Mary M. O'Lone
Lawyers' Committee for Civil Rights Under Law
Remarks Before the National Academy of Public Administration August 30, 2001

I want to thank the National Academy of Public Administration for inviting me to speak today on the important topic of Environmental Justice. Specifically, the opportunities available to EPA and best practices that can serve as models for EPA to advance the interests of environmental justice in permitting.

I am glad to be able to bring the perspective of the Lawyers' Committee for Civil Rights Under Law, a civil rights litigating organization, to this Panel and I appreciate this opportunity to be able to contribute to the dialogue on this issue.

The Lawyers' Committee is a national civil rights organization formed in 1963 to involve the private bar in assuring the rights of all Americans. For thirty-eight years, the Lawyers' Committee has represented victims of discrimination in virtually all aspects of life. In 1991, the Lawyers' Committee formed its Environmental Justice Project to represent communities of color in environmental and civil rights matters. Our approach to this issue has been to litigate and advocate using as our tools federal civil rights laws and the U.S. Constitution, as well as environmental and other laws.

Through the Lawyers' Committee's Environmental Justice Project, we use the rule of law to challenge environmentally discriminatory conditions and decisions - and ultimately - to seek justice for people of color who are fighting to clean up contamination on the land where they live or who are fighting to stop environmentally harmful activities from occurring in their neighborhoods.

It is often the partnership of lawyers working with communities that has helped to bring about change. When called upon, these lawyers have worked in partnership with communities in order to formulate the most effective strategies possible. Often, this requires extremely innovative lawyering - using the most creative and sound legal theories to best advocate on behalf of these communities. For example - we have successfully used historical segregation patterns to argue that certain decisions which exacerbate environmental inequities serve to perpetuate that segregation in violation of the Equal Protection Clause of the Constitution, Title VI of the Civil Rights Act of 1964, and the Fair Housing Act.

The Lawyers' Committee has litigated environmental justice cases to secure a variety of rights not only for our clients, but for all communities. The Lawyers' Committee has fought efforts to limit public access to information, decision-making, and judicial review - all fundamental rights in a functioning democracy. For example, in the Commonwealth of Virginia, we successfully challenged the denial of citizens' rights to seek judicial review of state environmental permitting decisions.

Opportunities for EPA:

1. Enforce Civil Rights and Environmental Laws in EJ Communities

Recently, federal agencies have been more willing to recognize environmental justice concerns, but have generally failed to use them as a basis to alter the course of decision-making. There seems to a reluctance to use environmental and civil rights laws either affirmatively or as effectively as possible.

In preparing for a speech last year before the National Environmental Justice Advisory Committee or NEJAC, the Lawyers' Committee looked at cases decided by the federal courts within the past three years involving environmental justice issues. Of the over a dozen cases, all were brought by environmental justice plaintiffs. In none of these cases was the Federal government a plaintiff.

Although the government has brought cases on behalf of communities of color in other civil rights contexts, such as voting and fair housing, it has yet to do so for environmental justice communities. Other than the efforts in the last couple of years, there has been a near total void in civil rights enforcement at EPA - including even a recognition of the applicability of civil rights in the environmental context.

So, for all these years, the rights created by the civil rights laws and agency regulations have largely been unrealized. And many communities have lost out on vast legal resources and governmental support, which should have been deployed on their behalf to redress civil rights violations against them. The Federal government - and state governments - must become advocates for environmental justice, not always a defendant.

2. Strengthen the Environmental Justice Executive Order

The President, at EPA's recommendation, should issue a stronger environmental justice Executive Order with legal force that, at the very least, creates a duty on the part of agencies to undertake an environmental justice analyses reviewable under the Administrative Procedures Act. Rights of action to compel federal officials performance of their obligations have been found under other Executive Orders (e.g., Executive Order 11246 requiring nondiscrimination in government contracts). The Environmental Justice Executive Order should be one of them.

3. Require an Environmental Justice Analysis as Part of All Permit Applications

Having an environmental justice analysis performed prior to the permit application would allow the applicants to know early in the process whether there are environmental justice concerns that would affect their application and take appropriate action in this respect. This analysis would help applicants better prepare their submission for a permit.

If a permit were challenged on environmental justice grounds, the EPA would be aided by the environmental justice analysis in the permit application. Indeed, the permit applicants themselves will likely find that the costs of defending a permit in administrative and judicial appeals exceeds the cost of conducting an initial environmental justice impact analysis and addressing its findings within the permit application.

4. Consider Environmental Justice in Permitting Decisions

The current Environmental Justice Executive Order does not expressly expand the Agency's authority to condition permits on environmental justice grounds. However, existing federal laws and the Agency's regulations allow the Agency to consider environmental justice issues in its permit decision-making. The Agency has chosen not to interpret its authority as broad as federal environmental laws would allow it.

EPA has been given several legal analyses, including those by its own Office of General Counsel and by Prof. Richard Lazarus that contain ample discussion on EPA's authority to address environmental justice issues in the permitting process. EPA should exercise its existing discretion to benefit environmental justice communities.

5. Adopt Discriminatory Effects Test Regulations for EPA Permitting Actions

Section 2-2 of the Environmental Justice Executive Order contains a discriminatory effects standard for federal actions that substantially effect human health or the environment. Executive Orders do not have the same force and effect as statutes or regulations. Therefore, environmental justice and the discriminatory effects standard has not been embraced throughout all parts of the Agency.

Recipients of EPA financial assistance are subject to the effects standard through regulation, EPA is not. EPA should adopt regulations to apply the discriminatory effects standard in its Title VI regulations and the Executive Order to its own actions.

6. Adopt a Precautionary Principle in Permitting

In a speech last year before the National Academy of Sciences, Administrator Whitman endorsed the idea of a precautionary approach to environmental protection. While she was focusing on damage to natural resources, the same approach should be taken when talking about threats to human health. Administrator Whitman said that policymakers "must:

1) acknowledge that uncertainty is inherent in managing natural resources,

2) recognize it is usually easier to prevent environmental damage than to repair it later, and

3) shift the burden of proof away from those advocating protection toward those proposing an action that may be harmful" She also discussed building in a margin of safety based on the level of uncertainty surrounding information.

Uncertainty is also a common problem in environmental regulation. The federal government has for the most part chosen not to regulate the emission of pollutants that do not have known and demonstrated deleterious effects. In a recent law review article, one author pointed out that "of the more than 70,000 chemicals in commercial use, no information on toxic effects is available on seventy-nine percent, less than one-fifth have been tested for acute toxic effects, and less than one-tenth for chronic, reproductive, or mutagenic effects." (Robert Kuehn, The Environmental Justice Implications of Quantitative Risk Assessment, 1996 U. ILL. L. REV. 103, at 144.)

Communities of color should not be disproportionately exposed to substances which may be harmful, even if the degree to which they are harmful is uncertain. There is no doubt that living with exposure to chemicals whose detrimental impacts are unknown is a harm that anybody would prefer not to face. The precautionary principle holds that when facing uncertain, yet potential risks, one should err on the side of caution.

In the context of a permitting decision or a Title VI investigation, when risks due to a chemical exposure - or to a synergistic combination of exposures - is unknown, it should be considered an "adverse impact."

7. Condition or Deny Permits That Have an Adverse Disparate Impact on a Community of Color

One recognized avenue for addressing environmental justice concerns is to place conditions on the permit. In some cases, causes can be addressed by denying the permit. In others, conditions on the permit can address the concerns. Such conditions might include monitoring obligations for the permittee, process controls, controls on handling of substances, the obligation to conduct further studies in a specific area of concern, and remedial measures attenuating the effects of the permitted activities. Permit conditions are a flexible tool that can and should be used by the Agency in order to minimize the adverse effects of permitted activities on environmental justice communities.

8. Strengthen the Title VI Program

This past spring, the Supreme Court issued a decision in the Alexander v. Sandoval case which denied individuals an important avenue to enforce Title VI implementing regulations prohibiting disparate impact on race, color or national origin. The Lawyers' Committee is deeply concerned about the decision, because it is contrary to both long-standing legal precedent and Congressional intent. Currently, the issue of a private right of action to enforce EPA's Title VI regulations using 42 U.S.C. §1983 is in litigation before the Third Circuit.

We filed amicus briefs in both cases because the question of a private right of action is immensely important. If individuals are not allowed to sue to protect their rights and enforce laws that prevent a disparate impact, federal money will be used to discriminate. Without a private right of action, government agencies like EPA will become the sole avenue for communities seeking to enforce Title VI regulations or challenging violations.

Therefore it is critical that EPA devote the resources and actually enforce its Title VI regulations. EPA's track record is not good. While Title VI has been around for over 35 years - EPA a little less - it was only within the past eight years that EPA has acknowledged its responsibilities under Title VI. But that acknowledgment was not accompanied by adequate resources to implement a Title VI enforcement program.

The result has been that without the credible threat of enforcement by EPA, states have refused to acknowledge or accept their nondiscrimination obligation. Consequently, they do nothing to really address issues of disparate impact. While some state and local agencies are in the process of developing a variety of environmental justice-related activities, when push comes to shove - as it does in litigation - states often fight the idea that they have nondiscrimination responsibilities that extended beyond their environmental ones.

A. Complainant's Appeal Process

EPA should establish an appeal process for Title VI complainants. While recipients can appeal a finding of discrimination, there is no appeal process for complainants if their complaint is dismissed. Communities have administrative appeal rights in the environmental permitting context, but not in the civil rights administrative process. There appears to be no reason to deny communities the right to appeal in the civil rights context. The absence of an appeal process will become even more troublesome if the courts find there is no private right of action under the regulations through § 1983.

B. Implement a Compliance Review Process

Likewise, in order to properly implement Title VI, EPA needs a Title VI compliance review program. Despite provisions that have been in its regulations for years for pre-award and post- award compliance reviews, EPA has taken no steps to ensure that its grantees are complying with their Title VI obligations. EPA has no idea whether its money is being used to support discrimination.

Instead, the Title VI program has consisted of responding to complaints from communities. This places an unfair burden on communities to serve as the only policing force of civil rights compliance by EPA recipients. EPA should be working to ensure compliance on the front end, rather than waiting until a complaint is filed.

C. Improve Title VI Guidance for Investigating Permitting Complaints

About a year ago, the Lawyers' Committee provided comments on EPA's Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits. The draft Guidance departs substantially from Title VI¹s purpose, intent, and meaning.

Specifically, it proposes to limit Title VI's application in a way that not only is contrary to the language and established interpretation of the statute, but also acts to sharply weaken EPA's enforcement of civil rights protections.

I will provide copies of the Lawyers' Committee's written comments submitted to EPA, but I also want to mention one critical change that should be made in order bring the guidance into alignment with the broad nondiscrimination goal of Title VI.

Within the Recipient's Authority

The draft Guidance strictly narrows the impacts cognizable under Title VI to only those impacts which are "within the recipient's authority to consider, as defined by applicable laws and regulations." When describing which "applicable laws and regulations" will grant this authority, EPA points to "permit programs" or "broader, cross-cutting matters, such as state environmental policy acts."

This limitation is too narrow for proper Title VI enforcement. It confuses Title VI obligations with environmental authority. Specifically, the scope of impacts relevant to Title VI does not depend on whether the aid recipient has "authority to consider" such impacts under relevant environmental law and regulation.

The authority and the obligation to consider a full range of potentially adverse disparate impacts derives from Title VI, which binds federal aid recipients independent of their other responsibilities under state and federal environmental law. Title VI's mandate is not only independent, it is broad. It may be true that environmental law allows a permitting agency's exclusive consideration of environmental factors, but Title VI is a civil rights law which prohibits such limited consideration.

Thus, Title VI provides recipient environmental agencies with both the authority and obligation to consider all the impacts of their decisions that are adverse, not just environmental. This limit on Title VI is not supported by the either the statute or precedent.

In remarks in May 1999 before EPA's Title VI Implementation Advisory Committee, senior representatives from EPA's Office of General Counsel and the Civil Rights Division of the Department of Justice acknowledged that examining impacts beyond the limited scope of the recipient's authority was a legally defensible position. However, as a matter of policy, a more restrictive interpretation was adopted. EPA must adopt the broader theory in order to implement Title VI as Congress intended.

The draft Guidance, in its present form, seeks to limit Title VI essentially to a sub-species of environmental regulation. This would erroneously and substantially retrench on the civil rights protections Title VI was designed to afford and blind EPA to categories of discriminatory practices by recipients of federal funds. We strongly urge EPA OCR to correct these errors and issue Guidance that accurately reflects the scope and reach of Title VI.

8. Build Protections For Communities of Color Into ADR Processes

EPA's Title VI regulations call for the Office of Civil Rights (OCR) to pursue informal resolutions of administrative complaints wherever practicable. EPA has chosen to use alternative dispute resolution (ADR) techniques to reach informal resolution between complainants and recipients. EPA believes ADR is helpful to "design and implement a process leading to an outcome acceptable to all parties." We believe the Title VI administrative process should focus on eliminating discrimination, not just on achieving consensus.

ADR processes should take into account the inherent inequalities in bargaining powers between states and industry and the community. The differences in education, culture, and access to information and resources make for an un-level playing field. States and industry enter the ADR proceedings in a superior position to most communities.

Equal access to information is critical to ensuring a positive and fair outcome. Without discovery - or an investigation by EPA into the allegations of disparate impact - communities are at a disadvantage when negotiating because they maybe left without much real information or evidence to rebut the facts as presented by the recipient. Where there are no procedural safeguards to protect disadvantaged communities, there is no guarantee that a negotiation will be fair, result in an outcome acceptable to all parties, or more importantly eliminate discrimination.

Formal adjudicative processes have discovery rules to prevent abuse by parties. Also, a third- party neutral does not have the same equalizing purpose as a judge and may not have the authority to force or demand a fair exchange of facts and data.

While complaints may be taken off of EPA's books as a result of an informal resolution, the discrimination may not have been eliminated. If ADR is seen as a tool to remedy discrimination, then procedures and safeguards must be employed to protect communities. These comment apply not only in the Title VI context, but whenever EPA employs ADR to resolve environmental justice issues.

9. Place More Emphasis on and Devote More Resources to Environmental Justice

We were heartened to see Administrator Whitman's recent memo on environmental justice. Setting a tone for the Agency is very important. Holding senior Agency management responsible for progress within their programs is critical. More important than policy statements and proclamations are progress and positive results in low-income communities or communities of color.

EPA, and state and local permitting agencies need to change the way they conduct their permitting programs. While some progress has been made in the past eight years, there is still much more to be done. In order for real change to occur, EPA needs to devote more resources, provide credible and coherent leadership throughout the Agency on environmental justice, and hold senior managers accountable for implementing environmental justice.

BEST PRACTICES:

1. Improvements to Public Participation Processes

Government agencies have designed programs to improve public participation reach out to communities - such as the Department of Transportation's transportation outreach programs - to facilitate cooperative efforts in resolving pressing environmental justice concerns. The NEJAC has also has done similar work with its Model Plan for Public Participation.

2. Stakeholder Dialogues

Agencies have held stakeholder meetings to bring distinct interests together to discuss different environmental justice issues. This is critical to advancing debate and allowing the Agency to hear from a variety of perspectives. The NEJAC and the Public Dialogues on Urban Revitalization and Brownfields are both good examples of this type of multi-stakeholder process.

3. Grants to Communities

Agencies have also provided seed money and resources to communities to promote projects addressing environmental justice. Some of these grants, like Office of Environmental Justice's small grant program, have been used to provide technical assistance to communities during the permitting process. Often a community needs to master highly technical information in order to understand the nature of the environmental and human health impacts a facility will bring. Many communities of color do not have the expertise available to interpret this information. Grants that can be used to provide communities with technical assistance are of great value to communities.

4. Health and Environmental Research into Conditions of Environmental Justice Communities

Federal agencies have also conducted research and studies focused on the health impact of environmentally harmful exposure on communities of color. More such health studies are needed.

All of the things I have mentioned will improve the service the EPA provides to communities of color and will further the goals of environmental justice for all. They will:

• enable EPA to prevent and/or reduce disparate impacts on environmental justice communities,
• contribute to better public health in those communities, and
• produce fair treatment and meaningful involvement of those communities during the entire environmental permitting process.

I want to thank you all very much for your interest in this critically important legal and policy issue. Environmental justice must be an essential component of our environmental and anti- discrimination laws, and national environmental and civil rights policy. Nothing less is acceptable if we are to meet the challenge of achieving equal justice under law - a pursuit to which we are all committed.

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