Law and the Environment : Environmental Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

Daily Environmental Report noted earlier this week that Bob Perciasepe, EPA Depute Administrator, has told the National Environmental Justice Advisory Council that environmental justice is the “largest remaining challenge” that EPA must address systematically. This is not particularly surprising, since Lisa Jackson has made EJ a priority.

However, I was left nearly speechless by the statement in Daily Environment Report that Perciasepe indicated that

Polluted communities are also not likely to be targeted for business investment, meaning those communities have limited economic opportunities in addition to disproportionate pollution burdens.”

Once again, I’m left wondering what planet EPA is from. Those in the private sector would be stunned by linking the need for EJ with the need for more economic development in poor communities. EJ can be a real issue. Where racial minorities suffer disproportionate burdens because of their race, everyone should be concerned.

At the same time, however, EPA has to realize that EJ requirements are far more likely to retard economic development than encourage it. Where EJ concerns prevent economic development because organized groups label them as LULUs, or Locally Unwanted Land Uses, that may be an EJ success, but it doesn’t contribute to economic development. We can’t wave a magic wand and make the private sector want to site a nice clean office park in a distressed area, just because the residents would prefer that to some slightly messier use.

Even where properties are already contaminated, my experience is that EJ concerns are more likely to discourage redevelopment than encourage it. Brownfields properties are challenging enough without an additional layer of EJ review. One would think that anyone cleaning up contaminated property for almost any kind of economic development would be welcomed by the communities surrounding such properties. However, EJ requirements too often scare aware Brownfields developers. Again, this may be an EJ victory and it may be what the communities want, but to suggest that systematic integration of EJ issues into EPA’s programs will increase economic development in poor communities is, to put it gently, wishful thinking.

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Stop the presses: According to the Daily Environment Report, EPA’s director of the Office of Federal Activities, Susan Bromm, has acknowledged that concerns about climate change and environmental justice are “contributing to the size, cost, and time-consuming nature of environmental impact statements….” Nonetheless, Ms. Bromm apparently asserted that these "analyses do not have to be overwhelming,” and she blamed, at least in part, agencies which “overreact to the fear of litigation.”

Not surprisingly, a speaker on the same panel from DOT felt otherwise. According to Helen Serassio, an attorney at DOT:

We’ve gotten to the point where they’re kind of out of control.

Ya’ think?

The notion that agencies are overdoing environmental reviews under NEPA because they are unreasonably concerned with potential litigation would strike many as absurd. It’s so easy for a judge, who doesn’t want to be the one who approved a nuclear plant that later has some kind of disaster, to say that the EIS wasn’t sufficiently thorough. For any worst case analysis, there’s always something worse, and for any nervous judge, it’s just too easy to ask for that additional analysis.

What’s lost from the discussion is any perspective, any sense that compliance with NEPA costs money and that delay of important projects imposes its own set of costs. I’m a supporter of NEPA. The requirement to assess environmental consequences of federal decisions certainly improves those decisions. However, those reviews do come with costs attached and, from where I sit, the judicial thumb is firmly on the side of more review at this point, without regard to any kind of cost-benefit analysis. As Ms. Serassio said:

We’ve gotten to the point where they’re kind of out of control.

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Last week, EPA’s Office of Solid Waste and Emergency Response announced release of its Community Engagement Implementation Plan. Who could be against community engagement? It’s as American as apple pie. It’s environmental justice. It’s community input into decisions that affect the community. It’s transparency and open decision-making.

Call me a curmudgeon, but I’m against it. Study after study shows that, in terms of the actual risks posed by Superfund sites, we devote too many of our environmental protection dollars to Superfund sites, when we should be focusing on air and water. Why do we keep doing this? Because the community demands it. As Peter Sandman has noted, perceptions of risk are driven only partly by the actual hazard posed. To a significant degree, those perceptions are more driven by outrage over the situation. In some circumstances, what Sandman calls outrage management makes sense, but I’m skeptical that EPA’s community engagement initiative is really about outrage management.

In any case, here’s the public policy question of the day. Does it really make sense to spend scarce environmental protection resources, not to reduce risk, but to reduce outrage?

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As I have previously noted, Cass Sunstein, now head of the Office of Information and Regulatory Affairs at OMB under Obama, has called the precautionary principle “deeply incoherent.” Why? Because, as Sunstein notes, “costly precautions inevitably create risks.”

I hope that Sunstein is as troubled as I am by the news, reported recently by Inside EPA, that Mathy Stanislaus, head of EPA’s Office of Solid Waste & Emergency Response, has said that implementing the precautionary principle is a key to EPA’s environmental justice efforts.

When Stanislaus says that “we can’t wait until we have all the conclusive interpretive science to make a decision,” I agree with him, but that’s not the precautionary principle, that’s just a willingness to regulate under uncertainty, which has been a bedrock of environmental law.

However, the precautionary principle is something different and much more insidious. It’s not “regulate in spite of uncertainty” – it’s “regulate because of uncertainty.” It seems to stem from an almost Luddite fear of new technology and, as Sunstein points out, a philosophical view that nature is good and man-made is bad.

Stanislaus is head of OSWER. Is he going to oppose use of new cleanup technologies based on nanotechnology, because the precautionary principle says that we don’t know that nanomaterials are safe?

Stanislaus wants to “operationalize the precautionary principle.” Be worried, be very worried.

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