“Across the nation, abandoned industrial properties are robbing communities and neighborhoods of the opportunity to share in the nation’s economic progress. This administration has taken action to help cities and communities clean up these Brownfields and enable them to serve as sources of economic vitality, of jobs, and of community pride.” Vice President Al Gore, March 17, 1998
The Clinton administration takes pride in its latest initiative to help cities develop “brownfields”–abandoned, contaminated properties located predominantly in inner cities. But while it helps cities with one hand, with the other the administration is erecting major barriers to development in the name of “environmental justice.”
Virtually every community in the nation has Brownfield properties. In 1995, the U.S. General Accounting Office (GAO) estimated that approximately 450,000 brownfields sites exist in the U.S.
One of the greatest barriers to the redevelopment of unproductive brownfield properties is the uncertain liability that developers face once they begin cleaning up a site. Many lending institutions are reluctant to make loans for brownfield projects, as they may also face liability exposure under state and federal laws.
Residents of surrounding communities, many of them minorities, are most hurt by the unattractiveness of brownfield sites for redevelopment. Time and again, they have seen new factories and other businesses reject their neighborhoods in favor of greener pastures in distant suburbia.
To help encourage brownfields redevelopment, the Clinton administration has designated 16 cities nationwide as Brownfields Showcase Communities. The communities have been given $28 million in grants so they can serve as “models for innovative environmental cleanup and economic revitalization.”
While few would quarrel with the goals of the program, the initiative ironically runs the risk of being undermined by the agency chiefly responsible for environmental cleanups: the Environmental Protection Agency. And, more ironic still, EPA insists it is acting to protect the very minorities who have suffered most from the economic stagnation that flows from brownfields.
Behind Closed Doors
On February 5, EPA quietly released its “Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits.” The guidance is intended to provide EPA’s Office of Civil Rights with a framework for processing complaints filed under Title VI of the Civil Rights Act. Developed behind closed doors with no participation either from state environmental agencies or industry stakeholders, the guidance first appeared in public on EPA’s Environmental Justice website, where interested parties learned they had until May 6, 1998 to submit comments to the agency.
It is significant that EPA’s vehicle of choice for releasing its new environmental justice initiative is the harmless-sounding “guidance.” By issuing a guidance rather than a proposed rule, EPA was able to avoid the formal rulemaking process, which requires public notice and comment.
EPA had good reason to avoid such public scrutiny. In its “guidance,” the agency proposes nothing less than the creation of a national system for the issuance of “environmental justice permits.” For businesses planning to expand existing plants or construct new ones, it will no longer suffice for them to comply with applicable environmental regulations. According to EPA’s guidance, “merely demonstrating that the permit complies with applicable environmental regulations will not ordinarily be considered a substantial, legitimate justification” if an environmental justice complaint is raised.
Under the procedure set forth in the guidance, EPA will conduct a cursory review to determine whether a permit issued by a state environmental agency will have a “discriminatory impact,” “disparate impact,” or “other cognizable impacts” on a nearby minority population. If EPA determines that the permit will negatively affect a minority community, the state permitting agency will be notified and asked to rebut the finding, modify the permit so that the disparate or discriminatory impacts are mitigated, or explain why the permit should be issued despite potential environmental justice concerns.
EPA approvals or disapprovals of a permit are to be based on standards that are, conveniently, undefined in its newly issued guidance. What, for example, constitutes a “discriminatory impact” or a “disparate impact”? The guidance does not say. Nor does it explain what constitutes “other cognizable impacts.” EPA officials reviewing a permit will be rendering highly subjective judgements.
Compounding the problems created by the guidance’s lack of clarity is its failure to provide guidelines for rejecting frivolous complaints lodged solely to delay the permitting process. EPA’s guidance invites all sorts of mischief that has nothing to do with environmental protection and nothing to do with safeguarding the interests of, or providing opportunities to, urban minorities.
What’s more, the guidance takes ultimate permitting authority from state agencies and puts it squarely in the hands of EPA. The guidance gives EPA the authority to second-guess state permitting decisions, undermining the remarkable strides many state agencies have made in streamlining the permitting process.
Firms seeking to renew or modify existing permits will see business decisions put on hold as a consequence of the new layer of bureaucracy EPA wants to establish. Company officials considering relocating to a brownfield site will think twice before subjecting themselves to the bureaucratic red tape and lengthy delays the guidance makes all but inevitable.
Under the new EPA guidance, a single Title VI complaint could significantly delay or prevent redevelopment of a Brownfield site. The guidance establishes a troubling presumption of a civil rights violation whenever an industrial facility and a low-income or minority community meet. That presumption is contrary to the very nature of Brownfields redevelopment projects, which is to bring development and new life into blighted areas.
“Under the guise of environmental justice,” notes Russell Harding, director of Michigan’s Department of Environmental Quality, “this draft guidance actually inflicts a heavy injustice on those it purports to protect. Minority communities need job providers who comply with our stringent environmental laws. Denying them full employment opportunities is the real oppression. Rather than concocting a racial issue, federal regulators should continue emphasizing adequate protection for everyone.”