For twenty-five years, the Competitive Enterprise Institute has published a document called “Ten Thousand Commandments.” It tracks the costs imposed on the economy by regulations. It is mind-boggling.
When most people think about the concept of over-regulation, they immediately envision large and distant federal agencies, especially EPA, OSHA, and IRS. However, there are actually more regulations imposed on Americans at the state and local level than by anyone in Washington. Think about massive building, electric and plumbing codes that affect virtually everything in your home and business. Or voluminous health codes that apply to restaurants and other public accommodations, or complex land use rules that dictate what you can and cannot do on your property, and myriad rules affecting your right to own, license, and drive a car. States regulate almost all aspects of energy development, as well as clean air and water (some of which is federal law, but administered by states).
It is that last category, clean air and water, that has states suddenly wanting more from the EPA. That is difficult to imagine, as states have traditionally guarded their authority against federal intrusion. But the angrier people become about regulations, the more state regulators want someone else to take that blame. It’s so much easier when people are mad at EPA.
The issue drew attention recently, when the Michigan Department of Environment, Great Lakes, and Energy approved a controversial air permit for an asphalt plant near Flint. The applicant met all legal requirements, so the agency had little discretion. However, the plant will be located in a minority neighborhood said to be “in social and economic distress.” There were heated public meetings, and over 340 comments from local residents and groups, mostly opposed. The agency knew the approval would be unpopular with at least some of those groups, so it took what it considered a courageous step. It asked the EPA for help.
State agency Director Liesl Clark said the process “…highlights the limitations of federal and state environmental regulations in addressing the concerns raised by Flint residents.” In other words, the law provides no means for denying permits just because some local residents object. Rather than take that heat, she officially asked EPA to hold a “national summit” to provide guidance to help states deal with public opposition and “environmental justice concerns.” She wants the summit to start with EPA providing written guidance, showing states how to address environmental justice considerations in permitting and enforcement. The idea was immediately endorsed by several other states, such as Alabama, which has previously complained about the lack of specific rules from EPA on how to incorporate this concept of environmental justice into permitting decisions.
Environmental justice is a great idea – who could be against justice? – but it remains as unclear as ever exactly what it means. Federal regulators seem completely serious about making it part of the law. The Obama EPA created a National Environmental Justice Advisory Council, which had no authority over anything, but was empaneled to give advice to officials who did. They recommended a White House Environmental Justice Advisory Council, which President Biden has created, saying its work will be central to his “equity agenda.” And the next week, EPA Administrator Michael Regan repeated his priority of incorporating equity into permitting decisions. He embarked on trip across the South that he called a “Journey to Justice,” supposedly bringing attention to environmental justice challenges.
The meaning of “environmental justice” has shifted dramatically in the last few years. The concept was long associated with public lands management, as it originated in the Theodore Roosevelt era when conservationists worked to ensure that resources belonged to everyone, not just a few. But it has now become the most popular buzz at EPA, having no connection to public lands. Rather, it is a way to oppose any projects that are near minority communities. The new plant in Flint, for example, is 1,600 feet from a low-income black neighborhood that already has high levels of particulate pollution from power plants, paving companies, and other industrial facilities. It is a difficult problem to solve, because vast numbers of low-income communities are located in older industrial sections of many cities.
It is not clear how banning further development, and the associated jobs, will help lift people out of poverty in such areas – another discussion for another time. But the great irony here is that elevating environmental justice as a national priority has created yet another entirely new mission for the EPA – providing political cover for state regulators.
PHOTO: Environmental Protection Agency EPA. PHOTO BY: mccready, Attribution 2.0 Generic (CC BY 2.0).