Reactions to EPA's Interim Guidance: The Growing Battle for Control over Environmental Justice Decision making

Indiana Law Journal

Volumn 75, Issue 2, 2000, Pages 687-708

  Lyle, June M ^a,b  

^a INDIANA UNIVERSITY   (United States)

^b UNIVERSITY OF ILLINOIS AT URBANA CHAMPAIGN   (United States)

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[No Author keywords available]

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EID: 1842661940     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (86)

1. U.S. Environmental Protection Agency, Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits (visited Jan. 19,2000) 〈http://es.epa.gov/ oeca/oej/titlevi.html〉 [hereinafter Interim Guidance].
2. See EPA Official Says Consultation Before Guidance Release Insufficient, 22 Chem. Reg. Rep. (BNA) 779 (July 24, 1998).
3. Robert D. Bullard, Introduction to UNEQUAL PROTECTION: ENVIRONMENTAL JUSTICE AND COMMUNITIES OF COLOR at xv, xv (Robert D. Bullarded., 1994).
4. See Robert D. Bullard, Environmental Justice for All, in UNEQUAL PROTECTION: ENVIRONMENTAL JUSTICE AND COMMUNITIES OF COLOR, supra note 4, at 3, 10.
5. For a more detailed discussion of the implications of the varying terminology employed by environmental justice commentators, see Gerald Torres, Environmental Justice: The Legal Meaning of a Social Movement, 15 J.L. & COM. 597, 603-05 (1996).
6. See Evan J. Ringquist, Environmental Justice: Normative Concerns and Empirical Evidence, in ENVIRONMENTAL POLICY IN THE 1990s: REFORM OR REACTION? 231, 234-35 (Norman J. Vig & Michael E. Kraft eds., 3d ed. 1997).
7. See Gerald Torres, Environmental Burdens and Democratic Justice, 21 FORDHAMURB. L.J. 431, 434-45 (1994).
8. See Marianne Lavelle & Marcia Coyle, Unequal Protection: The Racial Divide in Environmental Law, NAT'L L.J., Sept. 21, 1992, at SI.
9. See id. In the past year, several sources have reported that the EPA has conducted studies that refute some of the conclusions of the National Law Journal study. See EPA Studies on Superfund Site Populations Fuel Industry Opposition to Title VI Guidance, 29 Env't Rep. (BNA) 317 (June 5, 1998). The EPA has been criticized heavily for not disseminating the results of its research. See David Mastio, EPA Keeps Key Documents Secret: They Contradict New Agency Policy on Environmental Justice, DET. NEWS, July 17, 1998, at A1.
10. See id. In the past year, several sources have reported that the EPA has conducted studies that refute some of the conclusions of the National Law Journal study. See EPA Studies on Superfund Site Populations Fuel Industry Opposition to Title VI Guidance, 29 Env't Rep. (BNA) 317 (June 5, 1998). The EPA has been criticized heavily for not disseminating the results of its research. See David Mastio, EPA Keeps Key Documents Secret: They Contradict New Agency Policy on Environmental Justice, DET. NEWS, July 17, 1998, at A1.
11. Richard J. Lazarus, Pursuing "EnvironmentalJustice": The Distributional Effects of Environmental Protection, 87 Nw. U. L. REV. 787, 796 (1993).
12. See CHRISTOPHER H. FOREMAN, JR., THE PROMISE AND PERIL OF ENVIRONMENTAL JUSTICE 18-27 (1998).
13. See Roliff Purrington & Michael Wynne, Environmental Racism: Is a Nascent Social Science Concept a Sound Basis for Legal Relief?, Hous. LAW. Mar.-Apr. 1998, at 34.
14. Seee. eg., Vicki Been, Analyzing Evidence ofr Environmental Justice, 11 J. LAND USE & ENVTL. L. 1 ( 1995); Lynn E. Blais, Environmental Racism Reconsidered, 75 N.C.L. REV. 75 (1996); Robert R. Kuehn, The Environmental Justice Implications of Quantitative Risk Assessment, 1996 U. ILL. L. REV. 103.
15. Seee. eg., Vicki Been, Analyzing Evidence ofr Environmental Justice, 11 J. LAND USE & ENVTL. L. 1 ( 1995); Lynn E. Blais, Environmental Racism Reconsidered, 75 N.C.L. REV. 75 (1996); Robert R. Kuehn, The Environmental Justice Implications of Quantitative Risk Assessment, 1996 U. ILL. L. REV. 103.
16. Seee. eg., Vicki Been, Analyzing Evidence ofr Environmental Justice, 11 J. LAND USE & ENVTL. L. 1 ( 1995); Lynn E. Blais, Environmental Racism Reconsidered, 75 N.C.L. REV. 75 (1996); Robert R. Kuehn, The Environmental Justice Implications of Quantitative Risk Assessment, 1996 U. ILL. L. REV. 103.
17. ROBERT D. BULLARD, DUMPINGIN DIXIE: RACE, CLASS, AND ENVIRONMENTAL QUAULITY (1990).
18. See Lazarus, supra note 14; Rachel D. Godsil, Note, Remedying Environmental Racism, 90 MICH. L. REV. 394 (1991).
19. See The Law of Environmental Justice: A Research Pathfinder, 25 Envtl. L. Rep. (Envtl. L. Inst.) 10543 (Oct. 1995). The article noted in 1995 that although the legal field had
20. See Michele L. Knorr, Comment, Environmental Injustice: Inequities Between Empirical Data and Federal, State, Legislative and Judicial Responses, 6U. BALT. J. ENVTL. L. 71, 90-98 (1997).
21. See Donna Gareis-Smith, Comment, Environmental Racism: The Failure of Equal Protection To Provide Judicial Remedy and the Potential of Title VI of the 1964 Civil Rights Act, 13 TEMP. ENVTL. L. & TECH. J. 57, 76-78 (1994).
22. See Steven A. Light & Kathryn R.L. Rand, Is Title VI a Magic Bullet? Environmental Racism in the Context of Political-Economic Processes and Imperatives, 2 MICH. J. RACE & L. 1, 27 (1996).
23. See Supreme Court Agrees To Review Civil Rights Decision by Third Circuit, 29 Env't Rep. (BNA) 372 (June 12, 1998).
24. See Supreme Court Dismisses Challenge, Vacates Third Circuit Civil Rights Decision, 29. Env't Rep. (BNA) 849 (Aug. 21, 1998).
25. See First Citizen Petition Under Title VI Granted To Block Construction of Industrial Facility, 28 Env't Rep. (BNA) 835 (Sept. 12, 1997).
26. See Black Caucus, EPA To Meet on Shintech; Dispute May Be Test Case on Title VI Suits, 22 Chem. Reg. Rep. (BNA) 780 (July 24, 1998). It should also be noted that several unsuccessful attempts have been made to pass environmental justice legislation. For a discussion of those bills, see Knorr, supra note 31, at 85-89.
27. See Black Caucus, EPA To Meet on Shintech; Dispute May Be Test Case on Title VI Suits, 22 Chem. Reg. Rep. (BNA) 780 (July 24, 1998). It should also be noted that several unsuccessful attempts have been made to pass environmental justice legislation. For a discussion of those bills, see Knorr, supra note 31, at 85-89.
28. See Mike Dunne, Shintech Withdraws Plan: WBR Location Selected for Smaller Facility, BATON ROUGE Anvoc., Sept. 18, 1998, at 1A.
29. See Vicki Ferstel, Shintech Change Won't End Environmental Justice Test Case, BATON ROUGE Anvoc., Sept. 18, 1998, at 11 A.
30. See In the Matter of Louisiana Energy Services, L.P., 45 N.R.C. 367 (1997); Energy Company Denied License by NRC for Louisiana Uranium-Enrichment Plant, 28 Env't Rep. (BNA) 48 (May 9, 1997).
31. See In the Matter of Louisiana Energy Services, L.P., 45 N.R.C. 367 (1997); Energy Company Denied License by NRC for Louisiana Uranium-Enrichment Plant, 28 Env't Rep. (BNA) 48 (May 9, 1997).
32. See Louisiana Energy Services, L.P., 47 N.R.C. 77 (1998); Licensing of Uranium Enrichment Plant Needs More Study, Commission Decides, 28 Env't Rep. (BNA) 2645 (Apr. 10, 1998).
33. See Louisiana Energy Services, L.P., 47 N.R.C. 77 (1998); Licensing of Uranium Enrichment Plant Needs More Study, Commission Decides, 28 Env't Rep. (BNA) 2645 (Apr. 10, 1998).
34. See Energy Consortium Withdraws Application for Uranium-Enrichment Plant License, 29 Env't Rep. (BNA) 23 (May 1, 1998).
35. Lazarus, supra note 14, at 838 (quoting 6 U.S. COMMISSION ON CIVIL RIGHTS, THE FEDERAL CIVIL RIGHTS ENFORCEMENT EFFORT-1974, at 595 (1975)).
36. See Former Governor Calls for Rethinking at EPA To Combat Effects of "Environmental Racism", 22 Env't Rep. (BNA) 1655 (Nov. 1, 1991).
37. See ENVIRONMENTAL EQUITY WORKGROUP, U.S. ENVTL. PROTECTION AGENCY, ENVIRONMENTAL EQUITY: REDUCING RISK FOR ALL COMMUNITIES (1992).
38. See William K. Reilly, Environmental Equity: EPA's Position, EPAJ., Mar.-Apr. 1992, at 18, 20.
39. Robert D. Bullard, Environmentalism with Justice, in CONFRONTING ENVIRONMENTAL RACISM: VOICES FROM THE GRASSROOTS 195, 196-97 (Robert D. Bullarded., 1993).
40. See Marianne Lavelle, Residents Want "Justice, "the EPA Offers "Equity", NAT'LL.J., Sent. 21, 1992, at 512.
41. See Marianne Lavelle, EPA Enforcement To Be Probed by Rights Commission, NAT'L L.J., Apr. 5, 1993, at 3, 34.
42. See Policy Set for Handling of Complaints on Local, State Environmental Permits, 28 Env't Rep. (BNA) 2125 (Feb. 13, 1998).
43. See Browner Defends Release of Interim Policy on Processing of Civil Rights Complaints, 22 Chem. Reg. Rep. (BNA) 387 (May 22, 1998).
44. See James P. Lester, A New Federalism? Environmental Policy in the States, in ENVIRONMENTAL POLICY IN THE 1990s: TOWARD A NEW AGENDA 59, 59 (Norman J. Vig & Michael E. Kraft eds., 1990); Barry G. Rabe, Power to the States: The Promise and Pitfalls of Decentralization, in ENVIRONMENTAL POLICY IN THE 1990s: REFORM OR REACTION?, supra note 9, at 3 1, 32-34. For a more detailed history of environmental federalism, see Robert V.
45. See James P. Lester, A New Federalism? Environmental Policy in the States, in ENVIRONMENTAL POLICY IN THE 1990s: TOWARD A NEW AGENDA 59, 59 (Norman J. Vig & Michael E. Kraft eds., 1990); Barry G. Rabe, Power to the States: The Promise and Pitfalls of Decentralization, in ENVIRONMENTAL POLICY IN THE 1990s: REFORM OR REACTION?, supra note 9, at 3 1, 32-34. For a more detailed history of environmental federalism, see Robert V.
46. See William W. Buzbee, Brownfields, Environmental Federalism, and Institutional Determinism, 21 WM. & MARY ENVTL. L. & POL'Y REV. 1, 1 (1997); Rabe, supra note 90, at 49.
47. See Dan Balz, Governors Press Congress for Power To Manage Programs at State Level, WASH. POST, Dec. 11, 1994, at A6.
48. See WALTER A. ROSENBAUM, ENVIRONMENTAL POLITICS AND POLICY 143-44 (3d ed. 1995). property rights movements, see WILLIAM PERRY PENDLEY, WAR ON THE WEST: GOVERNMENT TYRANNY ON AMERICA'S GREAT FRONTIER (1995).
49. See WALTER A. ROSENBAUM, ENVIRONMENTAL POLITICS AND POLICY 143-44 (3d ed. 1995). property rights movements, see WILLIAM PERRY PENDLEY, WAR ON THE WEST: GOVERNMENT TYRANNY ON AMERICA'S GREAT FRONTIER (1995).
50. See Stale Agency Chiefs Ask EPA To Withdraw New Guidance on Civil Rights Complaints, 28 Env't Rep. (BNA) 2531 (Apr. 3, 1998).
51. Resolution Number 98-2, Environmental Protection Agency's Interim Guidance for Investigating Environmental Permit Challenges (visited Dec. 1, 1999) 〈http://www.sso.org/ ecos/resolutions/98-2.htm〉. concerns before a congressional subcommittee a few months later. See EPA's Title VI Interim Guidance and Alternative State Approaches: Hearings Before the Subcomm. on Oversight and Investigations of the House Comm. on Commerce, 105th Cong. 37-41 (1998) (testimony of Michael J. Hogan, Counselor to the Comm'r, State of N.J., Dep't of Envtl. Protection).
52. Resolution Number 98-2, Environmental Protection Agency's Interim Guidance for Investigating Environmental Permit Challenges (visited Dec. 1, 1999) 〈http://www.sso.org/ ecos/resolutions/98-2.htm〉. concerns before a congressional subcommittee a few months later. See EPA's Title VI Interim Guidance and Alternative State Approaches: Hearings Before the Subcomm. on Oversight and Investigations of the House Comm. on Commerce, 105th Cong. 37-41 (1998) (testimony of Michael J. Hogan, Counselor to the Comm'r, State of N.J., Dep't of Envtl. Protection).
53. See EPA Civil Rights Policy Lacks Recognition of State Permit Processes, Attorneys Say, 29 Env't Rep. (BNA) 183 (May 15, 1998).
54. See Vicki Ferstel, Executive Order Draws Attention to New Concern, BATON ROUGE ADVOC., June 23, 1998, at 1A.
55. See Michigan Governor Blames EPA Policy for Company Decision To Scrap Factory Plan, 29 Env't Rep. (BNA)995 (Sept. 18, 1998).
56. See EPA Dismisses Michigan Complaint; State Officials Still Wary of New Policy, 22 Chem. Reg. Rep. (BNA) 1256 (Nov. 6, 1998).
57. See Western Governors ' Association Joins Calls for EPA To Withdraw Civil Rights Guidance, 29 Env't Rep. (BNA) 570 (July 10, 1998).
58. Western Governors' Association, Environmental Protection Agency Interim Guidance for Addressing Environmental Justice Challenges to Permits (visited Dec. 1, 1999) 〈http:// www.westgov.org/wga/policy/98009.htm〉.
59. For a discussion of the importance of regulatory certainty, see William W. Buzbee, Remembering Repose: Voluntary Cleanup Approvals, Incentives, and the Costs of Interminable Liability, 80 MINN. L. REV. 35, 96 (1995).
60. Recommendations for increased stakeholder participation in EPA decisionmaking can be found in ENTERPRISE FOR THE ENV'T, CENTER FOR STRATEGIC AND INT'L STUDIES, THE ENVIRONMENTAL PROTECTION SYSTEM IN TRANSITION: TOWARD A MORE DESIRABLE FUTURE 41-43(1998).
61. Detroit Mayor Dennis Archer's opposition to the guidance received coverage in the mainstream media. See, e.g., Lynette Clemetson, A Green Bottom Line: Black Leaders Struggle To Balance Jobs, Pollution, NEWSWEEK, Nov. 2, 1998, at 53.
62. See Pollution in Minority and Inner-City Neighborhoods: Hearings Before the House Subcomm. on Oversight and Investigations of the House Comm. on Commerce, 105th Cong. (1998), available in 1998 WL 12763210 [hereinafter Hearings] (testimony of Harry C. Alford, President, National Black Chamber of Commerce, Inc.); Environmental Justice: U.S. Conference of Mayors Calls on EPA To Suspend Guidance on Civil Rights, 29 Env't Rep. (BNA) 469 (June 26, 1998);
63. See Pollution in Minority and Inner-City Neighborhoods: Hearings Before the House Subcomm. on Oversight and Investigations of the House Comm. on Commerce, 105th Cong. (1998), available in 1998 WL 12763210 [hereinafter Hearings] (testimony of Harry C. Alford, President, National Black Chamber of Commerce, Inc.); Environmental Justice: U.S. Conference of Mayors Calls on EPA To Suspend Guidance on Civil Rights, 29 Env't Rep. (BNA) 469 (June 26, 1998);
64. See EPA Bungling Leaves "Environmental Justice" Elusive, USA TODAY, July 20, 1998, at 14A; NAACP Head Demands Environmental Action, NAT'LL.J., May 10, 1993, at 5, 23. The Congressional Black Caucus has criticized the mitigation and justification provisions of the Interim Guidance, however. See Black Caucus, EPA To Meet on Shintech; Dispute May Be Test Case on Title VI Suits, 22 Chem. Reg. Rep. (BNA) 780 (July 24, 1998).
65. See EPA Bungling Leaves "Environmental Justice" Elusive, USA TODAY, July 20, 1998, at 14A; NAACP Head Demands Environmental Action, NAT'LL.J., May 10, 1993, at 5, 23. The Congressional Black Caucus has criticized the mitigation and justification provisions of the Interim Guidance, however. See Black Caucus, EPA To Meet on Shintech; Dispute May Be Test Case on Title VI Suits, 22 Chem. Reg. Rep. (BNA) 780 (July 24, 1998).
66. See EPA Bungling Leaves "Environmental Justice" Elusive, USA TODAY, July 20, 1998, at 14A; NAACP Head Demands Environmental Action, NAT'LL.J., May 10, 1993, at 5, 23. The Congressional Black Caucus has criticized the mitigation and justification provisions of the Interim Guidance, however. See Black Caucus, EPA To Meet on Shintech; Dispute May Be Test Case on Title VI Suits, 22 Chem. Reg. Rep. (BNA) 780 (July 24, 1998).
67. Regina Austin & Michael Schill, Black, Brown, Red, and Poisoned, in UNEQUAL PROTECTION: ENVIRONMENTAL JUSTICE AND COMMUNITIES OF COLOR, super note 4, at 57-58.
68. See James Noel Smith, Preface to ENVIRONMENTAL QUALITY AND SOCIAL JUSTICE IN URBAN AMERICA at ix, x (James Noel Smith ed., 1974).
69. James Noel Smith, The Coming of Age of Environmentalism in American Society, in ENVIRONMENTAL QUALITY AND SOCIAL JUSTICE IN URBAN AMERICA, supra note 129, at 1,2. In reality, America's mainstream environmental organizations vary widely in their level of commitment to environmental justice and environmental issues affecting urban populations. The Sierra Club was an early proponent of environmental justice issues, whereas other organizations are more exclusively focused upon conserving wildlife and wilderness areas. See Jeffrey St. Clair & Bernardo Issel, A Field Guide to the Environmental Movement, IN THESE TIMES, July 28,1997, at 17.
70. James Noel Smith, The Coming of Age of Environmentalism in American Society, in ENVIRONMENTAL QUALITY AND SOCIAL JUSTICE IN URBAN AMERICA, supra note 129, at 1,2. In reality, America's mainstream environmental organizations vary widely in their level of commitment to environmental justice and environmental issues affecting urban populations. The Sierra Club was an early proponent of environmental justice issues, whereas other organizations are more exclusively focused upon conserving wildlife and wilderness areas. See Jeffrey St. Clair & Bernardo Issel, A Field Guide to the Environmental Movement, IN THESE TIMES, July 28,1997, at 17.
71. See Robert D. Bullard, Anatomy of Environmental Racism and the Environmental Justice Movement, in CONFRONTING ENVIRONMENTAL RACISM: VOICES FROM THE GRASSROOTS, supra note 60, at 15, 23.
72. See David Mastio, Archer Tackles the EPA: U.S. Mayors Back His Call To Suspend Race-Based Policy, DET. NEWS, June 23, 1998, at A1.
73. Chamber Seeks Minority Business Support in Dispute with Agency over Title VI Policy, 29 Env't Rep.(BNA) 614(July 17, 1998).
74. See Mayors Kap EPA al Meeting with Browner for Failure To Consult on Interim Guidance, 29 Env't Rep. (BNA) 658 (July 24, 1998).
75. Carol M. Browner, Remarks Prepared for Delivery, Environmental Justice Roundtable, Detroit MI, July 17, 1998 (visited Dec. 1, 1999) 〈http://www.epa.gov/swerosps/ej/htmldoc/ejremark .htm〉.
76. The head of the Michigan Environmental Council argued in the Detroit News that "[i]f Detroit hopes to follow in the footsteps of other American cities that have already enjoyed an urban renaissance, it will have to clean itself up, not allow itself to be used as an environmental dumping ground." Lana Pollack, Environmental Justice Fights Race Bias, DET. NEWS, July 2, 1998, at A13. Pollack also suggested that "economic Armageddon" arguments were world.
77. The head of the Michigan Environmental Council argued in the Detroit News that "[i]f Detroit hopes to follow in the footsteps of other American cities that have already enjoyed an urban renaissance, it will have to clean itself up, not allow itself to be used as an environmental dumping ground." Lana Pollack, Environmental Justice Fights Race Bias, DET. NEWS, July 2, 1998, at A13. Pollack also suggested that "economic Armageddon" arguments were world.
78. See EVERETT CARL LADD & KARLYN H. BOWMAN, ATTITUDES TOWARD THE ENVIRONMENT: TWENTY-FIVE YEARS AFTER EARTH DAY 9 (1995). The National Resources Defense Council has challenged the argument that it is necessary to choose between environmental justice or pursuing economic development.
79. See Permits Cited in Civil Rights Complaints Have Remained Valid, EPA Official Says, 152 Daily Env't Rep. (BNA) A-9 (Aug. 7, 1998).
80. See Roger H. Bezdek, The Net Impact of Environmental Protection on Jobs and the Economy, in ENVIRONMENTAL JUSTICE: ISSUES, POLICIES, AND SOLUTIONS 86 (Bunyan Bryant ed., 1995).
81. See EPA Official Says Consultation Before Guidance Release Insufficient, 22 Chem. Reg. Rep. (BNA) 779 (July 24,1998).
82. See Daniel Faber, Introduction to THE STRUGGLE FOR ECOLOGICAL DEMOCRACY: ENVIRONMENTAL JUSTICE MOVEMENTS IN THE UNITED STATES 1 (Daniel Faber ed., 1998).
83. See Luke W. Cole, Environmental Justice Litigation: Another Stone in David's Sling, 21 FORD. URB. L.J. 523, 524 (1994). Others have agreed that Title VI litigation is not the
84. Paul Almeida, The Network for Environmental and Economic Justice in the Southwest: An Interview with Richard Moore, in THE STRUGGLE FOR ECOLOGICAL DEMOCRACY:
85. See TERRY F. YOSIF. & TIMOTHY D. HERBST, USING STAKEHOLDER PROCESSES IN ENVIRONMENTAL DECISIONMAKING: AN EVALUATION OF LESSONS LEARNED, KEY ISSUES, AND FUTURE CHALLENGES (1998).
86. The EPA had planned to issue draft revised guidelines in the fall of 1999. See EPA To Issue Draft Revision this Fall of Guidance for Civil Rights Act Title VI, 169 Daily Env't Rep. (BNA) A-l (Sept. 1,1999). However, the EPA had not yet issued revised guidelines at the time this Issue went to press, and the EPA does not expect to issue revised guidelines for several months. Telephone Interview with Mavis Sanders, U.S. Envtl. Protection Agency, Office of Civil Rights (Jan. 24,2000).