Plan EJ 2014: Building a Foundation for Federal Environmental Justice Policy

by Robert Verchick

September 21, 2011

Let’s stipulate: EPA’s withdrawal of a stronger ozone rule was the low point. And for many, a betrayal, a sedition, the nation’s biggest sell-out since Dylan went electric (or played China, take your pick).

Still, Jackson’s EPA has accomplished a great deal. Last week the EPA showcased new policy devoted to one issue with which Jackson has associated herself since day one: environmental justice.

The policy is called Plan EJ 2014, the agency’s comprehensive environmental justice strategy, planned to correspond with the 20th anniversary of President Clinton’s formative executive order on environmental justice (full disclosure: I was involved in the development of some parts of Plan EJ 2014 when I was in the Obama administration). The planoffers a road map for integrating environmental justice and civil rights into EPA’s daily work, including rulemaking, permitting, compliance and enforcement, community-based programs and coordination with other federal agencies. Jackson’s EPA deserves credit for making EJ an A-list priority, establishing a political-level, highly visible EJ advisor, and establishing this plan. Plans, of course, are only as good as their implementation, but this is a significant first step.

I encourage others to peruse the document and assess the details. On my first read, here are a few points that jumped out at me:

1. Incorporating EJ into Rulemaking. The EJ movement began with a series of disputes over permitting and enforcement, and those issues remain important. But anyone who can embed EJ protections into the foundational standards has found a higher level of leverage. Jackson’s EPA has already developed interim guidance on incorporating EJ into rulemaking. Plan EJ 2014 promises to finalize it. 

That guidance sets out a formal process for evaluating EJ concerns from the pre-publication stages of a rule and in some cases requires detailed environmental justice analyses, such as the book-length, peer-reviewed EJ report that accompanied an action concerning the recycling of hazardous secondary materials. (Incidentally, anyone interested in following regulatory developments that EPA believes affect EJ should check out the EJ page of EPA’s Regulatory Development and Retrospective Review Tracker.)

Most important: EPA’s interim guidance currently defines EJ in a way that requires officials to not only ensure that proposed rules do not cause injustice, but to search for ways that proposed rules might relieve pre-existing injustice. That reading, however, does not appear in Plan EJ 2014 itself, as far as I can see. But that more expansive reading is vital to overburdened communities who need improvement, not just promises to do no more harm. When the rulemaking guidance is finalized under EJ Plan 2014, advocates should make sure that expansive language is still there.

2. Developing Analytical Tools to Promote EJ. Agencies seldom improve what they don’t measure. That’s why it is so important for EPA to have demographic assessment tools that are up-to-date, consistent, and reliable. Plan EJ 2014 promises the development of mapping tools that incorporate some of the best that the natural sciences and social sciences have to offer. As this process goes forward, EJ advocates should watch carefully and participate as much as possible. What population characteristics will be used (and how will they be weighed) in defining communities with EJ concerns? How will the resulting data be used? For purposes of permitting and enforcement, steering of technical assistance and grants, or rulemaking? Will the data and the conclusions drawn be made public? How consistent will the tools be across EPA offices and EPA regions? Here is another opportunity for advocates to get in on the ground floor of a very big development.

3. Assisting other Agencies with their EJ Goals. Maybe this sounds boring, but having loyal and influential friends has always been a recipe for success. Jackson has successfully developed strong relationships with other agencies, most notably through the HUD-DOT-EPA Sustainable Communities Partnership, a program through which the three agencies focus resources in certain communities to provide housing, promote jobs, enhance transportation, improve health, and protect the environment. (See, for instance, the Environmental Justice Showcase Communities project in Jacksonville, Florida.) Building off the root chord of community need, projects like these support and electrify local efforts. It’s an act you don’t want to see unplugged.

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Robert R.M. Verchick holds the Gauthier ~ St. Martin Eminent Scholar Chair in Environmental Law at Loyola University, New Orleans, is the Faculty Director of the Center for Environmental Law at Loyola, and is a Senior Fellow in Disaster Resilience Leadership, Tulane University. He is the President of the Center for Progressive Reform.

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