

the administration is undertaking, in-

cluding clean up of urban waters, the

Gulf Coast Restoration Partnership,

and the Interagency Working Group

on Environmental Justice.

Jackson said that the Obama ad-

ministration has already incorporated

aspects of Plan EJ 2014 — the admin-

istration’s comprehensive approach to

addressing environmental justice —

into many facets of its functioning,

including rulemaking and permitting

decisions. e agency recently released

a draft of Plan EJ 2014 for public com-

ment. e plan did not focus on spe-

cif‌ic environmental problems or any

one of EPA’s statutory or regulatory

regimes. Rather, it aims to incorporate

environmental justice into the follow-

ing f‌ive key EPA activities that the

document terms “Cross-Agency Focus

Areas”: rulemaking; the permitting

process; compliance and enforcement

initiatives; community-based action

programs; and administration-wide

initiatives. As part of the planning

process, national program managers at

EPA have been tasked with identifying

items within their ar-

eas that could be used

to benef‌it communi-

ties with environmen-

tal justice concerns.

EPA released its

comprehensive im-

plementation docu-

ment for Plan EJ 2014 in February.

e implementation document for-

mally establishes how the agency will

factor environmental justice into the

f‌ive cross-agency focus areas. A major

thrust of the initiative will be cumula-

tive impacts of individual permitting

and enforcement decisions on minor-

ity and disadvantaged communities,

as numerous environmental concerns

tend to congregate in these areas. In

the near future, the agency plans to

address permitting processes that have

been delegated from the federal EPA

to state agencies.

e Justice Department is taking

an increased role in this area. Attorney

General Holder noted that environ-

mental justice is a top priority, high-

lighting a recent conference on envi-

ronmental justice for U.S. attorneys.

He also committed the administra-

tion to aggressive environmental en-

forcement in every U.S. community.

Similarly, Assistant Attorney General

for the Environment and Natural Re-

sources Division Ignacia Moreno spoke

about taking a dynamic and creative

approach to ensuring environmental

justice. is includes increased use of

supplemental environmental projects

focused on environmental justice and

enhanced injunctive relief in enforce-

ment cases. Moreno met recently with

the Corporate Environmental En-

forcement Council to discuss environ-

mental justice issues.

Assistant Attorney General for the

Civil Rights Division Tom Perez un-

veiled the idea of invoking Title VI

of the Civil Rights Act in an environ-

mental justice context. Perez termed

Title VI a “sleeping giant” as it relates

to enforcing environmental justice.

However, he did caution that recent

jurisprudence in federal courts makes

it more dif‌f‌icult to succeed in a Title

VI action.

While very few spe-

cif‌ics have come out,

we expect to see some

indication of how the

administration’s EJ ef-

forts will play out in

enforcement actions,

regulatory actions (the def‌inition of

solid waste, for example), and policy

initiatives by EPA. It does not appear

that recent political changes in Wash-

ington will impact the administration’s

movement in this area, even though

it will likely come under some scru-

tiny by the House of Representatives.

Other issues will likely garner more at-

tention and we do not anticipate that

environmental justice will rise to the

top of an admittedly long agenda for

House Republicans, at least during the

early part of this Congress.

Elliott P. Laws, f or m er EP A

Assistant Administrator and former President

for Safety, Hea lth & Environment of Texaco,

is a Partn er at Crowell & Moring. H e can be

reached at elaws@ crowell.com.

T B  E