Center for Progressive Reform, November 13, 2008

AN EXECUTIVE ORDER FOR ENVIRONMENTAL JUSTICE: KEEPING THE PROMISE

[Rachel's introduction: Here is a detailed proposal, submitted to President-elect Barack Obama, for an "Environmental Justice" (EJ) executive order fixing the broken EJ executive order, #12898, issued by President William J. Clinton.]

By CPR Member Scholars**

[Rachel's introduction: The Center for Progressive Reform in Edgewater, Maryland has issued a new report titled "Protecting Public Health and the Environment by the Stroke of a Presidential Pen: Seven Executive Orders for the President's First 100 Days." Here is their proposal for an executive order on Environmental Justice.]

Introduction

U.S. environmental laws have dramatically improved the quality of the nation's air, water, and wilderness, while saving countless lives. But environmental protection efforts continue to produce radically unequal results when compared on the basis of race, class, sex, and age.

For instance, African Americans have the highest asthma rates of any racial or ethnic group in the country and are three times as likely as whites to be hospitalized for asthma treatment.[12] Poor children and children of color are eight times more likely to have elevated levels of lead in their blood than other children.[13] Respiratory illnesses and elevated blood lead levels are but a few of the troubling indicators that stem from documented disparities in exposure to a wide range of pollution and risk-generating practices.

The nation's environmental laws also produce inequalities based on diversity in culture and lifeways. For example, the fishing tribes in the Great Lakes, the Pacific Northwest, and elsewhere are disproportionately harmed when the fish on which they rely become contaminated with mercury. In fact, nearly one-third of Native American, Asian American and Pacific Islander, and "mixed race" women of childbearing age have blood mercury levels above EPA's "safe" threshold, putting their developing babies at risk. This level is more than double that for white women.[14] Global climate change is also complicating the picture. Vulnerable populations like the poor and the elderly will be especially at risk as droughts, heat waves, and storms intensify.

Moreover, many fear that even well-intended policies to confront climate change could backfire in environmental justice terms. Capand- trade proposals -- which promise efficient reductions in greenhouse gas emissions -- could actually intensify local concentrations of particulate matter and other pollutants that accompany carbon emissions in poor cities, if polluters there choose to buy extra permits to pollute. In addition, investments to promote clean energy and expand "green collar" jobs run the risk of bypassing those in shuttered industrial towns or the crime-ridden inner city, reinforcing the country's "wealth gap."

Responding to such inexcusable disparities in the distribution of environmental benefits and burdens, Executive Order 12898, issued by President Bill Clinton in 1994, promised to reshape federal agency action toward achieving environmental justice for minority and low- income communities. The 15th anniversary of the Order will arrive just three weeks into the new President's term. Even cursory reflection reveals that Executive Order 12898 has failed to live up to its promise, and needs an overhaul.

EXECUTIVE ORDER ENVIRONMENTAL JUSTICE: KEEP THE PROMISE

REQUIRE agencies to analyze the environmental justice impact of rules and require them to address environmental injustice affirmatively.

The failures of Executive Order 12898 are in part attributable to shortcomings in the provisions of the Order itself. Its biggest fault is its timid approaches to key concepts like "environmental justice communities" and "subsistence." For instance, the Order makes the mistake of framing too narrowly the inquiry of what an "environmental justice community" might be, insisting that its harms be "disproportional" to some undefined standard. As a result, intractable problems of proof stymie constructive action.

The understanding of "subsistence" is troubling too, with potentially dire consequences for American Indian peoples' cultural resources and rights. For American Indian tribes and Alaska Native villages, subsistence goes beyond physical sustenance. Rather, it describes a communal way of life that has physiological, psychological, social, cultural, and spiritual dimensions. And it implicates practices to which Indian tribes have legal rights, including rights protected by treaties and the federal trust responsibility. The original Order, however, failed to make such an understanding explicit, and today many federal agencies too narrowly define subsistence to refer to a threshold level of individual caloric intake. If tribal members no longer meet this threshold, agencies do not count them as "subsistence" populations -- and decline to consider whether agency actions contribute further to depletion and contamination of the fish, wildlife, and plant resources. Thus, under the original Order, agencies may permit contamination of fish, advise tribal people to curtail their intake of this traditional food, and then effectively penalize them if, as a result, fish no longer comprise the "principal portion" of their dietary intake. This approach actually undermines the subsistence way of life it is supposed to honor.

Additionally, the original Order provides little impetus for an affirmative environmental justice agenda. Its focus is primarily limited to the elimination of disproportionate environmental burdens. But the emergence of the new "green" economy holds the promise that environmental protection will spawn a new set of economic opportunities -- new jobs, new investments in infrastructure, and new technologies. As these new environmental benefits begin to take shape, the U.S. government must ensure that they are distributed in a way that is inclusive and fair, so that all communities share in the dividends of the new green economy.

Finally, the original Order gives little direction to agencies in integrating environmental justice into their core missions, and provides no meaningful mechanism for measuring progress and holding agencies accountable over the long term. Agencies issue scores of regulations each year that have environmental justice implications. But these agencies often fail to ask who will bear the burdens and who will reap the benefits of a regulation, or to consider whether the regulation ameliorates or exacerbates current inequities.[15] As a result, environmental justice often fails to make it onto agencies' radar screens.

When agencies do identify environmental justice as a potential concern during the rulemaking process, their responses often indicate a misunderstanding of the relevant issues.

For example, when EPA purported to assess the environmental justice impacts of its final "Clean Air Mercury Rule," which would have postponed and weakened reductions in mercury emissions, EPA observed that Native Americans, Southeast Asian Americans, and others would be better off with the rule's meager reductions than with nothing. Indeed, in a particularly callous twist, EPA asked "whether high fish- consuming (subsistence) populations would be disproportionately benefited by the final rule,"[16] despite EPA's own data showing that many in these groups would be left exposed to unsafe levels of mercury in fish.

Solution by Executive Order

After nearly 15 years of false starts and neglect, the next President can take the first meaningful steps towards fulfilling the nation's commitment to Environmental Justice by amending or replacing the original Executive Order on environmental justice. The new Order should:

(1) clarify the key terms "environmental justice communities" and "subsistence";

(2) require a meaningful analysis of the environmental justice impacts and implications of all major new rules;

(3) impose on agencies a substantive obligation to take affirmative steps to ameliorate environmental injustice;

(4) launch an affirmative environmental justice agenda; and

(5) hold agencies accountable for carrying out their environmental justice obligations. As is the case with the provisions of the existing Executive Order on Environmental Justice, all of these recommendations are consistent with the goals of Title VI of the Civil Rights Act.

1. Clarify Key Terms

The phrase "environmental justice community," while easily understood conceptually, has proved difficult to define with precision. The contexts in which environmental injustices occur vary widely, rendering abstract definitions inadequate. In addition, national databases do not typically capture all of the impacts that occur at the local level. Accordingly, a more appropriate framework for identifying "environmental justice communities" should be developed to account for these issues. This framework should include the following features:

(1) a broad list of factors that allow for the identification of areas of concern without excluding disadvantaged communities;

(2) a requirement that agencies consider both communities that are disproportionately impacted and those that face unacceptably high risks or exposures; and

(3) language that is carefully phrased to avoid giving rise to debates about causation.

Second, the new Order should address American Indians' and Alaska Natives' unique concerns regarding "subsistence." The original Order directs agencies simply to collect information about subsistence consumption of fish and wildlife and to issue consumption advisories when these resources are contaminated. While it provides that these agency responsibilities "apply equally to Native American programs," it fails to address the special circumstances, political status, and legal rights of Indian tribes and their members. The next President should, after consulting with tribal leaders, take steps to address Indian tribes' subsistence concerns, by amending Executive Order 12898 (a) to correct its misunderstanding of "subsistence" and (b) to direct agencies, after consulting with tribes according to Executive Order 13175,[17] to develop strategies to address the adverse impacts of federal programs, policies, and activities on the subsistence practices of American Indians and Alaska Natives.

2. Require a Meaningful Environmental Justice Analysis of Major Rules

The new Order should require agencies to conduct an environmental justice analysis for each major rule. Further, in order to ensure that such analyses are rigorous and meaningful, the new Order should direct the EPA to create an advisory committee charged with developing an appropriate methodology and protocol for conducting such analyses. This advisory committee should include members of the environmental justice community. It should also conduct a series of meetings around the country with various environmental justice communities and use their input in developing the methodology. The methodology should include specific procedures for agencies to conduct outreach to and obtain input from affected environmental justice communities in conducting these analyses.

3. Make a Substantive Commitment to Ameliorate Environmental Injustice

Analysis is a waste of time and resources unless it is linked to a commitment to take meaningful action. Section 1-101 of the existing Order directs agencies to "address" environmental justice concerns, but this language has proved to be too vague. Agencies often interpret it as requiring only analysis, not action. Accordingly, the new Order should impose on agencies a clear obligation to take affirmative steps to ameliorate environmental injustice to the maximum extent feasible, consonant with other legal obligations and constraints.

4. Launch an Affirmative Environmental Justice Agenda

The next President should launch an affirmative environmental justice agenda, announcing a set of goals aimed at ensuring that the benefits of the emerging "green" economy are distributed in a way that is inclusive and fair. These goals should include the development of "green-collar" jobs, job training, and new green businesses in traditionally disadvantaged environmental justice communities. The federal government can encourage the achievement of these goals through tax breaks, the creation of "green enterprise zones," and other creative solutions. Accordingly, the new Order should also direct each federal agency to exercise its discretion, consistent with existing law, to promote the goals of an affirmative environmental justice agenda wherever possible. Further, the Order should direct each agency to develop a plan outlining how existing programs will be administered in order to promote these goals and recommending new programs for achieving them, including, where appropriate, new proposed legislation.

The next President should launch an affirmative environmental justice agenda, announcing a set of goals aimed at ensuring that the benefits of the emerging 'green' economy are distributed in a way that is inclusive and fair.

5. Hold Agencies Accountable

The new Order should include procedures for holding federal agencies accountable for carrying out their environmental justice obligations. Specifically, it should require each agency to develop an agency-wide environmental justice plan that identifies and addresses programs and policies that threaten to undercut environmental justice. These plans should also incorporate the affirmative environmental justice plan described above. To ensure the ongoing and effective implementation of these plans, the Order should require agencies to revise and update their environmental justice plan every two years and submit it as a public report to the President. Furthermore, the Order should require that the President designate a new or existing office within the White House to oversee implementation of the new Order.

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CPR Member Scholars include (see biographies below): Rebecca M. Bratspies, David M. Driesen, Robert L. Fischman, Sheila Foster, Eileen Gauna, Robert L. Glicksman, Alexandra B. Klass, Catherine A. O'Neill, Sidney Shapiro, Amy Sinden, Rena Steinzor, Robert R.M. Verchick, and Wendy Wagner, and CPR Policy Analyst James Goodwin

About the Authors

Rebecca M. Bratspies is a Member Scholar of the Center for Progressive Reform and an Associate Professor of Law at the CUNY School of Law, New York, New York. She holds a J.D. cum laude from the University of Pennsylvania Law School and a B.A. from Wesleyan University. Before teaching, Professor Bratspies served as a legal advisor to Taiwan's Environmental Protection Administration. Professor Bratspies has two forthcoming books:

Progress in International Institutions, and Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration.

David M. Driesen is a Member Scholar of the Center for Progressive Reform and a University Professor at Syracuse University. He holds a J.D. from Yale Law School. Prior to entering academia, Professor Driesen worked as a project attorney and then senior project attorney in the air and energy program for the Natural Resources Defense Council. He was an Assistant Attorney General in the Special Litigation Division of the Washington State Attorney General's Office. Professor Driesen has published widely in the areas of environmental law and policy, including co-authoring the textbook Environmental Law: A Conceptual and Pragmatic Approach (Aspen 2007) with CPR Member Scholar Robert Adler.

Robert L. Fischman is a Member Scholar of the Center for Progressive Reform, Professor of Law, Harry T. Ice Faculty Fellow, and Professor of Public and Environmental Affairs (adjunct) at the Indiana University School of Law-Bloomington. Prior to his academic career, Professor Fischman served as Natural Resource Program Director and Staff Attorney at the Environmental Law Institute in Washington, D.C. He is a distinguished scholar whose articles have won recognition as among the most influential in environmental law. He has written on public land management, endangered species recovery, environmental impacts analysis, federalism, and global climate change. His book on management of the National Wildlife Refuge System has become the standard reference in the field.

Sheila Foster is a Member Scholar of the Center for Progressive Reform and a tenured full Professor at Fordham University School of Law in New York City.

Professor Foster has provided legal advice and expertise to a number of grassroots environmental justice organizations in New York, New Jersey, and Pennsylvania. For example, she was part of the litigation team suing on behalf of a community group in Camden, New Jersey claiming environmental racism in the placement of a cement recycling plant in their heavily polluted neighborhood. Professor Foster has published widely on the subject of environmental justice, and is the co-author of a NYU Press book, From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement (2001).

Eileen Gauna is a Member Scholar of the Center for Progressive Reform and a tenured full Professor at the University of New Mexico School of Law.

Professor Gauna has worked closely with grassroots environmental justice organizations and networks in the Southwestern United States. For example, she conducted workshops on the applicability of civil rights laws to environmental permitting for the South West Organizing Project, Compadres , and Tucsonians for a Cleaner Environment. Professor Gauna has published widely in the area of environmental justice and together with CPR Member Scholar Cliff Rechtschaffen, co- authored the casebook, Environmental Justice: Law, Policy and Environmental Protection (2002).

Robert L. Glicksman is a Member Scholar and Director of the Center for Progressive Reform, and holds the Robert W. Wagstaff Chair at the University of Kansas School of Law. Professor Glicksman holds a J.D. from the Cornell Law School and is a nationally recognized authority on environmental and natural resources law. Prior to joining the faculty of the University of Kansas School of Law, Professor Glicksman worked in private practice, serving industrial clients in the energy and chemical industries. He has also served as a consultant to the Secretariat for the Commission for Environmental Cooperation, an international organization established by the North American Agreement on Environmental Cooperation (the environmental side agreement to NAFTA). He has published widely in the areas of pollution control, public natural resources management, and administrative law and is the co-author of numerous texts, including the environmental law casebook, Environmental Protection: Law and Policy (Aspen Publishers).

Alexandra B. Klass is a Member Scholar of the Center for Progressive Reform and an Associate Professor of Law, University of Minnesota Law School. Professor Klass received her B.A. from the University of Michigan, and her J.D. from the University of Wisconsin Law School. She has represented citizen groups, local governments, corporations in litigated and regulatory matters relating to wetlands, cleanup of contaminated property, environmental review, eminent domain, land use, wind power, and flood impoundment projects. Professor Klass's articles have appeared in numerous law journals.

Catherine A. O'Neill is a Member Scholar of the Center for Progressive Reform and an Associate Professor of Law at Seattle University School of Law. She has worked on issues of environmental justice with various tribes, advisory committees, and grassroots environmental justice groups. Professor O'Neill is currently a member of the technical advisory board for the Swinomish Indian Tribal Community's four-year study, "Bioaccumulative Toxics in Native Shellfish." Professor O'Neill was a Ford Foundation Graduate Fellow at Harvard Law School. She has published numerous articles in the areas of environmental justice and environmental policy, many of which have been excerpted in casebooks, anthologies, and other collections on a diverse array of topics.

Sidney Shapiro is a Member Scholar and Director of the Center for Progressive Reform, and holds the University Distinguished Chair in Law at the Wake Forest University School of Law. Professor Shapiro has served as a consultant to the Administrative Conference of the United States, the Office of Technology Assessment of the U.S. Congress, and the U.S. Occupational Safety and Health Administration. Before entering academia, he served as a trial attorney in the Bureau of Competition of the Federal Trade Commission and later worked as the Deputy Legal Counsel, Secretary's Review Panel on New Drug Regulation at the Department of Health, Education and Welfare.

Professor Shapiro has published dozens of articles on regulatory policy, health and safety laws, environmental law and administrative law in prominent law reviews as well as in specialty journals.

Amy Sinden is a Member Scholar and Director of the Center for Progressive Reform, and an associate Professor of Law at the Temple University Beasley School of Law in Philadelphia. Professor Sinden graduated summa cum laude from the University of Pennsylvania Law School. Before joining the Temple Law School faculty in 2001, Professor Sinden served as senior counsel for Citizens for Pennsylvania's Future. Her recent academic writings have criticized the misuse of economic theory in environmental law. She has also written about the application of classical human rights norms to environmental conflicts.

Rena Steinzor is the President and a Director of the Center for Progressive Reform, and the Jacob A. France Research Professor of Law at the University of Maryland School of Law, with a secondary appointment at the University of Maryland Medical School Department of Epidemiology and Preventive Medicine. Professor Steinzor received her B.A. from the University of Wisconsin and her J.D. from Columbia Law School. She joined the faculty of the University of Maryland School of Law in 1994 from the Washington, D.C. law firm of Spiegel and McDiarmid. From 1983 to 1987, Steinzor was staff counsel to the U.S. House of Representatives' Energy and Commerce Committee's subcommittee with primary jurisdiction over the nation's laws regulating hazardous substances. Professor Steinzor has published widely in the areas of environmental federalism, the implications of industry self-regulation on the protection of the environment and public health, and so-called "market based" alternatives to traditional regulation. Her most recent book, Mother Earth and Uncle Sam: How Pollution and Hollow Government Hurt Our Kids was published by the University of Texas Press in December 2007.

Robert R.M. Verchick is a Member Scholar and Director of the Center for Progressive Reform. He holds the Gauthier St. Martin Eminent Scholar Chair in Environmental Law and is Faculty Director of the Center for Environmental Law and Land Use at Loyola University, New Orleans.

Professor Verchick is a graduate of Stanford University and Harvard Law School. He has provided legal advice to community organizations in Missouri, Kansas, and in the state of Washington. Before entering academia, Professor Verchick practiced law in Seattle, representing a number of local governments (and private parties suing local governments) in disputes related to environmental and constitutional law. His written work focuses on environmental policy, environmental justice and disaster law, and has appeared in many venues. Professor Verchick is the author of an upcoming book on disaster and environmental law, to be published by Harvard University Press.

Wendy Wagner is a Member Scholar of the Center for Progressive Reform, the chair of the organization's Clean Science Issue Group, and is the Joe A. Worsham Centennial Professor at the University of Texas School of Law in Austin, Texas. She received her law degree from Yale Law School. Before entering academia, Wagner served as an honors attorney with the Environmental Enforcement section of the Environment and Natural Resources Division of the U.S. Department of Justice, and as the pollution control coordinator in the Office of General Counsel of the U.S. Department of Agriculture.

Among Professor Wagner's recent publications are two books on which she collaborated with other CPR Member Scholars: Bending Science: How Special Interests Corrupt Public Health Research (Cambridge: Harvard University Press, 2008) (with CPR Member Scholar and Director Thomas O. McGarity); and Rescuing Science from Politics: Regulation and the Distortion of Scientific Research (New York: Cambridge University Press, 2006) (editor, with CPR President and Director Rena Steinzor).

James Goodwin J.D., M.P.P., works with CPR's "Clean Science" and "Government Accountability" issue groups. James joined CPR in May of 2008. He earned his B.A. in Political Science from Kalamazoo College, his J.D. (with a certificate in environmental law) from the University of Maryland School of Law, and his M.P.P. (with a concentration in environmental policy) from the University of Maryland School of Public Policy. Prior to joining CPR, Mr. Goodwin worked as a legal intern for the Environmental Law Institute and EcoLogix Group, Inc. He is a published author with articles on human rights and environmental law and policy appearing in the Michigan Journal of Public Affairs and the New England Law Review (co-author with Armin Rosencranz).

End Notes

[Because this is an excerpt from the longer report, most of the end notes have been omitted.]

[12] AM. LUNG ASSOC., LUNG DISEASE DATA IN CULTURALLY DIVERSE COMMUNITIES: 2005, 39, available at http://www.lungusa2.org/embargo/ lddcdc/LDD.pdf.

[13] Physicians for Social Responsibility -- Los Angeles, Childhood Lead Poisoning Prevention Act of 2007:

Background Information, http://actionnetwork.org/ psr_la/alert- description.tcl?alert_id=10964644 (last visited Oct. 3, 2008).

[14] Kathryn R. Mahaffey et al., Blood Organic Mercury and Dietary Mercury Intake: National Health and Nutrition Examination Survey, 1999 and 2000, 112 ENVTL. HEALTH PERSP. 562 (2004).

[15] See, e.g., U.S. GOV'T ACCOUNTABILITY OFFICE, ENVIRONMENTAL JUSTICE: EPA SHOULD DEVOTE MORE ATTENTION TO ENVIRONMENTAL JUSTICE WHEN DEVELOPING CLEAN AIR RULES, GAO-05-289 (July 2005), available at http://www.gao.gov/new.items/d05289.pdf; U.S. GOV'T ACCOUNTABILITY OFFICE, ENVIRONMENTAL JUSTICE: MEASURABLE BENCHMARKS NEEDED TO GAUGE EPA PROGRESS IN CORRECTING PAST PROBLEMS, GAO-07-1140T (July 2007), available at http://www.gao.gov/new.items/d071140t.pdf.

[16] Electric Utility Steam Generating Units, 70 Fed. Reg. 28,606, 28,648 (May 18, 2005) (emphasis added).

[17] Exec. Order No. 13175, 65 Fed. Reg. 67,249 (Nov. 6, 2000) (establishing procedures for executive agency consultation and coordination with Indian Tribal Governments).

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