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Democrats Face Grassroots Push For Stronger Environmental Justice Plans

Congressional Democrats, who are working to tighten federal environmental justice (EJ) and civil rights policies, are facing growing pressure from grassroots groups to strengthen legislative proposals that activists say do not go far enough to protect low-income and minority communities from pollution.

Some grassroots sources are arguing that a draft bill prepared by House Democrats requiring EPA to “devote attention” to EJ concerns in its decisions does not require the agency to mitigate any harms. Meanwhile, one grassroots group, the Environmental Justice Coalition, is lobbying key lawmakers to back a draft bill that allows citizen suits to block construction of polluting facilities in minority or low-income neighborhoods.

Pressure on Democrats to tighten their proposals could heighten a confrontation with the Bush administration over its controversial decision to drop race as a factor in determining whether pollution harms communities.

However, Democrats appear to be resisting the community groups’ proposals because of concerns that the citizen suit provisions would prompt widespread opposition that would block the bill’s passage.

Congressional and other sources say key Democratic leaders in both the House and Senate are backing early efforts to push several legislative proposals, including one measure that would force EPA and other federal agencies to implement a Clinton-era executive order on EJ and another that would allow citizens to block facilities whose pollution may violate the Civil Rights Act.

Sources familiar with the effort say it enjoys the backing of top Democratic leaders in the House, including Speaker Nancy Pelosi (D-CA) and Majority Leader Steny Hoyer (D-MD); and in the Senate, including from Majority Whip Dick Durbin (D-IL).

As many as 70 Democratic lawmakers have also formed an informal working group on environmental justice and are considering forming a bicameral caucus to address the issue. Members include Rep. Albert Wynn (D-MD), who chairs the House Energy and Commerce Committee’s environment and hazardous materials subcommittee; and Rep. Hilda Solis (D-CA), the subcommittee’s vice chair. Wynn is also chairing an environmental justice task force created by the Congressional Black Caucus (CBC).

Rep. Alcee Hastings (D-FL), who has successfully pushed appropriations measures requiring EPA to strengthen its EJ policies, chaired a CBC foundation hearing Jan. 24 where grassroots activists peppered Charles Lee, director of EPA’s Office of Environmental Justice, with questions about what authority the agency has to address pollution in low-income and minority communities, according to a source present at the hearing. The source says the group held the hearing in part to show congressional staff and others “the discussion that has been occurring and the tension between community stakeholders and EPA.”

One key focus for the emerging Democratic effort is the Bush administration’s decision to drop race as a factor in determining whether pollution harms minority communities. EPA outlined the decision in 2005, saying later that it was forced to the position by Supreme Court affirmative action rulings requiring the government to demonstrate that its use of racial classifications is “narrowly tailored” to achieve a “compelling governmental interest.”

“EPA’s use of racial classifications as a basis for making decisions would raise significant legal issues,” Barry Hill, chief of EPA’s Office of Environmental Justice, said in an October 2005 memo.

The agency’s position has raised significant concern from community groups and Democratic lawmakers, who argue it violates President Clinton’s Executive Order 12898, which requires federal agencies to identify and address the disproportionate environmental effects of its programs on minority and low-income communities. In 2005, House and Senate lawmakers agreed to include language in EPA’s fiscal year 2006 appropriations bill blocking the agency from spending funds in violation of the executive order.

Lawmakers’ concerns have been heightened by a 2006 report from EPA’s Inspector General which found the agency had failed to conduct EJ reviews of its policies and programs.

To address these concerns, Solis is revising a bill first introduced by Hastings requiring EPA to implement the Clinton executive order. The bill would codify the executive order into law and define EJ to include “race, color or national origin,” and requires EPA and other agencies to ensure that minority and low-income communities have adequate access to relevant environmental information. Sen. John Kerry (D-MA) and Majority Whip Durbin are expected to offer a companion bill in the Senate.

“Congress has continually supported the executive order on [environmental justice] through the appropriations process,” says a Solis office source. However, “EPA has not complied with the mandate on EJ in the eyes of many.”

The source says the bill is intended as “flagship” legislation that will set the foundation for introducing EJ provisions into a number of other other bills, including climate legislation, sources say.

Solis has been vocal in the past about ensuring a cap-and-trade program does not harm vulnerable populations because the system could create “hot spots” where emitting facilities purchase pollution credits en lieu of reducing pollution. “We will fight to ensure any cap-and-trade bill has EJ provisions,” the Solis office source says.

Hastings is also working on legislation that would create community technology centers in places where people may lack access to information on environmental harms where they live, according to a source in his office.

And in the Senate, Sen. Robert Menendez (D-NJ) may seek to add an amendment to a civil rights bill being crafted by Sen. Ted Kennedy (D-MA), a source in his office says. The amendment would provide a legislative “fix” to the Supreme Court’s 2001 decision in Alexander v. Sandoval, which limited plaintiffs’ ability to bring claims under the Civil Rights Act for alleged environmental harm.

Despite the Democrats’ efforts, grassroots groups are concerned that the draft proposals do not ensure that EPA and other agencies are required to address EJ concerns.

One source says the draft Solis bill seeking to codify the executive order is inadequate. “Some people have an interest in getting something passed. But the Solis bill does not have any teeth.”

“The executive order has not worked so codifying something that doesn’t work won’t solve any problems,” the source adds.

Instead, the source, who represents the Environmental Justice Coalition, is lobbying lawmakers to back a draft bill known as the Environmental Justice Act, which creates a citizen lawsuit provision to allow “potential victims of environmental race discrimination” to block EPA and other agencies from issuing permits for polluting facilities in minority and low-income communities. The bill also includes a “citizen endorsement provision” which ensures construction of nonpolluting facilities that have been endorsed by local communities by blocking future citizen suits.

The bill would also reorganize key EPA offices to bolster environmental protections. For example, the bill would make EPA’s Office of Children’s Health Protections into an Office of Health Protection, which would develop policies to protect vulnerable populations. The new office would also be required to coordinate a 2002 agreement with the Department of Health and Human Services to create a nationwide environmental health tracking network.

The source says the coalition is seeking support from both Democratic and Republican lawmakers, including Rep. Wynn and Sen. John McCain (R-AZ), but neither lawmaker has so far endorsed the proposal. The source argues the citizen endorsement provision is a “sweetener” for GOP lawmakers because developers who are able to win community support are protected from future citizen suits. -- Jenny Johnson

Date: February 7, 2007

Reprinted with permission from InsideEPA.com