Last year, I compared EPA’s Interim Guidance on Considering Environmental Justice During the Development of an Action to Rube Goldberg – and that was only EJ Guidance on Rulemaking. Now EPA has issued its comprehensive Plan EJ 2014. I still find the resources devoted to this subject by EPA and the convolutions it is going through to analyze the issue to be stunning.
I also still think that my simple analysis from last year is not too simplistic. Here’s the way EPA’s job is supposed to work:
- Congress passes environmental protection laws for EPA to implement.
- Those statutes generally provide for EPA to set standards with something like “an adequate margin of safety.”
- EPA does its job.
There are two significant theoretical issues which could give rise to legitimate concerns about disparate environmental impacts. One is if, as a result of political disenfranchisement, what are known as EJ communities cannot adequately participate in the environmental regulatory process. I don’t doubt that this happens, though I’m skeptical about how often and statistics about the number of solid waste transfer stations in poor or minority communities doesn’t make the case for me. In any case, the broad issue is beyond the capability of EPA to solve and it shouldn’t try. That’s what the Civil Rights Act is for. Moreover, a significant piece of the problem is addressed just by increased disclosure and transparency that is happening anyway, through developments in the electronic, i.e., web-based, dissemination of information.
The other concern frequently raised is the one of cumulative impacts, and it receives a lot of attention in Plan EJ 2014. That one, I really don’t buy. Cumulative impacts are already addressed as appropriate in the EPA organic statutes. That’s what nonattainment with NAAQS and resulting state implementation plans are all about. If an area is in compliance with the NAAQS, that should be the answer. If they are not, everyone contributing to that exceedance gets ratcheted down. If the NAAQS is not sufficiently protective (ozone, anyone?), lower it. The same is true for the Clean Water Act. That’s what water quality criteria and the TMDL process are for. If a water body complies with WQCs, it should be considered safe. If not, dischargers into that water body get ratcheted down.
I could continue, but I won’t.
My final pet peeve about EJ is the continuing discussion regarding what Plan EJ 2014 calls “equitable development and place-based initiatives.” As I noted in another post on the EJ issue, EPA is, to put it lightly, somewhat optimistic when it thinks that its EJ efforts can help spur economic development in EJ communities. EJ can be used to say no to economic development in poor or minority communities, but it cannot say yes. EPA cannot make capital go where it does not want to go.
Prudent developers work with communities. They don’t need EJ rules to tell them that local support is better than local opposition. However, ask those developers most known for working with local communities and I doubt you’d find one who thinks that EPA or state or local EJ rules or guidance help facilitate development in any way, shape, or form.
Seth, you hit the nail on the head regarding this issue. NAIOP has been saying for over a decade that proposed EJ legislation in this state was counter productive to encouraging new “clean” business growth in minority areas. It is similar to the brownfields issue, in that a business interested in a particular urban location may consider it, despite the presence of contaminated soil, not because of it. Listing sites as contaminated tends to discourage interest in the first place. Identifying locations as a part of a EJ designated district will give pause to a business owner, knowing that there will be more process, more uncertainty, and, likely, more cost. Let’s make it “easier” for businesses to do the right thing, not make it more difficult.
David: I suspect that I’m preaching to the choir in your case, but keep those comments coming.
I beleive the reason EPA cant issue sensible EJ Guidance is that EPA doesnt support it. Rather, EPA deliberately takes steps to frustrate EJ notwithstadning statutory citizen participation in CAA permitting, and no doubt EPA is actively doing the same in many other contexts, eg RCRA and the CWA. Insofar as CAA permtting goes, the rules and procedures and agency policies are designed to raise the bar for EJ communities. See eg the title V Orders EPA issues. And this broad issue is not beyond the capability of EPA to solve, at least in the case of responding to titlel V petiitons.