April 30, 1995 - From the April, 1995 issue

Federal Agencies Begin to Implement Environmental Justice Initiative

By Rick Zbur, Latham & Watkins

Federal agencies have begun to implement a new federal initiative promising to impose new levels of environmental analysis and, potentially, mitigation requirements for any project requiring federal funding or approvals and which may have an environmental impact on low-income or minority communities. This initiative, known as the Environmental Justice Initiative, was embraced by the Clinton Administration in February 1994 when the President signed an executive order requiring, among other things, federal agencies to conduct federal programs in a manner ensuring minority and low-income communities have opportunities to participate in federal decisions and that "environmental dis­crimination" does not occur with respect to such communities. 

The executive order also established an inter-agency working group to address environmental justice concerns, required federal agencies to develop environmental justice strategies, and directed the federal Environmental Protection Agency (EPA) and federal agencies to initiate studies on differential impacts of environmental programs on subject communities. Although the executive order extends only to federal agency actions, the environmental justice movement also has been embraced by some state and local agency staffs as well as local elected officials. Because the movement is picking up steam, environmental justice concerns promise to present long-term implications for the land use and infrastructure development industry. 

Background

Although President Clinton's environmental justice executive order is relatively recent, the environmental justice movement dates back to the 1970s when federal agencies and academics began to investigate the relative burden of various forms of pollution on low-income communities. Based on concerns that an unusually high numbers of industrial and waste facilities were being sited within or next to low-income neighborhoods and communities of color, early leaders of the movement questioned whether such sitings raised disproportionate cancer and other health risks in these communities. 

Environmental justice became a nationally recognized issue in 1982 when 500 demonstrators in Warren County, North Carolina protested against the proposed siting of a PCB landfill in their predominantly African-American low-income community. In 1983, then NAACP President, Dr. Ben Chavis, coined the term "environmental justice" when he encouraged industrial companies to avoid concentrating industrial and disposal sites in low-income communities and communities of color and suggested industrial facilities focus on how such communities could share in the economic benefits. Later, District of Columbia Congressional delegate, Walter Fountroy, requested a U.S. General Accounting Office study of hazardous waste landfill sitings in the South which found that three of the four commercial hazardous waste disposal facilities were located in African-American com­munities and the fourth was in a low-income community. 

Since the early 80s, the movement has broadened as community groups throughout the county have embraced and advocated consideration of environmental justice issues in the context of not only industrial and hazardous waste project sitings, but in the context of siting of other projects that potentially result in environmental impacts in low-income and minority communities. The purpose of the movement is clear: growing numbers of ordinary citizens, community groups, academics, environmental organizations, and elected officials are seeking remedies for perceived or real inequities in the distribution of environmental harm. 

In response, the EPA under the Bush Administration established and Office of Environmental Equity in 1992 and an EPA work group has issued a number of reports outlining agency recommendations for achieving environmental equity. The Clinton Administration also embraced environmental justice notions when EPA Administrator Carol Browner made environmental equity one of her five priority environmental initiatives, culminating in President Clinton's executive order of last year. 

The Executive Order 

President Clinton's executive order is potentially far reaching. It specifically requires each federal agency to "conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that assures that such programs, policies, and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination under such programs, policies, and activities because of their race, color, or national origin." The executive order also requires each federal agency to develop a strategy to "make achieving environmental justice a part of its mission.'' 

This strategy is required to identify and address disproportionately high and adverse human health or environmental effects of federal programs on minority and low-in­come populations. The strategy also must recommend revisions to existing federal programs and policies to promote enforcement of health and environmental statutes in areas of minority and low-income populations, to ensure greater public participation of such communities in siting and other federal decisions raising environmental justice concerns, to improve research and data collection relating to health and environmental impacts on such populations, and to identify differential patterns of consumption of natural resources among minority and low-income communities. 

Implementation of Environmental Justice: Three Tests 

Although the details of implementing the President's executive order are still evolving, federal agencies responsible for project-specific permitting and funding approvals appear to have developed three areas of inquiry. The first test is whether the project results in environmental degradation in low-income or minority communities and, if so, whether such impacts are disproportionate compared to the population at large. The second test focuses on whether a project which is sited in or near a low-income community allows community members to share in the economic benefits of the project. The final test is whether the final project, during its environmental analysis, construction and operation, encourages effective participation in the environmental review and decision making process. 

Because environmental justice principles give community groups an additional tool to oppose sitings and to seek project-specific mitigation, any project proposed to be sited within or near minority or low­income communities should consider how the proposed project addresses each of these tests. 

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Test One: Disproportionate Impact 

The first test is fairly straightforward. Additional regulatory focus will be given by federal agencies, if the proposal project is likely to have an environmental impact on low-income and minority communities. If such is the case, the focus of the inquiry is whether the project meets environmental and health requirements and whether the impacts of the project are "disproportionate" compared to other communities. EPA's Office of Environmental Equity is in the process of developing a database that would allow federal agencies and project developers to "map" the location of minority and low-income communities so as to allow assessment of the potential impacts of project siting of project siting on those populations. Meeting the first test generally will involve additional environmental review with the focus on identifying the location of affected low-income and minority communities as well as providing differential impact analysis. 

Environmental justice advocates and EPA have also begun to raise questions regarding whether certain racial and ethnic groups have lower exposure tolerances to specific pollutants. President Clinton's executive order mandated EPA and federal agencies to study this issue, and project developers can expect requests to undertake group-specific analysis as such federal studies are completed. 

Test Two: Economic Benefits 

The second test looks to whether projects sited within or near low-income communities share the economic benefits with such communities. A number of our clients have responded to this test by implementing disadvantaged business enterprise (DBE) hiring programs during both project construction and operation, by working with unions on DBE programs, by committing to minority and low-income hiring targets, by ensuring non-DBE firms, with whom they do business, have active minority recruiting and training programs in place, and by implementing community outreach programs that provide job training and potential job opportunities to members of the local and affected communities. 

Many of our clients include such programs as part of their good neighbor programs and to encourage community support for the project. The environmental justice movement, however, will place increased scrutiny on such activities by federal agencies who may have permitting authority over some aspect of the project or who are providing some form of federal funding. Moreover, to the extent that state and local agencies begin to focus on environmental justice principles, one can expect similar requests at the local level. In fact, members of the Los Angeles City Council have on at least one recent occasion requested an environmental justice analysis on a project potentially affecting low-income and minority areas of the City. 

Test Three: Community Participation 

The final component is evaluation environmental justice focuses on the extent to which low-income and minority are given an effective voice in the environmental review and overall consideration of proposed projects. Addressing this set of issues involves demonstrating public notice and comment processes to allow low-income and minority communities to effectively participate. Generally, our clients who are now subject to environmental justice inquiries by federal agencies are engaging in extended community outreach programs to assure workshops and briefings take place within the affected communities, community liaisons are established to provide impute on environmental review and project design and to explain options and decisions to the affected communities, public presentations and project materials are available both in English and in the primary or secondary languages of minority communities, and additional efforts to provide notice to minority and low-income communities of environmental review and agency procedures are established. 

Local Interest in Environmental Justice

The Los Angeles area has a number of community organizations that have embraced environmental justice issues as part of their agendas. Although the federal executive order imposes agency scrutiny on projects requiring federal funding or approval, the environmental justice movement has been embraced informally by government staff and elected officials at the local and state levels in other parts of the country, as well as in Southern California to more limited extent. In the past several years, legislation relation to environmental justice issues has been introduced in Georgia, Louisiana, New York and South Carolina. Moreover, at least one organization with environmental justice focus has formed in Southern California has been active in opposing existing operations of certain manufacturing facilities and that has called for more stringent environmental requirements, with a particular focus at the South Coast Air Quality Management District. 

The Future is Unclear 

To what extent EPA will expand environmental justice inquiries and requirements is not clear. As a result of the recent November elections, EPA is likely to be more focused in the near term on calls for significant modifications of the existing federal environmental programs. However, EPA has already begun implementation of the executive order through the Office of Environmental Equity and appointment of environmental justice coordinators in each EPA Region. These coordinators are charged with providing advice to federal agencies and public regarding implementation of the President's environmental justice executive order. At the very least, project developers seeking federal permits, approvals or funds in connection with proposed land use and infrastructure development projects are likely to receive requests from federal agencies to analyze project impacts under environmental justice principles. On the local level, the impact of the environmental justice movements is primarily political because the development of specific requirements to address environmental justice issues has not yet occurred. However, because at least one community group has embraced environmental justice issues, it is likely local community pressure will result in additional requests for environmental justice analysis even at the local level.

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