Risk Assessment or Risk Acceptance: An Activist's Perspective on Why the EPA's Attempts to Achieve Environmental Justice Have Failed and What They Can Do About It

Introduction

Corpus Christi, Texas is home to one of the nation's largest concentrated cluster of major oil refining complexes; six large refineries and several supporting industrial facilities stacked next to each other along Corpus Christi's ship channel. This ten-mile stretch of heavy industry is referred to locally as “Refinery Row” and the majority of residents in very close proximity are low-income, people of color. Minutes from a 1942 meeting of the Corpus Christi Planning and Zoning Commission show that the poor and people of color were forced to live in the most undesirable areas of town near the refineries and dumpsites. City officials lamented in published meeting minutes: “What are we going to do with the Negros?” This environmental racism continues today and the fence-line communities created by historic racial zoning practices bear the brunt of the health impacts of industrial pollution.1 There are many people that would like to move, but cannot afford it.

Despite President Clinton's Executive Order 12898 on Environmental Justice signed some 17 years ago, many environmental justice (EJ) communities do not enjoy their legal right to equal protection under federal law. Recent Environmental Protection Agency (EPA) overtures, such as Considering Environmental Justice during the Action Development Process and Plan EJ 2014, contain promising language and provide “guidance” to agencies but offer no additional legal tools to deal with EJ issues. There has been too much talk and not enough action. For regulators to act on behalf of fence-line communities, they need evidence of harm. Unfortunately, EJ communities bear the additional burden of finding scientific proof of negative health effects from living near industry; even then, regulators are reluctant to act.

The Problem: An Overreliance on Risk Assessment to Establish Harm

“Dirty air, polluted water, and contaminated lands have significant impacts on the health and economic possibilities of the people who live in over burdened communities.”2 EPA acknowledges that EJ communities are overburdened and that there are significant impacts to their health, but instead of standing by their own words and statements, they impose risk assessments on these communities to define what the risks are and to assess whether these risks are acceptable. But who decides what's acceptable?

While in theory risk assessment helps us to quantify risks to public health, in practice it is much easier to use quantitative risk assessment to prove something does not harm a community (and protect the polluter) than to prove it does. According to Peter Montague, “risk assessment is now the main intellectual prop that allows industries to continue dumping billions of pounds of industrial poisons into public air and water supplies. When anyone objects, the poisoners trot out a risk assessment produced by some high-priced consultant, showing that the risk of giving anyone cancer is less than one-in-a-million. EPA has blessed this as the official technique for showing that industrial poisons rarely, if ever, cause significant harm.”3 Quantitative risk assessment is a tool that should be integrated within a broader, precautionary approach that seeks to reduce or avoid exposures to toxic chemicals whenever possible. If a reasonable suspicion of harm exists, like in an EJ community, regulators should take action to protect the community and work with the community to prevent future harm. Citizens for Environmental Justice (CFEJ) initiated a series of public health studies over the years in our local community to demonstrate evidence of harm. We discuss some of the more important ones below.

The Long Road

When we first started working on EJ issues in Corpus Christi we were reassured by industry and government agencies not to worry; emissions do not leave the fence-line, there was no impact to human health, and if we believed otherwise, we should prove it. Therefore, we set out to prove it. Over the years we initiated a variety of studies showing the community was being adversely affected by industrial activity including: birth defects studies, air monitoring sampling, a bio-monitoring study, and groundwater study. What we could not have imagined is the extent to which industry and government agencies would work to ignore or discredit our data.

Discussion

Corpus Christi provides an illustrative example of a community with strong scientific evidence of pollution and contamination, suggesting a precautionary approach and intervention on behalf of affected EJ communities. EPA acknowledges that EJ communities, like those in Corpus Christi, are overburdened by pollution yet did not take seriously the possibility that these studies strongly suggest that living near industry is poisonous. Like any scientific field, we cannot demonstrate causal links with perfect certainty. Why should EJ communities be any different? The big difference is that in the meantime people are still sick, the environment is still polluted, and when you ask EJ communities to go out and get data (and we did) it is never enough—and never will be enough. At some point EPA must assert that enough evidence exists and protect us from harm. Perhaps government agencies just do not want to find a problem because then they will have to fix it.

This is why EPA should consider the totality of the evidence at hand and integrate the use of the Precautionary Principle when making judgments to protect public health and not rely exclusively on risk assessment. As the Science and Environmental Health Network (SEHN) points out, all formulations of the Precautionary Principle includes three principles: 1) When we have a reasonable suspicion of harm, and 2) scientific uncertainty about cause and effect, then 3) we have a duty to take action to prevent harm.17 Simply put, if enough evidence suggests (and we think in the case of Corpus Christi it does) that a problem exists regulators should take that possibility seriously and prevent more harm (or better yet, remove people from harm's way).

EPA states that environmental justice will be achieved, “when everyone enjoys the same degree of protection from environmental and health hazards.” The only way everyone can enjoy the same degree of protection from environmental and health hazards is if: 1) we relocate and spread out all the oil refineries and chemical plants and other hazardous facilities equally throughout communities of all socio-economic status and races in the United States; 2) shut down chronically polluting facilities; or 3) relocate the heavily overburdened communities, at a fair and just price. Regulators, on the other hand, focus on reducing emissions and many times they are hesitant to even go that far.

Until that happens, environmental justice cannot be achieved because we will always have low-income communities of color bearing more of the environmental burden. Since in reality we will not relocate refineries, spread the burden, or relocate all overburdened communities, we must take seriously the task of protecting them from harm NOW! In order for a facility to simply operate, it must pollute. Even if a refinery or chemical plant never breaks the law and always operates within its permits, there will always be pollution. Dr. Al Armendariz, Regional Administrator for EPA Region 6, acknowledges this in a letter to CFEJ, “It is clear that even if all the industries near a community such as yours comply with their permits, there will still be occurrences of emission, discharges, and waste disposal that will cause major concerns for nearby residents.”18

Conclusion

We understand that pollution will exist; we simply ask that industry not be protected at the risk of nearby communities. Use the full extent of the law to protect residents. The first step in this process is to acknowledge that the EJ problem continues to exist and take steps to move beyond simple risk assessments to take precautionary action to protect these communities when enough evidence suggests such action is warranted. Our recommendations to EPA are simple:

A. Practice what you preach—You have already publicly declared that EJ communities are overburdened with pollution. Stop submitting these communities to infinite risk assessments and models that are highly manipulative. Instead, incorporate the Precautionary Principle when addressing EJ communities, particularly when evidence strongly suggests action is warranted.

Recently in Corpus Christi, the Agency for Toxics Substances and Disease Registry (ATSDR) released results from a follow-up study to the bio-monitoring study of 90 residents near the refineries in Hillcrest and Dona Park. Results showed normal levels of benzene and other VOCs.19 In 2009 a congressional report found that administrators at the ATSDR, “deny, delay, minimize, trivialize or ignore legitimate health concerns.” Does it follow that their study is invalid because of sloppy work and mistakes in the past? Does the previous bio-monitoring study refute their results and show with scientific certainty there is a problem in these EJ communities? Does their study completely disprove the previous bio-monitoring study and demonstrate there is no health risk of living near industry in Corpus Christi?20 Or is it just that—another study? The first two requirements of the Precautionary Principle are met, why not the third?

The Precautionary Principle does not tell us what specific actions to take, however, every step taken must involve the meaningful input of the impacted community. Government agencies should support the communities instead of working against them and acknowledge that if there is a reasonable suspicion of harm then work with the community to find ways to protect and prevent further harm. Methods will vary depending on the desires of individual and unique communities. One way or another, the harm must stop.