[DJC]

[Protecting the Environment]

EIS MUST NOW LOOK AT ENVIRONMENTAL EQUITY

BY DR. GREGORY POREMBA
Jones & Stokes

Over the past few decades, a burgeoning list of environmental laws has sought to protect and restore the nation's air, water, soil and wildlife. The National Environmental Policy Act (NEPA), Endangered Species Act, Clean Air Act, Clean Water Act, and others regulate what humans can do with their environment.

But for many citizens, a piece of the puzzle has been missing. Impacts on humans themselves -- especially people in low-income and minority communities -- have not received enough consideration.

The environmental justice movement, which began in the 1970s, has received significant attention during the last several years. The movement expresses the concern that projects have been disproportionately sited in communities where people lack the political power and the legal knowledge to resist environmental impacts.

There is also concern that projects have been placed in communities where people have lower tolerances for environmental impacts because of poor diets or reduced access to medical care.

On Feb. 11, 1994, low-income and minority populations were empowered in the decision-making process when President Clinton signed Executive Order 12898, "Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations."

The order does not usurp existing regulations, but it requires that minority and low-income groups be seriously incorporated into the decision-making process, as is already required under NEPA. It is intended to heighten agency attention toward alternatives, mitigation strategies and preferences of minority and low-income people.

Under NEPA, preparation of an environmental impact statement (EIS) is still not required if significant social or economic impacts are anticipated from a project. Only potential significant adverse environmental effects can trigger an EIS. However, if significant environmental impacts are anticipated, impacts on minority and low-income groups are to be evaluated and significant disproportionate impacts are to be identified and mitigated to the extent possible.

In the end, though, identifying disproportionate impacts to minority and low-income people does not necessarily preclude an agency from allowing development of a project.

Environmental justice must be considered in combination with the severity of other impacts. In addition, the Executive Order contains a provision stating that the order does not create new opportunities for legal challenges against federal agencies for violations of the order.

As stated in the Executive Order, federal agencies are to "ensure that programs, policies and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination . . . because of their race, color, or national origin."

A number of agencies have developed their own strategies and guidelines for complying with the Executive Order. At a minimum, these strategies are to promote enforcement of all health and environmental statutes, ensure greater public participation, improve research and data collection, and identify differential patterns of consumption of natural resources (subsistence harvesting of fish, wildlife and plants) for minority and low-income populations. The order emphasizes that the human health, economic and social effects are to be evaluated under NEPA for federal actions.

Much of the Executive Order is oriented toward reducing the human health risks for minority and low-income people. This is to be done by: including broad segments of the population, including people at high risk, in epidemiological and clinical studies; ensuring collection, maintenance and analysis of information by race, national origin and income; and identifying multiple (from several concurrent sources) and cumulative (historical) exposures in health analyses.

It also allows for the collection and analysis of information on race, national origin and income once a project is built to document changes in population characteristics in those areas.

As the federal lead under NEPA, the Environmental Protection Agency issued draft guidelines for incorporating environmental justice considerations into EISs in May. Public comments on that draft were to be submitted by July 1. The Council on Environmental Quality (CEQ) also issued its draft guidelines in May. Other agencies have drafted their own guidelines as well.

With the development of these draft guidelines, a great deal of activity has occurred in trying to identify where environmental inequality is happening and develop methods for determining impacts on minority and low-income people.

A significant debate is going on about whether these siting decisions have been intentional, or more the result of the availability of large areas of less expensive lands that happen to be located within minority and low-income communities.

Studies have clearly shown that hazardous waste treatment and storage facilities are sited in minority and low-income communities, or are placed so that the impacts from those facilities fall disproportionately on minority and low-income people. Research has been much less conclusive about whether disproportionate effects occur for other types of projects.

Questions have also been raised about how to evaluate environmental equity.

  • How does one define the boundaries of a community (sociologists have been debating this issue for years), and how large a geographic area should be analyzed to identify disproportionate impacts?

  • Once the overall area of study has been identified, how should that area be divided into smaller areas for detailed analysis? Some studies have evaluated impacts on communities by zip code, but the use of census tracts appears to be more commonly accepted and to provide meaningful results.

  • Should environmental equity be evaluated on an industry-wide basis (i.e., separately for hazardous waste facilities, industries, utilities, timber cutting, mining) or across all types of development within a community? The former evaluation would lead to some greater efforts at comprehensive, long-term planning, but the latter evaluation would significantly increase that effort, possibly beyond our current planning and "crystal ball" capabilities.

Questions are also being asked about how to define and measure variables used to evaluate impacts. Many of the studies being conducted now are using data from the U.S. Bureau of Census, as well as the bureau's definitions of minority, poverty, income categories, and so forth. Others are asking what represents a "disproportionate" impact. Within its guidelines, the CEQ has provided definitions of these terms to be used under NEPA.

Finally, debate also centers around the question of how to mitigate damage once environmental inequality has been identified. That's the multi-million-dollar question that many have avoided and will continue to dodge.

The effects of the Executive Order are already being felt throughout the United States, even though most agency guidelines are still only in draft.

In a recent national workshop held in Bellevue by the Edison Electric Institute, a senior member from an electric utility in the southeastern United States described the effects of environmental equity on siting a powerline. For a portion of that line, the utility was restricted to either siting the line through a wetland or a low-income, minority neighborhood.

Because of the significant permitting and mitigation requirements involved in traversing a wetland, the utility elected to route the powerline through the neighborhood. The people in that neighborhood strongly opposed the powerline and mounted a campaign to stop it.

As a result of that opposition and the empowerment provided by the Executive Order, the project schedule was significantly delayed and costs increased to address lawsuits. A manager at the utility said that, given the same circumstances with future powerlines, the utility would always route powerlines through wetlands.

Other utility representatives at the workshop acknowledged that the Executive Order and environmental equity movement had affected their siting and permitting processes, and described similar difficulties.

The issue of environmental justice and equity will have increasing effects on the planning and construction of projects on federal lands and projects receiving federal funding over the next few years. A cloud of uncertainty will exist until definitions, methodologies, data and legal precedence are sorted out -- as occurs for any new legislation or federal directive.

Also it would not be surprising if the means for addressing the issue and implementing it go beyond the original intent of the Executive Order. Some states are also discussing revising their environmental compliance and planning requirements. The existence of a widespread social movement and network nationwide will likely result in further refinements and requirements.

The Washington Office of Environmental Justice in Washington, DC., (telephone 202-637-2467) has been established as an information center to address this issue.

Gregory Poremba has a Ph.D. in sociology and is a senior project manager at Jones & Stokes Associates in Bellevue.

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