10019996
Report
of the
Title VI Implementation Advisory Committee
Next Steps for EPA, State, and Local
Environmental Justice Programs
March 1, 1999
EPA
' 100/
1999.6 National Advisory Council For Environmental Policy and Technology
(NACEPT)
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Report of the Title IV Implementation Advisory Committee : next steps for
EPA, state, and local environmental justice programs /
National Advisory Council for Environmental Policy and Technology (U.S.).
Title IV Implementation Advisory Committee.
U.S. Environmental Protection Agency,
1999
42454269
Environmental justice—United States ; Environmental policy—United
States
1 v. (various pagings) ; 28 cm.
LIBRARY CALL NUMBER LOCATION
EJBD EPA 100/1999.6 Headquarters Library/Washington, DC
Cover title. Appendices at OCLC no. 45534656. EPA 100-4-99-004
{Washington, D.C.} :
{1999}
LIBRARY Date Modified
EJB 20010615
m
99214282
20010615140319
OCLC/T
eng
http://cave.epa.gov/cgi/nph-bwcgis/BASIS/ncat/pub/ncat/DDW?W%3DOCLCNUM+PH... 12/18/2006
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TABLE OF CONTENTS
INTRODUCTION AND OVERVIEW 1
The Committee's Charge, Composition, and Process 1
EPA's Interim Guidance and the Select Steel Decision 2
Summary of the Issues and Committee Views , 5
Redefining the Committee's Mission 10
Eight Consensus Principles 11
Roadmap to This Report 13
NEXT STEPS FOR EPA 15
Revision and Implementation of the Interim Guidance 16
Step One: Stakeholder Consultations, Especially at the Grassroots 16
Step Two: Revision and Implementation 1_7
Beyond Permitting: Consideration of Other Areas of Concern ]_8
Research and Data Gathering on Cumulative Risk and Synergistic Effects 20
Development and Distribution of Assessment Tools 2J_
Legal Research and Analysis 22
The Utility of Pilot Proj ects 23
The Best Context for Title VI Programs 23
A TEMPLATE FOR STATE AND LOCAL GOVERNMENT PROGRAMS 24
Two Paths to Equity 25
Deference to State and Local Government Permitting Decisions 25_
State and Local Government Flexibility 28
Proactive Problem Solving 29
Incentives 33_
State and Local Governments 34
Industry 36
Community Groups 3_8
Addressing Cumulative Effects 41
A Comprehensive Inventory of Pollution Sources 42
Evaluating Potentially Adverse Impacts 43.
Expansion of Existing Programs 46
Public Participation 47
Participation by Government 52
Community Monitoring 53_
Significance of the Template 55
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EIGHT ISSUES OF SUBSTANCE 55
Defining and Evaluating Effects 55
Identifying the Community of Concern 61
Determining Disparity 68
The Role of Existing Standards 70
Agency Jurisdiction 73
New versus Renewal Permits 78
Mitigation 80
Justification 88
CONCLUSION 91
APPENDICES
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INTRODUCTION AND OVERVIEW
The Committee's Charge, Composition, and Process
The Title VI Implementation Advisory Committee (Committee) was convened on April
14, 1998 by EPA Administrator Carol M. Browner. The charge she delivered to the Committee
asked that it review and evaluate existing techniques used by state and local agencies that receive
EPA funding and operate permitting programs covered by Title VI, 42 U.S.C. §§2000d-d7. A
copy of that charge is attached to this report as Appendix A.1 The Committee commenced
deliberations with the overall goal of developing a single set of recommendations for EPA to use
in implementing its Title VI policies. This goal included developing advice for state and local
governments2 concerned about these issues, which the Committee described as developing a
"template" for state and local environmental justice programs.
The Committee is comprised of representatives from the EPA constituencies directly
affected by Title VI and also includes advisors from academia. A list of Committee members is
1 Two kinds of documents are included as appendices to this report: (1) additional views
filed by members of the Committee following its approval of the final report (numbered
appendices) and (2) additional resource materials. Unless indicated otherwise in the final report,
the Committee has not endorsed the content of these appendices.
2 Unless otherwise indicated, the terms "state"and "local government" are used
throughout the report to connote the governing entity as a whole, including agencies that play
different roles in making decisions with respect to environmental justice issues. Thus, a "state"
would include a state environmental agency, as well as the entire executive, legislative, and
judicial branches of state government. Similarly, a "local government" includes agencies that
regulate, land use decision makers, sewage treatment plants, and other executive, legislative, and
judicial agencies, departments, or councils. However, it is worth noting that the "state or local
government representatives" on the Committee were environmental agency officials with
considerable expertise in the application of environmental justice principles to government and
industry.
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attached to this report as Appendix B. The Committee completed its deliberations and submitted
a final report to the Administrator on March 2, 1999. The Committee held a total of four plenary
sessions, and also spent many hours considering the issues in three "workgroups" of participants.
Workgroup I, entitled "Assessment," debated the factors involved in determining the
merits of a Title VI complaint, including such central issues as defining the affected community,
deciding what problems to include in the universe of adverse effects, and evaluating the nature
and degree of the disparate impact that violates the statute's prohibition on discrimination.
Workgroup II, entitled "Mitigation," discussed the remedies that could be implemented to
lessen or eliminate discrimination in the context of individual facility permitting decisions as
well as broader programs that address disparities outside the permitting process.
Workgroup III, entitled "Implementation," was assigned to develop a template for state
and local environmental justice programs.
All three workgroups ultimately produced draft reports that provided one source of
material for this final report. Those draft workgroup documents, along with the respective lists
of workgroup members, are attached to this report as Appendices C, D, and E. It is important to
note that these drafts did not receive final endorsement by members of the workgroups because a
decision was made to focus the Committee's effort on crafting this report.
EPA's Interim Guidance and the Select Steel Decision
Two months before the Committee convened, EPA issued the Interim Guidance for
Investigating Title VI Administrative Complaints Challenging Permits (Interim Guidance), a
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document designed to "provide a framework" for processing Title VI complaints that allege
"discriminatory effects resulting from the issuance of pollution control permits by state and local
governmental agencies that receive EPA funding." Interim Guidance at 1. A copy of the Interim
Guidance is attached to this report as Appendix F. Aware that the Interim Guidance was
controversial and had engendered strong opposition among some of the Agency's most important
constituencies, Administrator Browner instructed the Committee that "while finalizing EPA's
Title VI interim guidance is not included in the committee charge, EPA may consider revision or
supplementation to the interim guidance if necessary to fulfill the Committee's
recommendations." As predicted by this aspect of the charge, the Committee's discussions
inevitably returned time after time to the Interim Guidance, with members debating both the
policies it contained and the issues it omitted.
In October 1998, several months after the Committee began deliberations, EPA issued its
first decision under the Interim Guidance, dismissing the complaint in St. Francis Prayer Center
v. Michigan Department of Environmental Quality. EPA File No. 5R-98-R5 (Select Steel).
Members of the Committee read Select Steel with great interest, ultimately arriving at conflicting
interpretations of its significance, with some members believing that it is a positive precedent,
others viewing it as a negative precedent, and still others believing the decision will have little
lasting impact. A copy of the opinion is attached to this report as Appendix G.
Although suggested revisions to the Interim Guidance — on the basis of Select Steel or
otherwise ~ were not the central mission of the Committee, reactions to the guidance and the
decision had a major effect on the Committee's deliberations, serving the positive purpose of
expanding and clarifying the issues at stake, but at the same time underscoring how difficult
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these issues are to resolve.
In sum, it is safe to say that no member of the Committee is satisfied with the Interim
Guidance. While some see it as a "good start" that needs further development, others are
unsparing in their critiques. As one industry representative put it, the guidance hurts all
constituencies and "exists to make the business community think they should not locate near
minority communities and communities think they will never win." Many members of the
Committee attribute these flaws to EPA's failure to consult with outside stakeholders during
development of the guidance.
One persistent criticism of the Interim Guidance is that it is unclear or silent with respect
to the substance of the crucial issues that confront permitting authorities. State and industry
representatives on the Committee contend that because the guidance is unclear, it operates as a de
facto stay once a complaint was filed, casting a cloud over the permit that slows and can even
stop its implementation. Several members believe that the inequitable outcomes caused by this
uncertainty are especially discouraging to those who might consider undertaking negotiations
with communities at the beginning of the permitting process. State representatives further note
that the unreasonably short time frames imposed by the guidance make it virtually impossible to
negotiate solutions with states willing to try to correct the problem. Everyone in this group urges
EPA to redraft the Interim Guidance as quickly as possible.
Environmental justice advocates, including grassroots community representatives, and
Committee members from the academy, are somewhat more satisfied with the Interim Guidance
than their industry and government colleagues. However, they believe that aspects of the
guidance unlawfully restrict Title VI complaints and create hurdles for prospective complainants.
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Some are more troubled by the Interim Guidance in the wake of the Select Steel decision, which
many view as an objectionable and unfortunate precedent. These members of the Committee do
*
not agree with the observation that the guidance operates as a de facto stay on the permitting
process. Rather, they believe that EPA's long delays in processing complaints allow harmful
projects to go forward and become an accomplished fact before EPA gets around to deciding the
complaint, thereby allowing project sponsors to reap the benefits of Agency inaction. Lastly,
these members contend that the Interim Guidance is too narrowly focused on permitting and that,
in addition to revising it quickly, EPA should proceed without delay to consider other
environmental problems confronting communities of color.
Significantly, no member of the Committee endorses the idea of leaving the Interim
Guidance vague, a result that would mean that EPA would develop Title VI policy on a case-by-
case basis. Rather, the Committee recognizes the need of all stakeholders for coherent, uniform
standards, however much they disagree on what those standards should be.
Summary of the Issues and Committee Views
As the above discussion indicates, members of the Committee have strikingly different
views regarding the parameters of the mission that was intended by the Administrator, as well as
the substance of the standards that should govern the resolution of Title VI disputes.
Some participants believe that the group's mission is limited to the validity of Title VI
claims raised in the context of individual permitting decisions. They argue that permitting
should remain the primary focus of this report, and a few contend that permitting should be the
exclusive subject addressed by the Committee. Other members believe that to solve the real
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environmental problems faced by people of color and, not incidentally, to prevent the filing of
Title VI complaints, EPA,-the states, and local governments must take a significantly broader
view, addressing disparate impacts more comprehensively. They believe that confining
consideration of Title VI disputes to the permitting of whichever facility is unlucky enough to
need a renewal or modification of its permit at the moment would be unfair to the facility's
owner and to the community. Still other members maintain that the same core issues are at stake
in the full range of environmental decisions that may have discriminatory effects and that the
Committee to must come to grips with those issues however its mission is defined.
Environmental justice advocates recommend that the Committee take an expansive view
of the problems posed by polluting facilities located in communities comprised of a protected
class, drawing health, cultural, economic, and social concerns within the ambit of Title VI.
While some government representatives are sympathetic to this view, others agree with industry
representatives that human health effects are the only legitimate focus of the Committee's
deliberations.
Members of the Committee generally agree on the list of the core issues that must
determine the success of a Title VI complaint. However, once again, they have divergent views
on the appropriate resolution of those questions.
Some members believe that a facility's compliance with existing regulatory requirements
should defeat a Title VI claim. Others argue that EPA and other decision makers must go
beyond those requirements to assess the cumulative risks and synergistic effects that face
communities comprised of a protected class. They contend that proof of a disparate impact, even
if all applicable legal requirements are met, should result in either denial of a permit or
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withdrawal of federal funds. These conflicting views mark the most important fault line between
members of the Committee and are the issues that have proved the most difficult to resolve.
Members of the Committee also disagree about the degree of disparity needed to support
a Title VI complaint, with some arguing for any statistically measurable difference in adverse
effects between a community comprised of a protected class and the general population. Others
contend that the disparity must be "substantial or significant."
As for the troubling and difficult question of what adverse effects to include in the
analysis of disparate effects, some participants argue that the appropriate universe is defined by
the scope of federal, state, and local environmental laws. They contend that disparate effects
under Title VI should be limited to actual harm or imminent threats to public health. Others
strongly disagree with this approach, arguing that all of the adverse effects caused by the
permitting decision ~ including harm to the environment and the economic, social, and cultural
well-being of people of color — must be taken into account.
The Committee heard public testimony proposing a transparent but narrow test to
determine disparate impact that focuses on available public health statistics for populations living
within one-half mile of the facility to be permitted (or a greater distance if necessary to include at
least 1,000 residents). See EnvironmentalJustice Protocol proposed by Jerome Baiter,
representing the Public Interest Law Center of Philadelphia, included with this report as
Appendix H. Some Committee members believe that such precise calculations, however
appealing in their simplicity, could never capture the adverse effects that should trigger
government action. Others argue that a test based on health statistics would sweep data on
illness that has no "causal connection" to pollution releases into the evaluation of disparate
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impact, a result they view as both illegal and undesirable.
Members also have different views regarding the threshold question of how to define the
"affected community" versus the "general population," with some arguing for a simple "radius
approach" such as that proposed in the Environmental Justice Protocol, and others arguing for a
site-specific analysis of exposure pathways to determine the populations directly affected by a
facility's operation.
Once a determination of disparate impact is made, members further diverge on what
should happen next in the decision making process. Many return to the complicated issue of
agency "jurisdiction," with the term used in both the remedial and geographic sense. Thus, many
participants argue that the scope of Title VI complaints cognizable by EPA and the courts, as
well as the scope of any mitigation required in response to such complaints, must be limited to
the scope of applicable regulatory requirements. They contend that state and local regulatory
agencies do not have the authority to control pollution caused by unregulated sources or sources
located out of their jurisdiction and therefore cannot be held responsible for addressing the
disparate impact caused by such sources.
Others argue that this view is unduly restrictive and will result in an environmental
justice program with greatly diminished effectiveness. They believe that environmental statutes
give federal, state, and local regulators ample authority to go beyond the constraints of detailed
and prescriptive regulatory requirements, especially where those requirements are not sufficient
to address the imposition of disproportionate burdens of pollution on prohibited grounds. They
also contend that regulators have an obligation to consider and find a way to address all sources
that threaten human health and the environment, and that it is both bad policy and illegal for
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them to invoke the technical details of the law to duck these responsibilities.
All participants recognize that whatever the definition of appropriate mitigation, it may
not be possible to obtain sufficient relief from a single facility. Many endorse the conclusions of
Workgroup II, calling for a "hybrid" approach that combines "narrow to moderate nexus"
mitigation on the basis of what is "reasonable" and "practical" to achieve. Under this approach,
mitigation would be targeted as narrowly as possible to address adverse effects, but more
attenuated remedies (e.g., pollution prevention, medical monitoring, additional research into
cumulative risk) would be considered if it was very difficult to develop a narrower approach.
Some members of the Committee, however, thought that a narrow nexus approach should be the
preferred, if not exclusive, basis for addressing any adverse human health effects.
Members further diverge on how to provide state and local regulatory agencies with an
opportunity to develop "justification" for a permit's terms and conditions, both in terms of
timing and content. Some believe that state and local governments must explore all feasible
mitigation before being given and opportunity to present a justification for a discriminatory
effect. Others believe that state and local governments should have an opportunity to provide
justification before mitigation is required. Some believe that acceptable justification should
include economic damage to facility owners, while others would restrict it to the demonstrated
benefits to the public that would be provided by the facility.
As for the development of "template" or "model plan" for state and local governments
interested in developing environmental justice programs, Workgroup III was fortunate to have
the active participation of the directors of three state environmental agencies: New Jersey, Texas,
and Oregon. As the Workgroup studied the efforts made by the three states to develop proactive
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programs, it discovered that they approach the issues from two distinct directions, or
programmatic "tracks." In the first track, state and local governments would address the
imposition of a disproportionate burden of adverse environmental effects on communities
comprised of a protected class without regard to the constraints of the permitting process. In the
second track, state and local environmental justice programs would address potential
discrimination against communities that results from individual permitting decisions.
The first track is important because it takes a more proactive approach to community
concerns, potentially preventing the emergence of Title VI complaints. The model plan
developed by the Workgroup and accepted by the Committee assumes that state and local
governments would consider developing programs along both tracks, giving them an opportunity
to address cumulative risks that may be difficult to remedy in single-facility permitting
proceedings. However, the Committee also recognizes that the first track may extend beyond the
dictates of Title VI and could pose significant resource concerns to states, local governments, and
industrial facilities.
Redefining the Committee's Mission
While Committee members have shared many hours of enlightening and constructive
conversation regarding these and other issues, they recognize two realities that require a
fundamental revision of the Committee's overall goals. The first reality is that the issues
involved in developing an acceptable environmental justice policy at the turn of this century are
both complex and difficult. The second and related reality is that the diverse constituencies
represented by the Committee are unable to reach consensus on the most important of these
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issues at this juncture in EPA's efforts to develop a national program. The Committee does not
consider the absence of consensus on these crucial questions a failure. Rather, it is the inevitable
outcome of a serious effort to grapple with troubling questions in a diverse and committed group.
Rather than struggle in the face of these divergent views to develop innocuous, watered-
down recommendations for EPA's consideration, the Committee has decided to present a report
to the Agency that explores its members' divergent views regarding the implications of the full
range of policy options available to EPA, the states, and local governments. The Committee is
also recommending a detailed agenda for the next steps EPA should take in revising the Interim
Guidance, developing a model plan for state and local programs, and improving the scientific
and technical information necessary to consider Title VI complaints in a fair and comprehensive
manner. As the Committee prepared this report, members achieved consensus on several
threshold principles that should guide EPA's future efforts.
Eight Consensus Principles
1. The Committee unanimously endorses the concept of environmental justice.
2. The Committee is united in the belief that discrimination on the basis of race,
color, or national origin is illegal and unjust.
3. Members of the Committee are unanimous in the conviction that early, proactive
intervention is necessary if one is to deter Title VI violations and complaints.
Whether preventive steps are implemented under the auspices of state and local
governments, in the context of voluntary initiatives by industry, or at the initiative
of community advocates, opportunities for potential protagonists to sit down and
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discuss their true needs before positions harden are invaluable. (Materials on the
chemical industry's Responsible Care program are included with this report as
Appendix I.)
4. The Committee unanimously agrees that the affected community, as an actual or
potential victim of the discrimination Title VI seeks to prohibit, should not be
treated by EPA and other regulatory agencies as merely another stakeholder
group. Therefore, for state and local environmental justice programs to be truly
proactive, they must purposefully promote and ensure meaningful participation by
these communities.
5. The Committee believes that EPA must develop transparent and comprehensive
standards and decision-making processes accessible to the community that it will
use to evaluate Title VI complaints so that communities, industry members, and
state and local officials will understand their prospects if a negotiated solution is
impossible and EPA must decide the merits of a formal complaint. Although
Committee members strongly disagree about the substance of those standards,
they agree that such standards are necessary, and recognize that uncertainty harms
everyone by wasting limited resources that could be far better spent.
6. The Committee recognizes that community concerns about cumulative impacts
are at the heart of many Title VI disputes. As described in the discussion of Track
1, below, to address the communities' fundamental concerns effectively,
appropriate authorities and other responsible parties should recognize the
cumulative nature of such impacts and to attempt to take action to reduce and
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ultimately, eliminate the impacts.
7. The Committee recognizes that cumulative exposure to pollution and synergistic
effects are important concerns raised in the Title VI context. The Committee is
convinced that a dearth of reliable scientific research, as well as monitoring and
modeling data, frequently makes it difficult to address such concerns. The
Committee urges EPA and the states to make concerted, well-supported efforts to
research the nature and existence of cumulative exposures and synergistic effects
and the risks they pose. The Agency has already begun this crucial work, and the
Committee recommends that it significantly expand those efforts.
8. Finally, the Committee urges EPA to conduct meaningful consultations with all
affected stakeholders, including community groups and local governments, as it
revises the Interim Guidance and moves on to consider other equally pressing
applications of Title VI. The Committee has discovered during its deliberations
that preconceptions about the positions various stakeholders will take are often
erroneous and that it is always possible for people of good faith to gain a deeper
understanding of the issues from each other. EPA's perception that stakeholders
are in a state of irreconcilable difference, or that the Agency must respond
immediately to reports of crisis in the field, should not deflect its attention from
the very constructive efforts it has already made to encourage this ongoing
dialogue.
Roadmap to This Report
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Because environmental justice law and policy are at a relatively early stage of
development, the Committee's agenda for EPA's next steps is exceptionally important and is
presented as the first section of this report. The report then presents a model plan for state and
local environmental justice programs. The template adopts a two-track approach, with the first
track devoted to proactive, preventive programs with a broader agenda and the second track
focused on individual facility permitting decisions.
With this two-track approach in mind, the next section of the report explores the
substantive issues that must be addressed in all aspects of federal, state, and local environmental
justice environmental programs. At the risk of oversimplifying, those issues can be reduced to
eight discrete sets of questions:
1. Defining and Evaluating Effects: Should disproportionate adverse effects be defined to
include health effects only, or should that definition include cultural, religious, economic,
social, or environmental harm?
2. Identifying the Community of Concern: How should communities affected by a
permitting or other decision be identified? Should modeling and monitoring be used to
identify people exposed to the facility's emissions, or should regulators concentrate on
those living within a given distance from the facility?
3. Determining Disparity: What degree of disproportionate adverse effect is covered by
Title VI? Must the effect be substantial, above generally accepted norms, significant,
statistically in excess of the risk or rate in the general population, or subject to some other
standard?
4. The Role of Existing Standards: If permitting a facility will result in a disproportionate
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adverse impact on a community of color but will otherwise comply with applicable
regulatory requirements, is the decision illegal under Title VI?
5. Agency Jurisdiction: Must federal, state, and local regulators go beyond the legal and
geographic constraints imposed by agency jurisdiction in defining disproportionate
adverse effects or in responding to Title VI complaints? How should environmental
justice programs address the local land -use decisions that often play such a crucial role in
creating — as well as resolving — Title VI disputes?
6. New versus Renewal Permits: Should EPA and state and local governments apply
different standards in processing Title VI complaints that deal with permit renewals or
modifications, as opposed to applications for new permits? For the purposes of this
report, the terms "renewal" or "modification" include both the continuation of permits
without major changes and requests that permits be revised to allow expansion of existing
facilities. "New permits" apply to facilities that have not yet been built. See section
entitled "New versus Renewal Permits" below.
7. Mitigation: What standards should apply in determining the acceptability of the
mitigation being proposed? How closely must mitigation relate to the disparate impact
that is discriminatory under Title VI?
8. Justification: If mitigation is difficult or impossible, what standards should apply in
determining the validity of justifications offered by respondents to a Title VI complaint?
NEXT STEPS FOR EPA
The Committee's recommendations to EPA fall into seven broad categories: (1) revision
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and implementation of the Interim Guidance on the basis of broad public review and comment;
(2) development of policy statements addressing other areas of concern, including enforcement
policy, Brownfields redevelopment, and the control of non-regulated sources; (3) expanded
research and data-gathering regarding cumulative risks and synergistic effects; (4) development
and dissemination of better tools for conducting Title VI assessments; (5) analysis of precedents
set in other areas of civil rights law; (6) implementation of pilot projects and distribution of their
results; and (7) concerted efforts to integrate Title VI issues and constituencies into other major
Agency initiatives.
Revision and Implementation of the Interim Guidance
Step One: Stakeholder Consultations, Especially at the Grassroots
The Committee recommends that EPA continue to consult with its constituencies and
other experts as it rewrites the Interim Guidance and develops other Title VI policy statements.
The Committee expects that the guidance will be published for public comment before it is
issued in final form. However, publication in the Federal Register does not constitute effective
notice for community groups, environmental justice advocates, and some local governments, and
the Committee urges EPA to launch more effective outreach efforts to obtain the comments of
these crucial stakeholder groups.
Specifically, the Committee recognizes that grassroots environmental justice groups are
necessarily focused on the issues they have raised about potential disparate impacts in their own
communities. Composed of people who must earn their living in other ways, grassroots
advocacy groups must use human - as well as their financial — resources very carefully. If EPA
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wishes to understand their perspectives on environmental justice, in all of its varied meanings
and implications, it must accommodate these constraints, both by assisting volunteer advocates
to attend meetings where the issues are discussed, and making those sessions more accessible to
the communities directly affected by policies that will result from such exchanges.
Thus, environmental justice advocates on the Committee recommend that EPA
immediately initiate communication with groups and individuals who have filed Title VI
complaints, regardless of the status of their cases, in an effort to explain how it plans to
accomplish revision of the Interim Guidance. These members of the Committee further
recommend that EPA staff make the effort to develop ongoing, consultative relationships with
the established environmental justice networks that have expressed an interest in these policies.
EPA has already facilitated one meeting among grassroots environmental justice
advocates to discuss revision of the Interim Guidance. Environmental justice advocates urge the
Agency to arrange further meetings of this nature, noting that a single meeting in one location
during a period when people may have difficulty arranging time off their jobs or family
obligations is insufficient to gamer the views of all the grassroots groups involved most intensely
in these issues.
Once it has completed these consultations, and revised the Interim Guidance, EPA should
prepare materials that explain the process for filing a Title VI complaint to affected communities,
translating such materials into the languages that are spoken in the communities of color where
such problems have arisen.
Step Two: Revision and Implementation
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After these consultations are completed, the Committee recommends that EPA issue
revised guidance as expeditiously as possible, especially given the backlog of Title VI
complaints now pending in the Agency's Office of Civil Rights.
Once the Interim Guidance is made final, the Committee recommends that EPA and the
states, in consultation with affected local governments, consider using National Environmental
Performance Partnership agreements to set forth their expectations regarding state programs.
(These agreements are now the vehicle of choice for establishing the criteria EPA will use in
evaluating state implementation of delegated programs.) The Committee recommends that EPA
monitor the implementation of such programs both to learn from these experiences and to
evaluate their effectiveness.
In addition to continuing its consultations with community groups, environmental justice
advocates, and state and local governments regarding Title VI issues, the Committee
recommends that EPA educate industry groups about the requirements imposed under its revised
guidance. It is the Committee's sense that although the chemical and waste management
industries are aware of the issues, other business sectors may not understand how such
considerations can affect their business. The Committee particularly encourages proactive
efforts to educate the smaller business community.
Beyond Permitting: Consideration of Other Areas of Concern
While it is understandable that recent, high-profile permit disputes provoked EPA and
state and local governments to focus on this aspect of their mission, environmental justice
advocates on the Committee have repeatedly noted that permitting issues are only one
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manifestation of the problem, and may have little — if any — relevance for many communities.
The Committee's work suggests three other areas that warrant extensive consideration by the
Agency.
The first is enforcement policy and practice with respect to regulated entities located in
communities comprised of a protected class. There is a widespread perception among
community groups that federal, state, and local regulators are less vigorous in enforcing the law
with respect to such facilities, and the merits of this concern deserve sustained attention.
Although the Committee neither adopts nor rejects this perception, it believes that EPA and its
state and local partners, in addition to developing objective data on past enforcement actions,
should evaluate enforcement policies to determine whether they have the effect of de-
emphasizing enforcement in communities containing a protected class.
The second area is the effect Title VI programs may have on the redevelopment of
Brownfields (abandoned and contaminated land) in the inner city. State and local representatives
have urged the Committee to think twice before endorsing the identification of communities of
color on a geographic basis because they are convinced that such a system will create a stigma
that forecloses economic development. They add that this outcome would be especially
unfortunate because programs designed to encourage the voluntary cleanup of contaminated land
in the inner city offer productive opportunities for business to address environmental justice
issues in partnership with communities.
Members of the Committee who represent community interests are skeptical about the
value of economic development that exacerbates adverse health effects in neighborhoods already
bearing a disproportionate burden. While they often support Brownfields initiatives, and believe
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that such programs frequently avoid environmental justice disputes because they require early
consultation with affected communities, they are not willing to relinquish screening or mapping
on the basis that it may chill any form of economic development, including development that
exacerbates discriminatory effects. All of these perspectives deserve more discussion than the
Committee was able to afford them.
Finally, the difficult but important issue of pollution caused by unregulated sources
deserves concerted attention from EPA, the states, and local governments. Industry and
community representatives agree that unregulated sources are a major source of disproportionate
harm in communities of color. Industry representatives contend that it is unfair to expect large
facilities to shoulder the burden of reducing overall emissions. Community representatives assert
that to implement effective programs, regulators must address pollution sources outside the limits
of their regulatory programs. Both groups agree that limited resources must be committed to the
most severe risks, but disagree on how to accomplish that important goal.
Research and Data Gathering on Cumulative Risk and Synergistic Effects
The Committee is unanimous in its belief that EPA should strengthen its research
regarding the implications of cumulative risks and synergistic effects. Some industry
representatives believe that the science "isn't there yet" to document the actual existence of such
adverse effects. One state representative further contends that states should implement programs
that endeavor to address cumulative risks only where peer-reviewed, scientifically valid
methodology is available.
Other members of the Committee disagree with these assessments, contending that
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compelling information either exists or should be developed through enhanced monitoring and
modeling requirements. They argue that information regarding such risks will never be perfect,
and that developing regulatory policy in the face of scientific uncertainty has always been an
integral part of EPA's mission.
The Environmental Justice Protocol proposed by the Public Interest Law Center and
included in this report as Appendix H would cope with gaps in data regarding cumulative risks
and synergistic effects by assuming that environmental exposure has caused elevated public
health statistics in such categories as age-adjusted mortality rates, infant mortality rates, and low
birth weight rates. The Committee did not reach consensus on the merits of this approach, but
members agree that it emphasizes the need to improve the information available to document and
assess adverse impact.
EPA has launched research projects exploring the cumulative risks and synergistic effects
presented by air toxics, and is also doing important work in assessing cumulative risk through its
program to assist the states in establishing total maximum daily loads under the Clean Water Act,
33 U.S.C. §§1313-1315. The Committee urges EPA to increase the resources devoted to such
research and to ensure that these findings are accessible to constituencies concerned about Title
VI implementation.
The Committee also urges EPA to investigate innovative state and local initiatives to
understand cumulative risks and synergistic effects. For example, the South Coast Air Quality
Management District has launched an innovative new program known as the Multiple Air Toxics
Exposure Study, or MATES. That and similar projects are pioneering the development of
methodologies for assessing cumulative exposure and synergistic effects. They rely on
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monitoring that collects data on gaseous and particulate emissions from stationary and mobile
sources simultaneously, providing a quantifiable assessment of localized risks. EPA assistance is
crucial to make such programs available nationwide.
Development and Distribution of Assessment Tools
The Committee recommends that EPA continue its efforts to develop the assessment
tools necessary to implement effective Title VI programs. For example, EPA is developing
programs such as the Land View series that list and identify many types of potential emission
sources that are proximate to a community. EPA and the states are also making efforts to
computerize and make available to the public information regarding the status of facility permits,
as well as critical data about the condition of the environment, enforcement activities, and
regulatory requirements.
EPA and the states are pioneering the development of methodologies that help industry
identify and implement pollution prevention opportunities. They are also investigating mobile
sensor technology that allows measurements of ambient air quality in communities, a category of
information that is often requested by community groups. The Committee hopes that EPA will
consider developing a checklist or inventory of the sources of pollution that are most prevalent in
urban communities of color. All of these tools are vital building blocks in the implementation of
effective programs, and the Committee recommends that EPA devote significant resources to
making them readily available to state and local governments, industry, and the public.
Environmental justice advocates further urge EPA, the states, and local governments not
to become enmeshed in the development of complex methodology that would prove a direct link
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between specific pollution and manifest adverse health effects. They argue that assessing
disparate impact should be a much more straightforward, less costly process of evaluating the
number and type of facilities causing pollution in a neighborhood and comparing that burden to
the comparable burden born by other communities. They see the demand by industry
representatives for techniques that will link pollution and illness as a false test that will make it
very difficult to carry out the law's prohibition on discrimination as a practical matter.
Legal Research and Analysis
Another subject warranting EPA's immediate attention is the analysis of the legal
precedents developed in other areas of civil rights law that may prove useful in interpreting the
application of Title VI to environmental decision making. At the Committee's request, EPA's
Office of General Counsel (OGC) prepared a summary of precedents set under other civil rights
laws on such crucial topics as the degree of disparity that must be present to find discrimination,
the nature of the justifications that would serve to overcome such a finding, and the mitigation
required to address violations that are not justified. The summary is attached to this report as
Appendix J. The Committee's review of this lengthy report suggests that EPA would be well-
advised to convene a group of civil rights experts from the public and private sector to further
develop this analysis. By identifying available precedents and translating their application to the
environmental arena, EPA and its constituencies will be able to take the crucial step of
identifying whether there are aspects of environmental decision making that require the
development of new law and policy.
The Utility of Pilot Projects
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The Committee recommends that EPA and state and local governments work together to
develop pilot projects that address different aspects of environmental justice issues, documenting
the results of these initiatives carefully and making their findings available nationwide. The pilot
project methodology is particularly well-suited to deal with the issues raised by disparate
environmental impacts because both the science and the policy that affect such situations are at a
relatively early stage of development.
The Best Context for Title VI Programs
The Committee recommends that EPA and its state and local partners make explicit the
relationship between effective Title VI programs and other initiatives that address the
fundamental sources of such concerns. For example, programs that address pollution on a
watershed or airshed basis have the potential to define and ameliorate the cumulative effects of
emissions on communities more effectively than individual permit decisions, although they may
present similar technical and scientific challenges. Similarly, EPA, state, and local efforts to
develop cross-media permitting programs may provide better opportunities for mitigating the
adverse effects of emissions on communities. Finally, EPA, state, and local efforts to develop
and make accessible to the public data regarding environmental indicators could prove helpful in
bolstering the transparency of the public participation process recommended by the Committee in
the "A Template for State and Local Government Programs" section of this report. EPA, state,
and local policy statements regarding Title VI, cross-media regulation, watershed and airshed
protection, and efforts to improve environmental information should describe these
interrelationships and encourage coordination between these activities.
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A TEMPLATE FOR STATE AND
LOCAL GOVERNMENT PROGRAMS
Guidance, Not a Mandate, for the States and Local Governments
Webster's Third International Dictionary defines a template as a pattern or guide used to
produce a desired profile. The template described in this report is intended to serve as a model
plan for states and local governments that elect to establish environmental justice programs. The
Committee emphasizes, however, that it does not view this model plan as the basis for a
mandatory requirement that state and local governments adopt such programs. While many
members of the Committee, including state and local government representatives, believe that
establishing proactive environmental justice programs is a desirable, even necessary, public
policy, the group did not agree to recommend a new mandate for state and local governments.
The Committee recommends that EPA and its stakeholders encourage state and local
governments to implement environmental justice programs. It further recommends that EPA
explore ways to motivate industry, communities, public interest groups, and other branches of
government to participate actively in such initiatives. State and local government programs are
clearly the foundation for making significant progress on these issues, and should be a top
priority for EPA.
Two Paths to Equity
The model plan endorsed by the Committee proposes that state and local governments
develop environmental justice programs along two distinct tracks. The first would explore and
attempt to remedy the imposition of disproportionate burdens on communities that comprise a
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protected class outside the constraints of the single-facility permitting process. The second would
address potential discrimination that may result from individual permitting decisions. The major
advantage of the first track is its capacity to identify and ameliorate cumulative effects that are
difficult to address in permitting proceedings.
The Committee is aware that the first track goes beyond the dictates of Title VI and may
require a significant commitment of resources by state and local governments and regulated
industry. We also recognize the importance of creating incentives for state and local
governments, industry, business, and community groups to participate in broadly defined,
preventive programs. The Committee discussed effective incentives at some length and its
conclusions are presented in the section entitled "Incentives," below.
Deference to State and Local Government Permitting Decisions
Several of the incentives identified by the Committee raise important policy issues, but
none is more significant than the possibility of EPA deferring to state and local governments in
order to encourage their implementation of proactive programs. State and industry
representatives on the Committee have explained that EPA deference is the single most effective
incentive that EPA could offer to inspire the implementation of proactive programs. Indeed,
some members contend that deference by EPA is a condition precedent for states to even
consider establishing such ambitious programs. They characterize Track 1 programs as asking
the states and local governments to go "beyond compliance" with Title VI, comparing that
request to other EPA reinvention initiatives aimed at industry, such as Project XL.
These members of the Committee urge EPA to recognize that state regulators face the
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daily dilemma of deploying limited resources to address demanding federal statutory mandates.
They argue that in this atmosphere, unless states derive clear benefits from implementing
proactive environmental justice programs, such initiatives will never become a priority. They
add that states will be unable to persuade industry to participate voluntarily unless their final
decisions are accorded deference, eliminating the extensive delays that now affect the processing
of Title VI complaints by EPA and limiting EPA's authority to undertake a de novo "second
guessing" of state decisions made in good faith. In short, they believe it is unrealistic to expect
Track 1 to succeed without a generous measure of deference.
In contrast to these views, environmental justice advocates are very reluctant to endorse
deference as an incentive. They argue that the appropriate incentive for state and local
governments to implement the model plan is the prospect that they will "win complaints"
because proactive programs produce better decisions that will withstand scrutiny in the context
of a Title VI case. They question why it would ever be appropriate to create special incentives
for state and local governments to comply with the law.
These members of the Committee are especially sensitive to the risks of deference
because they do not know what substantive standards EPA will apply in deciding to give state
and local programs such leeway, and cannot endorse the concept of deference in a substantive
vacuum. Even if EPA ultimately develops substantive standards that are acceptable, they
question whether EPA will apply rigorous oversight to the actual implementation of state and
local programs.
Some members of the Committee, all of whom are lawyers representing a range of
stakeholders involved in Title VI disputes, question whether EPA is authorized to defer to state
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and local programs in deciding the merits of a formal complaint. They argue that Title VI was
enacted to protect constitutional rights, protecting the people of color from "majoritarian
impulses." They believe that the statute imposes a clear mandate that EPA evaluate complaints
de novo — that is, without according any special weight to the state or local agency's views on
the merits. In this view, the most EPA should do when confronted with a complaint regarding a
permitting decision made in the context of a program based on the model plan is to acknowledge
the state or local government's efforts, while still reviewing the merits of the complaint with the
same level of attention as the Agency would apply to any other complaint.
Other Committee members, who are also lawyers involved in Title VI matters, believe
EPA has significant authority to defer to state and local programs. They point out that Title VI
nowhere tells EPA how to evaluate complaints. Thus, they argue that de novo review is neither
expressly required nor impliedly favored by the statute.
Several members of the Committee agreed that it is important to distinguish between
aspects of a state or local program that are "procedural" (e.g., affording ample opportunities for
public participation), as opposed to those that are "substantive" (e.g., measuring disparate impact
pursuant to a protocol recommended by EPA). They add that if EPA adopts deference as an
incentive, it should parse the appropriate scope of such deference carefully. For example, if a
complaint alleges a disparate impact, and the state or local government did not follow federal
guidance on the assessment of such impacts, it should receive no deference, even if it faithfully
followed the public participation aspects of the model plan. They are also concerned that EPA
look behind the simple fact that a state or local government has an environmental justice program
in evaluating the merits of a complaint. For example, a state may adopt elaborate public
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participation procedures but fail to apply them in any given case. In such circumstances, EPA
decision makers should not assume that these portions of the state's plan are entitled to any
deference, credit, or even less stringent review.
State and Local Government Flexibility
Although the Committee developed consensus regarding the desirability of a two-track
structure for environmental justice programs, members diverge on the question of how much
flexibility states and local governments should be given to translate the principles contained in
the template into an operational protocol. One state representative describes the model plan as a
"menu" of options for the states, and believes that EPA must avoid "micromanaging" state
environmental justice programs. A second state representative contends that a "one-size-fits-all"
approach will inhibit the development of Title VI programs.
In contrast, environmental justice advocates urge that EPA include as much prescriptive
detail as possible when it drafts final guidance on this subject. They agree with the observations
of other state and local government representatives, who urge the federal government to take a
strong leadership role in defining the elements of an effective program, including minimum
prescriptive standards for making decisions with Title VI implications, in order to ensure a "level
playing field" nationwide.
Industry representatives generally favor greater flexibility for the states. Although they
agree that stronger federal leadership could help achieve greater predictability, so that
consideration of environmental justice concerns could proceed at the same time as permits are
processed, they also emphasize that much of the wisdom and experience on these issues resides
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with state and local governments.
The Committee recognizes EPA's continuing commitment to serve as an arbiter of Title
VI claims. As EPA refines the model plan, the Committee recommends that it achieve a balance
between the need to establish a clear floor for state and local programs while still giving the
states and local governments the flexibility to adapt these principles to their own local
circumstances.
The Committee has developed seven principles to serve as a template for incorporating
environmental justice into state and local permitting decisions. These principles are listed and
discussed below in the approximate order that they arise in the permitting process.
Proactive Problem Solving
Identify environmental justice issues proactively, with a community-based focus.
Perhaps the single most important characteristic of the model plan proposed by this report
is its emphasis on early and proactive efforts to identify and address environmental justice issues.
This principle applies to both tracks of the model plan: efforts in Track 1 to address the
cumulative effects of pollution on communities that comprise a protected class and the
processing in Track 2 of single-facility permits that raise environmental justice concerns.
Under the first track, state and local governments, in consultation with environmental
justice advocates, affected communities, and regulated industry, would identify areas that may
bear a disproportionate burden of adverse environmental effects. They would work to
characterize the nature and sources of those effects as accurately and comprehensively as
possible. (See discussion of an inventory of pollution sources, below.) Once adverse effects are
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thoroughly understood, Track 1 programs would develop effective mitigation to reduce them.
Mitigation might involve reductions of pollution at permitted facilities, or it might involve efforts
to reduce exposure to pollution — or other adverse impacts -- by addressing the operations of
unpermitted activities.
For example, lead is a contaminant common in major cities that has a devastating impact
on young children. There are many sources of lead emissions, some of which are regulated (the
ban on lead in gasoline and Clean Air Act permit restrictions on major industrial facilities) and
some of which are not (lead paint in older rental housing). Under Track 1, a state or local
government could develop programs to remediate lead paint that would reduce the overall burden
borne by a given community, and would also alleviate the pressure to secure extraordinary
reductions from permitted facilities.
The Committee believes that, over time, as Track 1 efforts to address disproportionate
adverse effects on protected communities become more sophisticated, creative, and extensive,
the level of controversy provoked by individual permitting decisions may tend to recede. Thus,
Track 1 programs are a crucial alternative to mitigation in the context of individual permitting
decisions, and hopefully will be implemented thoughtfully, and then embraced by all
stakeholders.
With regard to Track 2, the Committee strongly recommends that EPA, state and local
governments, and industry embrace the principle that community outreach and dialogue should
begin as soon as possible in the permitting or pre-permitting process (e.g., a transaction that
involves trading of pollution "credits" or a decision by the permittee to renew, modify, or acquire
a new permit). The Committee further recommends that at these initial stages, land use decision
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makers and environmental agency officials conduct community outreach to identify parties
potentially interested in the decision. Informal discussions with the community, as well as the
state and local officials who may play a role in the decision, should begin as soon as possible
once these parties are identified. In this regard, industry representatives urge EPA and their state
and local partners to recognize voluntary industry initiatives as a supplement to these efforts,
giving appropriate recognition to those who implement such projects.
The Committee believes that, in general, few constraints should be placed on those initial
discussions. It is especially important to encourage residents who would be directly affected by
the permitting decision to raise the full range of their concerns about the potential impact of new
or existing facilities on their environment, defined in the broadest sense. Thus, if communities
are concerned that truck traffic will cause an increase in vehicle accidents, or believe that the
siting or expansion of a facility will change property values, they should be encouraged to put
those concerns on the table during these preliminary discussions so that the facility's sponsor can
consider them.
On the other hand, the Committee also recognizes that in some cases, state and local
officials and facility sponsors may believe that some or all of the community's concerns are
beyond the scope of the environmental permitting process. In these situations, state and local
officials and facility sponsors may seek to draw clear and explicit distinctions between such
open-ended problem-solving and the issues that will be considered if the parties are unable to
reach a voluntary agreement. As discussed below in the section entitled "Mitigation" below,
many members of the Committee believe that benefits unrelated to disproportionate adverse
effects are not sufficient mitigation for discrimination under Title VI. Nevertheless, the
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Committee agrees that reaching early agreements that effectively address the community's most
significant concerns is the best way to prevent the festering of such problems to the point that
they provoke a Title VI complaint.
It cannot be overemphasized that when the Committee recommends early intervention, it
means just that. Ideally, a dialogue would begin even before decisions are made to allow
construction or expansion of facilities and would be underway before the permit process
officially begins. Education of land use decision makers about the environmental implications of
their actions is a crucial component of early intervention.
In addition to giving the parties the forum and the flexibility to find solutions to
community concerns, early intervention reduces the possibility that delays will cost industry
time, money, and even a competitive advantage in the siting or expansion of new and existing
facilities. Finally, early intervention keeps the focus on the community's true concerns, rather
than compelling the community to fight a permit on the basis of issues that are less important,
but which may be of great significance to facility sponsors. This is why the Committee strongly
recommends a concurrent, more relational, first-track approach.
A final issue considered by the Committee is the extent to which environmental justice
programs should conduct outreach in communities that have not otherwise indicated concern
about environmental risks. Should program staff try to educate community residents about
environmental problems, or should they simply develop accessible notification procedures and
terminate official consideration of environmental justice concerns if no one—or only a small
number of residents—come forward?
The Committee agrees that it is not the role of a state and local environmental justice
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program to organize opposition to permitting decisions. However, the Committee also believes
that the first track of environmental programs should proceed even if communities are not
demanding change. As science and technology become more sophisticated and we are able to
identify and measure cumulative effects, amelioration of disproportionate burdens will become
an integral part of the overall mission of federal, state, and local environmental agencies, with or
without public complaints.
Incentives
Identify and create incentives for state and local governments to establish environmental
justice programs and for the full range of stakeholders to participate in such programs.
The Committee agrees that finding suitable incentives for state and local governments,
affected communities, and regulated industry to participate in environmental justice programs
will prove crucial to their long-term success. Incentives are particularly important as a
motivation for the implementation of Track 1, proactive programs at the state and local levels.
The Committee strongly recommends that EPA emphasize the development of such incentives as
one of its top priorities. Possible incentives are discussed below in the context of the stakeholder
groups they are designed to motivate: (1) state and local governments; (2) regulated industry; and
(3) community groups. To be successful, EPA must develop equally strong incentives in all
three categories. The following discussion explains the Committee's views on the incentives that
could be offered to each group. The Committee has also included, as Appendix K to this report,
a paper dated September 28-29,1999, and entitled "Draft Preliminary Report on Incentives"
prepared for the NACEPT Committee on Reinvention, which contains further insight into this
important issue.
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State and Local Governments
The Committee has identified three possible incentives for state and local governments to
implement the model plan recommended by this report: (1) EPA deference to state and local
permitting decisions; (2) expedited processing of Title VI complaints regarding decisions by
state and local governments that have implemented model plan principles; and (3) the likelihood
that decisions based on the standards contained in the model plan will prove more compelling on
their merits when they are reviewed by EPA.
As discussed above in the section on "Deference to State and Local Permitting
Decisions," the Committee did not achieve consensus on the complex issue of whether and how
to accord deference to state and local permitting decisions made in the context of programs that
follow a model plan. State and industry representatives argue that deference is an indispensable
incentive for states to consider implementing the "beyond compliance" programs called for in
Track 1 of the model plan and for regulated industry to participate in such initiatives.
Environmental justice advocates are skeptical of deference, fearing that in the absence of strong
substantive standards and consistent EPA oversight and enforcement, it could lead to ratification
of bad state and local permitting decisions. Some of the lawyers on the Committee disagree
about how deference fits with the statutory mandates set forth in Title VI.
Avoidance of the extensive delays that may accompany the filing of a Title VI complaint
is a second, potentially powerful incentive for state and local implementation of environmental
justice programs, particularly those modeled on the Track 1 proposals in this report. State and
local representatives argue that under the current system, even if they implement an extensive
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program of public outreach and dialogue, permitting decisions can still get "trumped" by a Title
VI complaint filed by a handful of people who do not truly represent the community's views. If
EPA pledged to expedite its resolution of complaints regarding decisions made by state and local
governments with good programs, this deterrent to the investment of significant state and local
resources could be overcome.
The Committee assumes that decisions made by state and local governments with
effective programs based on federal standards will include a well-developed record that considers
possible environmental justice concerns, including the nature and scope of potential
disproportionate adverse effects. Such decisions should be more compelling upon EPA review,
both because they should not require the Agency to conduct significant additional investigation
of the merits of a Title VI complaint and because they should set forth a better-reasoned analysis
of those issues.
One academic member of the Committee suggests that one possible way to describe this
approach is that the existence of a well-run environmental justice program will be considered as
evidence when EPA adjudicates a Title Vi complaint. For example, if the program is inclusive,
and provides meaningful opportunities for input, then that fact would be considered evidence that
the complainant was not shut out of the process. She compares this approach to existing "burden
shifting" regimes developed under other civil rights laws.
Although its review of permitting decisions is likely to be easier with respect to state and
local governments that implement robust environmental justice programs, it has also become
clear that more resources are needed to process such complaints expeditiously. EPA is coping
with a large backlog of cases. Although the Committee did not reach consensus on a
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recommendation to increase funding for the Office of Civil Rights, it suggests that the EPA
Administrator evaluate the benefits of various potential resource levels and then seek a specific
appropriation for this vital function.
Industry
The nature of incentives offered to inspire industry participation in state and local
environmental justice program may vary between Tracks 1 and 2, and between the sectors of
industry that are affected. Industry representatives believe that industry's participation in Track
1 must remain voluntary, and urge state and local governments to be creative in developing
incentives that encourage industry — especially unregulated industry ~ to participate in the
voluntary reductions that are a central goal of Track 1. They reason that using Track 1 programs
to achieve a proportionate share of reductions from a comprehensive list of large and small
pollution sources is likely to garner the support and active involvement of companies that operate
large facilities, encouraging them to go "beyond compliance" in shouldering responsibility for
their "fair share" of necessary mitigation.
Thus, industry incentives fall into three distinct categories: (1) expedited decision making
that has the potential to inspire participation by the full range of regulated sources; (2) more
equitable distribution of pollution prevention and reduction that has the potential to motivate the
involvement of larger regulated sources; and (3) incentives ~ as yet unidentified -- that would
garner the support of generally smaller, nonregulated sources, especially in the context of Track
2 initiatives..
Industry representatives on the Committee consistently emphasized their need for
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certainty and clear, timely decision making. They argue that if regulated industry members are
convinced that the process is likely to reduce delays and last-minute "surprises," and will
improve industry relations with adjacent communities, their participation in both tracks is likely
to prove both more extensive and fruitful. They add that uncertainty undermines their ability to
make timely business decisions and imposes both direct and "lost opportunity" costs on
companies. Since industry representatives have explained that Title VI complaints often function
as a stay on a permitting decision, relief from such delays is broadly viewed as a highly desirable
attribute of state and local programs. In sum, expedited processing of permits by state and local
governments and expedited consideration of Title VI complaints by EPA are as powerful an
incentive for regulated industry to participate in environmental justice programs voluntarily as
they are for state and local governments.
As for the possibility that Track 1 programs will rationalize the burden of pollution
prevention and reduction between regulated and unregulated — and large and small ~ sources,
one industry member characterizes this incentive as an opportunity to escape the typical scenario
in which state agencies "line up the usual suspects and shoot us."
However, for this incentive to work, federal, state, and local regulators must develop
meaningful incentives to inspire the participation of unregulated sources, a far more challenging
proposition. As discussed in the section entitled "A Comprehensive Inventory of Pollution
Sources" below, inclusion of unregulated pollution in any analysis of disproportionate adverse
effects is central, consensus recommendation of this report. Wide dissemination of this
information can be a powerful tool in encouraging pollution reduction. Another possible result
of such inventories may be state and local decisions to extend regulations to those sources. In
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the absence of legal compulsion, however, other incentives must be developed as well to
encourage voluntary reductions by this group, many of which are small businesses.
The Committee did not have a full opportunity to address this difficult question. We urge
EPA to pursue it in subsequent dialogues with environmental justice stakeholders, and to include
in those discussions further consideration of regulatory and legislative proposals that would
"carve out" pollution sources from the controls that apply to other entities in the public and
private sectors.
Federal, state, and local regulators should also consider recognizing industry efforts to
address community concerns by including such "supplemental projects" as a term of the permit
that may, when appropriate, lessen the burden imposed by other permit conditions.
Finally, it may prove worthwhile to study emerging Brownfields reclamation programs .
and the proceedings of the EPA NACEPT on Reinvention for examples of incentives that
encourage industry participation in an affirmative manner. A copy of a draft preliminary report
prepared by the NACEPT Committee is attached as Appendix K.
Community Groups
Members of the Committee identified three possible incentives to motivate community
participation in environmental justice programs: (1) an accessible process that produces
meaningful -- and not just token -- involvement; (2) technical support and assistance that allows
community groups to participate on a "level playing field" with industry and government; and
(3) quantifiable pollution prevention and reductions.
The conditions for meaningful public involvement are addressed in greater detail in the
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section of this report entitled "Public Participation" below. In addition to such important
procedural protections as meetings in accessible places during convenient times and the
translation of documents if necessary, environmental justice advocates on the Committee
emphasize the importance of assisting the community to develop technical capacity, advocating
that EPA and industry provide financial support for such initiatives. They add that technical
assistance is vital at two distinct stages of the process: (1) during the initial consideration of
permit provisions, in order to evaluate their potential impacts on the affected community and (2)
following approval of the permit, in order to enable the affected community to monitor
compliance independently.
Without the advice of independent technical consultants who do not have a vested interest
in approval of the permit, these members argue, the community is easily overwhelmed by the
large number of lawyers and technical experts typically retained by permit proponents. The
debate over permit conditions occurs at a level that is not easily comprehended by people from
the community, exacerbating their alienation and suspicion of government and industry and
crippling any effort it makes to influence the outcome of the proceeding.
One member of the Committee underscored the value of small grants that enable
community organizations to develop data gathering and analysis capability. Her organization
recently received a grant in the range of $40-60,000 to purchase the computer software necessary
to compile its own Geographic Information System (GIS) and to hire and train a staff person to
run the system. Faculty at the Columbia School of Public Health will conduct this training,
which will enable to community to participate more actively and effectively in the daily decision
making that has direct effects on its health.
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This member of the Committee also stressed the importance of small grants to support
travel to public meetings and other incidental expenses. She stated that communities without
large organizations cannot support these costs, which become an insurmountable barrier to their
participation in the process.
Industry and state representatives oppose the creation of an ambitious, new, resource-
intensive program to provide technical support beyond the information already provided by
federal and state regulators. They argue that such information might be used to fuel costly tort
and other litigation, rather than education and problem solving. Moreover, they believe it is the
role of the regulator to provide sound, reliable information to citizens about the permitting
process.
Given the inadequate federal funding for processing actual Title VI complaints at the
Track 2 stage, industry representatives are also concerned about providing federal funding at the
Track 1 stage, where the nature and extent of the problem remains to be determined in any
particular community. At a minimum, one industry representative suggests, any federal grants
should be part of a specific EPA appropriations request and should be subject to strict fiscal
controls such as regular audits and rules designed to prevent conflicts of interest.
A state representative further argues that providing technical assistance would confuse the
issue of who actually represents the community because it would introduce "citizen groups,
lawyers, and consultants" into the situation. In his view, only elected officials provide reliable
representation of a community.
The Committee did not have an opportunity to discuss either the qualitative or
quantitative aspects of the technical assistance that could be provided to community groups and
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must leave the issue to other dialogue groups.
The second incentive advocated by environmental justice advocates is the possibility that
pollution will be prevented and reduced if the community participates actively in either or both
tracks of a state or local environmental justice program. (Prevention and reduction are not
necessarily synonymous because reductions affect the overall burden of adverse impacts
shouldered by the community, while the concept of pollution prevention also includes the
elimination of new emissions from facilities that are not yet built.)
Environmental justice advocates stress that directly measurable benefits to public health
produced by pollution abatement are the overriding litmus test they apply to state or local
environmental justice programs. They strongly recommend that EPA incorporate this factor as a
central theme of its guidance to state and local governments. They are willing to remain flexible
on how pollution reduction and prevention are achieved and support creative approaches to
mitigation, especially in the context of Track 1 programs. For example, they are willing to
support the approach suggested by the lead paint example set forth in the discussion of industry
incentives immediately above. However, they believe that programs with the exclusive goal of
processing permit applications efficiently within the black letter of the law will not win the
support of communities focused on tangible health effects.
Addressing Cumulative Effects
Define relevant pollution sources to be addressed by state and local environmental justice
programs accurately and inclusively, taking into consideration cumulative health and
environmental effects.
Disagreements over the existence and the evaluation of cumulative effects are at the heart
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of many environmental justice disputes. The Committee's views in this crucial area involve two
distinct stages of the problem: (1) how to assess cumulative effects in a comprehensive and
accurate manner and (2) how to evaluate the significance of cumulative effects for the
environmental decision at issue. Members of the Committee achieved significant consensus
around the goal that cumulative effects should be evaluated when possible, but did not agree on
the nature, scope, or solution to the technical issues that arise in such evaluations.
A Comprehensive Inventory of Pollution Sources
The Committee believes that, within the constraints of their limited resources, federal,
state, and local agencies that choose to implement Track 1 programs should endeavor to assess
the cumulative effects on human health and the environment of all pollution sources, without
respect to the constraints of the permitting process or applicable law. Permitted and unpermitted,
private and public, stationary and mobile sources should be included in all inventories of releases
and other environmental conditions that may pose a risk to communities that comprise a
protected class. Inventories should be conducted without regard to the applicability of federal,
state, and local regulations and should include all levels of government entities that produce
pollution or cause other significant risks.
Environmental justice advocates and representatives of large industrial sources have
particularly strong views on the importance of including "exempt" sources of pollution. They
are alarmed by what they see as a growing trend in legislation, EPA regulation and elsewhere
toward exempting a variety of sources, especially small business sources, from the laws and
regulations that apply to major industries. Examples of this trend include nonpoint sources of
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water pollution, which are either unregulated or subject to ineffective regulation in most states.
Recent proposals to exempt recyclers from the Superfund program are another example of this
trend. Government agencies are also subject to special, and, in the view of these members,
unwarranted, favorable treatment. For example, one member of the Committee explained that
the New York City Board of Education recently won permission to construct schools on
Brownfields sites contaminated by chemicals that pose a direct threat to the children.
The Committee believes that exempting sources from the assessment of cumulative
effects can only result in inaccurate measurements of the real risks to public health, skews the
evaluation of disparate impact, and prevents the formulation of effective remedies for such
problems. Focusing exclusively on major sources is unfair to the companies that operate them,
could result in the imposition of a disproportionately heavy burden of pollution reduction on
such facilities, and, most importantly, could leave adverse impacts unaddressed.
In this regard, a local government representative notes that if a comprehensive analysis of
cumulative risk is undertaken that includes all sources, it could lead to situations where new
facilities would not be allowed to add to that cumulative burden unless mitigation was
accomplished, either by the new source or overall.
Although the Committee agrees on the importance of taking a comprehensive inventory
of pollution sources in the context of Track 1 programs, taking into account the limits of
government resources, members did not achieve consensus on the role such inventories should
play in Track 2 of state and local environmental justice programs.
Evaluating Potentially Adverse Impacts
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Under Track 1 of the model plan proposed in this report, state and local governments
would (1) use general screening to identify communities with a significant pollution load and a
population comprised of a protected class; (2) determine whether such communities face a
disproportionate burden of adverse effects; and (3) if so, work with industry and community
organizations to find methods for decreasing such effects. State and local governments would
also consider developing compliance outreach and technical assistance to respond to such
situations, or special enforcement if appropriate.
One state representative predicted that if state and local governments work to reduce
pollution loading in communities of color, "non-protected class communities with similar
pollution loads will demand the same treatment," potentially leading to "reverse discrimination
complaints and lawsuits."
The Committee understands that state and local government programs must set priorities
among sources, leaving those that cause relatively minor adverse impacts out of their programs,
and tailoring the amount of scrutiny other sources receive on the basis of substantive criteria.
The development of priorities and a tiered public participation process would occur primarily in
the context of permit reviews conducted with respect to individual facilities. The Committee
recognizes that states and some local governments process hundreds, even thousands, of permits
each year and that it would be impractical, unreasonable, and unnecessary to require a full
environmental justice process for each one. The Committee also understands that many
permitted sources are small businesses, which may not have the resources to undertake extensive
public outreach.
Workgroup III developed a list of potential criteria for establishing priorities among
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permitted sources that included such factors as the nature and amount of emissions, the potential
adverse effects caused by such emissions, and the type of permit at issue, but the Committee did
not achieve consensus on this relatively detailed list.
Further, the Committee did not reach consensus on two closely related and equally
important issues. First, how should environmental justice programs take into consideration the
cumulative risks and synergistic effects of neighboring sources when making permitting
decisions for a single facility? Second, should the process and procedures of environmental
justice analysis differ with respect to new and existing facilities under a permit-by-permit
approach?
As discussed in detail in the next section of the report, members of the Committee
disagree on the adequacy of the scientific data that is available to assess cumulative and
synergistic effects. Some members argue that cumulative risks and synergistic effects are
essential factors to consider at the same time that EPA works to improve the technical basis for
such decisions. Others believe that until the technical basis for such assessments is improved,
federal, state, and local regulators should not consider such adverse effects during the permitting
process. They are also concerned about efforts to address cumulative risk and synergistic effects
in Track 1 programs, given the current gaps in our understanding and analytical tools.
One state representative observes that cumulative effects are already a factor in state
permitting decisions under the Clean Water Act because states conduct an assimilative analysis
of affected water bodies, and try to leave room for industrial growth. He acknowledges,
however, that the states' ability to develop remedies that address such effects vary depending on
the legal authority given to the environmental agency under existing state law.
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Industry representatives on the Committee believe that the cumulative risk analysis
suggested by some in the context of Title VI complaints is quite different and more complex than
assimilative capacity analysis under the Clean Water Act.
Members of the group further disagree on the issue of whether to regulate new facilities
differently than existing facilities. Some environmental justice advocates endorse an approach
sometimes described as "zero-based permitting" that would compel regulators to scrutinize
permit renewals (including upgrades and expansions) for existing facilities using the same
standards they apply to permit applications for new facilities. They argue that zero-based
permitting is fundamental to the elimination of discrimination because in certain circumstances,
it is be the only way to reduce disproportionate pollution loads.
Committee members representing industry, as well as state and local governments,
strongly objected to this approach, contending that it is unfair, impractical, and illegal, and that it
would cause severe economic dislocation harmful to facility owners and community residents.
In their dialogue on this difficult issue, members of Workgroup III considered — but did
not reach resolution on — a compromise approach that would include renewals and modifications
to existing permits in a Title VI analysis, but would not require the same degree of mitigation
from such facilities if significant economic hardship would result. Members of the Workgroup
discussed two alternative ways of dealing with such difficult situations: using offsets or pollution
trading programs or adopting a pollution "budgef'approach that would be modeled on the waste
load allocations performed under the Clean Water Act.
Expansion of Existing Programs
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Expand existing decision making processes to incorporate environmental justice issues, rather
than creating a new and separate process, while ensuring that decision makers address such
issues in a timely, efficient, and predictable manner.
The Committee strongly recommends that the second track of state and local
environmental justice programs — evaluation of potential environmental justice concerns raised
by individual permit applications ~ occur within the existing process for making such decisions.
To the maximum extent practical, the technical review of permit applications should occur
concurrently with the consideration of environmental justice issues, rather than leaving such
issues to the tail end of the process, where they can trump technical review, wasting time and
resources. Further, leaving the evaluation of environmental justice issues to the end of the permit
process makes it more difficult for the permitting agency and the permittee to work with the
community to develop creative approaches to mitigation.
The Committee recognizes that there are different definitions of state and local agency
authority with respect to the terms and conditions of environmental permits, with some statutes
granting state and local agencies the authority to change the standards that apply to a given
facility in order to address cumulative effects. In general, the Committee urges state and local
agencies to define the nature and scope of their authority clearly, both for internal purposes and
for interested parties participating in a mediation process. However, the Committee did not
address the complicated and controversial issues of whether and in which contexts state and local
agencies should seek new legal authority in order to implement their environmental justice
programs. Some members of the Committee felt that adequate legal authority was essential to an
effective program, while others expressed concern about politicizing the process in a legislative
context. EPA, the states, and local governments may wish to consider addressing this issue in
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more detail.
Public Participation
Establish a transparent, accessible, honest, and accurate process for public participation.
The Committee identified five elements that are essential to the creation of a transparent
process for public participation in decisions involving environmental justice issues:
1. Accessible, understandable notification;
2. Effective education regarding the legal and technical aspects of facility operations,
permitting, and environmental exposures;
3. A process that allows community residents to participate in the debate effectively;
4. The development of adequate information to inform participants about the
implications of the decision at issue; and
5. Clear statements by state and local agencies explaining the reasons for the
decisions made with respect to environmental justice issues.
Included with this report as Appendices L and M are the public participation guidelines
prepared by the National Environmental Justice Advisory Council, as well as ASTM E-50.03 ~
Standard Guide to the Process of Sustainable Brownfields Redevelopment. These documents
give helpful guidance to state and local governments in achieving these goals.
Another source of effective approaches to public participation is the Department of
Energy's procurement program, which asks businesses seeking contracts to enter into a
constructive dialogue with the affected community. EPA's recently revised 1998 guidance on
the public's opportunity to participate in the consideration of Supplemental Environmental
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Projects may also prove helpful, especially in the context of developing mitigation measures to
address disproportionate environmental impacts.
A state member of the Committee points out that national and state environmental
statutes contain detailed public participation public participation procedures that apply to
permitting decisions. He adds that these procedures should be supplemented as recommended in
this report to ensure that environmental justice concerns are addressed adequately. A local
government representative stresses that communities must be given assurance that their concerns
are being heard, respected, and considered.
The Committee also makes the following additional recommendations to EPA as it
considers this aspect of the template.
Notification in newspapers, even those of general distribution, may not be sufficient to
place affected communities on notice of a permit or other decision making process that will
address environmental justice concerns. The Committee believes that such minimal notification
should be supplemented by more aggressive community outreach. For example, New Jersey has
considered placing notices in electric or telephone bills. New Jersey has also established a
community liaison staff who develop an ongoing relationship with protected communities, even
when no decisions are before them.
Effective notification includes educating citizens about the timelines that affect the
process, the standards that will apply to the decisions made by the permitting agencies, and the
remedies available to members of the community if they perceive the decision to be adverse.
Members of the public must receive notification in their native languages whenever possible.
The Committee also emphasizes the widely-recognized reality that to achieve effective
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public participation, meeting times and places must be convenient for residents who work and for
those without access to an automobile. Holding a meeting during the day or at a location that is
inaccessible gives the community the clear impression that the conveners of the session are not
interested in what it has to say.
Industry and state representatives suggest that ongoing advisory groups, such as the
community advisory groups established under the chemical industry's Responsible Care
program, could provide fertile opportunities for consulting with community representatives about
environmental justice issues in a timely and effective manner.
The Committee also recommends that state and local governments consider developing
public education classes to inform the public about the operation of permit programs, the science
of assessing exposure and risk, and the technical aspects of plant operations and pollution
control. People with this base of knowledge are more likely to participate meaningfully in the
consideration of disproportionate burdens and cumulative risk, whether those issues arise in the
first or second track of a state or local environmental justice program.
The Committee further urges EPA and state and local environmental agencies to consider
making similar educational opportunities available to the staff of agencies responsible for
economic development and zoning whose decisions have grave but perhaps unforeseen
implications for environmental justice.
The Committee recommends that early efforts to mediate permitting disputes occur in an
informal atmosphere where participants feel comfortable, are encouraged to ask any questions
that occur to them, and are allowed to raise all concerns that are related to the facility's operation.
Early, informal participation may not obviate the need for more formal hearings later in the
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process, but the Committee believes that it provides the most promising opportunity for timely
resolution of environmental justice disputes.
During such deliberations, participants must have access to understandable data
concerning the facility's operations and the likely implications of the permitting decision for
public health. EPA can assist state and local governments in developing such information
through its national databases that include monitoring and release data, as well as information
about environmental conditions in the area where the facility is located.
The Committee agrees that permit applicants should be asked to develop additional
information if necessary to supplement materials provided by the government, especially facility-
specific facts such as compliance history, discharges and emissions, and facility processes,
including opportunities for pollution prevention.
State and local programs should ensure that important documents are translated into
languages other than English as appropriate. Permit proceedings can involve extensive
documentation, and state and local regulatory agencies should make their best efforts to impose a
reasonable burden on permittees.
Last but not least, the Workgroup believes that state and local governments should
articulate in writing the reasoning that underlies their decisions on environmental justice issues,
explaining to the community and the permittee why they reached the resolution they have
adopted.
The Committee did not reach consensus on another possible aspect of public participation
programs: giving communities the financial resources to obtain their own technical advisors.
Environmental justice advocates believe that such technical assistance is always valuable, and
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even necessary in many circumstances. They stress that communities should be able to find their
own technical experts who are able to give them independent advice that is not influenced by
government or industry. Industry representatives are generally opposed to the mandatory
inclusion of technical assistance in environmental justice programs, arguing that it would create
an expensive new bureaucracy to support state and local permitting programs. State
representatives respond that while some situations create a need for technical assistance, state
agencies should be able to provide it to people. A local government representative cautions,
however, that most local governments are not in the position to promise such help. One state
representative said that it was important for industry and the states to recognize that if the process
becomes hypertechnical, communities have little choice but to "go political."
Participation by Government
Inform and involve all relevant levels and types of government entities in the process of
reviewing actions that may have environmental justice implications. It is especially important
to cooperate with local government officials, including economic development officials.
The Committee recognizes that successful environmental justice programs prevent, avoid,
or mitigate discrimination in environmental decision making. Another important attribute of
such programs is to avert, to the maximum extent practicable, extensive delays and inconsistent
results as the applicant traverses the web of state and local agencies that must approve its
operation of a facility. In addition to agencies with regulatory authority, other branches of
government, such as economic development agencies, are frequently involved in planning new or
expanded facilities, as well as ensuring that existing facilities remain where they are and prosper.
While the importance of including the permit applicant and community representatives in
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early discussions of environmental justice issues is obvious, the significance of involving these
other government entities is too often overlooked. Not only should their involvement prevent
inordinate delays in the decision making process, it may well make it possible to address
community concerns more directly. For example, residents may be concerned about fire code
issues or the configuration of a highway used by trucks delivering materials to the plant. By
including officials with the authority to rectify such problems, both the permit applicant and the
community will benefit.
State and local government representatives on the Committee stress that zoning and land
use decisions are frequently at the root of environmental justice concerns, which can be
characterized as the problems caused by the proximity of industrial activities to residential
neighborhoods. To truly prevent such problems, local officials must be consulted early and
educated on the potential future ramifications of such decisions.
Some state representatives take this point one step further, arguing that because they have
no control over such local decisions, state agencies should not be held accountable for them in
the context of permitting decisions with respect to facilities that are clearly allowed to operate in
the area under local zoning laws.
As important as it is to include all relevant state and local officials in the outreach effort,
the Committee believes that state or local environmental agencies must remain firmly in charge
of the process with respect to ongoing permitting decisions. Wherever possible, environmental
justice concerns should be integrated into the permitting process. Members of the Committee
disagree, however, on the important issue of whether career permitting staff should be trained to
evaluate environmental justice issues raised by their work or whether these issues require the
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participation of staff whose job it is to focus exclusively on environmental justice concerns, with
some members fearful that if officials without technical background and expertise are assigned
responsibility for evaluating complaints, important issues could get inadequate attention.
Community Monitoring
Build community monitoring capacity.
The Committee recommends that, in the context of Track 2 programs, state and local
governments consider initiatives that allow communities to continue to assess the compliance of
permitted facilities after initial environmental justice issues relating to the issuance of the permit
have been resolved. Building community capacity to monitor industry performance may prove
very effective in assuaging community anxiety about the health and environmental risks posed
by individual facilities. The Committee believes that monitoring and other information reported
to the government should be readily accessible to affected communities.
Many Committee members further believe that, in the context of Track 2 programs,
consideration should be given to incorporating terms and conditions that mitigate discrimination
in the permit, making them enforceable by state and local governments, as well as EPA.
Alternatively, such requirements could be set forth in separate, binding contracts negotiated with
the community, with provisions that permit their enforcement in court.
Industry representatives note, however, that voluntary agreements achieved in Track 1
programs are distinguishable from Track 2 mitigation arrangements. They are concerned that the
voluntary nature of Track 1 programs not be forgotten. Although industry has many reasons to
honor the commitments it makes to the community, turning these commitments into legally
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enforceable obligations could undermine the basic premise of a voluntary program.
The Committee did not reach consensus on the question of whether environmental justice
programs should facilitate the initiation of citizen suits by, for example, adding expanded
authority for private enforcement to relevant state laws. Industry and state representatives were
strongly opposed to the idea that states assist citizen efforts in this direction, while other
participants believe that citizen enforcement was an important supplement to government
authority, and would give citizens the sense that they are "empowered" to address future
concerns. A local government representative suggests that EPA examine the California Public
Utility Commission Ombudsman Program for effective approaches to these issues.
This disagreement should be distinguished from the Committee's recommendation that
citizens be given a meaningful opportunity to monitor compliance with agreements that require
permittees to carry out mitigation measures for a period of time. As discussed in the section
entitled "Mitigation" of this report, ensuring community capacity to enforce contracts they
negotiate with the permittee is essential so that the benefits of mitigation measures are delivered
over the long-run.
Significance of the Template
The Committee recognizes that EPA has a difficult task ahead in ensuring that
communities are protected against discriminatory effects, dealing with state and local
government requests for flexibility, and responding to industry's need for expeditious,
predictable, and technically sound decision making. However, the Committee believes that this
task is of the utmost importance and urges EPA to continue to give it high priority. As one state
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representative put it, the development of effective environmental justice programs gives
government the opportunity to "walk its talk," fulfilling the equitable ideals that are at the heart
of Title VI.
EIGHT ISSUES OF SUBSTANCE
Defining and Evaluating Effects
As explained in the introduction to this report, members of the Committee had
profoundly different views regarding the definition of the "adverse effects" covered by Title VI.
The Committee understands that these issues inevitably will be addressed by the courts. The
Committee also recommends that EPA seek the counsel of experts in other areas of civil rights
law, in an effort to glean whatever insights are available from those, better developed legal
precedents. (See the "Next Steps" section of this report.) The Committee hopes that EPA and,
for that matter, other decision makers, will keep the following considerations in mind as the
Agency rewrites the Interim Guidance, develops a model plan for state and local environmental
justice programs, and turns its attention to other areas that raise environmental justice concerns.
The Committee's views regarding the appropriate definition of "adverse effect" can be
explained as a spectrum. At one end is what can be described as the "narrow implications"
interpretation of the statute, which defines adverse effects as health problems caused by
emissions or discharges that are directly regulated at the facility at issue. Industry
representatives on the Committee generally subscribe to this view. The other end of the
spectrum is best described as the "broad implications" interpretation, which defines adverse
effects as changes in a community's well-being that are related to the permit under consideration.
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Environmental justice advocates on the Committee generally subscribe to this approach.
Between these two positions are multiple shades of gray that at times perplex even those who are
certain that their views are anchored at one end of the spectrum or the other. Before considering
those shades of gray, it may be helpful to explain the two positions more thoroughly.
Under a narrow implications reading of Title VI, adverse health effects are covered by the
statute's prohibition on discrimination. Adverse health effects would include problems that are
described by the Committee's Workgroup I as "bodily impairment," "infirmity," "illness," or
"death." To fall within Title VI, such injuries must be caused by the activity addressed by the
permit. Threatened as well as actual health effects would be covered by this interpretation, at
least to the extent that disparities in levels of risk can be quantified. In this view, harm to the
environment is not covered by the statute's ban on discrimination against people unless such
harm can be linked to threats or actual effects on human health.
Members of the Committee subscribing to this view recognize that demonstrating a
causal link between a regulated activity and the manifestation of disease is a difficult and
controversial problem. For the purposes of Title VI, policy options range from a very demanding
test of causation, akin to the level of evidence that would be required in a private lawsuit seeking
damages for illness caused by a defendant's pollution, to a less demanding and more protective
test, such as one modeled on the regulation — with an ample margin of safety — of toxic air
emissions that may cause illness at uncertain levels of exposure. The first test would require that
adverse effects be manifest and their causes provable, while the second test would infer the
existence of adverse effects on the basis of elevated levels of pollution in the community.
Industry representatives on the Committee advocate a test that would require Title VI
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plaintiffs to prove a direct link between the permitted activity and the adverse health effect.
While they would not necessarily require proof of causation comparable to what some courts
have required in the context of toxic tort cases, they would reject "circumstantial" evidence of a
causal link and instead require demonstrations that (1) exposure to the pollutant probably did
occur and (2) such exposure could have the effect of producing the adverse health consequences
covered by the complaint.
Environmental justice advocates are equally strong in their opposition to this approach,
arguing that -- at the least -- it would require a full-blown risk assessment to quantify the precise
nature and scope of the harm at issue and — if taken to its logical extreme — would mandate
clinical or epidemiological studies proving causation. These members contend that this heavy
burden, if imposed on claimants, would nullify the protections afforded by Title VI as a practical
matter. They argue that evidence that a community is affected by from multiple industrial
facilities and that no other neighborhood in the area is similarly affected is enough - in and of
itself- to demonstrate an illegal disparate impact without undertaking a controversial analysis of
cumulative risk and associated health effects.
One academic member of the Committee suggests that if industry representatives insist
on such a demanding standard, it should only be imposed in the context of a two-step, "burden-
shifting" approach. During the first step, a claimant would make a showing that the permit or
other environmental decision could cause disproportionate adverse effects by, for example,
demonstrating that communities of color bear a larger burden of pollution than the general
population, and this showing would constitute aprimafacie case. During the second step, the
state or local agency, in conjunction with the permittee, would be given the opportunity to rebut
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this showing by producing a risk assessment or other convincing empirical study.
Members of the Committee subscribing to the narrow implications interpretation of Title
VI believe equally firmly that as long as the permit conforms with applicable regulations, its
issuance cannot violate Title VI because EPA is required to set permit standards that protect all
persons. They contend that to read the law to override the health assessments in EPA's
regulations would result in the promulgation of more stringent environmental regulations on a
site-by-site, industry-by-industry, or neighborhood-by-neighborhood basis, under the authority of
a civil rights — not an environmental — law, an outcome that they view as both illegal and unfair.
Environmental justice advocates respond that industry is routinely regulated site-by-site
and sector-by-sector under federal, state, and local environmental laws, and that there is no
legally cognizable prohibition on such approaches if they are necessary to eliminate illegal
discrimination.
There remains the issue of adverse health effects caused by "cumulative risks" and
"synergistic effects." The term "cumulative risk" is used here to connote threats to public health
caused by exposure to the sum total of releases, and the term "synergistic effects" is used to
mean adverse health effects caused by exposure to a mixture of emissions that interact with each
other to produce new risks.
At this point, the relative simplicity of the narrow implications approach becomes more
complicated because proponents of this interpretation recognize that environmental regulations
often do not address such potentially serious threats. Or, to put it another way, proponents of the
narrow implications interpretation of Title VI recognize that risk assessment, as well as the
assessment and regulation of sources on a cross-media basis, have a role to play in the
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application of the statute even if a facility is otherwise operating in compliance with traditional
regulatory requirements. Although they recognize the potential importance of cumulative health
risks and synergistic health effects, some members of the Committee believe that the science
"isn't there yet" to identify and measure such problems with the precision necessary to support a
Title VI complaint. Despite these reservations, they support the Committee's recommendation
that EPA make research and data gathering in these areas a high priority.
However the causal link between pollution and an adverse health effect is defined, a
narrow implications interpretation of Title VI would draw the line at this category of harm,
excluding from the ambit of the law, as well as programs designed to implement it, any
environmental, economic, cultural, social, or psychological harm that may befall people of color
as a result of a permitted activity or other environmental decision. Proponents of this analysis
believe that the application of Title VI to environmental programs must remain limited to the
protection of human health and aspects of the environment that affect human health, and cannot
be extended to other aspects of community life. They argue that to read Title VI more broadly
would be to import social and economic policymaking into the implementation of environmental
laws, a result never intended by Congress. They further contend that economic and social
concerns are not only amorphous, but are caused by factors way beyond the control of facilities
seeking environmental permits. Attempting to address such deep-seated problems in this context
is impossible as a practical matter and would cause severe and unfair hardship for the owners and
operators of permitted facilities.
Environmental justice advocates object to this reading of Title VI, arguing that both Title
VI and the major environmental laws have a significantly broader reach than health effects, and
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extend to the environmental, economic, and social costs that pollution imposes upon people.
They read Title VI to encompass a broad range of potentially adverse effects, including damage
to human health, the environment, or a community's economic, cultural, social, or psychological
well-being. Any of these harms would be an appropriate subject of a Title VI complaint if it is
linked to the permitted activity or other environmental decision.
Examples are probably the best way to explain the scope of this perspective. "Adverse
effects" covered by Title VI would include contamination of the food chain, as well as damage to
other natural resources, whether used for subsistence or recreation. The term would also include
economic harm such as decreased property values or a deterioration of the quality of life in the
neighborhood that makes it more difficult for residents to maintain a decent standard of living.
Adverse effects would include interference with religious practice or cultural and spiritual
traditions, such as the destruction of sites held sacred by Native American land-based religions,
as well as damage to culturally and historically significant places or artifacts. The term would
encompass social problems that may be attributable to added truck traffic to and from the
permitted facility, such as more prostitution on public streets. The term would also include
psychological harm, such as people's perceptions that permitted facilities are not safe, posing
either acute or chronic threats to the community. Finally, environmental justice advocates
believe that excluding a community of color from the permitting process, even if no other
adverse effect is documented, would constitute disparate treatment that is illegal under Title VI.
These members of the Committee suggest that EPA analyze disparate impact by
constructing scenarios and giving guidance both on how they should be handled by state and
local governments and how they will be handled if subject to a Title VI complaint filed with the
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Agency. An initial - and not exhaustive -- list of such scenarios would include:
1. Situations in which a state or local government has treated the permitting of
similar facilities within its jurisdiction differently, and this disparate treatment
affects communities of color more adversely than other communities. For
example, the state or local government may have excluded communities of color
from participating in the permitting process but allowed similarly situated non-
minority communities to participate.
2. Situations where a state or local government has granted a permit to a facility
located in a community of color that is already affected by a disproportionate
burden of adverse effects related to the presence of other industrial facilities that
are permitted by the state or local government.
3. Situations where a state or local government has granted a permit to a facility
located in a community of color that is already affected by a disproportionate
burden of adverse effects related to the presence of other industrial facilities that
are not permitted by the state or local government.
Environmental justice advocates on the Committee believe that if EPA takes the approach of
describing situations that would constitute illegal discrimination under Title VI, the preventive
goals of the law would be achieved far more effectively.
Consistent with their broad view of the scope of Title VI, these members of the
Committee would use a standard of causation that is expansive, encompassing adverse effects
that are linked directly ~ and indirectly ~ to the permit or other environmental decision. For
example, they argue that if a community is especially vulnerable to environmental pollution
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because it lacks access to medical care or has a poor diet, the community is a vulnerable
population that deserves stronger protection than populations that do not labor under such
disadvantages.
These members of the Committee reject the argument that the ambit of Title VI is limited
to the scope of applicable environmental law, and instead contend that adverse effects are
covered by Title VI if they are made possible or caused by the activities covered by the permit or
decision. Under this approach, a state or local agency could grant a facility a permit that
complies with all of the requirements imposed by environmental law and still violate Title VI.
The shades of gray along the spectrum marked by these two interpretations depend on
acceptance of the concept of preventive programs that could be sponsored by EPA, the states, or
local governments. Thus, many members of the Committee, including some industry, state, and
local government representatives, are willing to broaden the scope of preventive programs to
encompass problems beyond adverse health effects, including environmental, economic, social,
and cultural harm. They are willing to take this step because they believe that some of these
problems are in fact exacerbated by industrial facilities. They also think that people of color are
convinced that this link exists. To address both the real and the perceived manifestations of such
problems, a preventive program should distribute responsibility for mitigation more equitably
than is possible in the context of permitting a single facility. Industry representatives note that
while they share the view that preventive programs should be proactive and will prove more
expensive, such programs must be clearly distinguished from the narrower legal confines of a
Title VI complaint.
Perhaps because these issues are difficult, and the difference in viewpoints is stark, the
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Committee spent far more time discussing preventive programs than debating the definition of
adverse effect in the context of permit decisions. EPA may be drawn in a similar direction when
it rewrites the Interim Guidance and further develops a model plan for state and local
governments. Ultimately, however, to develop meaningful standards for permitting and other
decisions, a more precise definition of adverse effects must be developed.
Identifying the Community of Concern
Members of the Committee generally recognize that, in the context of decisions made
with respect to individual facilities, the term "community of concern" has two distinct
components: demographics and exposure.
The demographic factor measures the percentage of members of a protected class in the
population affected by a permit or other decision in comparison to the percentage of protected
class members in the population of a "reference area." Obviously, delineation of the community
of concern and the reference area is critical because it determines which areas are protected
against discrimination under Title VI.
Many members of the Committee advocate a site-specific test to identify the community
of concern that would trace the environmental releases affected by the permitting or other
decision to the populations likely to be exposed to such releases. Neighborhoods in an exposure
pathway would be included in the community of concern. Because existing modeling and
monitoring methodology often are not accurate reflections of actual exposure, this step of the
analysis is easier said than done. The Committee's concerns about the accuracy of such
predictions, especially given the dearth of monitoring results in many places and the lack of data
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regarding cumulative risks and synergistic effects, are the basis for its recommendation that EPA
commit significantly more resources in this area.
Some members of the Committee are sufficiently concerned about imperfect data that
they are willing to consider a more arbitrary but consistent "radius" approach. Under this
approach, a circle of a given radius would be drawn around the facility and everyone living
within the circle would be defined as the community of concern. For example, as an admittedly
arbitrary, but transparent and easily applied alternative, the Environmental Justice Protocol
developed by the Public Interest Law Center of Philadelphia proposes a one-half mile radius,
with the circle to be enlarged if it does not encompass 1,000 people. The protocol is attached to
this report as Appendix H.
An industry representative objects strongly to this approach, noting that site-specific
assessments must be based on actual exposure to the releases in question, as opposed to "mere
proximity." Even under the relatively looser approach to defining affected communities
envisioned for Track 1, preventive programs, this member argues that exposure and effect must
remain the measure, as opposed to such concepts as ^'pollution load" or "environmental burden."
A local government representative agrees with this perception, arguing that
disproportionate adverse impacts must be assessed on the basis of the risk of exposure.
However, she contends that a radius approach might very well be useful in the context of general
screening (or mapping) conducted to identify vulnerable communities, especially in the context
of Track 1 preventive programs. She adds that the appropriate radius distance will vary by
pollutant (e.g., degree of toxicity) and media type (air, water, or soil) because mere proximity is
too crude a tool to use to gauge potential risks to public health.
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Environmental justice advocates urge a more flexible resolution of these issues that
would depend on the adverse effect to be measured. For example, they say that a negative
impact on property values might be best evaluated using a radius approach, while the adverse
health effects of air pollution could be modeled or monitored without resort to a relatively
arbitrary radius cut-off. However, as noted elsewhere in this report, the Committee did not reach
consensus on such flexibility, primarily because it lacks consensus on the universe of adverse
effects that Title VI addresses in the first place.
Some state and industry representatives on the Committee argue that in many cases,
people who are not adversely affected, nevertheless insist that they are members of the
community of concern. They contend that this problem, as well as a tendency to leave the
process perpetually open to public participation by new people, mean that the concept of
"community" can become a "moving target." They urge federal and state regulators to include
local officials, both elected and appointed, in whatever definition of community of concern is
ultimately adopted. It is worth noting that however federal, state, and local regulators define
communities of concern, the courts are likely to superimpose a standing requirement on plaintiffs
when Title VI disputes reach them for decision. Discussing the status of standing doctrine and
its likely application to Title VI cases is beyond the scope of the Committee's work, but this
issue could be addressed if EPA convenes the group of legal experts suggested in the "Next
Steps" section of this report.
As for the important issue of defining the reference area (the same concept is sometimes
referred to as the "general population") with which the demographics of the community of
concern is compared, the Committee assumes that in the vast majority of cases, this area or
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population will coincide with the state or local agency's jurisdiction. Thus, in a dispute
involving permitting decisions by a state, the demographics of the state's entire population would
be compared to the demographics of the community adversely affected by the decision. Qf
course, decisions made by multiple agencies or decisions that affect communities that straddle
jurisdictional lines can pose problems for this relatively straightforward approach.
Ironically, defining the community of concern in the context of individual permitting
decisions may prove less difficult and controversial than defining such communities in the
context of preventive (or Track 1) programs. Environmental justice advocates on the Committee
generally favor the application of "mapping"-- also known as "general screening"-- to
geographic areas that appear to be vulnerable on the basis of pollution levels and demographics.
They urge federal, state, and local regulators to use such comprehensive profiles to design
innovative prevention programs, deploy limited resources, target enforcement, and undertake
more extensive research and data gathering.
Industry and state representatives on the Committee predict that mapping, screening, or
similar efforts to identify communities of concern will chill economic development because they
will result in more stringent standards and more burdensome procedures for permitting of
facilities in the targeted area. By discouraging business interest in locating in a community,
mapping or screening could harm residents of the "protected" neighborhood as gravely as
industry. They question why mapping is necessary if existing regulatory standards are being
met. Some industry representatives further argue that mapping technology may not reflect actual
exposure, much less a causal relationship between exposure and adverse effects, and could result
in unwarranted decisions to exclude industrial operations from a given neighborhood.
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State and local government members of the Committee are especially concerned about
the implications of mapping for Brownfields redevelopment, an aspect of state and local
environmental programs that the Agency has pledged to support. Apart from its obvious
advantages to the inner city, these members of the Committee point out that Brownfields
redevelopment is a crucial component of initiatives to combat the substantial harm to the
environment and public health caused by suburban sprawl, a growing problem in many areas of
the country.
Environmental justice advocates counter by explaining that they recognize the
implications of screening or mapping that leads to special treatment of a neighborhood or other
geographic area and understand that such efforts could result in chilling economic development.
They view this risk as worth taking, however, in order to avoid the far more significant
possibility that disproportionate adverse effects will be overlooked. Further, they contend that
distinctions must be drawn between the beneficial kinds of economic development that are
sponsored under many Brownfields programs and development that leads to the siting or
expansion of facilities that exacerbate the burden of environmental pollution bome by a
community.
In their final comments on the report, two members of the Committee — one representing
industry and the other local government — commented that it is possible to discover which areas
bear a disproportionate environmental burden without taking the analysis to the point of mapping
or screening specific neighborhoods. Indeed, these members believe that to implement a
preventive program, state and local governments must discover, with some specificity, the total
burden from regulated and unregulated sources that confronts a community of concern.
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However, to make good use of this analysis, state and local officials need not label a
neighborhood as sensitive or otherwise suspect. The Committee did not have time to explore
these possibilities further, but reiterates its recommendation that EPA devote resources to
strengthening available assessment tools in this context.
Some members of the Committee believe that in the context of preventive ~ or Track 1—
programs, EPA, the states, and local governments should incorporate low income communities in
their analysis of disparate impact, especially because a 1994 Executive Order includes such
communities within the scope of EPA's environmental justice mission. Executive Order No.
12,898, Federal Actions to Address EnvironmentalJustice in Minority Populations and Low-
Income Populations (February 11, 1994). However, other members of the Committee, including
some of its industry representatives, strongly disagree with this proposal, arguing that
environmental justice initiatives should remain focused on the classes protected by Title VI.
Although EPA will continue to implement Executive Order 12,898, the Committee did not reach
consensus on this important point.
Determining Disparity
What degree of disparity in adverse effects is covered by Title VI? Is a measureable
difference in the harm experienced by a community of concern versus the reference area
population enough to trigger sanctions, or must the harm be severe in order to warrant federal
intervention? Although the Committee debated this important question, it did not develop a
consensus response.
Workgroup I was assigned the task of discussing disparity, and the group ultimately
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compiled a universe of five possible standards on the basis of its discussions and knowledge of
the standards used in other contexts. (A copy of the group's final draft report on these issues is
attached as Appendix C.) The disproportionate adverse effect could be described as (1)
"significant," (2) "substantial," (3) "above generally accepted norms," (4) "appreciably
exceeding the risk to (or the rate in) the general population," or (5) "any measurable disparity."
Some members of the Workgroup favor the term "significant" as they understand that standard to
be applied under the National Environmental Policy Act. However, other members of the group
say that they do not understand the content of such a standard, pointing out that NEPA does not
actually control activities but rather requires that they be analyzed before they are undertaken.
Some industry members of the Committee propose use of the term "substantial" to
summarize the degree of disparity covered by Title VI, arguing that relatively large harms are the
appropriate targets of the nation's civil rights laws.
Environmental justice advocates disagree with this view, believing that it sets too high a
bar to proving disparate impact. Some suggest the alternative of using a statistically-based test
that would find aprimafacie case of illegal discrimination if the disparity between the affected
community and the reference population is two standard deviations or higher. If the disparity is
greater than two standard deviations, the proposal would create a presumption that discrimination
had occurred.
A local government member of the Committee objects to this approach, however, arguing
that a statistical correlation is not the same as a demonstration that a facility is causing a
disparate impact. This member of the Committee further emphasizes the importance of
monitoring and other data that reflects actual conditions in the field, to be used in conjunction
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with the modeling and other hypothetical modes of analysis that are often employed.
An academic member of the Committee notes that whichever standard is applied, it must
be sufficiently sensitive to respond to communities of color that are particularly vulnerable
because, for example, they experience a high rate of asthma or other respiratory diseases. In that
context, a test that simply measured order of magnitude disparities in total pollution loads (e.g..
X tons of emissions versus Y tons) would not sufficiently protect the community from
discrimination.
Whichever standard EPA, the courts, and state and local governments ultimately adopt,
given the imprecise nature of monitoring and modeling, exposure analysis, and risk assessment
in virtually any environmental context, the determination of disparity is likely to remain the
subject of debate for the foreseeable future.
The Role of Existing Standards
As mentioned above, the role of compliance with existing regulatory standards in
determining the merits of a Title VI complaint is among the most difficult problems tackled by
the Committee and is the issue that underlies members' differing views of the Select Steel
decision. Industry representatives generally read the decision as establishing the favorable
precedent that a permit's compliance with "health-based standards" will defeat a Title VI claim.
Some environmental justice advocates and academic representatives agree with this
interpretation, but view the decision as an unfortunate precedent. Other members of the
Committee believe that the precedent set in Select Steel is limited to the relatively unusual
circumstances of the case: a permit for a facility located in an area categorized as attainment for
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the purposes of the "Prevention of Significant Deterioration" program under the Clean Air Act,
42 U.S.C. §§ 7470-7492.
As this last interpretation suggests, it is crucial to establish at the threshold of this
discussion what is meant by the phrase "health-based standards." Many environmental
regulations are not based on an analysis of what levels are "safe" from a health perspective, but
rather are technology-based, performance-based,3 or procedural. Technology-based standards
represent a judgment that employment of the technology is the best we can do to control
pollution at a reasonable cost. Similarly, performance standards specifying how facilities must
be designed reflect a judgment regarding the best practices available to prevent contamination,
rather than a guarantee that contamination will never occur. Procedural requirements such as the
maintenance of records or the submission of monitoring reports are essential tools to ensure
compliance but do not directly control pollution.
The question remains, therefore, whether compliance with technology and performance-
based standards, as well as such procedural mandates as monitoring, reporting, record keeping,
and inspection requirements, should mean that a permit complies with Title VI? The Committee
has no easy answer, especially if the claim involves the possible creation of cumulative risks or
synergistic effects.
As discussed above, some members of the Committee argue that Title VI imposes an
independent mandate that disproportionate adverse effects be controlled, even if those effects are
3 The term "performance-based" standards is used here to connote such requirements as
the design specifications imposed under the Resource Conservation and Recovery Act and is not
intended to encompass standards that set performance targets in order to achieve "safe" levels of
pollution, such as waste load allocations under the Clean Water Act.
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perfectly legal under existing law. Under this view, if a community of concern is exposed to a
level of releases higher than that experienced by the general population, Title VI requires that
additional relief be provided.
But what standards should apply beyond the application of existing requirements,
especially in the context of individual permitting decisions? Industry and some state
representatives on the Committee observe that forcing a facility to reduce emissions significantly
more than its competitors has a range of undesirable implications, as discussed further in the
section entitled "Mitigation," below. They argue that EPA and state and local governments lack
the legal authority to make such standards up as they go along on a permit-by-permit basis, and
instead must either return to Congress for additional authority or amend existing regulations
before they require a facility to go "beyond the law" in mitigating the effects of its emissions or
discharges.
On the other hand, environmental justice advocates contend that while it may seem
logical to use health-based standards as the benchmark for determining whether an impact is
"adverse," several factors suggest that this approach is extremely problematic. First, statutory
mandates that EPA implement health-based standards have not been fully implemented, for a
variety of political, economic, scientific, and legal reasons. Especially with respect to toxic
pollutants, many of which are common in urban areas, EPA has been slow in crafting specific
standards that will protect human health and the environment as the statutes mandate.
Second, even if there is a health-based standard in place, such as the ambient air standards
for ozone that were at issue in Select Steel, the problem of "hot spots" must be considered. The
air across a large regional area might be clean enough to meet the standards overall, but there
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may well be pockets of pollutants at levels well above the standards. If such hot spots occur in
racially-disparate patterns, these members of the Committee argue, EPA should find a Title VI
violation.
Third, EPA must take the nature of the community into account. Communities
comprised of a protected class may include many people who experience high levels of
respiratory illness, elevated blood lead levels, restricted access to medical care, or other problems
that make them especially vulnerable to certain types of pollution. If health-based standards are
not sufficiently stringent to protect such "vulnerable populations," a disparate adverse impact
may well occur despite compliance with regulatory requirements.
Finally, environmental justice advocates contend that health-based standards are
sometimes not sufficiently protective and it may be common knowledge in the scientific
community that they need to be tightened before such changes are actually made. For example,
EPA recently announced changes in National Ambient Air Quality Standards that may not be
implemented for several years. These members of the Committee believe that in making such
changes, EPA has acknowledged that existing standards are not sufficient to address ongoing
health risks.
Agency Jurisdiction
Members of the Committee advocating a narrow implications interpretation of Title VI
believe that it is unreasonable to require state or local governments to address problems that are
not within their jurisdiction, even if a community of concern is adversely affected by those
matters. In this context, jurisdiction means the agency's authority over certain activities. For
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example, environmental agencies often do not have authority over truck traffic to and from a
permitted facility; that role is generally left to local public works and police departments.
Jurisdiction can also mean the geographic location of a regulated activity. For example, state
agencies typically cannot affect pollution that travels across state lines from a facility regulated
by another state. In either sense of the term, industry and some state representatives argue that
the appropriate scope of Title VI is coterminous with the jurisdiction of the state or local agency
responsible for the decision under challenge. Not only do they believe that it is bad policy to
expect state agencies to reach beyond their jurisdiction, they contend that Title VI cannot be read
to require a state agency to exert control with respect to activities over which it has no legal
authority.
One state representative notes that environmental agencies generally do not make facility
siting or other potentially objectionable land use decision. Because zoning is an activity reserved
to local governments across the country (i.e., counties, cities, and towns), this member argues
that environmental agencies have no control over such decisions and become involved in their
implications "very late in the game" after a "great deal of history has been created." This
member further contends that zoning has allowed industrial facilities to be located near
residential neighborhoods. Facility-specific decisions are then made in corporate board rooms
outside the public arena. He asserts that early, proactive involvement with communities should
occur before local land use and business location decisions are made, which is also before state
environmental regulators become involved.
Local government representatives on the Committee also emphasize the importance of
local land use decisions. They urge EPA to make aggressive efforts to both educate and involve
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land use decision makers in the development and implementation of environmental justice
policies at the national, state, and local levels.
Other members of the Committee, including other state and local government
representatives, environmental justice advocates, and academics, disagree with the position that
because local land use decisions may be the first step in the creation of discrimination,
environmental agencies are not responsible for the effects of such decisions. They argue that the
mission of environmental agencies is correctly viewed as the protection of public health and the
environment wherever and whenever necessary and that this mission cannot be limited by the
short-sighted details of particular regulatory programs. They also contend that the true
respondent to a Title VI complaint is the state or local government as a whole, as opposed to the
environmental agency in isolation, and that all of the state's resources and authority should be
combined to redress discrimination.
These members of the Committee believe that programs to redress Title VI concerns will
be needlessly undermined if agencies take a constricted view of problems and potential solutions,
especially in the context of Track 1 preventive programs. They point to such success stories as
EPA and state cooperation to establish emissions trading programs as a means to meet National
Ambient Air Quality Standards as a classic example of a creative and effective response to the
perceived constraints of agency jurisdiction, and they urge federal, state, and local regulators to
take a similarly innovative approach to problems raised under Title VI.
One representative with extensive experience at the municipal level stated that the first
step in dealing with any environmental justice issue is to identify all of the governmental entities
with influence over the outcome, including zoning boards, economic development agencies, and
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public works departments. Agency officials can then be consulted, or even organized into a
taskforce, to consider the problem cooperatively.
It is worth noting that one industry representative on the Committee supports proactive
approaches, although she believes that it is important to distinguish between the legal confines of
Title VI and the more creative Track 1 programs designed to address broader issues of
environmental justice.
However, another industry representative on the Committee believes that the issue of
expanding Title VI beyond the confines of the permitting agency's jurisdiction should never have
been considered by the Committee because it was "taken off the table" by EPA Administrator
Carol M. Browner during a meeting with state officials in late 1998. He adds that the
Administrator reassured state administrators that EPA would not interpret Title VI to encompass
activities beyond their legal jurisdiction and that he urged the Committee's Workgroup I to
remove it from the Committee's agenda. The Workgroup did not achieve consensus on that
point.
Significantly, members of the Committee willing to go beyond agency jurisdiction in
defining the appropriate scope of environmental justice programs also interpret the scope of
federal and state environmental statutes more broadly, pointing to federal or state versions of the
Resource Conservation and Recovery Act, the Clean Air Act, and the Clean Water Act as
granting state agencies authority to include permit provisions other than those specified by
regulation if necessary to accomplish the overall mission of the statute. These members of the
Committee, including its academic representatives, argue that the key federal environmental
statutes contain authority for — and, indeed, a mandate that — EPA and state and local agencies
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go significantly beyond actual harm or imminent threats in protecting public health and the
environment.
As one key example of such authority, these members of the Committee point to section
3005(c)(3) of the Resource Conservation and Recovery Act, 42 U.S.C. §6903(c)(3), which states
that permits must contain such terms and conditions as federal, state, or local regulators decide
are "necessary to protect human health and the environment." They further note that a decision
by the EPA Appeals Board, In re Chemical Waste Management of Indiana, Inc., RCRA Appeals
No. 95-2 (June 29, 1995), involved the application of this authority to an environmental justice
complaint. The Appeals Board concluded that this provision authorizes EPA permit writers to
take a "more refined look" at a facility's "health and environmental impacts assessment" in
response to environmental justice claims.
Academic members of the Committee also mention the Clean Air Act's requirements
concerning the Non-attainment New Source Review Program, which calls for an analysis of
whether the "benefits of the proposed source significantly outweigh the environmental and social
costs imposed as a result of its location, construction, or modification." 42 U.S.C. §7503(a)(5)
(emphasis added). These members contend that the most sensible reading of this and similar
language in other statutes is that Congress intended permitting agencies to have the authority to
consider a wide range of harms in the permitting context. One of the academic members of the
Committee provided an extensive analysis of these issues that he helped to prepare for the
National Environmental Justice Advisory Committee (NEJAC). A copy of that paper is included
with this report as Appendix N.
Once again, it is important to emphasize that members of the Committee subscribe to
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three distinct positions with respect to the issue of reconciling agency jurisdiction and the
application of Title VI: (1) the application of Title VI is coterminous with the limits of agency
jurisdiction; (2) if an agency's action would cause a disproportionate adverse effect, the agency is
responsible for that effect, whether or not the agency must go beyond the limits of its jurisdiction
in response to such discrimination; and (3) for the purposes of preventive Track 1 programs only,
agencies should make their best efforts to reach beyond their jurisdictional limits in defining and
mitigating such problems.
New versus Renewal Permits
State and local governments are routinely faced with four kinds of permit decisions: (1)
renewal or modification of an existing permit with no significant changes in emissions or
discharges; (2) renewal or modification of an existing permit with decreases in emissions or
discharges; (3) renewal or modification of an existing p'ermit with increases in emissions or
discharges; and (4) applications for new permits to cover facilities that will be built. The first
type of permitting decision, which typically does not increase emissions or discharges, is
sometimes referred to as "flipping" the permit and is viewed as the least controversial
determination an agency must make. The difficulty of the decision required by renewal
applications that seek to expand operations is determined by the increase in emissions or
discharges that will occur. Applications for new permits covering new facilities are generally the
most controversial.
The Interim Guidance distinguishes between permit modifications and renewals, viewing
modifications as triggering reexamination of only those aspects of the facility's operations that
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are covered by the proposed changes, but defining renewals as an opportunity to review the
"overall operations" of the facility. See Interim Guidance, attached to this report as Appendix F,
at page 7. Thus, the guidance states that EPA will generally treat permit renewals as if they were
applications for new facility permits, but will only examine permit modifications to determine if
the modification itself causes a disparate impact.
Industry representatives strongly oppose this policy, once again arguing that if an existing
facility seeks to either renew or modify its permit in full compliance with applicable regulations,
EPA and the states have no authority to deny the request. Indeed, these members of the
Committee believe that to approach such situations in the manner suggested by the Interim
Guidance could lead to shutdowns of facilities located near neighborhoods of people of color on
the basis that the cumulative pollution burden in the community is too large, even if the burden is
caused by many sources, including some that are unregulated and others that have permits they
do not need to renew. Industry representative say that companies are willing to play by the rules
EPA sets forth regarding the implementation of environmental justice standards at new and
existing facilities, but they argue that these rules must be promulgated using normal procedures,
not developed on an ad hoc, facility-by-facility basis.
In contrast, because environmental justice advocates believe that the exclusive goal of
Title VI must be to prevent discrimination against protected classes, they would apply the same
standards to all three categories of decisions. A ton of pollution emitted by an existing facility
has exactly the same effect as a ton of pollution emitted by a new facility, so this reasoning goes,
and to distinguish between them would flout the central meaning of the law. In fact,
environmental justice advocates argue existing facilities are often worse offenders because they
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have polluted in a discriminatory way for years.
Despite the difference in their views, environmental justice advocates, industry
representatives, and state and local officials all recognize that, as a practical matter, it will be
considerably more difficult to persuade regulators to ignore the distinction between existing and
new facilities given the economic dislocation that would be caused by so-called "zero-based
permitting." Some urge state and local governments and EPA to apply stricter standards to
permits requests that would increase overall emissions in communities that are disproportionately
burdened, whether those requests arise in the context of renewals, modifications, or new
applications. The possibility that such a standard would deter new economic development is not
persuasive to those advocating this approach, who express general skepticism that the benefits of
such development would ever reach the people actually living in the community.
Other members of the Committee suggest that EPA and state and local governments
investigate regulatory approaches modeled on the non-attainment program under the Clean Air
Act, using bubbles, offsets, and emissions trading to compel overall reductions without imposing
an undue burden on existing facilities. However, environmental justice advocates have
expressed concern about the potential discriminatory implications of trading programs.
Mitigation
It is necessary to answer all of the difficult questions discussed above — from the
definition of adverse effects and the identity of the community of concern to the role of existing
regulatory standards and the significance of agency jurisdiction — in order to reach the ultimate
issue in any Title VI dispute: what remedy is required to mitigate the discrimination? This
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question was tackled by Workgroup II, and a copy of its draft report is attached as Appendix D.
At the outset, it is important to note that the Committee did not achieve consensus on
when the question of mitigation should be addressed in the process of evaluating a Title VI
complaint. Industry representatives argue that a state or local government should first be granted
an opportunity to demonstrate "justification" for the decision under review and should only be
required to mitigate the impacts of its action if the proffered justification is inadequate. In
contrast, environmental justice advocates would reverse the order of consideration of these two
crucial issues: requiring first that mitigation be considered and giving a state or local government
the opportunity to justify its action only if adequate mitigation is not possible.
In any event, returning to the issue of what characterizes adequate mitigation, it is helpful
to describe the universe of possible interpretations as a continuum, which Workgroup II
categorized as "loose nexus" mitigation, "moderate nexus" mitigation, and "narrow nexus"
mitigation. The term "nexus" is used here to connote the relationship between mitigation and the
disproportionate adverse effects that are the subject of the complaint. Thus, narrow nexus
mitigation means remedies that eliminate or reduce the disparate impact.
The dilemma presented by this approach is that it is often impossible to accomplish full
mitigation in the context of an individual permit proceeding. To use a simple but telling
hypothetical suggested by an academic member of the Committee, suppose that an African
American neighborhood supports the burden of 200 units of pollution, while the reference area to
which it is compared has a one-unit burden. The company seeking a permit renewal contributes
ten of those 200 units. It can operate legally under existing regulations without reducing those
emissions. Denying the permit and shutting down the facility would not eliminate the disparity,
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and would be objectionable and arguably unfair to the facility owner. To complicate the
scenario, suppose that the sources contributing the remaining 190 units include facilities
regulated by federally-funded programs, as well as facilities that are either unregulated or
regulated under programs with different sources of support.
The Interim Guidance addresses this dilemma by suggesting consideration of
"Supplemental Mitigation Projects" (SMPs) that "address" the disparate impact without
eliminating it. See Interim Guidance attached as Appendix F, pages 10-11. But the guidance
does not articulate further criteria for developing such projects, other than to say that they could
address matters "outside those considerations ordinarily entertained by the permitting authority."
Id. at 11. This comment suggests that SMPs will more often than not be the result of voluntary
agreements negotiated with the permit applicant, since it is not clear how a permitting agency
could compel their adoption. SMPs are modeled on the "Supplemental Environmental Projects"
(SEP) policy used by EPA and the states in the context of enforcement actions. The policy is
intended to channel resources into remediation that delivers direct benefits in the area where
violations occur.
However, environmental justice advocates on the Committee strongly object to use of the
SEP model in the development of Title VI mitigation because the model does not provide for
adequate public participation. Instead, they argue, SEPs are developed in negotiations between
EPA and the permittee, with the community consigned to comment on, but not approve, the
measure. These members of the Committee believe that the community must be a participant in
the negotiation. They recommend that the development of a SEP occur either in the context of a
formal legal proceeding, where no parties could communicate with the regulators without
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notifying all other parties, or in the context of a formal mediation, where all parties are at the
negotiating table on an equal footing, with adequate technical resources and a neutral mediator.
Beyond these important issues of a fair process, the Committee has found no easy answer
to the dilemma of mitigating adverse effects caused by multiple sources. Some members
returned to the Clean Air Act non-attainment model, urging consideration of bubbling, offset,
and emissions trading approaches. Others, including some industry representatives, advocate a
"proportional contribution" approach that would require reductions that reflect the permit
applicants share of the problem as a whole (in the above example 10:199 units). Still others
apply a narrow implications interpretation of the statute, arguing that the permittee's compliance
with existing regulatory requirements should defeat the complaint in the first instance.
The dilemma of how to fashion a fair remedy when many sources contribute to a
disproportionate adverse impact may be easier to resolve in the context of preventive, or Track 1,
programs that are not confined to individual permit decisions. By anticipating the problems that
may arise in individual permitting proceedings, the states, local governments, industry, and
affected communities would have an opportunity to fashion more equitable remedies and avert a
complaint when the permitting decision must be made.
Even if programs are created to encourage the negotiation of solutions, the contribution of
unregulated sources to the overall pollution load remains very difficult to address. If a facility is
only asked to make a proportional contribution, how should the overall universe of sources be
defined for the purpose of calculating its fair share? Is it fair to the community to include
unregulated sources that will never contribute to the achievement of complete mitigation? On
the other hand, is it fair to industry to exclude unregulated sources, thereby raising the level of
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the reductions that permitted facilities must produce? The complexity of these issues inevitably
leads to consideration of "moderate" and "loose" nexus proposals.
The moderate nexus approach to mitigation would allow remedies that do not eliminate
the disparity, but nevertheless address its fundamental effects. Requiring facilities to initiate
pollution prevention measures, monitor and control fugitive emissions, conduct additional
research into the cumulative risks and synergistic effects of their emissions, or provide the
community with free medical monitoring or treatment, are examples of moderate nexus
remedies. Presumably, such remedies would be characterized as Supplemental Mitigation
Projects under the Interim Guidance.
Members of Workgroup II ultimately endorsed a "hybrid" approach that combines
moderate and narrow nexus mitigation, requiring that mitigation measures be as narrowly
tailored as reasonable and practicable, but endorsing moderate nexus requirements when narrow
nexus mitigation is difficult or impossible to achieve. The main point of divergence within the
Workgroup was the difficult issue of how to address adverse health effects that have a disparate
impact, with some members arguing that only narrow nexus mitigation should be permissible
under Title VI, while others contend that moderate nexus mitigation should also be considered in
that context.
Workgroup II also developed several important consensus recommendations that support
and clarify its endorsement of a moderate-to-narrow nexus hybrid model. Thus, the Workgroup
concluded that mitigation measures that require actions over time and deliver benefits in the
future are a valid form of mitigation but must be enforceable, by the permitting agency and the
community. Second, the Workgroup concluded that meaningful community involvement was
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not only a desirable policy goal, but was an essential component of mitigation policy and
requirements. Third, the Workgroup found that the reasonableness of moderate nexus mitigation
turns on its ability to deliver substantially greater overall benefits to the community.
The Committee did not have time to address these conclusions in depth, and refers EPA to the
Workgroup II draft report that is included as Appendix D.
As Workgroup II points out in its report, the point at which moderate nexus mitigation
becomes "loose" depends to a large extent on how the scope of adverse effects is defined. Under
a narrow implications interpretation of Title VI, efforts to address such problems as the safety
problems caused by increased truck traffic, changes in property values, or deterioration in the
neighborhood's overall quality of life would all constitute loose nexus mitigation. For those who
view these problems as central concerns of Title VI, efforts to ameliorate them are at least
moderate, and perhaps narrow, nexus mitigation.
In the end, it may not matter from a public policy perspective what any of these remedies
are labeled, although such categories could take on real significance as a legal matter when EPA
or the courts are asked to judge the merits of a Title VI complaint. Once an adverse effect is
found to be discriminatory, the courts may well decide that the only acceptable mitigation is the
elimination of the disparity, and therefore the discriminatory effect. Thus, while EPA, the states,
and local governments may be tempted to develop more creative and equitable approaches to
such remedies, the possibility that claims will become formal complaints weighs in favor of a
narrow-to-moderate nexus approach, as recommended by the Committee's Workgroup II. While
the Committee did not achieve consensus on whether to endorse a narrow to moderate nexus
approach, members representing industry, academia, and environmental justice advocates agreed
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that this approach, on balance, was the most promising from both a policy and a legal
perspective.
How, then, does the Committee reconcile this conclusion with its endorsement of
negotiations to address the community's true concerns, both early on in the permitting process
and in the context of Track 1, preventive programs? If no limits are placed on the topics that can
be raised and addressed during such discussions, what happens if community representatives
request relief that is loose nexus at best? If a settlement is reached with the facility owner, and a
Title VI complaint is nevertheless filed, what significance should such negotiated remedies have
as a legal or policy matter?
Some members of the Committee believe that a community's right to self-determination
should prevail. As one member put it, the specter of national groups dictating to local
communities what their needs should be is unappealing and a system that allows such results is
unlikely to resolve tensions between industry and communities of people of color any time soon.
Another member of the Committee argues that the right to self-determination is constitutional,
and that communities should be given every opportunity to decide their own fate, however
misguided the resolution might appear to outsiders. Under this view, it would be possible for a
community to accept mitigation for disparate adverse health effects in the form of increased aid
to local public schools. As long as the decision was made "democratically," this member argues,
the negotiated settlement would block a subsequent Title VI complaint against the regulated
entity. (The issue of how to determine whether such decisions are made democratically is
beyond the scope of this report.)
Other members of the Committee, including representatives of grassroots community
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groups, strongly disagree with these views. While they do not object to efforts to negotiate
practical resolutions of disputes and they recognize that communities might use the leverage of a
possible Title VI claim to win other concessions from a facility owner, they reject the argument
that loose (or non-) nexus remedies should ever be deemed a sufficient response to a formal Title
VI complaint. They also point out that there is no place in the current legal system for what
would amount to a waiver of applicable legal standards by local citizens. "Government has to be
at the table," one community representative stated. "The whole purpose of having government is
to protect the public good." They add that Title VI protects political minorities from majoritarian
impulses and that, although a majority of a community might "sign off on a particular
agreement with industry would not mean that others in the community would be barred from
filing a Title VI complaint.
Some industry representatives agree with the importance of having government "at the
table" and limiting the concept of legal mitigation to the issues addressed by underlying
environmental laws. They worry that in the absence of an enforceable set of standards,
negotiations with the community could veer off course into areas that have nothing to do with
environmental quality and human health, exposing facility owners to unreasonable demands and
the prospect that if these demands are not satisfied, necessary permits will be delayed.
On the other hand, one industry representative suggests that if the community accepts a
mitigation proposal, EPA should consider this arrangement a "voluntary resolution" of the
dispute and allow it to stand. He notes that the earlier in the dispute that such resolutions are
negotiated, the easier it will be for EPA to follow this principle. Once a potential case has
progressed to the point where considerable data documenting adverse ^effects has been developed,
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the opportunities for voluntary resolution may become more severely circumscribed.
A second industry representative agrees with this view, and suggests that early efforts to
find mutual solutions offer incentives for both the community and the permittee. If the parties
fail to reach a voluntary solution to their dispute, the community faces the likelihood that its real
concerns will remain unaddressed due to constraints of the permitting process and the permittee
runs the risk that it will be compelled to install expensive technology that affords little
environmental benefit. This member of the Committee believes that a Title VI complaint filed to
challenge the mitigation afforded by an early settlement should succeed only if the agreement is
shown to be a "sham" (e,g,, the community was not fairly represented by those negotiating the
agreement) or the person filing the complaint suffers a "unique and unfairly adverse" injury.
There remains the issue of translating mitigation into a legally binding written agreement.
One obvious approach is to write required mitigation measures right into the permit, to be
enforced by the permitting agency using its existing authority. However, depending on the
nature of the mitigation and the attitude of the agency, incorporating such remedies into the
permit may not be possible. The alternative is a contract between the community and the
permittee. If a private contract is the vehicle of choice, provisions allowing communities to
monitor compliance by the permittee and to enforce breaches of the agreement may be necessary.
Justification
Under the Interim Guidance, the recipient of federal funding is given an opportunity to
"justify" a decision to issue a permit "notwithstanding the disparate impact," based on its
"substantial, legitimate interests." See page 11 of Interim Guidance, attached to this report as
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Appendix F. A "mere" demonstration that the permit otherwise complies with applicable
environmental regulations is not a sufficient justification under the guidance and no justification
will be accepted if a "less discriminatory alternative exists." Id. Less discriminatory alternatives
include "mitigation measures" that "lessen or eliminate" adverse impacts or, in the terminology
developed by the Committee, narrow-to-moderate nexus mitigation. Id.
The Interim Guidance does not specify any examples of what would constitute sufficient
justification, although it mentions the "articulable value to the recipient" of the permitted
activity, noting that the value of a permit renewal for an existing facility would generally be
easier to demonstrate than the "speculative" value of a new facility. Id. This example implies
that the economic value of an industrial facility to its owner (e.g., contribution to a profitable
bottom line) or to the community (e.^, job creation) may constitute acceptable justification
under the guidance.
EPA did not invent the concept of using economic necessity to justify discrimination.
Especially in the employment context, the courts have recognized an employer's need to apply
"necessary" criteria in screening applicants, on the basis that only applicants meeting those
criteria can perform a job efficiently. See pages 33-44 of the memorandum prepared by the EPA
Office of General Counsel, attached to this report as Appendix J. Whether these precedents can
be used to support a test based on such economic benefits as the preservation of existing jobs or
increased profitability is more controversial, however, because such a test, loosely applied, could
justify virtually any disparate impact that would cost significant amounts to mitigate.
Members of the Committee understand the implications of this "slippery slope" and some
are uncomfortable with the idea of any form of economic justification. Others support economic
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justification that rises to the level of business necessity - i.e., the facility owner would not be
able to operate if mitigation was required. They especially favor this approach with respect to
existing, as opposed to new, facilities.
An academic member of the Committee drew an analogy between a stringent test of
economic justification for Title VI and the takings doctrine that a property owner is entitled to
compensation if the proposed government action deprives the owner of any economically viable
use of the property. He recommends that EPA explore the analysis used by the courts in
applying this doctrine for insight into how Title VI environmental justification might be defined.
Another member of the Committee proposes that economic justification be limited to
instances where economic benefits will be delivered directly to "proximate" communities, in the
form of jobs or other measurable improvements in the standard of living.
Several members of the Committee believe that the overall social good contributed by the
facility should serve as justification for its disproportionate adverse effects, offering as examples
a permit covering a facility that is necessary to national defense or a permit renewal application
for an existing sewage treatment plant. In the second example, the social good of avoiding
waterbome disease could not be satisfied by facilities at a greater distance from the community
of concern and the disparate impact posed by the facility would therefore be justified. But other
members of the Committee opposed the idea of using either economic benefits or the broader
public good to justify discrimination in any context, arguing that the health of a community
comprised of a protected class should never be sacrificed to secure more attenuated benefits for
society at large.
Finally, some members of the Committee believe that the correct test of acceptable
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justification is a negative one: discrimination is only justified if there is no practical way to
mitigate the disproportionate adverse impact. This test would be stringent ~ i.e.. a failure to
mitigate is only justified if there is no effective pollution control technology that would reduce
emissions and it is impossible to lower their localized effects through trading regimes.
Other members of the Committee disagree with this legal interpretation, contending that
the case law dictates that state and local governments must be allowed to justify alleged disparate
impacts early in the process, prior to any requirement that they propose — much less apply —
mitigation. These members further argue that the Interim Guidance does not reflect this
approach and urge EPA to revisit the issue when it revises the guidance.
A local government representative on the Committee proposes that beyond establishing
substantive standards for acceptable justification, EPA should require that state or local agencies
potentially subject to a Title VI complaint must take two additional steps. First, the agency
should make "findings" that document the steps it took to avoid disparate adverse impacts,
including alternative siting or other measures considered during the permitting process and,
second, it should be required to certify that all feasible and reasonable mitigation has been
undertaken. Only after these two steps are accomplished should justification suffice as a defense
to a Title VI complaint.
CONCLUSION
The Committee commends EPA for realizing the importance of an ongoing dialogue with
its stakeholders as it struggles to develop a fair and transparent policy for implementing Title VI.
Each of us is committed to continuing this dialogue, with the Agency and with each other. We
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worked hard together, but we recognize that there is much more work to be done. We hope that
EPA will find that this report makes it easier for the Agency to do what we managed to do with
each other: talk straight, respect differences, and remain dedicated to the importance of fighting
discrimination in the most effective way possible.
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March 1, 1999
NOTE RE: APPENDICES
Two kinds of documents are included as appendices to this report: (1) additional views filed by
members of the Committee following its approval of the final report (numbered appendices) and
(2) additional resource materials that are referenced in the body of the report (lettered
appendices). The resource materials, unless indicated otherwise in the final report, have been
included at the suggestion of one or more members because they may prove helpful to those
reviewing the report or further considering the issues debated by the Committee and do not
necessarily reflect endorsement by the full Committee.
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APPENDICES
Title Page Number
1 Additional Views [Environmental Justice/Academic Representatives] 001
2 Additional Views [Susana Almanza, PODER] 009
3 Additional Views [The Honorable Rosemary Corbin, Richmond, CA] 010
A Title VI Committee Charge 012
B List of Committee Members 013
C Workgroup I Membership List and Draft Report on Assessment 016
D Workgroup II Membership List and Draft Report on Mitigation 031
E Workgroup III Membership List and Draft Report on a State 049
and Local Government Template
F EPA Interim Guidance 068
G Select Steel Decision 079
H Environmental Justice Protocol proposed by Public Interest Law 130
Center of Philadelphia
I Materials on CMA Responsible Care Program 137
J EPA Office of General Counsel Summary of Other Civil Rights 151
Precedents
K Draft Preliminary Report on Incentives Prepared for the NACEPT 203
Committee on Reinvention
L NEJAC Public Participation Guidelines 214
M ASTM E-50.03 -- Standard Guide to the Process of Sustainable 223
Brownfields Redevelopment
N NEJAC Paper on Federal and State Legal Authority 243
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