Environmental justice agreement over-regulates, critic says

By Michael P. Tremoglie | Aug 18, 2011



An Aug. 4 agreement among federal agencies to provide environmental justice to communities overburdened by pollution is merely another attempt to over-regulate and control the free-market, opponents say.

According to a press release, the Environmental Protection Agency Administrator Lisa P. Jackson, White House Council on Environmental Quality Chair Nancy Sutley and U.S. Attorney General Eric Holder were joined by other government officials in signing the "Memorandum of Understanding on Environmental Justice and Executive Order 12898" (EJ MOU).

President Obama's administration states that "environmental justice" means that all communities overburdened by pollution - particularly minority, low income and tribal communities - have equal protection from environmental and health hazards and equal access to the federal government.

But according to Donald J. Kochan, associate professor of law at Chapman University School of Law in Orange, Calif., this memorandum is not all that it appears.

"Masked in the rhetorically irrefutable term 'justice,' the MOU is an attempt to legitimize in law an additional rationale to deny permits or other authorizations or to place costly and burdensome conditions on projects that will have little to do with improving the environment," he said.

"Agencies predisposed against a project can use the broad environmental justice banner as a pretext against permitting activities they find undesirable on other grounds."

Professor Kochan claims that National Environmental Policy Act (NEPA) and other requirements were initially intended to require government to look at the effect on the environment of a project and to consider alternatives.

But the law of unintended consequences has been manifest in that NEPA has evolved into "overly burdensome legal obligations and has formed the bases for lawsuits challenging agency decisions. These environmental justice initiatives just add more fuel to the litigants' fire."

Instead of streamlining the environmental reviews this MOU increases the bureaucratic procedures, Kochan believes. It will increase project costs and add to more delays.

"By broadening the number of agencies subject to environmental justice obligations in their programs and policies, the MOU will lead to requirements where almost any type of activity that requires a federal agency approval be vetted for highly subjective concepts of 'unjust impacts,'" he said.

According to the Obama administration, the MOU advances agency responsibilities outlined in the 1994 Executive Order 12898, "Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations."

The Executive Order directs each of the named federal agencies to make environmental justice part of its mission and to work with the other agencies on environmental justice issues.

Last September, Jackson and Sutley reassembled the Interagency Working Group on Environmental Justice (EJ IWG), a group that has not met since the Clinton administration.

The EJ MOU broadens the reach of the EJ IWG to include participant agencies not originally named in Executive Order 12898 and adopts an EJ IWG charter, which provides the work group with more structure and direction.

The origins of the environmental justice movement can be found in a small, poor, predominantly black community in North Carolina in 1978 when a landfill was proposed to dispose of contaminated soil generated by illegal dumping of toxic waste by a transformer company.

Residents of that community thought that the location for the proposed landfill location was politically motivated because of the impoverished and politically powerless citizens rather than by scientific criteria.

Eventually they organized a protest and 500 people were arrested. The media called it the marriage of civil rights and environmentalism.

The most famous example of the environmental justice movement is that of Erin Brockovich. Her story was made into a movie. She was working as a law firm file clerk when she noticed something that led to an investigation of a California utility company.

Because of Brockovich's efforts, Pacific, Gas and Electric paid $333 million to the residents of the town of Hinkley, Calif., during the period from 2006 to 2008. The company was found guilty of illegally poisoning the groundwater. It was, reputedly, the largest tort settlement in American history.

The case is portrayed in a movie as an example of environmental justice. It is portrayed as the common man, "a modern David," winning against a commercial giant, a modern "Goliath."

But, according to a 2000 article in Salon magazine, the reality is quite different from the Hollywood version. The April 14, 2000, article by Kathleen Sharp says, "... many plaintiffs in the Hinkley case say the movie misrepresents what happened ... many of the townspeople who sued complain their awards were smaller than they deserved."

The article went on to say that some hired lawyers to get back excessive legal fees charged to children. "They said the attorneys kept (the claimants) awards for six months after the settlement money was delivered and that they didn't receive interest on it."

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