2 C Es Ej And The Law [Autosaved]
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2 C Es Ej And The Law [Autosaved] 2 C Es Ej And The Law [Autosaved] Presentation Transcript

  • Environmental Justice and the Law
  • Introduction
    • Still relatively little “hard” EJ law
    • Many decisions made at the local level
    • State law of growing importance
    • Much of the movement for legal change comes from grass roots activism and growing evidence about disparities in environmental harms and benefits
    • Agencies have concerns about the sources of their authority to address EJ issues
  • Introduction
    • To some activists, environmental law has been part of the problem, not the solution
      • Many laws have focused on achieving “net social benefits” without regard to distributional consequences
      • Environmental laws have focused on pollution control rather than prevention
  • Context for Legal Controversies
    • Siting
    • Permitting
    • Standard Setting
    • Enforcement
    • Cleanup of Contaminated Sites
    • A statute is a type of law
      • they exist @ the federal, state, county and local levels
      • federal statutes are written by Congress and signed by the President
    • Regulations support statutes
      • they are issued by governmental agencies to carry out the law
      • they are the details that state how a law will be implemented
    • An Executive Order is an order issued by a government’s chief executive
      • it is not a statute or regulation
      • it is not written or passed by a legislative body
      • it is intended to give attention to a certain law or body of laws & directs federal agencies how to implement them
      • agencies to which an Executive Order applies have a legal and political obligation to fulfill the requirements of the order
  • Executive Order 12898
    • Directs EPA & other federal agencies:
      • [t]o the greatest extent practicable and permitted by law…[to] make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.
    • Addresses income, race, & ethnicity
    • Doesn’t expand an Agency’s authorities beyond existing law
    • Not enforceable in judicial proceedings (but can be the basis of administrative challenge)
  • Executive Order 12898
    • Agencies required to develop environmental justice strategies that at a minimum:
      • Promote enforcement in areas with minority and low-income pops.
      • Ensure greater public participation
      • Improve research & data collection relating to health & env.
        • ID multiple and cumulative exposures
      • Identify differential patterns of natural resource consumption
  • Applicability to States
    • States administer 75% of major federal env. programs
    • “ Delegated” - EO applies
    • “ Authorized” – in lieu of EPA – by adopting state law vs. fed. Statutes, EO does not apply to states
  • Permitting By Environmental Agencies
    • Legal authority clearly exists for agencies to address EJ issues in deciding whether to grant a permit
    • Includes addressing issues of cumulative and disproportionate risk
    • Examples
      • CAA Section 173: Permits in nonattainment areas require analysis of social costs of proposed site and alternative sites
      • Omnibus clauses
    • Pulled together leadership of many federal agencies
    • Required agencies to develop EJ strategies and commitments and to share information
  • Offices using existing laws to achieve environmental justice: Other Offices
    • DOI
    • DOL
    • DOD
    • DOJ
    • HUD
    • USDA
    • EPA
    • HHS
    • DOT
    • DOC
    • DOE
    Departments & Agencies Science & Technology Policy President’s Deputy Assistants for Domestic & Env’t Policy Council of Economic Advisors National Economic Council OMB
  • THREE KINDS OF LAWS Public Administration Laws Environmental Laws EJ Civil Rights Laws
  • PUBLIC ADMIN. LAWS Public Administration Laws Environmental Laws
    • EPCRA
    • FOIA
    • The Sunshine Act
    EJ Civil Rights Laws
    • provide communities and local governments with information to help them deal with chemical emergencies
    • requires companies and other facilities that use toxic chemicals, over a certain amount, to file an inventory of their toxic releases every year (A Toxic Release Inventory, or TRI)
    • Residents in low-income and minority communities have used TRI to find out what chemicals are around them
    • FOIA gives people access to government information
    • People have the right to information on demand
    • Most states have similar laws
    • Provides for meetings and proceedings to be open to public scrutiny with no closed door decision making
    • The government has an obligation to disseminate information that affects low-income and minority communities
    • There are minimum requirements for public notification via the Federal Register
  • CIVIL RIGHTS LAWS Public Administration Laws Environmental Laws
    • Title VI
    EJ Civil Rights Laws
  • CIVIL RIGHTS ACT of 1964: Title VI
    • Intended to prevent intentional discrimination (on the basis of race) by programs that receive federal funding
        • Unlike EO, doesn’t include income
    • Typically, this means federal financial assistance to states
    • Most federal agencies have regulations under Title VI that prohibit discriminatory effects, without regard to intent
  • CIVIL RIGHTS ACT of 1964: Title VI
    • Remedy for violation: Withdrawal of federal funds or referral to Department of Justice to seek injunction
  • CIVIL RIGHTS ACT of 1964: Title VI
    • Judicial: No private right of action to enforce Title VI’s discriminatory effect regulations
      • Alexander v. Sandoval, 532 U.S. 275 (2001)
    • Administrative: As of 9/30/02
      • 3 decided on merit (1 publicly)
      • 72 dismissed on procedural grounds
      • 19 referred elsewhere, dismissed after acceptance, or resolved
      • 42 pending review
  • Select Steel Decision (1999)
    • Only full EPA opinion addressing administrative complaint on merits
    • Proposed facility required permit under CAA from Michigan DEQ, emitted Pb & VOCs
    • EPA found no “adverse impact” from facility because emissions would not affect area’s compliance with NAAQS
    • EPA dismissed complaint
  • South Camden Citizens v. NJ Dept. Envtl. Protection, 145 F. Supp. 2d 446 (2001)
    • Application for facility that grinds, processes granulated blast furnace slag
    • Affected community 91% minority
    • Court held that reliance on compliance with existing environmental regulations insufficient for Title VI compliance
      • Adverse impact from PM even though facility will be in compliance with the NAAQS
    • Court found disparate adverse health impacts and violation of Title VI
    • Issued injunction against facility
    • Vacated & later overturned by 3 rd Circuit appeals because no right of judicial action
  • ENVIRONMENTAL LAWS Public Administration Laws Environmental Laws Civil Rights Laws
    • CWA
    • • RCRA
    • • NEPA
    • • CAA
  • National Environmental Policy Act (NEPA)
    • Mandates a detailed EIS for every major federal action significantly affecting human health or the environment
        • Includes ecological, historic, cultural, health, cumulative
    • Requires Agencies to provide for meaningful public involvement in the review process.
    • EIS must be written in plain language
  • CEQ Guidance (1997)
    • Agencies should determine whether an area impacted by a proposed project may include low-income populations, minority populations, or Indian tribes, and whether the proposed action is likely to have a disproportionately high and adverse human health or environmental impact on these populations.
  • CEQ Guidance
    • Agencies should consider the potential for multiple or cumulative exposure, historical patterns of exposure to environmental hazards, and cultural differences which may lead certain communities to experience impacts more severely than the general population.
  • CEQ Guidance
    • The distribution and magnitude of any disproportionate adverse effects should be a factor in the agency’s ID of the “environmentally preferable alternative” for a project
    • In developing mitigating measures, agencies should solicit the view of the affected populations throughout the public participation process, and mitigation measures should reflect the view of affected low-income populations, or Indian tribes to the maximum extent practicable.
  • Environmental Justice Authorities Public Administration Laws Environmental Laws Civil Rights Laws
    • EPCRA
    • The Sunshine Act
    • FOIA
    • Title VI
    • CAA
    • • RCRA
    • • NEPA
    • • CWA
  • Interpretations of Federal Legal Authority
    • EPA OGC - Memo OGC (G. Guzy to AAs) regarding EJ and permitting (12/1/01)
    • Env. Law Institute – Opportunities for Advancing Environmental Justice: An Analysis of U.S. EPA Statutory Authorities (2002)
    • NAPA – EJ in EPA Permitting: Reducing Pollution in high-risk communities is Integral to the Agency’s Mission (December 2001)
    • Richard J. Lazarus and Stephanie Tai – Integrating EJ into EPA permitting authority (26 Ecology L. Q. 617 (1999))