Environmental Justice for Whom?: A Social Construction Framework Analysis of Executive Order 12898

Abstract

People of color are overrepresented in communities with the poorest air quality and numerous pollution sources, and suffer disproportionate rates of asthma. Moreover, communities with the worst air pollution tend to have high poverty rates. Activists, scholars, and health and legal experts contend that the mere presence of inequitable environmental burdens and multiple exposures supports the belief that: (a) the health and lives of poor people and people of color matter little; and (b) their communities are incapable of, or less likely to, organize to prevent or end hazardous exposures. The social construction framework, built on the idea of benefit or burden allocation and the ability to exercise political power, serves as an apt lens for examining the interplay between societal perceptions of low-income people and people of color, and Executive Order 12898's content, implementation, and effectiveness. While symbolically and materially important, Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, is flawed, in part, because its creation and execution were influenced by negative social constructs. Further, Executive Order 12898's effectiveness has been hampered by the absence of statutory authority, funding, and consistent implementation. Rectifying federal-level environmental injustice, and associated health disparities, minimally requires: (a) negative social construction reversal; (b) the eradication of environmental health disparities to become as important to our society as curing cancer; (c) securing statutory (legal) authority for Executive Order 12898; and in general, (d) strong, unbiased, protective policies and interventions that are sufficiently funded.

Introduction

Environmental injustice contributes to, and is inextricably linked to, socioeconomic, racial, and ethnic health disparities. The Toxic Waste and Race at Twenty: 1987–2007¹ report revealed that the proportion of people of color² living within three to five kilometers (three miles) of a toxic waste site was 36%, and within one kilometer the number reached 48%. Each racial/ethnic group was overrepresented compared to their population percentage.³ The State of Lung Disease in Diverse Communities, 2010 report confirmed this experience, “both African Americans and Hispanics have been found to be more likely than Caucasians to live in areas with high levels of air toxics.”⁴ More recently, Miranda, Edwards, Keating, and Paul's⁵ research on particulate matter (PM) and ozone exposure documented African Americans and Latinos' disproportionate representation in communities with the poorest air quality. Additionally, counties with the worst PM and ozone pollution tended to have high poverty rates.⁶ The risks for Native Americans, often residing in rural areas, are due to emission source proximity. Specifically 82% of Native Americans and Alaska Natives live within 50 miles of major nitrogen oxide sources,⁷ and 66% percent live within 25 miles of PM production sources.⁸

A significant health threat, PM pollution can cause lung cancer and asthma attacks, diminish lung function in adults and lung growth in children, and is associated with asthma morbidity and mortality.^8,9,10,11 Asthma, according to the American Lung Association, is “disproportionately more common in low-income and urban communities, especially in inner city African American and Hispanic populations.”^12,13 Asthma prevalence and symptoms are directly impacted by environmental injustice, increasing community-level exposure vulnerabilities, and resulting in a decreased ability to cope with and recover from illness.^14,15

Over the past 30 years, environmental injustices, associated health consequences, and the demand for equitable protection have been elevated in the public consciousness by mobilizations, a sequence of seminal research studies, lawsuits, and national and international movements leading to nearly universal environmental justice (EJ) principles.^{16,17,18,19,20} Bullard²¹ and Skelton and Miller²² trace the EJ movement's transition from grass roots activism to its expanded presence in legal and public policy arenas. By the early 1990s, EJ activists were well positioned to influence policymakers, and moved their agenda(s) on multiple fronts.^23,24 In response to: (a) community activism, (b) rapid attitudinal change toward hazardous facility siting in poor and minority communities, and (c) deficient protection and remediation services, President Clinton promised to address environmental equity issues in an Earth Day 1993 speech. In 1994, he enacted Executive Order (E.O.) 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.^25,26,27

Lacking legislative or regulatory authority, executive orders, Hernandez²⁸ clarifies, “address internal administrative matters of the federal bureaucracy.” Though EJ is not explicitly defined, E.O. 12898²⁹ intended to: (a) focus on health and environmental impacts attributable to all federal programs, policies, and activities; (b) promote non-discrimination across federal programs and policies that impact human health and the environment; and (c) provide minority and poor communities with educational and participation opportunities. All federal agencies were directed to develop EJ strategies that identified and addressed disproportionately high and adverse policy and practice effects. E.O. 12898 authorized creation of an Interagency Working Group on EJ,³⁰ and encouraged research coordination between the Environmental Protection Agency (EPA), the Department of Health and Human Services, and the Department of Housing and Urban Development (HUD).³¹ E.O. 12898 is summarized in Table 1.

Table 1.

Summary of Executive Order (E.O.) 12898 of February 11, 1994: Federal Actions to Address Environmental Justice (EJ) in Minority Populations and Low-Income Populations

Section 1—Implementation

• Agency Responsibilities—All agencies must make achieving EJ part of its mission through “identifying and addressing disproportionately high and adverse human health or environmental effects of its programs, policies and activities on minority populations and low income populations …”

• Creation of an Interagency Working Group on EJ – Convened by the EPA, to: (a) provide guidance on selecting criteria to identify disproportionately high and adverse human health or environmental effects on low income and minority populations; (b) serve as an information clearinghouse; (c) coordinate research; and (e) oversee federal agency strategy development.

Section 2—Federal Agency Responsibilities for Federal Programs

All programs, policies, and activities that significantly impact human health or the environment must be conducted in ways that do not exclude people or populations' participation in, deny benefits to, or subject any persons to discrimination because of their race, color or national origin.

Section 3—Research, Data Collection and Analysis

Encourages and supports: (a) environmental health research (clinical and epidemiological) that includes diverse populations; (b) exploration of multiple and cumulative exposures; (c) research strategy design comments from minority and low income communities; (d) data collection, maintenance, and analysis to assess and compare the environmental and human health risks experienced by low income and minority populations.

Section 4—Subsistence Consumption of Fish and Wildlife

Agencies shall: (a) collect, maintain, and analyze consumption pattern information for populations that rely on fish and/or wildlife for subsistence, and communicate the risks of consumption; and (b) publish guidance on methods for evaluating the human health risks associated with the consumption of pollutant-bearing fish or wildlife.

Section 5—Public Participation and Access to Information

Agencies shall: (a) receive information from the public regarding the incorporation of EJ principles into federal agency programs or policies; (b) translate important public documents, notices, and hearings related to human health or the environment; (c) ensure that documents, notices, and hearings are brief, understandable, and readily available to the public; and (d) the Working Group must hold public meetings (fact-finding, community input, inquiries) regarding EJ, and summarize meeting contents for public review.

Section 6—General Provisions

(a) Each agency head is responsible for implementation; (b) the Order supplements E.O. 12250 (requiring effective and consistent application of laws that prohibit discrimination), and (c) does not limit E.O. 12875 (intergovernmental partnership enhancement); (d) federal agencies referred to are those on the Working Group; (e) an agency head may petition for an exemption if their activities should not be subject to this Order; (f) agency responsibility applies equally to Native American programs; (g) each agency assumes the cost of compliance; (h) implementation must be consistent with existing laws; and (i) the E.O. aims to “improve the internal management of the executive branch,” not confer rights, benefits, or trusts that can enforced by law against the U.S., its agencies, officers, or any individual.

E.O. 12898 retrieved from: <http://www.archives.gov/federal-register/executive-orders/pdf/12898.pdf>.

EPA, Environmental Protection Agency.

Activists, scholars, as well as health and legal experts, contend that the mere presence of inequitable environmental burdens and multiple exposures are illustrative of the belief that: (1) the health and lives of poor people and people of color are less valuable; and (2) their communities are incapable of, or less likely to, organize to prevent or end hazardous exposures where they live, work, worship, learn, and play.^{32,33,34,35.36,37} Specifically, Anguelovski,³⁸ Bullard,³⁹ and Hernandez⁴⁰ assert that minority communities are targeted by corporations and government agencies for industrial plant or waste disposal siting because they lack power and organization, and need jobs. This policy analysis examines the interplay between societal perceptions of low-income people and people of color, and E.O. 12898's content, implementation, and effectiveness.

Methods

The social construction framework (SCF), as described by Schneider, Ingram, and DeLeon,⁴¹ will be used to: (1) examine the social perceptions and values that undoubtedly influenced E.O. 12898's design and execution; and (2) discuss the E.O's perceived effectiveness in preventing and/or rectifying federal environmental injustice. Benefit or burden allocation, a core SCF concept, depends on societal perceptions of a particular group, which may be: (a) advantaged—politically powerful, benefit recipients, who may voluntarily take on some burdens; (b) dependent—deserving and sympathetic, but lacking political power; (c) contenders—who possess political resources, but are negatively regarded; or (d) deviants—lacking in both positive social regard and political power, and who bear disproportionate share of burdens and penalties.⁴² Political power is also key and embodied in resources, such as the ability to organize, money, skill, social and professional position, and history of voting and interacting with public officials.^43,44 The SCF is an appropriate analysis tool because low-income communities and communities of color often endure: (a) disproportionate environmental burdens; (b) multi-layered, intractable, negative social constructions; and (c) political marginalization.^{45,46,47,48,49,50}

Literature search terms included, but were not limited to: Executive Order 12898 (or E.O. 12898), EJ, EJ movement, policy analysis of E.O. 12898, E.O. 12898 history, E.O. 12898 critiques. Search engines included: Google Scholar, EbscoHost online databases, Elsevier, HeinOnline, ProQuest Research Library, JSTOR, Lexis-Nexis Academic Universe, and the Digital Commons of a midwestern university. The Natural Resource Defense Council, OMB Watch, U.S. Environmental Protection Agency, and the U.S. Government Accountability Office were information rich, while several articles imparted EJ movement history and context. Over 30 articles were reviewed, most written shortly after the E.O.'s enactment (12), while others coincided with the E.O.'s twentieth anniversary, or examined the E.O. in relation to original research and/or policy analysis (20). Referenced materials were chosen for their near exclusive focus on, and analysis of, the E.O., as well as their emphasis on poor, minority, and vulnerable groups.

Although this analysis references and builds on legal, environmental, and public health examinations of E.O. 12898, the use of the SCF is novel. In the literature reviewed, theoretical frameworks were rarely used, and few authors considered community health impacts.

Discussion

Schneider, Ingram, and DeLeon⁵¹ contend that social construction origins begin as emotional responses and intuitive, moral judgments. Policymakers, like other human beings, use those, often stereotypical, reactions and conclusions in policy construction rationale and content. If people of color and poor people are perceived as deviant (lacking in both positive social regard and political power), and treated as such (bearing a disproportionate share of burdens and disadvantages), then logically, targeted policy design and implementation would be less protective and rigorous, respectively. For example, Hernandez⁵² cited a National Law Journal investigation that revealed inequitable environmental law and regulation enforcement, penalty levying, and hazardous site cleanup. Further, Konisky⁵³ posited that one explanation for race and class-based inequitable enforcement and regulations may be explained by the extent to which “government behavior is influenced by the political capacity of potentially affected populations.” Communities with high levels of political capacity are more likely to pressure government into strict law enforcement.

With no statutory authority, E.O. 12898 imposed no legal duties on agency officials, nor did it create a cause of action, or set standards by which to judge agency progress.^54,55 Agencies were encouraged to consider EJ while enforcing the National Environmental Policy Act (1969), Title VI of the Civil Rights Act (1964), and the Clean Air Act (1970).⁵⁶

Administrative responses

Within the SCF, beliefs contribute to policy or program design, and implementation success.⁵⁷ O'Neil⁵⁸ critiques the absence of central concept definitions in E.O. 12898, such as environmental justice, minority, or low-income community.⁵⁹ Lack of clarity was evident as the Department of Energy (DOE) sought to identify communities impacted by its policies. Presumably, all U.S. residents are impacted by DOE policy; and, it's doubtful that they reached consensus on contested definitions or identities such as low-income or minority.

Bowers⁶⁰ analyzed federal agencies' initial responses to E.O. 12898's implementation requirements. Notably, EPA Region 1's⁶¹ pre-existing task force promised to: (a) triple inspections of at-risk areas,⁶² (b) invest in enforcement and penalty assignment, and (c) review its waste and clean-up priority ranking system. These efforts were commendable, yet others miss the mark, such as plans for target-community grant making, and increased contracts to women and minority owned businesses; while helpful, they don't prevent or resolve community health threats or disparities.

Binder et al.^63,64 observed that: (a) as of 2000, no agencies reported halting a potentially harmful project because of EJ concerns; and (b) most efforts were akin to traditional anti-poverty initiatives that increased and improved service provision. The first finding affirms the SCF concept that marginalized communities deserve little attention and protection, and lack the organizational sophistication to effectively have concerns addressed or harmful projects stopped. To the second point, the War on Poverty's social construction of, and attempts to, control and penalize poor women and people of color to further a particular ideology, are well documented.^65,66

The U.S. Government Accountability Office (GAO)⁶⁷ exposed the EPA failure to seriously consider EJ during the draft and finalization stages of three clean air rules.⁶⁸ Similarly, O'Neil⁶⁹ established: (a) that E.O. 12898's implementation processes increased inequity in addressing Superfund site issues, (b) an absence of race/ethnicity and poverty consideration in clean-up decisions, and (c) a decreased probability of a marginalized community having a site discovered and listed after enactment.

Finally, studying the E.O.'s effectiveness in protecting (predominantly) Latino farm workers in Florida, Murphy-Greene and Leip⁷⁰ discovered unintended federal and state law implementation, as well as inadequate health and safety protection for workers. In each instance lack of regard deters exposure prevention, protection, and/or harm reduction.

Costs and benefits

Sixteen affected agencies⁷¹ assumed E.O.12898 implementation costs, such as: staff time, program evaluations, extensive community outreach and engagement to increase participation, translation of educational materials and notices, software development (HUD), workshops (community and professional), and grants.^72,73

Yet, itemized FY2014 E.O. 12898-related budgets are not readily available, preventing efforts to determine EJ-specific resource allocation, estimate indirect cost value, or total program implementation costs. This section summarizes lead-agency EPA's EJ-related budget, and grants made to states and local communities.⁷⁴

In FY2015, the EPA will receive $178 million over its enacted (approximately $7.890 billion) budget for EJ-related Goal #3: “To clean up communities, advance sustainable development, and protect disproportionately impacted low-income and minority communities from the releases of harmful substances.”⁷⁵ Yet, the EPA doesn't focus its EJ work on low-income or minority communities, proclaiming that all communities should be treated fairly and engaged regardless of demographic characteristics, with none bearing disproportionate burdens.^76,77,78 As such, grant making includes the: (a) EJ Small Grants Program, (1,200,000 allotted for distribution in 2015; up to $30,000/awardee/year), which supports collaborative partnerships to help communities understand and address community-level environmental and public health problems; (b) EJ Showcase Community Program commits $100,000 per project, over two years, for resource and expertise pooling, and problem solving in ten communities with multiple environmental health burdens; and (c) Collaborative Problem-Solving Cooperative Agreement Program provides $120,000 grants for cross-sector partnerships. In sum, the EPA provides an estimated $2,380,000 in EJ-related grants, 0.03% of the budget for Goal #3. Although individual, presumably deserving communities are aided, the absence of income or ethnicity and race-based focus, and the small percentage spent don't indicate prioritization.⁷⁹

Opportunities

Maintaining the status quo—should E.O. 12898 remain unchanged: (a) communities most affected by environmental injustice will not be acknowledged or defined;⁸⁰ (b) the need to prove intentional environmental discrimination remains; (c) federal agencies have no standards to aspire to, nor meet, in considering or addressing EJ; (d) there will be no federally designated, EJ-specific funds, or (e) prioritized prevention, enforcement, or cleanup; and (f) environmental health disparities remain, such as asthma morbidity and mortality.⁸¹

(Re)committing to community—E.O. 12898's effectiveness could significantly be improved by: (a) defining core concepts such as minority and low-income community characteristics, geographic boundaries, and EJ communities;^82,83 (b) establishing decision-making roles for community members, not solely participation goals;^84,85 and (c) providing remedies (resources and action) where disproportionate and cumulative impact exists, by explicitly creating a cause of action based on congressional authority;⁸⁶ (d) mandating environmental impact statements or reports for federal legislation and projects, and industrial projects, that could affect human health and quality of life;^87,88 and (e) providing implementation funding for all agencies.^89,90 Revive (f) the Interagency Working Group on EJ to: (i) issue comprehensive guidance and oversight on incorporating EJ considerations into, “all rulemaking, permitting, and compliance and enforcement activities,”^91,92 (ii) facilitate cross-agency coordination, collaboration, and resource sharing to achieve streamlined community-focused goals and objectives, and consistent implementation and enforcement.^{93,94,95,96,97,98}

Research and data collection,⁹⁹ analysis, use,¹⁰⁰ and distribution are key to understanding combined (multi-source) and cumulative adverse health impacts.^{101,102,103,104} Federally funded program data and outcome measures should, (g) include minority community benefits and burdens.¹⁰⁵ Finally, (h) government staff should be trained, guided, and equipped to understand (low-income, indigenous, minority) community risks, and respond to EJ issues.^106,107,108 With these changes some communities, and their asthmatic members, may be better protected and literally breathe easier.

Carrying a bigger stick—additional laws, rules, and regulations may not be needed, but establishing statutory authority for E.O. 12898 is vital. Strengthening existing universal legal protections, (source or situation-specific, and permitting) rules and regulations, and enforcement and prosecution could:¹⁰⁹ (a) shift the burden of proving harm and discrimination from victims to polluters (where impact would serve as the cause of action, not intent);¹¹⁰ (b) reinforce connections between EJ and discrimination prohibitions (race, color, national origin) found in Title VI of the Civil Rights Act (1964),¹¹¹ making legal resolutions more achievable;^112,113,114 and (c) be used to incentivize agencies to act on E.O 12898 requirements, or penalize insufficient participation.^115,116,117 These recommendations would return EJ activists and affected community members to the legal realm on more solid footing. Fiscal resources would be required for implementation and monitoring, and for medical and legal support for victims.

Conclusion

Fazeli¹¹⁸ aptly summarizes the circumstances: “Years of advocacy and recognition of EJ issues has moved agencies to acknowledge that CI [cumulative impacts] and EJ are real issues, but we are yet to see significant attempts to address these issues in a systematic manner.” Importantly, E.O. 12898 acknowledges environmental injustice, however: (a) it was developed and implemented in contexts fraught with negative social constructions regarding low-income and minority communities; (b) key concept and population definitions are nonexistent; (c) it possesses no mandates or (d) funding to strengthen it; and (e) inconsistent implementation significantly impedes its effectiveness.^119,120 E.O. 12898 has failed to construct or reinforce a protective barrier between communities struggling against negative social constructions, high asthma rates, indifferent or harmful governmental policy and practice, and environmental threats.

Whereas E.O. 12898 is more than 20 years old, newer federal initiatives have similar flaws and limitations. For example, the EPA's Plan EJ2014¹²¹ features recommendations and activities that: (a) are strategic, not regulatory; (b) echo those created after E.O. 12898's enactment; and (c) don't appear to build on a body of accomplishments. ¹²² To rectify environmental injustice, negative social constructions must be acknowledged and reversed, and protective, unbiased policies and interventions must be designed, implemented, and sufficiently funded. The eradication of EJ-related health disparities, like asthma, must become as important to our society as curing cancer, regarded as sympathetically, and burdens alleviated as passionately and systematically.

Footnotes

Acknowledgments

Many thanks to Assistant Professor Dr. Angelique Day, Michael Hansen, and Markus Whitehead for their detailed, constructive feedback during the preparation of this manuscript. A special thanks to Mr. R. Budd Haemer, senior nuclear counsel, Indiana Michigan Power Company, Inc. for his interest, time, and thought-provoking questions and feedback during the revision process.

Author Disclosure Statement

The author has no known conflicts of interest or financial ties to disclose.