Environmental Justice Coalition

Mission

Community Empowerment and Sustainable Development Act

Short Title: Environmental Justice Act

The Environmental Justice Coalition (EJC) seeks to develop an Environmental Justice Act (EJA) to provide the framework for protecting communities with the poorest health, greatest concentration of environmental pollutants or least economic development from additional sources of pollution. The EJC will also develop an EJA that will provide communities with the poorest health, greatest concentration of environmental pollution or least economic development with mechanisms to attract sustainable development projects. The EJA will provide communities with the means to participate in the environmental permitting process and will provide applicants for environmental permits with certainty regarding site selection.

The EJA should include the following components:

A citizen lawsuit provision to allow potential victims of environmental race discrimination to enforce the EJA and the regulations promulgated thereunder.
A citizen endorsement provision to allow potential beneficiaries of nonpolluting economic development to enforce the EJA and the regulations promulgated thereunder.
The criteria for determining potential violations and endorsements of the EJA would be based on comparative community health statistics, comparative community pollution sources and comparative community economic development.
The EJA will cover: a) acts of discrimination, b) existing comparative community health, c) existing comparative community pollution sources and d) existing comparative economic analyses.
The EPA will be obligated to accept and investigate all community complaints whether filed before or after issuance of construction and operating permits.
Citizens and EPA, at the request of citizens, will have the right to obtain injunctions to prevent construction and operation of discriminatory polluting facilities and operations that violate the EJA regulations. Citizens and EPA, at the request of citizens, will have the right to endorse the construction and operation of nondiscriminatory nonpolluting facilities and operations that do not violate EJA regulations. The EJA will provide a definitive permitting process regarding demographics for citizens, developers, government agencies and investors.
The U.S. Environmental Protection Agency (EPA) would develop EJA regulations. The EJA will establish a new EPA Office of Health Protection (OHP) to investigate community health statistics and to coordinate research and related activities with the following offices. The EPA Office of Environmental Justice (OEJ) would be expanded to provide adequate staff and resources to investigate community pollution sources. The EPA National Center for Environmental Economics (NCEE) would investigate community economic impacts.

The Office of Health Protection would be the lead office for coordinating scientific research activities with OEJ and NCEE. The OHP, in consultation with OEJ and NCEE, will develop criteria for establishing disparate community impacts related to proposed projects. I agree. These offices will provide appropriate outreach to the public, States, counties and cities to assure that they are aware of the availability of this service. EPA, through the OHP, in consultation with OEJ and NCEE, will provide timely reports to communities requesting assistance in evaluating proposed facilities.
The Office of Health Protection would be an expansion of EPA's current Office of Children's Health Protection and would include research and policy development to protect all vulnerable populations: children, low-income and disadvantaged minority communities and aging populations. The new OHP will also coordinate the 2002 Memorandum of Understanding (MOU) between the Department of Health and Human Services (HHS) and EPA on developing a nationwide environmental health tracking network. The Office of Health Protection, in addition to collecting health statistics, will research, analyze, develop and provide to the public, requesting communities and individuals, the latest science policy information and decisions that impact the environment and health of minority and disadvantaged communities.

Current Deficiencies in Environmental Health Protection

EPA does not have the authority to prevent the construction of a proposed polluting facility. EPA does not have the authority to approve the construction of a proposed nonpolluting facility. If subsequent to the issuance of an operating permit the EPA were to find a civil rights violation, the EPA would have no power to stop the operation or even to provide any other form of relief to the victimized community.
EPA's only remedy against an environmental civil rights violating state is to attempt to cut off financial assistance to the violating state. EPA has never requested a cut-off of financial assistance to a state for such a violation. Moreover, the cut off of such funds can only occur if the U.S. Congress does not object.
Courts have ruled that victims of environmental racial discrimination have no standing to privately enforce federal agency civil rights regulations.
A community may file a civil rights complaint with the EPA only after a state has already issued a permit to operate the facility being opposed.
Of the 130 environmental justice complaints filed by minority communities across the nation between 1992 and 2002, only four (4) have been fully investigated and EPA has ruled against all of those complainants. And even if EPA ruled in favor of such complainants for an environmental civil rights violation, the agency would be powerless to provide any relief to the complaining community.

Current Environmental Justice Program Under Title VI of the Civil Rights Act

Existing civil rights laws, regulations and former President Clinton's Executive Order On Environmental Justice do not provide any relief for victims of environmental injustice. The criteria for defining environmental racism are so different in nature from the criteria used to define individualized racial discrimination that the Civil Rights Act of 1964 is not really applicable for resolving environmental racism problems. Current provisions:

Victims of civil rights discrimination may file a complaint with the EPA. (40 C.F.R. 7.120)
The EPA will accept environmental civil rights complaints but only after a State has granted an operating permit. (40 C.F.R. 7.120 (b)(2))
The EPA does not investigate whether State departments of environment are complying with its civil rights obligation. (40 C.F.R. 7.80)
The EPA cannot provide any effective relief to a civil rights complainant under its own regulations.
The sole relief available for victims of environmental civil rights violations is through a private action against a state if the community can prove intentional discrimination. To date, no such action has been successful. [Examples]

Sources: Additions, Revisions & Edits: Norris McDonald, President, AAEA. "Environmental Justice 2002: Time for A Change," Jerome Balter, Esquire, Director, Environmental Law Project, Public Interest Law Center of Philadelphia.