Opposition Mounts to EPA’s Environmental Justice Initiative

Published June 1, 1998

Less than a year after it withstood a barrage of criticism and imposed controversial new air quality standards, the Environmental Protection Agency is embroiled in a new, potentially even more explosive, battle.

At issue is EPA’s proposed new guidance addressing “environmental justice,” born of a concern that minorities appear to be more likely than nonminorities to reside in or near highly polluted areas. Proponents of the theory contend that minorities are disproportionately exposed to possible health hazards linked to poor air or water quality. Now, however, that assumption–and EPA’s proposal for addressing it–are coming under fire.

Issued with no fanfare on EPA’s environmental justice web site on February 5, the guidance has provoked howls of protest from civic and business leaders alike. The guidance, which contains an elaborate set of bureaucratic procedures companies must follow to receive or renew permits for facilities located near minority communities, represents a radical change in EPA policy. So radical, in fact, that the agency is being inundated with demands that it withdraw the controversial guidance and start over.

Tom Donohue, president and CEO of the U.S. Chamber of Commerce, wrote President Clinton on May 1 to express his powerful organization’s unhappiness with EPA’s proposed action. Donohue told the President that EPA’s environmental justice guidelines “encourage lawsuits to be brought against state and local governments to force the imposition of conditions . . . on the environmental permits held by businesses located in low-income and minority areas. Under EPA’s guidelines, these companies could be forced to undertake actions to mitigate the impacts of other businesses that have been located in these areas for decades.

“EPA’s policy is not only contrary to efforts to create new jobs in low-income and minority areas; it is a policy that will drive good-paying jobs out of those areas,” Donohue continued. “This is not justice–it’s economic, social, and environmental insanity. Businesses will be left with no other option than to move jobs and opportunities out of the areas that need them the most. The only beneficiaries of this misguided policy will be a small group of opportunistic plaintiff’s attorneys who will enjoy yet another windfall of the public’s expense.”

Noting that American businesses had already spent a trillion dollars on environmental protection over the past two decades, Donohue added that U.S. companies are prepared to spend another trillion dollars or more in the next two decades. “But we will not spend amounts on projects that will be at risk because of a misguided sense of environmental justice,” he warned.

Donohue’s concerns have been echoed by state and local governments and an assortment of trade groups. Written comments submitted to the agency complain, among other things, that EPA does not have a clear definition of “disparate impact,” thus making it virtually impossible to determine how the siting of a facility in a low-income of minority neighborhood would have a “disparate impact” on local residents.

Also evident in comments submitted to EPA is widespread dissatisfaction over how the regulated community was not allowed to participate in the formulation of the guidance. In addition to demanding far-reaching substantive changes to the document, critics also want to see EPA submit its proposal to the formal rule-making process, which would give the public much greater input into the development of the agency’s environmental justice policies.

Caught off guard by the ferocity of the attacks against its initiative, EPA has been slow to respond. Agency officials have met with representatives of companies, trade associations, and state and local governments to solicit advice on how the guidance could be improved. EPA Administrator Carol Browner, who last year spearheaded a successful defense of the agency’s highly controversial standards for ozone and particulate matter, is noticeably less combative on this issue. She told a panel of the National Advisory Council that the agency was “open to changes.”

Browner’s caution in defending the agency’s action has a lot to do with the delicate political situation she finds herself in. Some of the most vocal critics of EPA’s initiative are black elected officials–notably Detroit Mayor Dave Archer–who worry the agency’s environmental justice initiative will keep companies from locating in the inner cities for fear of endless litigation.

Meanwhile, the House Commerce Committee is moving toward holding hearings on EPA’s handling of the environmental justice issue. Those hearings could get underway as early as late June or early July. Movement on the hearings was triggered by last month’s revelation in the Detroit News that EPA, in developing its environmental justice guidance, was ignoring its own studies showing that whites–not minorities–are more likely to live near highly polluted sites.