ENVIRONMENTAL IMPACT STATEMENTS - CHAPTER 15 pdf

Environmental Justice 15.1 PRESENT STATUS The subject of environmental justice in all environmental activities and, especially in regard to the NEPA, has developed almost in toto since the first edition of this book was published. The topic is still in a state of flux and that is why it is discussed as the last chapter in this book. However, environmental justice must be considered in all present and future NEPA studies. A failure to consider this topic could result in an entire EIS being declared invalid as a result of litigation. That is the primary reason for its inclusion here. What is the reason for including environmental justice in a NEPA document? The presidential memorandum that accompanied Executive Order 12898 probably summed it up best by the statement of “. . . disproportionately high and adverse human health or environmental effects . . . on minority populations and low-income populations in the United States and its territories and possessions. . . .” 15.2 CIVIL RIGHTS ACT OF 1964 The origin of the need for including a study of environmental justice in environmen- tal documentation goes back to Title VI of the Civil Rights Act of 1964, as amended. Title VI states, “No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Environmental justice first gained public attention in 1982 with a landmark case involving a small, low-income, minority community in Warren County, NC. This pre- dominantly African-American community was selected as a polychlorinated biphenyl (PCB) landfill disposal site. Despite protests and an NAACP request for an injunction based on racial discrimination, the landfill opened as planned. As a direct result of this event, the General Accounting Office (GAO) was asked to examine hazardous waste landfill sitings in eight southern states to determine the extent to which minority communities were disproportionately exposed to environ- mental contamination. The GAO findings concluded that three out of every four land- fills in eight states were in predominately African-American neighborhoods. The link between race and hazardous waste landfill sitings was further confirmed by a 1987 study conducted by the United Church of Christ’s (UCC) Commission on Racial Justice. According to the UCC report, three out of every five African-Americans and Hispanic Americans lived in communities with uncontrolled toxic waste sites. The study determined race as the strongest deciding factor in the siting of hazardous waste facilities. 15 © 1999 by CRC Press LLC During this time period, the U.S. Environmental Protection Agency (EPA) began to receive allegations of discrimination with regards to access to public water and sewerage systems as well as to employment practices. These complaints were filed as a result of the issuance of pollution control permits by state and local governments that received EPA funding. 15.3 EXECUTIVE ORDER 12898 The next major development in environmental justice came on February 11, 1994 when President Clinton issued Executive Order 12898, “Federal actions to address environmental justice in minority populations and low-income regulations.” This executive order was accompanied by a memorandum from the president to the heads of all departments and agencies that explained and emphasized the executive order. The memorandum stated that the “order is designed to focus Federal attention on the environmental and human health conditions in minority communities and low- income communities with the goal of achieving Environmental Justice. That order is also intended to promote nondiscrimination in Federal programs substantially affect- ing human health and the environment, and to provide minority communities and low-income communities access to public information on, and an opportunity for public participation in, matters relating to human health or the environment.” All federal department and agency heads were to take steps immediately as follows: “Ensure that all programs or activities receiving Federal financial assistance that affect human health or the environment do not directly, or through contractual or other arrangements, use criteria, methods, or practices that discriminate on the basis of race, color, or national origin.” “Each Federal agency shall analyze the environmental effects, including human health, economic and social effects, of Federal actions, including effects on minority communities and low-income communities, when such analysis is required by the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. section 4321 et seq. Mitigation measures outlined or analyzed in an environmental assessment, environ- mental impact statement, or record of decision, whenever feasible, should address sig- nificant and adverse environmental effects of proposed Federal actions on minority communities and low-income communities. Each Federal agency shall provide opportunities for community input in the NEPA process, including identifying potential effects and mitigation measures in consulation with affected communities and improving the accessibility of meetings, crucial docu- ments, and notices. The Environmental Protection Agency, when reviewing environmental effects of proposed action of other Federal agencies under section 309 of the Clean Air Act, 42 U.S.C. section 7609, shall ensure that the involved agency has fully analyzed environ- mental effects on minority communities and low-income communities, including human health, social, and economic effects. Each Federal agency shall ensure that the public, including minority communities and low-income communities, has adequate access to public information relating to © 1999 by CRC Press LLC human health or environmental planning, regulations, and enforcement when required under the Freedom of Information Act, 5 U.S.C. section 552, the Sunshine Act, 5 U.S.C. section 552b, and the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. section 11044.” 15.4 DEPARTMENT OF THE AIR FORCE GUIDE FOR ENVIRONMENTAL JUSTICE ANALYSIS WITH THE ENVIRONMENTAL IMPACT ANALYSIS PROCESS (EIAP) The cover letter (Pohlman, 1997) that went with the distribution of this document to Air Force installations stated that, “This guide is based on experiences with a half dozen Environmental Impact Statements (EIS) and other environmental planning activities. Its focus is on the deter- mination of potentially disproportionate impacts to low-income and minority popula- tions through a ten-step process. Its full utilization is particularly geared to EISs as well as relatively complex Environmental Assessments having potential Environmental Justice considerations. In general, the most important way to achieve Environmental Justice goals is to fully involve low-income and minority populations in the Environmental Impact Analysis Process (EIAP). The populations should be engaged from the initial step in the Guide, that of scoping, throughout the entire process.” Thus, this document became the first Deptartment of Defense (DOD) detailed statement that brought environmental justice into the EIS process. It is being utilized for that purpose by other DOD agencies such as the Corps of Engineers (Paxton, 1998). The guide presents an environmental justice flowchart for use in an EIS that is reproduced here as Exhibit 14. More details, on each of the steps shown in Exhibit 14 are presented in the text of the guide. They may be summed up as follows: • Scoping meetings—identify minority and low-income populations. • Impacts—determine if the proposed action causes impacts on minority or low-income populations. • Effect of impacts—determine if the impacts are adverse. • Geographic location of impacts—geographically map the impacts. • People locations of impacts—identify the community of comparison (COC) and census tracts that are impacted. • Number of affected people—determine the percent of minority and low- income population in the COC and in each census tract; decide which is greater. • No disproportionate effect—if census tract percentage is less than COC percentage, presume no disproportionate effect and say so in a NEPA document. © 1999 by CRC Press LLC Exhibit 14 Environmental justice flowchart. © 1999 by CRC Press LLC • Disproportionate effect—if census tract is greater than COC, presume that a disproportionate effect exists. Conduct field verification of residential areas in the census tract. Discuss problem in a NEPA document and suggest mitigating measures. 15.5 EPA INTERIM GUIDANCE FOR INVESTIGATING TITLE VI ADMINISTRATIVE COMPLAINTS CHALLENGING PERMITS The U.S. Environmental Protection Agency (EPA, 1998) has issued interim guide- lines on how to handle environmental justice complaints. This interim guidance was not published in the Federal Register, but comments were solicited with a cutoff date of May 6, 1998. The EPA had tentative plans to issue its final guidance by the late summer of 1998 but delayed the publication date. The reason for issuing the interim guidance was that as of the date of the issuance (February 4, 1998) the Office of Civil Rights at the EPA had received 48 citizen envi- ronmental justice complaints (NAM, April 1998). Thus, the requirement for rela- tively rapid action on the EPA’s part developed. The introduction to that guidance states that, “In the past, the Title VI complaints filed with EPA typically alleged dis- crimination in access to public water and sewerage systems or in employment prac- tices. This interim guidance is intended to update the Agency’s procedural and policy framework to accommodate the increasing number of Title VI complaints that allege discrimination in the environmental permitting context.” The EPA background mate- rial for this guidance points out that, “The Supreme Court has ruled that Title VI authorizes EPA to adopt implementing regulations that prohibit discriminatory effects. Frequently, discrimination results from policies and practices that are neutral on their face, but have the effect of discriminating, (Department of Justice (1994).” The EPA then goes on to point out that, “as a condition of receiving EPA funds under EPA’s continuing environmental program grants recipient agencies must comply with EPA’s Title VI regulations.” A recipient is defined as any state or its political subdi- vision, any public or private agency, institution, organization, entity, or any person that receives federal financial assistance either directly or indirectly. The document further states that if any part of a state or local government receives EPA funds, then all programs (including those not funded by the EPA) are subject to Title VI, for example, solid waste program funds under RCRA. If the EPA finds that discrimina- tion exists in a recipient’s permitting program, the EPA may terminate such funding. The EPA guidelines then set up a detailed framework for processing complaints including the following: 1. Acceptance of the complaint. 2. Investigation/disparate impact assessment. 3. Rebuttal/mitigation. 4. Justification. 5. Preliminary finding of noncompliance. © 1999 by CRC Press LLC 6. Formal determination of noncompliance. 7. Voluntary compliance. 8. Informal resolution. Complaints must be filed within 180 days of the alleged discriminatory act. The EPA will then accept or reject them within 20 days. Permit modifications that reduce adverse impacts are encouraged unless they result in a net increase of pollution impacts. The investigation phase includes detailed public participation. Mitigation of the impacts are stressed, but may be waved in certain cases. The document concludes with the following caveat: “The statements in this document are intended solely as guidance. This document is not intended, nor can it be relied upon, to create any rights enforceable by any party in liti- gation with the United States. EPA may decide to follow the guidance provided in this document, or to act at variance with the guidance, based on its analysis of the specific facts presented. This guidance may be revised without notice to reflect changes in EPA’s approach to implementing the Small Business Regulatory Enforcement Fairness Act or the Regulatory Flexibility Act, or to clarify and update text.” 15.6 OBJECTIONS TO THE EPA INTERIM GUIDANCE Despite, and in some cases because of, the above caveat, the EPA interim guidance has received severe criticism from a wide variety of sources. That criticism may be summed up as follows: States—Several states have issued substantial disagreements with the EPA guidelines. They cite the following major problems: 1. The states were not consulted during the drafting of the guidelines. Their input might have avoided federal–state arguments and developed guide- lines that the states could meet. 2. They would prefer guidelines to meet the policy objectives that would allow them greater flexibility to adjust programs for local needs. 3. They feel the present interim guidelines allow too much time for issues to be raised after completion of the state permitting process. They fear that this would delay many projects far too long. These objections have been raised through the following groups: • State attorney generals from 14 states. • The Environmental Council of the States. On August 10, 1998, the Environmental Council of the States (ECOS) issued their own draft alternative to the EPA’s environmental justice policy. This draft, to be reviewed a month later, contained the following principles: © 1999 by CRC Press LLC Principle 1—Environmental justice programs should ensure that relevant local, state, and federal agencies participate fully in the decision process and such programs must be rooted in statute or rule. Principle 2—Environmental decisions must include meaningful public partic- ipation at the earliest possible point in time, and a meaningful effort must be made to facilitate such participation. Principle 3—Environmental department decisions, while always subject to review in court, must be administratively final. Principle 4—We believe that economic development and environmental pro- tection are not mutually exclusive, but no environmental program or policy should have the effect of placing a premium on the development of “green fields” or penalizing the redevelopment of “brownfields.” Principle 5—Environmental justice programs, at whatever level of gov- ernment, must use defined terms with established criteria and identified thresholds. Principle 6—Environmental justice programs must not only treat people fairly, such programs must document that people have been fairly treated. Principle 7—Environmental justice programs should distinguish between existing facilities that require permit renewals or modification and new facilities. Principle 8—Environmental justice programs should contain public education elements which allow citizens to better understand environmental impacts, the state decision-making process, and industrial and commercial activities. Principle 9—States that develop environmental justice programs which adhere to these principles should be presumed to be meeting environmental justice requirements and the burden of proof to show that they are not doing so should rest on the complainant. It is almost certain that the final environmental justice requirements will incor- porate most of both the EPA and the ECOS principles. It also is certain, given the snail’s pace at which beaurocracy moves, that the final requirements will become effective in late 1999 or 2000. One reason for state concern is that a number of projects are in an uncertain state because of possible litigation that may wind up before the Supreme Court. These especially involve incinerators and boilers in places such as Indiana, Pennsylvania, and Louisiana. Munipalities—The U.S. Conference of Mayors has stated a concern that the interim guidance document creates potential roadblocks to the redevelop- ment of brownfields and other contaminated sites in minority neighbor- hoods and harms local government’s ability to regulate polluting facilities. They are concerned that the guidance document will result in a shift in zon- ing control from local to federal agencies. They have asked that the guide- lines be rewritten after input has been received from state and local governments. © 1999 by CRC Press LLC Congress—The House Commerce Committee chairman is investigating the development of the guidelines. He is concerned with: • The secrecy in which the guidelines were developed. • Possible negative effects on urban development. The committee has asked the EPA to provide it with the materials used to develop the guidelines. According to Waste Policy Alert (October 16, 1998), House and Senate lawmakers have inserted into EPA’s FY99 budget language that effectively restricts the agency from investigating new equity complaints brought under the 1964 Civil Rights Act until EPA’s guidance is finalized. EPA officials and the White House are trying to overcome this restriction (as of the date of the writing of this book). Industry—The Business Network for Environmental Justice (BNEJ) consists of many large businesses with substantial input from the National Association of Manufacturors (NAM). BNEJ states that it wants the concept of environmental justice enforced, but fears that the EPA is going about it in the wrong way. Legal groups, such as The Washington Legal Foundation took part in a case bought by citizens of Chester, PA, against the Pennsylvania Department of Environmental Protection. The Pennsylvania Department of Environmental Protection (DEP) had peti- tioned the Supreme Court to review a lower court ruling that Title VI allows citizens the right to bring civil suits against state agencies that discriminate on the basis of race or ethnic origin. The ruling came as part of a citizen suit challenging a 1995 RCRA permit granted by the DEP for a proposed remediation waste incinerator in Chester, PA. At the time, environmentalists charged that the facility would cause a disparate impact on the black community of Chester, which is home to more pollut- ing facilities than the predominately white sections of the county. The U.S. Supreme Court decided on August 17, 1998, to dismiss the case and ordered the 3rd Circuit Court of Appeals to vacate its ruling. The Supreme Court had heard the National Black Chamber of Commerce which asked them to strike down the lower court decision that provided a group of Pennsylvania citizens the right to file an environmental justice suit against the state under Title VI of the 1964 Civil Rights Act. In the August 7, 1998 brief, the Chamber argued that the case was based on the “pernicious concept” of environmental justice and runs contrary to federal law and previous court decisions. They claimed that the minority effects were not so and were being used by opponents of the incinerator to try to stop the project. 15.7 NEPA CONSIDERATIONS All of the previous discussions may be summed up as follows in so far as the rela- tionship of environmental justice to NEPA is concerned: • Environmental justice has a definite role in the NEPA process. • That role is unclear at the time of the writing of this book and may involve many years of litigation. © 1999 by CRC Press LLC • Authors of NEPA documents should include environmental justice consid- erations in their NEPA studies. In view of the lack of firm guidelines on how to accomplish the latter point, it is suggested that personnel who are responsible for NEPA studies use the Department of the Air Force Guide, (discussed earlier in this chapter), with appropriate modifi- cations for their particular situation. The section of this chapter that discussed the Air Force Guide listed several points in an EIS during which environmental justice should be examined. Exhibit 14, also presented earlier, gave details on ten different steps in the EIS process where environmental justice is considered. Those steps should be followed. In case of doubt, the NEPA preparer should do more rather than not enough of this work. It is quite likely that sometime after the publication of this book, the CEQ will amend its NEPA regulations to include specific environmental justice requirements. Until that event occurs, the NEPA preparer is well-advised to include detailed analy- ses of this topic in his EIS. What should go into an environmental assessment (EA)? It has been stated ear- lier in this book that EAs are to be brief and are to rely on existing data. That does not mean that environmental justice should be overlooked in EAs. Much of the informa- tion concerning that topic is readily available and should be included. Possible mitigating measures should be obvious. They generally will consist of one of the following: • Do not build the project. • Scale it down. • Move it elsewhere. • Decide that project benefits will outweigh negative impacts. • Minimize pollutants from the project to a much greater extent than stan- dards require. REFERENCES The use of the disparate impact statement in administrative regulations under Title VI of the Civil Rights Act of 1964, Department of Justice, Attorney General’s Memorandum for Heads of Departments and Agencies That Provide Federal Assistance, Washington, D.C., July 14, 1994. Mullin, M., Environmental justice update, National Association of Manufacturors (NAM), Washington, D.C., April 6, 1998. Paxton, J. E., Verbal communication, Fort Worth District, U.S. Army Corps of Engineers, 1998. Pohlman, T. R., “Interim guidelines for environmental justice analysis with the environmental impact analysis process (EIAP), HQ USAF/ILEV, Department of the Air Force, Washington, D.C., 1997. Interim guidance for investigating Title VI administrative complaints challenging permits, U.S. Environmental Protection Agency, Office of Civil Rights, Washington, D.C., February 4, 1998. EPA funding bill restricts environmental equity investigations, Waste Policy Alert, October 16, 1998. © 1999 by CRC Press LLC . a half dozen Environmental Impact Statements (EIS) and other environmental planning activities. Its focus is on the deter- mination of potentially disproportionate impacts to low-income and minority. Planning and Community Right-to-Know Act, 42 U.S.C. section 11044.” 15. 4 DEPARTMENT OF THE AIR FORCE GUIDE FOR ENVIRONMENTAL JUSTICE ANALYSIS WITH THE ENVIRONMENTAL IMPACT ANALYSIS PROCESS (EIAP). meetings—identify minority and low-income populations. • Impacts—determine if the proposed action causes impacts on minority or low-income populations. • Effect of impacts—determine if the impacts are adverse.