Seizing the Political Moment: How the Environmental Protection Agency Can Reimagine Itself and Its Commitment to Environmental Justice

Stakeholder inclusion

The federal government did not acknowledge EJ as a major policy problem before organized efforts and the development of a social movement in the 1980s that pushed for change. While Bullard's academic and legal work brought attention to the geography and causes of environmental injustice and focusing events such as Love Canal centered public and governmental attention on the problem of toxic waste sites and industrial hazards near residential areas generally, organized community opposition and the social movement against environmental injustice is often traced to the proposed siting of a landfill in Warren County, North Carolina. The Warren County Citizens Concerned organized a grassroots effort to oppose a polychlorinated biphenyl landfill in 1982. ¹⁰

The following year, the U.S. General Accounting Office issued a report that analyzed and acknowledged the racial and economic disparities in the siting of a sample of hazardous waste landfills in the country. ¹¹ The report acknowledged extreme racial disparities in the communities living near the sites but also required that future permitting effective that year would require minimal minimum location standards, including public participation in the permitting process. Before these new permitting guidelines, the U.S. states controlled permitting, which had generally required little or no input from affected communities. In 1987, the United Church of Christ issued a famous study on the geography and demographics of hazardous waste sites throughout the country that brought further scholarly and public attention to these issues. ¹²

As EJ communities organized and mandated government action on environmental injustice in the 1980s, by the 1990s, the result was moving toward the institutionalization of EJ as a policy concern for the EPA. In 1990, the EPA held its first National Environmental Equity Workshop and established the Environmental Equity Working Group to review the available evidence that low-income communities of color bear a disproportionate risk of environmental harm throughout the country. The Group issued its final report in 1992. ¹³ At the same time, the First National People of Color Environmental Leadership Summit adopted a declaration of 17 principles of EJ in 1991. ¹⁴

In response to this empirical research, government reports, lawsuits, and organized social opposition showing that government had historically shutout communities of color from decision-making processes and that they faced a severely disproportionate burden of the environmental harms in the country, President Clinton issued Executive Order 12898 in 1994 to give the EPA a mandate to address environmental injustice. ¹⁵ The executive order directs federal agencies to identify and address the human and environmental health effects borne by these communities, develop a strategy to achieve EJ, promote nondiscrimination in federal programs affecting human health and the environment, and provide for information and public participation to affected communities. ¹⁶ An accompanying Presidential Memorandum to the Executive Order required that EJ impacts be considered as part of the environmental impact studies undertaken by federal agencies pursuant to the National Environmental Policy Act (NEPA). ¹⁷ In 1997, the Council on Environmental Quality issued guidance to federal agencies for addressing EJ in the NEPA process. ¹⁸ In this vein, the Executive Order prompted the creation of the Federal Interagency Working Group on EJ to address EJ issues across the federal government and is composed of representatives of the White House and 17 federal agencies. ¹⁹

Today, the spirit and directives of this executive order are housed within the Office of Environmental Justice (OEJ), who promotes agency-wide efforts to include low-income communities and communities of color in stakeholder participation and to consider the disproportionate environmental and public health risks they face. This inclusion is an attempt to achieve procedural justice. EPA now considers EJ in decisions, including permitting, licensing, grants, regulations, and proposed actions by other federal agencies. ²⁰ The OEJ is a classic example of a regulatory response to political pressure, which is to include stakeholders in the process after significant pressure from organized groups. EPAs Plan EJ 2014 sets a high bar on paper for inclusion, requires proof of meaningful involvement of EJ communities in the stakeholder process to participate and influence decisions, to consider public concerns in the decision-making process, and for decision makers to adequately facilitate involvement from affected communities. ²¹

Inclusion of stakeholders generally takes the form of open meetings with Q&A sessions between the community, government, and possibly industry representatives if the issue is the issuance of a permit, siting of a new facility, or the like; a notice and comment process including posting in the Federal Register; and citizen panels or some equivalent mechanisms to allow people to give input on decisions or provide consultation on reports or attend conferences and summits. This list is not exhaustive but establishes the pattern of behavior and options that EPA and other regulatory agencies use at the state and federal level to include the public in the regulatory process. ²² The move did work to consider the disproportionate impact on low-income communities, people of color, and indigenous communities, which was a positive step. It expanded and institutionalized a mechanism to address the first EJ challenge of inclusion, and it happened to coincide with the Clinton Era EPA policies that encouraged flexibility to achieve innovation in the regulated community, rather than strict deterrence, in hopes to forge additional common ground between industry, affected communities, and regulators. ²³

Stakeholder inclusion is the lowest level institutional mechanism to include EJ communities in the regulatory process if that inclusion does not produce measurable benefits for those communities. Inclusion can help assuage fears and provide voice if done properly and slow down decisions to provide time for consultation. EJ communities, however, often see this as just a mechanism to help them “blow off steam,” and inclusion does not necessarily lead to direct power or influence. ²⁴ The government's primary response to EJ has been through these mechanisms, which contextualize environmental racism as a community engagement problem, not necessarily an enforcement, legal, or moral problem that demands direct action beyond inclusion.

While the goal of environmental stakeholder participation may be the maximum feasible involvement of affected groups, the question becomes one of how to best support inclusion, what role for minority interests in the process, and what comes after inclusion-all long-standing concerns of the process. ²⁵ If affected groups are considered when a permit is going to be issued or a major action undertaken that inclusion and consultation is a positive consequence if their participation is given voice. ²⁶ Stakeholder participation in its best form brings EJ communities into the decision-making process, helps them learn the vagaries of the bureaucratic process, forces EPA and other federal agencies to consider EJ in its decisions, and subjects the expansion of new industrial facilities, incinerators, toxic dumps, and other hazards to a process that if nothing else slows things down. Studies suggest that a series of variables can lead to more successful stakeholder inclusion in EJ communities. Research suggests that brownfield revitalization programs can achieve better inclusion through stakeholder trust and holistic revitalization efforts. ²⁷ These efforts may require government officials engaging the community and individuals or organizations that can champion a particular cause. ²⁸

There are severe weaknesses in this process. Issuing air, water, and hazardous waste permits for new facilities or expanding old facilities is a technical process that relies on estimating the risks to neighboring communities. Simply objecting to the siting of a new facility is not enough to stop it. ²⁹ The review process for permits may include EJ communities, but this process does not by any means entail a permit will not be issued. States are also authorized to issue such permits in most occasions and the oversight is often minimal or lax. ³⁰ In cases where environmental groups and other constituencies oppose expanding toxic harms in EJ communities, they may have a better chance of collectively opposing them if they have resources. ³¹ When they are unable to enjoin other groups to their cause and/or they themselves are not well organized, it is naive to assume participating in a regulatory process is fair, balanced, or effective. ³²

It is also short-sighted to assume that government drives the regulatory process. While EPA sets standards and enforces those standards, industry often spearheads the siting and expansion of industrial facilities through a political process of applying pressure to agencies, through the courts when they are unsatisfied with agency decisions, and through supplying the data for determining whether such facilities should be sited or expanded. EPA and other state and federal agencies tend to respond to these actions and include EJ communities in discussions over the process by holding meetings in the community, bringing together local working groups of various stakeholders, or holding broader summits on issues, and the issuance of reports, strategic plans, and other documents. Economic and political factors also drive this process. Some researchers argue that comprehensive community development efforts are also needed in EJ communities that are linked to broader regional development strategies to reduce health impacts. ³³ Others note that border regions pose distinct political and ecological problems for EJ communities. ³⁴

The overarching goal of stakeholder participation should be to foster both inclusion and reduce toxic emissions and other harms in these communities. EJ communities should be included in regulatory decisions in a robust way that both prevent all new harms from being sited in their community and to work through this process to reduce current harms. The unfortunate reality is that the modus operandi of EPA with stakeholder inclusion is not to identify current environmental harms in EJ communities and systematically force industry to reduce them. ³⁵

EJ activists have always used stakeholder inclusion as one of many tools to force government action on their behalf. Having participated in many or most of the options we provide a short summary of our own experiences to add perspective on how communities get involved or get government involved. A common step that EJ communities take is to bring salience and awareness to their plight through the media, interacting with elected officials, becoming stakeholders in government planning, or reaching out to other groups, as well as organizing a nonprofit organization. The second is to marshal their own scientific evidence of harm to get the attention of regulators and the mass public. This can take the form of requesting epidemiological studies from county or state health agencies for birth defects, measuring asthma rates in schools, cancer cluster studies, starting their own Bucket Brigade Program with groups such as Global Community Monitor to measure air quality, or biomonitoring and chemical body burden studies to study the health burdens they face generally and specifically in their community. ³⁶ Communities can also engage in legal action, such as filing a citizen suit to contest an air permit that might expand or site a new facility, or file a civil rights lawsuit, although the latter path is more difficult today than in decades prior due to the winnowing down of legal options.

In our own community working on EJ issues, we have seen all such examples take place to fill the void left by government inaction to protect from and compensate for harm. We have seen EJ communities reach out and pressure EPA to come to their community, to engage stakeholders, to participate and help civil and criminal enforcement personnel see the problems they face, to work with prosecution to punish corporations that harm them, and to testify at trial as victims of corporate environmental crimes. In all these cases, the work of government was made possible by and enhanced by citizen involvement. Grassroots organization alone cannot solve these problems without government action. ³⁷ Citizen action, however, is vital for making government act, which has been the case all along with the EJ Movement from forcing stakeholder inclusion, to being active in other harm reduction and compensatory programs. Government will not improve its performance now or in the future on EJ without such actions, despite support vocalized from the Biden administration.

Enforcement and harm reduction

The regulatory system has also struggled to give primacy to EJ in its enforcement decisions. Enforcement brings gravity and clarity to the regulations passed by EPA, both for the agency and the regulated community that is directly affected. In this, enforcement is both a stick and a carrot; an opportunity and an avoidance; a conversation and an argument, but certainly not a bazooka. EJ communities face disproportionate burdens living next to large stationary sources of pollution such as petroleum refineries, chemical plants, hazardous waste dumps, and power plants, but EJ is rarely the catalyst of enforcement and compliance efforts. The EPAs strategic and overarching plan to address EJ, Plan EJ 2014, requires an enhanced focus and regulatory response targeted at EJ communities, but this process has proven difficult as state agencies, who undertaken the bulk of inspections, were never included in the plan. ³⁸

Enforcement takes two general forms. ³⁹ The first is compliance, where agency personnel use pressure, discussion, negotiation, and penalties to bring the regulated community in line with the law. Compliance typically involves EPA seeking civil remedies where a preponderance of the evidence standard holds that the evidence prosecutors present of a crime is more likely true than not. ⁴⁰ Civil enforcement actions can occur at the level of the firm or broader compliance initiatives targeted at certain industries and take the form civil or judicial actions. Remedies for violations can include civil penalties, settlements, injunctive relief, Administrative Orders of Consent, environmental mitigation plans, or Supplemental Environmental Projects. ⁴¹

A salient example of a broader compliance initiative affecting EJ communities would be the Petroleum Refinery Initiative, developed in consultation with companies and planned with the industry group the Petroleum Refinery Institute. The goal was to gain compliance across the industry and reduce hazardous air emissions at refineries. This took the form of a Storage Tank Emission Reduction Partnership Program to incentivize installation of slotted guidepoles on storage tanks containing volatile organic compounds and to reduce emissions from other sources. EPA settled 37 cases with companies across 32 states over a series of years that covered 112 refineries, agreements to invest some $7 billion in pollution control technologies, and for companies to pay $116 million in civil penalties. ⁴²

In criminal enforcement cases, EPA investigates wrongdoing in criminal enforcement cases and works with federal prosecutors to punish offenders. ⁴³ EPA focuses its criminal enforcement actions on serious crimes involving “significant harm and culpable conduct.” ⁴⁴ Developing criminal enforcement tools for the environment required institutionalizing a police presence, centralized prosecutorial resources, and enhancing criminal penalties in federal environmental statutes.

Dedicating policing resources to protect the environment can be traced to the founding of EPAs Office of Enforcement in 1981, which is now referred to as the Office of Compliance Assurance (OECA). ⁴⁵ The Office of Criminal Enforcement, Forensics and Training (OECFT) was founded in 1995 to provide investigative and forensics support and is housed within the OECA. ⁴⁶ The Criminal Investigation Division (EPA-CID) is responsible for investigating environmental crimes and is housed within the OECFT. The EPA was able to hire criminal investigators in 1982, and these individuals were deputized as Special Deputy U.S. Marshalls from 1984 until 1988 when Congress granted them full law enforcement authority. ⁴⁷ The EPA-CID employs about 145 criminal investigators to police environmental crimes across the United States. ⁴⁸

The Department of Justice's (DOJ) Environmental Crimes Section (ECS) is the primary entity responsible for prosecuting federal environmental crimes in the United States. Founded in 1982, the DOJ-ECS was meant to centralize prosecutorial expertise and resources to pursue cases against environmental criminals. ⁴⁹ In 1987, the DOJ-ECS was upgraded to its own unit within the DOJs Environmental and Natural Resources Division (ENRD). ⁵⁰ The Environmental Enforcement Section, also housed within ENRD, oversees civil–judicial cases. ⁵¹ The DOJ-ECS currently employs some 43 prosecutions and a dozen support staff. ⁵² When the EPA-CID investigators build a case, they take it to a prosecutor in the DOJ-ECS or the U.S. Attorney's Office, who then may choose to seek an indictment from a grand jury or file an information in a relevant U.S. District Court. ⁵³ Sources for criminal investigation typically come from former employees of companies, civil inspectors from other government agencies, or self-reported documents. ⁵⁴ While early federal conservation laws such as the Rivers and Harbors and Lacey Acts introduced misdemeanor penalties into federal law, it was not until 1984 with the passage of the Hazardous and Solid Waste Amendments to the Resource Conservation and Recovery Act (RCRA) that felony penalties were introduced into federal environmental law. ⁵⁵ Felony penalties for environmental crimes were later added to the U.S. Clean Water Act (CWA) in 1987 and the U.S. Clean Air Act (CAA) in 1990. ⁵⁶ These amendments came around the time the U.S. Sentencing Commission offered recommendations to enhance penalties for a range of federal offenses and reflected a broader trend at the time globally to increase penalties for environmental harm. ⁵⁷ Felony penalties for environmental crimes are now common in federal environmental law. ⁵⁸

Civil or criminal enforcement approaches may benefit EJ communities by reducing harmful air emissions from refineries or incinerators, groundwater pollution from manufacturing plants, or hazardous chemicals leaching into their homes from hazardous waste dumps. These efforts are not typically done on behalf of EJ communities directly in a particular case or long-term compliance or deterrence efforts. Those living near the fenceline may participate in the stakeholder process or even in compliance efforts, but reducing their known and disproportionate burden is generally an indirect consequence. EJ is not the primary driver of enforcement efforts. ⁵⁹ State environmental regulators are often less well equipped to manage this harm or can be prone to giving variances to stationary sources of pollution that harm EJ communities. Data on emissions are mostly self-reported. Neither EPA nor state environmental agencies (the latter of which is the primary permitting and enforcement vehicles for managing these environmental harms) prioritize chronic harms inflicted on EJ communities as a part of enforcement. ⁶⁰ The community must also play a vital role in pushing for stronger enforcement. As research shows, enforcement actions in EJ communities may experience less rigorous enforcement. ⁶¹ Enforcement presence may have less to do in some instances with the level of risk they face, as much as the involvement of advocacy organizations. ⁶²

Compensatory programs

EJ activists know that the enforcement apparatus is only partially effective in serving their needs and that is typically when helping them serves the greater interests of EPA initiatives. Regulating complex industrial facilities and enforcing the law is exceedingly complicated, and it has been a problem for EPA for some time, particularly with hazardous air pollutants (HAPs) that cause significant harm and are not regulated as criteria pollutants under the National Ambient Air Quality Standards (NAAQS). ⁶³ Yet fenceline communities often live by these same facilities where air quality for HAPs and other chemicals and hazards is poorly policed. ⁶⁴ EPA enforcement strategies have done better to limit harm through reductions in criteria pollutants, compliance initiatives, and criminal enforcement actions, but the long-term risks associated with HAPs are real and ongoing. Unless there is an explosion, death, or major catastrophe at a stationary source near a fenceline community, the media rarely gives it serious attention nor do subsequent investigations that follow. ⁶⁵ Put another way, fenceline communities suffer from chronic environmental harms that often have little enforcement or regulatory standards of unacceptable risk that prompt action and so employing enforcement options to reduce harm systematically are limited. ⁶⁶

Compensation for EJ communities that live with these chronic toxic burdens may come from a series of sources. It is important to realize that compensation is only one form of distributive justice for these communities. Compensatory programs must not fall victim to seeing EJ as a singular economic issue and erase questions of recognition, of landscape degradation, ongoing pollution monitoring, and other complex issues. ⁶⁷ These represent broader issues of recognitional justice that go beyond distributional justice that requires us to go to a deeper level of analysis to understand the structures that created the distributional problems of disproportionate environmental harm in these communities. ⁶⁸

One source is to seek restitution from environmental crime cases involving EJ communities. ⁶⁹ Prosecutors have leverage to negotiate restitution to victims of crime, and this applies to those injured as a consequence of environmental crime. Civil enforcement cases may also be able to seek restitution to victims harmed by toxic emissions from nearby industry or other sources. ⁷⁰ A second source of compensation is to use the Crime Victims Fund established by Congress in 1984 through penalties assessed to convicted federal criminals. The Fund, established following passage of the Victims of Crime Act, has some $6 billion dollars that can be used to pay for medical costs, counseling, and other services. ⁷¹ To adequately address medical costs in EJ communities, Congress would need to expand the application and financial support of the Fund and prioritize using it in cases where companies are convicted of crimes that harm EJ communities. ⁷²

A third avenue is illustrated in the case of long-term asbestos exposure in Libby, Montana, where EPA declared a state of emergency. This action during the period where DOJ prosecutors indicted officials from W.R. Grace & Co. with fraud, obstruction, and other charges for their role in poisoning the town. ⁷³ While the company was found not guilty, declaring a public health emergency under CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act) and declaring Libby a Superfund site, allowed government officials to expend funds on environmental remediation, as well as health care costs for affected residents. While not an EJ community, Libby's example is an excellent precedent to extend to such communities on both fronts of working to prioritize the remediation of contaminated sites and to expend funds for medical care. ⁷⁴

A fourth avenue is to seek to expand the rights of EJ communities as crime victims in environmental prosecutions. The Crime Victims' Rights Act (CVRA), signed into federal law in 2004, gives victims of environmental crimes certain procedural rights in court proceedings. EJ communities are chronic victims of environmental crimes but are rarely included in the decision to bring charges or their interests considered at sentencing. ⁷⁵ The CVRA has great potential to include victims when deciding to bring environmental prosecutions. ⁷⁶ Prosecutors could reorient their perspective in the Biden administration to give primary to EJ communities as victims of environmental crime, given the administration has voiced support for focusing environmental prosecutions on EJ communities. Working on the United States v. CITGO case, we saw how the prosecution prioritized the community throughout the process, including working to have them recognized as victims of the company's environmental crimes under the CVRA. ⁷⁷ Victims were recognized, gave victim impact statements, and allowed to testify at sentencing. ⁷⁸ While this did not result in financial compensation for the harms they endured as the result of these crimes, such as reduced property values, physical health maladies, and mental stress, this set an important legal precedent to build on in future prosecutions, and it allowed victims a platform to communicate their own narratives and have the complex details of the extreme problems of living near heavy industry made public in court.

A final avenue for compensation is for nonprofits to raise funds for buyouts that help willing community members remove themselves from the harms of toxic exposures. We have experience with this avenue through the founding of the Environmental Justice Housing Fund. ⁷⁹ The Fund was able to raise millions and orchestrate a partial buyout of a community near heavy industry in Corpus Christi, Texas. A process was created to have residents apply to be bought out and to be adequately compensated to purchase a home elsewhere, away from the fenceline. The homes were demolished, and green spaces left in their place that are maintained by the Fund. Not all community members wanted to leave, nor were we able to raise sufficient funds to do so. For those that did want to get out of harm's way it was a fair and equitable solution within the boundaries of limited funds to make this reality possible.