The Environmental Protection Agency will more forcefully consider the effects potential regulation could have on improving the health and environment of minorities, low-income residents, tribes and indigenous people that the agency says are disproportionately affected by pollution.
The EPA issued its final guidance Monday stemming from a 20-year-old executive order that urged incorporating “environmental justice” factors into the rule-making process. The guidance “explicitly” prompts the agency to weave environmental justice “into the fabric of the [Action Development Process],” referring to the steps the agency goes through to determine whether it should propose new regulations.
“This guide empowers decision-makers responsible for developing rules to determine early in the process the level of focus and effort that is necessary and appropriate to achieve the EO 12898 goals,” the agency said, referring to the February 1994 executive order that required including environmental justice in the regulatory planning process.
The guidance doesn’t create new powers for the agency. Instead, it underscores considerations the EPA should make when carrying out its statutory authority to issue regulations regarding the environment and public health. But it’s a long-awaited victory for groups that say minorities, low-income residents, tribes and indigenous people are often left out of the planning process for pollution rules.
“Environmental justice groups and community groups have been asking for this guidance for years, so we are glad to see it come out. It is essential that EPA take into account the potential environmental justice impacts on the front end of all of its rulemakings,” Lisa Garcia, vice president of litigation with Earthjustice, told the Washington Examiner in an email.
Conservatives, however, contend that public health and green groups have used environmental justice concerns to wrangle new regulations out of the EPA and slow down permitting that restrains the use of fossil fuels and other industrial activity.
The guidance “should state clearly that its purpose is to provide suggestions, rather than to establish a new ‘procedural checklist,’ and that any deviations from the Draft Guidance cannot be used to delay, oppose or challenge a particular permit,” the Business Network for Environmental Justice wrote in 2012 comments on the draft guidance.
But environmental justice campaigners getting bureaucrats’ attention is an issue when agencies face pressure from well-heeled industry groups, lawmakers and others, and that the burden of attending meetings or hiring legal representation is greater for such populations.
Getting such groups involved in the planning process early is key, advocates say, because low-income residents and minorities are likelier to live near large sources of industrial pollution than more well-off and white Americans.
“After decades of hard work, struggle and some victories along the way, the quest for environmental justice for all communities has yet to be achieved. Even in 2014, the most potent predictor of health is zip code,” Robert Bullard, a prominent environmental justice campaigner and dean of the Barbara Jordan-Mickey Leland School of Public Affairs at Texas Southern University, wrote in February on the executive order’s 20-year anniversary.
For example, a 2014 University of Minnesota study found non-whites encountered 38 percent more emissions of nitrogen dioxide, a pollutant emitted by power plants and vehicles that’s linked to respiratory and heart ailments, than whites. The EPA noted that 1 million people living near Interstate-710 in Los Angeles County, an area thick with industrial facilities and truck traffic catering to the ports of Long Beach and Los Angeles, are hit with some of the nation’s worst smog pollution. 70 percent of those people are low-income or minorities.
The agency must now consider three questions regarding those populations from the beginning of the process: How the public participation element included them; how officials writing the rules identified or addressed new or existing environmental and public health issues affecting those groups; and how considering those elements affected the outcome or final decision in the rule-making process.
“Because minority populations, low-income populations, tribes, and indigenous peoples have historically been underrepresented in federal agency decision making, EO 12898 also aims to improve public participation of these populations in the decision-making process,” the EPA guidance said.
EPA said in its guidance that such “up-front” efforts would help illuminate deficiencies in the regulatory framework.
“For example, the development of some EPA regulations is prompted by the findings of risk assessments. If [environmental justice] was not considered in the development of those assessments, the rule-writers will not have the benefit of the information that might have been provided and may need to examine options for developing such information during specific stages of the [Action Development Process],” the guidance said.
The EPA also is working on a technical guidance to assist rules writers in assessing how and when to analyze and incorporate environmental justice in the rule-making process.
Bright lines don’t necessarily exist for determining who is considered low-income, the guidance said. It suggested categories for those whose household income fall below the national median, those less than the poverty threshold and also factoring in health insurance costs and educational attainment.
As for assessing disproportional impact to health, the guidance recommended considering the “severity and nature of health consequences; the magnitude of the estimated differences in impacts between population groups; mean or median exposures or risks to relevant population groups; distributions of exposures or risk to relevant population groups; characterization of the uncertainty; and a discussion of factors that may make population groups more vulnerable.”
