EPA's New Guidance on Considering Environmental Justice in Rulemaking a Welcome First Step

by Catherine O'Neill

July 27, 2010

The EPA released a guidance document on Monday that promises to integrate environmental justice considerations into the fabric of its rulemaking efforts. Titled the Interim Guidance on Considering Environmental Justice During the Development of an Action, EPA’s Guidance sets forth concrete steps meant to flag those instances in which its rules or similar actions raise environmental justice concerns. Specifically, the Guidance directs agency staff involved in rulemaking to “meaningfully engage with and consider the impacts on” communities of color, low-income communities, indigenous populations, and tribes.

EPA’s Guidance responds to an issue raised by CPR Member Scholars at the dawn of the Obama Administration. In our 2008 report, Protecting Public Health and the Environment by the Stroke of a Presidential Pen, we observed that efforts to address environmental injustice had languished in the 15 years since President Clinton issued the Environmental Justice Executive Order (Executive Order 12898). We urged the new president to use his authority to, among other things, alter a status quo in which agencies too often simply failed to see that their actions had environmental justice implications: 

Agencies issue scores of regulations each year that have environmental justice implications.  But these agencies often fail to ask who will bear the burdens and who will reap the benefits of a regulation, or to consider whether the regulation ameliorates or exacerbates current inequities. As a result, environmental justice often fails to make it onto agencies' radar screens.

When agencies do identify environmental justice as a potential concern during the rulemaking process, their responses often indicate a misunderstanding of the relevant issues.  For example, when EPA purported to assess the environmental justice impacts of its final “Clean Air Mercury Rule,” which would have postponed and weakened reductions in mercury emissions, EPA observed that Native Americans, Southeast Asian Americans, and others would be better off with the rule's meager reductions than with nothing.  Indeed, in a particularly callous twist, EPA asked “whether high fish-consuming (subsistence) populations would be disproportionately benefited by the final rule,” despite EPA's own data showing that many in these groups would be left exposed to unsafe levels of mercury in fish.

The CPR scholars recommended that agencies be required to conduct an environmental justice analysis of their rules, using a methodology developed in concert with the numerous groups that are burdened by environmental injustice.  EPA’s Guidance appears to take up just this recommendation and apply it to a host of EPA “actions,” including rules, policy statements, risk assessments, guidance documents, models that may be used in future rulemakings, and strategies that are related to regulations.

EPA’s Guidance also responds to a concern we outlined in 2008, illustrated by the example from the Clean Air Mercury Rule, that agencies often missed the point of an environmental justice inquiry. Thus, the Guidance makes clear that when EPA staff seek to identify “environmental justice concerns,” they should understand this term broadly to include a lack or potential lack of “fair treatment” or “meaningful involvement” of minority, low-income, indigenous populations, or tribes. Moreover, the Guidance emphasizes that an action can raise an environmental justice concern by creating new disproportionate impacts, by exacerbating existing disproportionate impacts, or by failing to make use of opportunities to address disproportionate impacts that may be presented. This recognition is welcome, and appropriately counters the notion that, because environmental regulations generally reduce pollution, they should be understood to benefit, by definition, those who are currently the most burdened by that pollution, i.e., environmental justice groups.

Whether EPA’s Guidance can deliver actual improvements to the circumstances of those who suffer the harms of environmental injustice remains to be seen. Although CPR scholars recommended that the Administration move beyond analysis and directly require agencies to take affirmative steps to ameliorate environmental injustice, EPA’s Guidance does not go this far.  But the Guidance has the potential to ensure that environmental justice concerns, broadly understood, get identified early in the rulemaking process, and that the expertise and perspectives of impacted groups inform EPA’s deliberations. We can hope that once the concerns are laid bare, more just outcomes will follow.

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Catherine A. O'Neill is a Habitat Policy Analyst for the Northwest Indian Fisheries Commission, and a former Professor of Law at Seattle University School of Law.

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