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printech, September, 2003
Good Article on Environmental Justice


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From: Gary Jones (gjonesprinting@aol.com)
Date: Sun, 28 Sep 2003 20:14:43


Good article on EJ from Environmental Protection magazine.
Gary

Balancing the Scales of Justice
EPA's new environmental justice guidance: What it can mean for your business
By Kathleen A. Kenealy, JD

"The fair treatment and meaningful involvement of all people regardless of race, color, national origin or income with respect to the development, implementation and enforcement of environmental laws, regulations, and policies."-U.S. Environmental Protection Agency's (EPA) definition of environmental justice

Origins of environmental justice

Title VI of the Civil Rights Act of 1964 prohibits EPA (and other federal agencies) from discriminating on the basis of race or national origin. Typically, low income and/or minority communities, with the assistance of lawyers, have asserted complaints under environmental justice (EJ) principles that they have borne the brunt of industrial pollution and activity in that more pollution emitting plants or other facilities have been built near them.Since 1979, when national media and political attention focused on a toxic waste facility in Niagara Falls, N.Y., that had leaked into a nearby neighborhood (Love Canal), the environmental impact of industrial activity on local communities has been part of the public consciousness. In 1982, environmental impacts on communities became a civil rights issue with the landmark community mobilization effort against a pending siting of a landfill in Warren County, N.C. A predominately African American neighborhood organized to prevent the disposal of polycholorinated biphenyl (PBC)-contaminated soil in a landfill site in the town of Afton. The community protests attracted extensive media coverage and political interest, and although the landfill ultimately opened, the community was able to secure a promise from then Governor that "no more landfills" would be built in Warren County.

Environmental justice today

In 1994, President Clinton gave the EJ movement a substantial boost by signing Executive Order 12898, making EJ official federal policy. The order required federal agencies to develop plans for addressing environmental justice concerns in minority and low-income areas. It directed each federal agency to identify and address, as appropriate, disproportionately high and adverse human health and environmental effects of its programs, policies and activities on minority populations and low-income populations. As a result of the order, EPA established its Office of Environmental Justice, and in 1998, issued interim final guidance for conducting investigations into compliance with alleged EJ violations.

On June 16, 2000, U.S. EPA's Office of Civil Rights released two extensive EJ draft guidance documents to replace the agency's 1988 interim guidance. EPA withdrew the interim guidance because it was controversial. Some complained it was unclear or silent on crucial permitting procedures, while others criticized it for creating unnecessary procedural hurdles for prospective complainants. The agency's new guidance documents are, in large part, an attempt to respond to those concerns.

The new draft guidance documents are entitled: Draft Title VI Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs ("Draft Recipient Guidance"), and Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits ("Draft Revised Investigation Guidance"). The draft guidance documents are published in the Federal Register at 65 Fed. Reg. 39650 (June 27, 2000), and can be accessed at www.epagov/civilrights/docs/frn_tb_pub06272000.pdf.

The Draft Revised Investigation Guidance explains how EPA will investigate and resolve formal complaints of discrimination. The Draft Recipient Guidance provides a framework for state and local governmental entities that implement environmental permitting programs, parts of which are discussed below. Businesses should be familiar with these principles, both because they provide some useful strategies for avoiding complaints of discrimination and because they are likely to become part of the regulatory landscape both for states and for the federal government.

The practical impact of EJ

Although EJ concepts apply across the spectrum of environmental laws and regulations, permitting decisions provide a useful context for examining the ways EJ concerns can impact businesses. Anyone who has filed a permit application with an environmental agency knows the application process itself can be extremely labor intensive and time consuming. Preparing the detailed documentation necessary for a permit application can take weeks or even months. Waiting for agency review and approval can take even longer. At any time throughout, and after the permit application process, an EJ complaint can be filed. Although the act of filing such a complaint will not immediately invalidate an issued permit, the process has the potential to substantially delay a permit application or even ultimately suspend or reverse an issued permit. If a complaint is filed before the permit has been issued, the environmental agency's detailed investigation of the complaint can also delay permit issuance. According to EPA, the nu mber of administrative complaints filed alleging discrimination has increased over the past several years. Twenty-eight complaints were filed in 1999, up from 18 the year before. While these numbers may not seem significant, they represent only those situations where a complaint was actually filed. There is clearly a growing awareness of EJ by local governments, community groups and industry. This makes it imperative for businesses to understand EJ principles and to act proactively to avoid complaints. Strategies for addressing environmental justice issues Because of the variety of interests at stake, it is no surprise that achieving a consensus on the elements of a workable EJ program has proven difficult. In developing EPA's draft guidance documents, members of EPA's Advisory Committee openly struggled with many issues, but they were unanimous in the conviction that early, proactive intervention is necessary to deter EJ violations and complaints: "Whether preventive steps are implemented under the auspices of state and local governments, in the context of voluntary initiatives by industry, or at the initiative of community advocates, opportunities for potential protagonists to sit down and discuss their true needs before positions harden are invaluable." EPA's Draft Recipient Guidance provides some approaches businesses can use to build consensus and work effectively with local governments and communities during the permitting (or other environment-related) process. First, attempt to reduce or avoid conflict with local communities by being proactive whenever possible and working with local community groups, rather than against them. Strive to achieve consensus with all interested parties by inviting their early involvement in the process. It is important that all staff be appropriately trained in EJ concerns before a glitch in the permitting process occurs. Companies can initiate training programs to make sure their staff understand and has a plan for addressing EJ concerns. The trained staff can encourage public participation and outreach whenever possible. Although this strategy may feel counterintuitive, involving and informing the public early will allow you, rather than someone else, to shape the debate and educate the community about the benefits your business will bring. Part of this effort can also be focused on encouraging governmental involvement. Think about and identify all appropriate governmental parties as early as possible and make sure they are involv ed. This will increase the likelihood that problems will be identified early and that solutions will be achieved.

For larger projects, a company may want to consider conducting research on the environmental impacts of its business and the demographics of the local community. Being able to analyze new and existing potentially adverse impacts, together with relevant demographic information concerning affected populations, will help identify potential EJ concerns at an early stage. It will assist in understanding and putting environmental impacts into perspective. Often, the environmental impacts of concern to a particular community are related to the broader impacts in the community as opposed to just those (if any) associated with a particular business or permit. This will encourage both regulators and the community to take a broader perspective when evaluating the impact of an activity. Finally, if conflicts with the local community arise, keep in mind that alternative dispute resolution (ADR) techniques provide an avenue to address them.

Conclusion

The EJ movement has undergone a great deal of development since the early days of Love Canal. Today, EPA is refining its program and calling increased attention to state implementation of EJ principles. Many states have even developed their own independent EJ programs. Although it has been suggested by more than one commentator that, given all of the diverse interests at stake, it is practically impossible to develop a workable EJ program, EPA maintains that it can strike a fair and reasonable balance between EPA's strong commitment to civil rights enforcement and the practical aspects of operating permitting programs. The practical reality is that EPA's draft guidance documents are set for finalization in December 2000 and will have a lasting impact in federal and state EJ policy.

While the techniques in EPA's Draft Recipient Guidance and discussed in this article are not appropriate to every situation, an awareness of them can help businesses deal with the EJ concerns of regulators and the public. Placing a new industry in a community brings not only the promise of increased economic opportunity for local residents, but it can also bring environmental costs. If these costs are seen-whether accurately or not-as being disproportionately high, the community may mobilize to block the development. On the other hand, a community may welcome business activities if it views them positively. Thus, a proactive approach that involves the local community is one way to reduce the risk that business activity will be unduly delayed or prevented.

e-sources U.S. EPA-Environmental Justice site-www.epa.gov/swerosps/ej/
Title VI Implementation Advisory Committee-www.epa.gov/civilrights/t6faca.htm
U.S. EPA-Office of Civil Rights-www.epa.gov/civilrights/
President Clinton's 1994 Executive Order-www.epa.gov/docs/oejpubs/94report/94report.txt.html
The Rand Institute for Civil Justice-www.rand.org/centers/icj



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