Regulatory Compliance may not be Enough to Protect your Neighbors’ Civil Rights
I recently attended the US EPA National Brownfields Conference, which was held in Oklahoma City, Oklahoma. Since its inception, the conference has concentrated on educating and assisting stakeholders from all over the U.S. as they endeavor to restore and redevelop brownfields properties for which the benefits are not only environmental restoration but economic rejuvenation.
This year, many of the educational programs were focused on the subject of environmental justice and how cumulative impacts from both environmental and nonenvironmental stressors cause considerable and sometimes irreparable harm to communities.
A brief primer might be in order. Congress passed the Civil Rights Act of 1964 in July of that year. Title VI of the Civil Rights Act states that, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
In February 1994, President Clinton issued Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.” Executive Order 12898 directs agencies, to the extent permitted by law, to identify and address, as appropriate, disproportionately high and adverse human health or environmental effects on minority populations and low-income populations. In other words, US EPA has a responsibility to incorporate environmental justice considerations into its practices and policies.
I couldn’t help thinking about environmental justice and cumulative impacts as I’ve been watching what is happening to citizens of Jackson, Mississippi right now. If you’ve not heard, citizens of Jackson have been without reliable drinkable water since July, when the pumps at the main water treatment plant failed. Followed by the flooding of the Pearl River in late August, Jackson residents have not had accessibility to clean, safe drinking water. Images of elderly citizens waiting in line for hours to pick up potable water and small children being admonished to be careful to not ingest water while brushing their teeth are gut wrenching.
I was curious to learn more about the history of the city and how the city could find itself here. Jackson is the capital of Mississippi and its most populous city with 173,514 residents. It seems incomprehensible that a city of that size would remain under such a state of crisis for such an extended time. But, the fact that 82.5% of Jackson’s residents identify as Black or African American is notable. Would the citizens of Spokane, Washington, which is 85.96% white, experience even a day like Jackson let alone a whole month? It seems unlikely.
In 2020, US EPA issued an emergency order for Jackson, citing its water safety as a critical concern. US EPA Administrator, Michael Regan visited Jackson last year saying, “The issues that Jackson faces are issues that many communities across this country face. Disproportionately in areas where we have black and brown, and tribal communities.”
Many states have implemented environmental justice initiatives and laws, while others are still considering them. On August 16, 2022, US EPA released the document, “Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions.”
The document provides guidance on how regulatory bodies should evaluate cumulative impacts when determining whether or not to approve a permit. In summary, just because a facility is in environmental compliance, does not suggest it is not violating civil rights.
“… if there are no mitigation measures a permitting authority can take to address the disparate impacts and there is no legally sufficient justification for the disparate impacts, denial of the permit may be the only way to avoid a Title VI violation.”
I urge everyone who has responsibilities for their corporate or facility’s environmental compliance to explore this document and become familiar with environmental justice laws and guidance for states in which your company operates. If you haven’t yet, please connect with your neighbors and ask what you can do to help improve your communication and outreach efforts.
In July of last year, US EPA’s Principal Deputy Assistant Administrator for the Office of Enforcement and Compliance Assurance (OECA), Lawrence Starfield, released the memo, “Strengthening Environmental Justice Through Cleanup Enforcement Actions” in which he directs US EPA regions to increase scrutiny and oversight of facilities located in and adjacent to overburdened communities.
A threat of increased oversight might be an impetus to conduct an environmental justice evaluation of operations. Instead, I hope a desire to do better than yesterday is enough. It is going to take all of us to take care of all of us, and we’re going to have to set the table to include community members and regulators as well as the regulated community.