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‘Environmental Justice,’ EPA Style

Sunday, June 9, 2013

If the EPA wants to help low-income and minority populations, it should stick to promoting technologies that reduce pollution for everyone, rather than making environmental issues about racial justice.

The elitist environmental movement has always had a problem with its limited appeal to low-income minorities, few of whom identify with the upscale, Volvo-driving profile of environmental organizations’ typical membership. In the early days of the movement, civil rights leaders were often opposed to environmentalism. Richard Hatcher, the black mayor of Gary, Indiana, told Time magazine at the time of the first Earth Day in 1970: “The nation’s concern with the environment has done what George Wallace was unable to do — distract the nation from the human problems of black and brown Americans.”

It was inevitable, then, that the environmental movement would try to figure out a way to co-opt the civil rights movement, and the answer, starting about 20 years ago, is “environmental justice.” The idea has been on the periphery for most of the last two decades, but the movement’s allies in the Obama administration are preparing to make the idea more operational with the Environmental Protection Agency and a major twist of the regulatory ratchet.

In practice, the amalgam of civil rights and environmentalism often summons the worst reflexes of both movements, combining frivolous charges of racism along with unfounded environmental scares. It is not clear which of the two movements has been degraded the most by this unlikely marriage. It is common to hear fully compliant industrial siting decisions near low-income or minority communities labeled “genocide.” Both movements are stuck in the past, comparing issues of perceived environmental injustice to extreme events long past: for the civil rights movement, it is always the Edmund Pettus Bridge in Selma; for the environmental movement, the Cuyahoga River still burns. Christopher Foreman of the Brookings Institution, author of the best dispassionate study of the issue, notes that “the flexible locution ‘environmental racism’ is inherently provocative and was intended to be so.”

While the EPA has paid lip service to environmental justice, it has avoided incorporating the idea into the permit process.

Although President Bill Clinton gave environmental justice a big push with a 1994 executive order stating that “each federal agency shall make achieving environmental justice part of its mission,” there was no substantive guidance about what this should mean in practice; the idea remained mostly notional while the usual “interagency working group” was set in motion to study the issue. While the EPA has paid lip service to environmental justice — even under President George W. Bush — it has avoided incorporating the idea into the permit process, which is the key choke point of the EPA's regulatory powers.

But environmental justice is about to receive a significant boost from the Obama administration. Last month, the EPA released for public comment an 81-page “Draft Technical Guidance for Assessing Environmental Justice in Regulatory Analysis,” and although the document says it “does not impose any legally binding requirements,” there is no doubt the “guidance” will be used in developing new EPA regulations that will have subsequent effects on permit applications. The “technical guidance” lays out a detailed framework for assessing the demographic and racial impact of regulations, such as how to identify minority populations at higher health risk. “Minority, low-income, and indigenous populations experience greater exposure and disease burdens that can increase their risk of adverse health effects from environmental stressors,” the guidance states. It also mentions “Laotian subsistence fishers” as an example of how finely they expect analysts to look for disparities.

Repeated studies have shown that higher levels of environmental chemicals in humans correlate more closely with incomes than with race or location. A correlation with income is a very different matter than race. Correlations between low incomes and poor health outcomes exist on a broad range of risk measures beyond environmental exposures. Foreman comments: “environmental justice proponents generally eschew personal behavior (and necessary changes in it) as a primary variable in the health of low-income and minority communities. . . Telling neighborhood residents that an unfamiliar and unwanted company is fouling the local air or water, and perhaps threatening their children, sets the stage for effective community protest even when the actual health risks at stake are negligible. But reminding residents that they consume too many calories, or the wrong kinds of food, is likely to appear intrusive, insensitive, or simply beside the point.”

Repeated studies have shown that higher levels of environmental chemicals in humans correlate more closely with incomes than with race or location.

Foreman’s comment suggests that genuine “environmental justice” would consider what economists call the “distributional effects” of environmental regulations, such as land use regulations that disproportionately constrict the choices and opportunities of low-income households — for example, exclusionary zoning that prevents affordable housing from being built. The effect of regulations that reduce economic growth and opportunity for minority and low-income individuals ought to be front and center for the EPA, but the environmental justice the EPA has in mind would instead create more barriers to growth. The intrusion into environmental regulation of problematic “disparate impact analysis” has made civil rights enforcement a litigation minefield for decades.

The EPA is probably on doubtful legal ground to incorporate disparate impact analysis directly into the regulatory process, which is why the report disclaims any official legal status for this initiative. But the report gives away the game that the EPA is creating when it calls for the “meaningful involvement” of potentially affected people in the rulemaking and permit process. This is code for providing official “findings” of environmental injustice in the public comment portions of permit applications. The EPA won’t do the dirty work directly, but activist groups will be empowered to ratchet up their game. It’s right out of the Alinskyite “community action” playbook; now anti-development activists will be able to claim the authority of government findings to back up their wild charges that a new plant endangers the community. At the very least, the EPA’s environmental justice initiative will become an additional means to extract concessions (that is, payoffs) from permit applicants, or to kill projects outright.

If the EPA wants to help low-income and minority populations, it should stick to promoting technologies that reduce pollution for everyone, rather than making environmental issues about racial justice.

Steven F. Hayward is the Thomas Smith Fellow at the Ashbrook Center, and the author of the Almanac of Environmental Trends.

FURTHER READING: Hayward also writes “Unsettling the Settled Science,” “Environmentalists as Battered Spouses,” and “Two Cheers for the Clean Air Act.” Jon Entine writes “‘Monsanto Protection Act?’ Separating the Facts from the Fury.” David Schoenbrod says “REINS Would Improve Environmental Protections,” and Mark J. Perry blogs “In Observance of the ‘Green Holy Day’ Earth Day: The Science of Economics versus the Religion of Environmentalism.”

Image by Dianna Ingram/Bergman Group

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