* Director of the Office of Environmental Justice of the U.S. Environmental Protection Agency. Mr. Hill also teaches Environmental Justice as an Adjunct Professor of Law at the Vermont Law School.
** Legal Counsel to the Office of Environmental Justice of the U.S. Environmental Protection Agency. The views expressed in this article are solely those of the authors. No official support or endorsement by EPA or any other agency of the federal government is intended or should be inferred. The authors wish to thank Elise Feldman for her review and helpful comments regarding drafts of this article.
1 Vitruvius, The Ten Books on Architecture 241–42 (Morris Hicky Morgan trans., Dover Publications, Inc. 1960).
2 See Katharine K. Baker, Consorting with Forests: Rethinking our Relationship to Natural Resources and How We Should Value Their Loss, 22 Ecology L.Q. 677, 705 n.143 (1995).
3 Endangered Species Act of 1973 (ESA), 16 U.S.C. §§ 1531–1544 (1974).
4 Zygmunt J.B. Plater, The Embattled Social Utilities of the Endangered Species Act—A Noah Presumption and a Caution Against Putting Gas Masks on Canaries in the Coal Mine, 27 Envtl. L. 845, 853–54 (1997). Just as coal miners historically used canaries to detect coal gas, because of the birds’ sensitivity, a species’ decline indicates that its habitat has become so degraded that the environment can no longer support the species. See id.
5 Id.
6 Id.
7 H.R. Rep. No. 93–412, at 6 (1973), reprinted in A Legislative History of the Endangered Species Act of 1973, as amended in 1976, 1977, 1978, and 1980, at 145 (1982). This point was brought out repeatedly in Congressional hearings, where “it was shown that many of these animals performed vital biological service[s] to maintain [the] ‘balance of nature’ within their environment.” S. Rep. No. 93–307 (1973). See also Barry Commoner, The Closing Circle: Nature, Man and Technology 39 (1971) (noting the dynamic, systems-based relationship among man, animals, and natural resources).
8 See 16 U.S.C. § 1538(a)(1)(B). The ESA makes it illegal to “harass, harm . . . , or to attempt to engage in any such conduct” on private land without specific authorizations and findings. Id.; see also 50 C.F.R. § 17.3 (1999) (defining “harass,” within the meaning of “take,” as “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering”). Such actions include habitat modification. See Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 696–708 (1995); Sierra Club v. Yeutter, 926 F.2d 429, 439–40 (5th Cir. 1991) (finding that harvesting timber in the red-cockaded woodpecker habitat was modification that constituted taking); Defenders of Wildlife v. EPA, 882 F.2d 1294, 1300–01 (8th Cir. 1989) (holding that registration of strychnine by EPA constituted a taking because of consumption by endangered species).
9 See Sierra Club v. Lyng, 694 F. Supp. 1260, 1269 (E.D. Tex. 1988) (holding that “the actions of man have taken an increasing toll on the survivability of various species, particularly those which, due to their particular habits and lifestyles, are unable to adapt to a changing environment”).
10 This separation contrasts with other societies in which the effects of human conduct are felt directly, and thereby internalized. Writing from his experience as Director of Indian Programs at the University of Arizona in the struggle over the location of a group of telescopes on Mt. Graham, Professor Robert Williams, a member of the Lumbee Indian tribe of North Carolina, notes that, “Indian people have little problem with understanding why Section 7 [of the ESA] is a good law—if the salmon aren’t running, it threatens the social life of the tribe, and this is the punishment that is inflicted on the tribe for failing to act as a steward of the resources—a sacred duty.” Robert A. Williams, Jr., Large Binocular Telescopes, Red Squirrel Pinatas, and Apache Sacred Mountains: Decolonizing Environmental Law in a Multicultural World, 96 W. Va. L. Rev. 1133, 1156–57 (1994).
11 See Federico Cheerer, The Road to Recovery: A New Way of Thinking About the Endangered Species Act, 23 Ecology L.J. 1 (1996)
12 EPA’s Office of Environmental Justice defines the term “environmental justice” as follows:
Environmental justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. Fair treatment means that no group of people, including racial, ethnic, or socioeconomic group should bear a disproportionate share of negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local, and tribal programs and policies.
Meaningful involvement means that: (1) potentially affected community residents have an appropriate opportunity to participate in decisions about a proposed activity that will affect their environment and/or health; (2) the public’s contribution can influence the regulatory agency’s decision; (3) the concerns of all participants involved will be considered in the decisonmaking process; and (4) the decsion-makers seek out and facilitate the involvement of those potentially affected.
Office of Environmental Justice, U.S. Environmental Protection Agency, Guide to Assessing and Addressing Allegations of Environmental Injustice, (Working Draft, Jan 10, 2001), available at <http://es.epa.gov/oeca/main/ej/index.html>.
13 The literature is rife with statistics documenting the disproportionate burdening of communities where minority and low income populations live. See, e.g., Susan A. Perlin, An Examination of Race and Poverty for Populations Living Near Industrial Sources of Pollution, Journal of Exposure Analysis and Epidemiology (1999); Center for Policy Alternatives, National Association for the Advancement of Colored People (NAACP), and United Church of Christ, Toxic Waste and Race Revisited (1994); Robert W. Collin, Environmental Equity: A Law and Planning Approach to Environmental Racism, 11 Va. Envtl. L.J. 501 (1992); Benjamin A. Goldman & Laura Fitton (co-sponsored by the Center for Policy Alternatives), Toxic Wastes and Race Revisited: An Update of the 1987 Report on the Racial and Socioeconomic Characteristics of Communities with Hazardous Waste Sites (1987); Congressional Research Service, Environmental Equity (Aug. 14, 1992) (summarizing findings of research on association between facility location and demographic characteristics).
14 See infra notes 20-52 and accompanying text.
15 See infra note 26 and accompanying text.
16 See discussion infra Part III.
17 See Clean Water Act, 33 U.S.C. §§ 1251–1387 (1994).
18 See National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321–4370d (1994).
19 See Section 304 of the Clean Water Act, 33 U.S.C. § 1344 (permits for dredge or fill material).
20 See generally Samara F. Swanston, Race, Gender, Age, and Disproportionate Impact: What Can We Do About the Failure to Protect the Most Vulnerable, 21 Fordham Urb. L.J. 577 (1994).
21 Cumulative risks, synergistic effects, and multiple pathways that affect the health of individuals may be the result of exposures to single or multiple contaminants from one or more sources. However, “[a]gency programs have generally considered site-specific risks without considering current exposure to other (non site-specific) pollution sources.” http://www.epa.gov/werosps/ej/html-doc/execsum.htm#HEALTH.
22 Minority and low-income communities may experience exposure to hazardous substances through a variety of pathways not typical of the general population. Among others, these may include: (1) consumption of plants and animals from sources near contaminated sites or polluted rivers and streams; (2) occupational exposure to pesticides; and (3) ingestion of lead paint from dwellings. See Robert D. Bullard, Building Just, Safe, and Healthy Communities, 12 Tul. Envtl. L.J. 373, 376–77 (1999).
23 Failure to make infrastructure investments in minority and low income areas can contribute to environmental hazards, such as brownfield formation, unsanitary conditions, and can also contribute to the magnitude of or harm caused by industrial accidents. Infrastructure deficits may include: (1) transportation systems; (2) drainage, sewage, and water distribution systems; (3) medical facilities; and (4) parks and opens space. William W. Buzbee, Urban Sprawl, Federalism, and the Problem of Institutional Complexity, 68 Fordham L. Rev. 57, 67–77 (1999). Courts have found that failure to make such investments or the failure to ensure the equal delivery of municipal services can lead to civil rights violations. See Kessler v. Grand Cent. Dist. Mgmt. Ass’n, Inc., 158 F.3d 92, 129–30 (2d Cir. 1998) (citing Hawkins v. Town of Shaw, 437 F.2d 1286, 1288 (5th Cir. 1971)), aff’d on reh’g, 461 F.2d 1171 (5th Cir. 1972) (en banc) (finding that (1) 99% of the town’s white population had access to sanitary sewers compared to only 80% of the town’s African-American population, and (2) 98% of the town’s homes that fronted unpaved streets belonged to African Americans); Dowdell v. City of Apopka, 698 F.2d 1181, 1185 (11th Cir. 1983) (finding discrimination in street paving, water distribution, and storm drainage); United Farmworkers of Fla. Hous. Project, Inc. v. City of Delray Beach, 493 F.2d 799, 811 (5th Cir. 1974) (finding violation of farm workers’ civil rights by city officials’ refusal to extend water and sewage service to proposed federally funded low-income housing project); Baker v. City of Kissimmee, 645 F. Supp. 571, 588 (M.D. Fla. 1986) (finding discrimination against African Americans based on disparate access to street paving, resurfacing, and maintenance); Ammons v. Dade City, 594 F. Supp. 1274, 1301 (M.D. Fla. 1984), aff’d, 783 F.2d 982, 987–88 (11th Cir. 1986) (concluding that there was a civil rights violation based on a finding of disparate access to municipal services of street paving, street resurfacing and maintenance, and storm water drainage facilities on the basis of race); Johnson v. City of Arcadia, 450 F. Supp. 1363, 1379 (M.D. Fla. 1978) (finding discrimination in street paving, parks, and water supply); Selmont Improvement Ass’n v. Dallas County Comm’n, 339 F. Supp. 477, 481 (S.D. Ala. 1972) (finding discriminatory treatment because of the failure to pave roads in African-American communities).
24 EPA has found that “several population groups identified as being sensitive to the health effects of air pollution seem to be disproportionately comprised of low-income or racial minority individuals. These groups include asthmatics, people with certain cardiovascular diseases or anemia, and women at risk of delivering low-birth-weight fetuses.” Environmental Protection Agency, 2 Environmental Equity: Reducing Risk for All Communities 21 (1992) [hereinafter Environmental Equity]. See generally Swanston, supra note 20.
25 Communities may have difficulties participating in existing environmental decisionmaking processes for many reasons. These difficulties can arise from a number of different sources, including: (1) language; (2) culture; (3) lack of technical resources; (4) historical non-inclusion; (5) time constraints; and (6) financial constraints. See generally John C. Duncan, Jr., Multicultural Participation in the Public Hearing Process: Some Theoretical, Pragmatical, and Analeptical Considerations, 24 Colum. J. Envtl. L. 169 (1999).
26 Memorandum, From: Gary S. Guzy, General Counsel, Office of General Counsel, U.S. EPA, To: Steven A. Herman, Assistant Administrator, Office of Enforcement and Compliance Assistance; Robert Perciasepe, Assistant Administrator, Office of Air and Radiation; Timothy Fields, Jr., Assistant Administrator, Office of Solid Waste and Emergency Response; J. Charles Fox, Assistant Administrator, Office of Water (Dec. 1, 2000) (describing EPA statutory and regulatory authorities under which environmental justice issues may be addressed in permitting); see also Richard J. Lazarus & Stephanie Tai, Integrating Environmental Justice into EPA Permitting Authority, 26 Ecology L.Q. 617 (1999) (reviewing EPA authority to consider environmental justice concerns).
27 See, e.g., Section 304(a)(1) of the Clean Water Act, 33 U.S.C. § 1314(a)(1).
28 See, e.g., Section 3005(c)(3) of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6925(c)(3).
29 See, e.g., Section 117(e) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9617(e) (authorizing EPA to make Technical Assistance Grants of up to $50,000 to groups of citizens affected by Superfund sites).
30 See, e.g., Section 309 of the Clean Air Act (CAA), 42 U.S.C. § 7401 (1994) (directing EPA to review and comment on the environmental impacts of actions of other federal agencies, including proposals for legislation, proposed regulations, and projects subject to § 102(2)(C) of NEPA, 42 U.S.C. § 4321).
31 The National Ambient Air Quality Standards (NAAQS), for example, are set to protect public health with an adequate margin of safety. See 42 U.S.C. § 7409(b)(1). This authority requires EPA to consider sensitive populations in the establishment of these standards. See, e.g., American Lung Ass’n v. EPA, 134 F.3d 388, 388–89 (D.C. Cir. 1998) (stating “Congress defined public health broadly. NAAQS must protect not only average healthy individuals, but also ‘sensitive citizens’—children, for example, or people with asthma, emphysema, or other conditions rendering them particularly vulnerable to air pollution”) (quoting S. Rep. No. 91–1196, at 1 (1970)); Lead Indus. Ass’n v. EPA, 647 F.2d 1130, 1152 (D.C. Cir. 1980) (finding the Senate report to be “particularly careful to note that especially sensitive persons such as asthmatics and emphysematics are included within the group that must be protected.”).
32 See, e.g., Section 4(b)(2)(A) of the Toxic Substance Control Act (TSCA), 15 U.S.C. § 2603(b)(2)(A) (1994).
33 See, e.g., 42 U.S.C. § 7503 (a)(5).
34 See, e.g., id. § 7408 (a)(2).
35 See, e.g., 40 C.F.R. § 1408.8 (regulations implementing the National Environmental Policy Act, 42 U.S.C. § 4321 (1994)).
36 See, e.g., Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. § 346a (1994); see also Safe Drinking Water Act (SDWA), 42 U.S.C. § 300(g)-1 (1994).
37 See supra notes 18–29 and accompanying text.
38 Exec. Order No. 12,898, 3 C.F.R. § 859, reprinted in 42 U.S.C. § 4321 (1994).
39 Presidential Memorandum Accompanying Executive Order 12,898, 30 Weekly Comp. Pres. Doc. 279, 280 (Feb. 11, 1994) [hereinafter Presidential Memorandum].
40 Id.
41 Exec. Order No. 12,898, § 1–101.
42 In re Chemical Waste Management of Indiana, Inc., 6 E.A.D. 144 (1995).
43 Id.
44 This review has been conducted pursuant to EPA policy and the Environmental Justice Executive Order, rather than as a requirement of statutory law. See, e.g., Sur Contra La Contaminacion v. EPA, 202 F.3d 443, 444 (1st Cir. 2000). Since the Executive Order explicitly does not create any substantive or procedural rights or a right of judicial review against the United States, no federal court has overturned a federal action based solely upon an underlying defect in an environmental justice analysis conducted pursuant to the Executive Order. Id.; see also Morogo Band of Mission Indians v. FAA, 161 F.3d 569, 575 (9th Cir. 1998); Air Trans. Ass’n of Am. v. FAA, 169 F.3d 1, 8–9 (D.C. Cir. 1999). Courts do, of course, review allegations relating to environmental justice concerns pursuant to underlying environmental laws, other state and Federal statutes, and common law causes of action, just as they would any other issue in dispute. In Sur Contra La Contaminacion, for example, the court reviewed many of the issues raised by the petitioning community group under Section 165(a)(2) of the Clean Air Act and Administrative Procedures Act. See 202 F.3d at 447–48; see also Montana v. EPA, 137 F.3d 1135, 1141 (9th Cir. 1998), cert. denied, 119 S. Ct. 275 (1998) (finding that tribes may set water quality standards that affect upstream states); Neighbors for a Toxic Free Cmty. v. Vulcan Materials Co., 964 F. Supp. 1448, 1451–53 (D. Colo. 1997) (finding that a community organization had standing to bring an action under the Emergency Planning Community Right-to-Know Act); In the Matter of Rubicon, Inc., 670 So.2d 475, 481–83 (1st Cir. LA 1996) (remanding agency decision to exempt facility from land disposal restrictions based on agency’s failure to make specific findings required under state constitution and public trust doctrine).
45 Chemical Waste Mgmt., 1995 WL 395962, at *5.
46 See id. at *6. Some of the factors that could place communities at risk include those described supra in the text accompanying notes 22–23.
47 See id.
48 See id. at *5.
49 Section 3005(c)(3) of RCRA, 42 U.S.C. § 6925(c)(3) [hereinafter Omnibus clause], provides that “[e]ach permit issued under this section shall contain such terms and conditions as the Administrator (or the State) determines necessary to protect human health and the environment.” The provision allows the permitting authority to establish conditions, beyond any pre-established environmental standard, necessary to protect the community.
50 Chemical Waste Mgmt., 1995 WL 395962, at *6 (internal footnotes added).
51 See, e.g., In re Knauf Fiber Glass, GmbH, PSD Appeal Nos. 99–8 through 99–72, 2000 WL 291422 (EAB, Mar. 14, 2000); In re AES Puerto Rico, L.P., PSD Appeal Nos. 98–29 through 98–31, 1999 WL 345288 (EAB, May 27, 1999); In re Knauf Fiber Glass, GmbH, PSD Appeal Nos. 98–3 through 98–20, 1999 WL 64235 (EAB, Feb. 4, 1999); In re Environmental Disposal Sys., Inc., UIC Appeal Nos. 98–1 & 98–2, 1998 WL 723912 (EAB, Oct. 15, 1998); In re Ash Grove Cement, RCRA Appeal Nos. 96–4 & 96–5, 7 E.A.D. 387, available at 1997 WL 732000 (EAB, Nov. 14, 1997); In re EcoElectica, L.P., PSD Appeal Nos. 96–8 & 96–13, 7 E.A.D. 56, available at 1997 WL 160751 (EAB, Apr. 8, 1997); In re Campo Landfill Project, Campo Band Indian Reservation, NSR Appeal Nos. 95–1, 6 E.A.D. 505, available at 1996 WL 344522 (EAB, June 19, 1996) (although Campo Landfill Project does not address the New Source Review air permit at issue under the rubric of Executive Order 12898, the case considers matters very much analogous to those alleging disproportionate impacts to minority and low-income communities and is the sole example of the EAB’s review under § 173 (a)(3) of the Clean Air Act).
52 See generally Knauf Fiber Glass, 1999 WL 64235 .
53 Vitruvius, supra note 1.
54 See, e.g., Catherine A. O’Neill, Variable Justice: Environmental Standards, Contaminated Fish, and Acceptable Risk to Native Peoples, 19 Stan. Envtl. L.J. 3, 55–57 (2000); see also Brian D. Israel, An Environmental Justice Critique of Risk Assessment, 3 N.Y.U. Envtl. L.J. 469, 501 (1995).
55 See O’Neill, supra note 54, at 55–57. These populations frequently include groups of Native Americans, Asian Americans, Pacific Islanders, and African Americans. See id.
56 See 33 U.S.C. § 1314.
57 EPA will approve a state or tribe’s criteria if they are based on scientifically defensible data and are protective of designated uses. See 42 U.S.C. 303(c). A number of states, however, have opted simply to adopt EPA’s recommended criteria, because of the lack of technical resources. The majority of states have set their own ambient water quality criteria for at least some pollutants. See Oliver A. Houck, The Regulation of Toxic Pollutants under the Clean Water Act, 21 ELR 10528 nn. 245, 257 (1991).
58 See 33 U.S.C. § 1313(c)(2)(A) (requiring the permitting authority to establish the designated use of water bodies); 33 U.S.C. § 1313(c)(2) (requiring the use of criteria in establishing ambient water quality levels).
59 See 33 U.S.C. § 1313(d).
60 If established by a state, 33 U.S.C. § 1313(d)(1)(C) is applicable. If established by EPA, 33 U.S.C. § 1313(d)(2) is applicable.
61 33 U.S.C. § 1314.
62 Id., see also 40 C.F.R. § 123.45.
63 Houck, supra note 57, at 10,537.
64 See O’Neill, supra note 54, at 55–57.
65 The science underlying the relative safety or harm of various chemicals, in different concentrations, is still developing. These evolving scientific issues include synergistic, antagonistic, and cumulative effects, and dose and response. See id. at 28.
66 See, e.g., Cass R. Sunstein, Is the Clean Air Act Unconstitutional?, 98 Mich. L. Rev. 303, 319 (1999). Exploring the question “how safe is safe” under the standards of the Clean Air Act, Professor Sunstein observes that safety standards are, in large part, contextual, involving the exercise of judgement on what constitutes an acceptable risk and for which segment of the population. See id.
67 Id.
68 See O’Neill, supra note 54, at 28–33. Professor O’Neill suggests that risk to high fish consuming communities may be compounded based on data gap uncertainties: where professional judgement is exercised in the absence of knowledge, the values, experience, and biases of the expert decisionmakers will tend not to reflect those of high fish consuming communities. See id. at 25.
69 Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d 1517, 1524 (9th Cir. 1995).
70 See id. at 1519–20 (since the industry claims do not pertain to fish consumption, but rather to the appropriateness of the use of TMDLs, they are not discussed further).
71 See id. at 1519. EPA established TMDLs based on a finding by the State of Washington that water quality standards were not being met largely from the discharge of paper mills. See id. While the state could have issued the TMDLs under its own authority, the state developed the TMDLs with EPA, and EPA issued the restrictions. See id. at 1520.
72 EPA’s current AWQC are based on the assumptions from a USDA Nation Purchase Dairy Survey that a person consumes 6.5 grams of a fish fillet per day, and that this person weighs 70 kilograms (about 154 pounds). See Environmental Equity, supra note 24, at 13. The fish consumption number of 6.5 grams of fish per day represents the national average fish consumption calculated from data collected in the 1977–1978 national survey conducted by the U.S. Department of Agriculture. See id.
73 See Dioxin/Organochlorine Ctr., 57 F.3d at 1524.
74 Id. The Agency argued that the potency factors used by other agencies or foreign governments would have resulted in a standard between five and sixteen hundred times less stringent. See id.
75 Id.
76 Id.
77 O’Neill, supra note 54, at 54–57.
78 Natural Resources Defense Council v. EPA., 16 F.3d 1395 (4th Cir. 1993).
79 Id. at 1401 (citing Shanty Town Assocs. Ltd. v. EPA, 843 F.2d 782, 790 (4th Cir. 1988)).
80 Id. at 1402.
81 See Environmental Equity, supra note 24, at 12–13.
82 See Notice, Draft Water Criteria Methodology Revisions, 63 Fed. Reg. 43,756, 43,807 (Aug. 14, 1998). EPA proposed changing its methodology for calculating pollution levels in fish, focusing primarily on bioaccumulation for “certain chemicals where uptake from exposure to multiple media is important.” Id. By contrast, the bioconcentration factor (BCF) used in the present AWQC measures the “uptake and retention of a chemical by an aquatic organism from water only.” Id. at 43,806. The bioaccumulation factor (BAF) “reflects the uptake and retention of a chemical by an aquatic organism from all surrounding media (e.g., water, food, sediment).” Id. In 1991, EPA recommended a methodology for establishing the food chain multiplier (FCM), which can be used to estimate BAF when field-measured BAF is not available. See id. The FCM takes into account the fact that larger fish often eat smaller fish, and the smaller fish may have a higher concentration of toxins in its system which is then transferred to the larger fish. See id. However, BAFs are considered “better predictors of chemical concentrations in fish tissue than BCFs since BAFs include consideration of contaminant uptake from all routes of exposure.” Id. at 43,807.
83 See id. at 43,762. This value is derived from a diet recall study conducted by the United States Department of Agriculture entitled, “The Continuing Survey of Food Intake by Individuals for the Years 1989, 1990, and 1991.” See id.
84 Id.
85 Id.
86 Id.
87 Id. at 43,892.
88 57 F.3d 1517 (9th Cir. 1995). The group assembled to peer review the Agency’s proposal criticized the “lower but adequate” standard, concluding that:
EPA should make clear that the States must set standards to protect sensitive populations, specifically those individuals and communities that consume more fish and seafood than the general population. These communities need to be protected at the 95 percentile level of exposure and as a matter of policy, they should be protected at 10–6, not 10–4, for cancer risks [as the Agency proposed]. The objective should be to protect these communities at the same level as the general population.
EPA, Revisions To The Methodology For Deriving Ambient Water Quality Criteria For The Protection Of Human Health § 6.5 (EPA-822-R-99–015) (1999), available at http://www. epa.gov/ost/humanhealth/peer.html.
89 See City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996).
90 See National Environmental Policy Act, 42 U.S.C. § 4321.
91 Id. § 4332(C).
92 NEPA requires documentation and consideration of a range of possible impacts, including “ecological, aesthetic, historical, cultural, economic, or health, whether direct, indirect, or cumulative.” 40 C.F.R. § 1508.8. A variety of federal activities are excepted from NEPA or are only required to comply with its substantive components. See EPA, Guidance for Incorporating Environmental Justice Concerns into EPA’s NEPA Compliance Analysis 5–10 (1998) [hereinafter EPA Guidance], available at http://www.es.epa. gov/oeca/ofa/ej.html. The Council on Environmental Quality guidance, however, states that in circumstances where such an exception exists “and disproportionately high and adverse human health or environmental impact on low-income populations, minority populations, or Indian tribes exist, agencies should augment their procedures as appropriate to ensure that the otherwise applicable process or procedure for federal action addresses environmental justice concerns.” Council on Environmental Quality, Environmental Justice: Guidance Under the National Environmental Policy Act, 16 (1997) [hereinafter CEQ Guidance], available at http://www. whitehouse. gov/CEQ/ December.
93 Federal actions within NEPA’s ambit include a wide range of activities beyond those directly carried out by federal agencies. These include activities, whether or not sponsored or implemented by a federal agency, that “cannot begin or continue without prior approval by a [f]ederal agency and the agency possess authority to exercise discretion over the outcome.” New Jersey Dep’t of Envtl. Prot. and Energy v. Long Island Power Auth., 30 F.3d 403, 418 (3d Cir 1994); see also National Ass’n for the Advancement of Colored People v. Medical Ctr., 584 F.2d 619 (3d Cir. 1978) (finding that the issuance of a permit to a private hospital constitutes a federal action).
94 An analysis of the workings of NEPA is beyond the scope of this article. For a more detailed analysis of how NEPA’s various elements apply to environmental justice concerns, see CEQ Guidance, supra note 92;.see also Cheryl A. Calloway & Karen L. Ferguson, The ‘Human Environment’ Requirements of the National Environmental Policy Act: Implications for Environmental Justice, Detroit College L. Mich. State U. L. Rev. 1147 (1997).
95 Robert D. Bullard, Building Just, Safe, and Healthy Communities, 12 Tul. Envtl. J. 373, 374–75 (1999) (criticizing EPA and arguing that “EPA was never given the mission of addressing environmental policies and practices that result in unfair, unjust, and inequitable outcomes”). The author further suggests that the Environmental Justice Executive Order’s focusing “the spotlight back on [NEPA]” is a hopeful sign that the identification and prevention of disproportionate impacts may increase. Id.
96 See id. at 377–78.
97 See Presidential Memorandum, supra note 39, at 280.
98 See id.
99 See CEQ Guidance, supra note 92, at 8. An Environmental Assessment (EA) may precede the preparation of an Environmental Impact Statement (EIS). Alternatively, it may result in a finding that the proposed action is not a major federal action or will not have a significant environmental impact. Under these circumstances the EA, in combination with such a finding, acts as an endpoint in itself. See id.
100 See 40 C.F.R. § 1502. An EIS is an action-forcing document designed to ensure, with the aid of the public comment, that the full range of an action’s impacts are considered by the decisionmaker. See id.
101 See Presidential Memorandum, supra note 39, at 1.
102 See Exec. Order No. 12,898, §§ 1–102 & 1–103.
103 Section 309(a) of the Clean Air Act, 42 U.S.C. § 2609, directs the EPA Administrator to:
review and comment in writing on the environmental impact of any matter . . . contained in any (1) legislation proposed by any Federal department or agency, (2) newly authorized Federal projects for construction and any major Federal agency action to which [NEPA] applies, and (3) proposed regulations published by any department or agency of the Federal Government.
Id. If the Administrator determines that the action is “unsatisfactory from the standpoint of public health or welfare or environmental quality[, the matter] shall be referred to the Council on Environmental Quality.” Id.; see EPA, Guidance for Consideration of Environmental Justice in Clean Air Act Section 309 Review (1999), available at www.epa. gov/oeca/ofa/ej_nepa.html.
104 See Presidential Memorandum, supra note 97, at 2.
105 See CEQ Guidance, supra note 92, at 8–10.
106 See id. at 9.
107 See id.
108 See id. The CEQ Guidance states that these factors “should include the physical sensitivity of the community or population to particular impacts; the effect of any disruption on the community structure associated with the proposed action; and the nature and degree of impact on the physical and social structure of the community.” Id.
109 Id. With respect to public participation, the CEQ Guidance notes that “barriers may range from agency failure to provide translation of documents to the scheduling of meetings at times and in places that are not convenient to working families.” Id. at 13.
110 Exec. Order No. 12,898, § 6–609.
111 See, e.g., Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 575–81 (9th Cir. 1998); see also Air Trans. Ass’n of Am. v. FAA, 169 F.3d 1, 8–9 (D.C. Cir. 1999).
112 See, e.g., San Carlos Apache Tribe, et al., 149 IBLA 29 (1999); Antonio J. Baca, 144 IBLA 35 (1998). By contrast, another agency, the Federal Energy Regulatory Commission (FERC), has found that the:
order does not apply to independent agencies, such as the Commission, and the President’s memorandum that accompanies it states that it is intended to improve the internal management of the Executive Branch, and does not create any legally enforceable rights. Therefore, [an] EIS is not deficient for failing to include a specific discussion of this issue.
City of Tacoma, Washington, 86 FERC P 61,311 (1999).
113 Id.
114 Compare, e.g., In re Chemical Waste Management of Indiana, 6 E.A.D. 144 (1995), with In re Louisiana Energy Servs. (Claiborne Enrichment Center), 47 NRC 77 (1998).
115 In re Louisiana Energy Servs., 47 NRC 77 (1998).
116 Id. at 83.
117 In addition to remanding the decision based on the EIS’ failure to address concerns of disproportionate impacts adequately, the Commissioners’ opinion also ordered that the EIS more fully address the nature of the environmental impacts. See id. at 85.
118 In re Louisiana Energy Servs., 47 NRC at 89, 106 (internal citations omitted).
119 Id. at 107.
120 Id.
121 See id.
122 See id. at 100.
123 The Commissioners found that discrimination, though important, is “far removed from NEPA’s core interest the physical environment, the world around us, so to speak.” Id. at 102 (internal citations omitted).
124 See infra note 113.
125 Southern Utah Wilderness Alliance, 150 IBLA 158 (1999) [hereinafter SUWA].
126 See id. at 161.
127 Brian Maffly, Outdoors, The Salt Lake Trib., May 4, 1999, at B1.
128 Christopher Smith, Blanding, The Salt Lake Trib., Jan. 20, 1997, at D1.
129 See SUWA, 150 IBLA at 166.
130 Id. at 167–68. IBLA found that BLM relied on an overall plan for the area, thus neglecting to consider the management of visitors coming to the area. Id.
131 Id. at 161, n. 9.
132 See id. at 169. IBLA noted that BLM had met with tribe members and representatives on several occasions, both at the site and in local communities, to reduce impacts and to discuss how best to develop a culturally sensitive interpretation of the area. See id.
133 Id. at 159, 162.
134 See SUWA, 150 IBLA at 167–68.
135 Id. at 169.
136 See id. at 170.
137 Resource protection would include the protection of specific types of natural or environmental resources based on an ecological or place-specific basis. This type of regulation includes, for example, management of public land under the Federal Land Policy Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701–1785, Wild and Scenic Rivers Act, 16 U.S.C. § 1271, and Section 404 of the Clean Water Act, 33 U.S.C. § 1344, pertaining to permits for dredge or fill material.
138 See, e.g., 42 U.S.C. § 4321.
139 See, e.g., 43 U.S.C. § 1712.
140 See J.B. Ruhl, The Seven Degrees of Relevance: Why Should Real-World Environmental Attorneys Care Now About Sustainable Development Policy?, 8 Duke Envtl. L. & Pol’y F. 273, 285 (1998) (finding that environmental justice, at first a social movement and then a cultural norm, is also a government-sanctioned policy).
141 See 43 CFR § 1601.0–6, providing that:
[a]pproval of a resource management plan is considered a major federal action significantly affecting the quality of the human environment. The environmental analysis of alternatives and the proposed plan shall be accomplished as part of posed plan and related environmental impact statement shall be published in a single document.
Id.
142 The RRSWG consists of James City County and York County, and the cities of Williamsburg, Newport News, Hampton, and Poquson.
143 Joint federal/state notice of availability of Final Environmental Impact Statement, Jan. 24, 1997, available at http://www.mpra.org/notice1.htm.
144 The proposed reservoir required additional water because of the limited size of the drainage area (8.92 square miles). Regina Poeska, Unprecedented Preliminary Decisions Involving NEPA on Controversial Reservoir Project, North American Wildlife and Natural Resources Conference 1, 3 (Mar. 25–28, 2000) (on file with author).
145 RRSWG, The King William Reservoir Project, “Project Description,” available at http:// www.kwreservoir.com/projectvid.html.
146 Briefing paper prepared by Norfolk District Army Corps of Engineers for Assistant Secretary of Army for Civil Workings (May 28, 1999) (on file with author) [hereinafter Position Paper].
147 Id.
148 Id.
149 See id.
150 The Small Whorled Pognia is a woodland orchid, listed as a threatened species since 1994. See http://endangered.fws.gov/i/q/saq1q.html.
151 The Sensitive Joint-Vetch, a plant in the bean family having the unusual property of sensitivity to touch, was listed in 1992. See http://endangered.fws.gov/i/q/ saq95.html.
152 Position Paper, supra note 146, at 2.
153 See id.
154 Poeska, supra note 144, at 3.
155 See Letter from Frank S. Ferguson, Deputy Attorney General to John Dosset, Esq., June 3, 1997 (acknowledging that the Mattaponi and other Indian tribes in the Commonwealth stand in a position somewhat different for other citizens.), citing 1917–1018 Op. Va. Att’y Gen 161, 1919 Op. Va. Att’y Gen. 179, and 1976–1977 Op. Att’y Gen. 107.
156 Letter from John R. Pomponio for Stanley Laskowsi, EPA Region III, to Col. Robert H. Reardon, Jr., District Engineer, Norfolk District, Corps of Engineers (commenting on Final Environmental Impact Statement (FEIS) for the King William Reservoir Water Supply Project) (on file with author) [hereinafter Reardon Letter]. While both the Mattaponi and Pamunkey would be substantially impacted the analysis here in is limited to the Mattaponi, which have been the more active of the two tribes in opposing the reservoir. Id.
157 Position Paper, supra note 146.
158 The Treaty of 1677, between the Mattaponi Indian and Pamunkey tribes and the English Crown, is known as the “Treaty at Middle Plantation.” The Commonwealth stands as the successor to the Crown. See 1976–1977 Op. Va. Atty. Gen. 107, 108–109, see also Barker v. Harvey, 181 U.S. 481 (1901).
159 See Poeska, supra note 144, at 3.
160 The name Mattaponi means “People at the Landing Place,” and indicates the tribe’s location on the river. Petition and Complaint at 1, 13, Mattaponi Tribe v. Virginia (EPA, June 16, 1998) (on file with author).
161 Id. at 2.
162 Position Paper, supra note 146; see also Reardon Letter, supra note 156. The project area was also found to include “Traditional Cultural Properties,” which are eligible for inclusion in the National Register because of “their association with cultural practices or beliefs of a living community that (a) are rooted in that community’s history, and (b) are important in maintaining the continuing cultural identity of the community.” U.S. Department of the Interior, National Park Service, National Register Bulletin Number 38, Guidelines for Evaluating and Documenting Traditional Cultural Properties available at http://www2.cr.nps.gov/tribal/bull3803.html.
163 See Position Paper, supra note 146; see also Lawrence Latane III, Sacred Indian Site Enters Public Debate Reservoir a Threat, Mattaponi Declare, RICHMOND Times-Dispatch, Sept. 27, 1999, at A1 (addressing both the importance of the site to the Mattaponi and the tribe’s reluctance to make details of the site knows because of historical distrust and the intensely private nature of the issues involved).
164 See Position Paper, supra note 146.
165 NEPA analysis is required for a § 404 permit pursuant to 33 C.F.R. § 325, App. B, to the extent the agency has control over the wetland.
166 See U.S. Army Corps of Engineers, Norfolk District, Final Environmental Impact Statement, Regional Raw Water Study Group Lower Virginia Peninsula Regional Water Study Plan Main Report (1997)[hereinafter FEIS].
167 See id.
168 These include the Sierra Club and the Rocky Mountain Institute. See EPA, Technical Comments, attached to Reardon Letter, supra note 156.
169 Georgetown Law Center, the environmental law clinic, also filed a Title VI complaint which was dismissed for lack of ripeness.
170 Position Paper, supra note 146; see also Reardon Letter, supra note 156.
171 Position Paper, supra note 146.
172 See id.
173 EPA expressed concern that the FEIS “has not explored the likelihood or presence of traditional cultural properties,” notwithstanding the Virginia State Historic Preservation Officer’s determination that such resources may be in the affected area. Id. at 2.
174 EPA found that uncertainty existed with respect to the accuracy of estimated salinity changes caused by diversion of water from the Mattaponi River. See id. Noting this uncertainty, the agency addressed additional concerns raised by potential salinity increases effect on fisheries and, thus, the Mattaponi. See id. at 2.
175 EPA “strongly recommended” that an ecosystem-based flow regime be used in the management of dam operations, finding that the proposed model was “not . . . sufficiently protective of the River.” See Position Paper, supra note 146, at 3.
176 EPA noted that “[a]ny impacts to shad in this area could devastate [the tribe’s fish hatcheries] and cause significant hardship to the [t]ribe as well as impact the rate of shad recovery in the Chesapeake Bay and its tributaries.” Id. at 5.
177 EPA found the wetlands mitigation plan submitted in the FEIS unacceptable because it failed to compensate for the quality and type of wetlands that would be lost. Id. at 6. Moreover, EPA maintained that the wetland resources proposed for inundation would qualify as an Aquatic Resource of National Importance, due to its “uniqueness/heritage values.” The issue of whether EPA would exercise its veto authority under § 404(c), upon a finding of “unacceptable adverse” environmental effects was not reached.
178 See id. at 9–12.
179 Id. at 9.
180 Position Paper, supra note 146, at 10.
181 Id. EPA noted that the methods used to engage the affected populations may need to be tailored to the communities’ culture and experiences. Because the tribes engaged in traditional and cultural practices not well understood by the government, direct communication with the tribe was viewed by EPA as essential to determine the effects of the proposed project. Id.
182 Id. at 11.
183 Among these, the Corps investigated further the location and nature of traditional cultural properties. Underscoring the complexity of the NEPA process caused by historical distrust, the Mattaponi strongly objected to the use of consultants funded by the RRSWG to conduct the study. While typically the project proponent would fund such an analysis to encourage the tribe’s participation, EPA, Region III, paid for the study. See Poeska, supra note 144, at 11.
184 Telephone Interview with Regina Poeske, Environmental Specialist, EPA Region III (May 5, 2000).
185 Id.
186 Institute for Water Resources, U.S. Army Corps of Engineers, Evaluation of Conflicting View on Future Water Use in Newport News, VA (1999) [hereinafter Water Use Report]. The use of the Army Corps of Engineers’ Institute for Water Resources appears to be directly responsive to the water-demand critiques submitted by commentors on the EIS. See Position Paper, supra note 146, at 3.
187 Position Paper, supra note 146, at 4.
188 Id.
189 Id.
190 Letter from Col. Allan B. Carroll, District Engineer, U.S. Army Corps of Engineers, to R.W. Hildbrant, Assistant City Manager, City of Newport News (June 4, 1999) available at http://www.mpra.org/deny.htm [hereinafter Position to Deny].
191 Id. at 1–2.
192 Id. at 1.
193 See 33 C.F.R. § 320.4 (j) and 40 C.F.R. § 230.10(a) (providing that no individual permit will be issued “if there is a practicable alternative to the proposed discharge which would have less adverse impact . . . .”).
194 33 C.F.R. § 320.4 (a). It should be noted, however, that a permit will be “granted unless the district engineer determines that it would be contrary to the public interest.” Id. at § 320.4(a)(1).
195 Id.
196 See Position to Deny, supra note 190, at 2.
197 Id.
198 Id.
199 See id. at 2–3.
200 See id. at 2.
201 Id. at 3.
202 According to an editorial in the Richmond Times-Dispatch, when the Mayor of the City of Newport News asked what additional information the City could provide to bolster its case for the reservoir, Colonel Allan Carroll replied that “simply changing projection of water need would not suffice. Other considerations—the effect on the environment and on the Mattaponi Indians—also bear on the matter.” Editorial, Richmond Times-Dispatch, Mar. 2, 2000, at A12.
203 Indeed, the Corps recently clarified that environmental justice concerns and ecological impacts that underlie the public interest finding constitute an independent basis for its Position to Deny the permit. Responding to inquiries and information provided by the RRWSG and the Town of Newport News, the Corps noted:
Before you go to any additional expense related to providing additional information on water need, please be aware that even if the need issue were resolved completely in favor of the Regional Raw Water Study Group (RRWSG), I would still recommend denial of this permit. I do not want to mislead you or create a false impression that resolving the water need issue will change my position on the King William Reservoir. I believe the cumulative environmental impact of this project and the potential risk to the culture and economy of the Tribes would be too great. I do not believe that the ecology and diversity of the affected habitat could be replicated or that the losses that the Tribes would experience as a result of the project could be adequately compensated or mitigated.
Letter from Col. Allan B. Carroll, District Engineer, U.S. Army Corps of Engineers, to Mayor Joe S. Frank, City of Newport News (Feb. 3, 2000), available at http://www. mpra.org/ carroll.htm.