[*PG1]THE LINK BETWEEN PROTECTING NATURAL RESOURCES AND THE ISSUE OF ENVIRONMENTAL JUSTICE

Barry E. Hill*
Nicholas Targ**

Abstract:  Communities frequently raise environmental justice issues when decisions are made without taking into consideration how people, including people living in low-income and minority communities, are linked to their surrounding environment. Different communities use and relate to their environment in different ways and face different levels of environmental harms and risks. Thus, to avoid disproportionate impacts, it is critical that each community’s environmental needs and vulnerabilities be understood and considered before decisions are made. Existing statutory authority provides ample opportunity for decisionmakers to involve communities in the decisionmaking process and to consider how they use and relate to their environment and the natural resources services that their environment provides. This article analyzes the integration of environmental justice concerns into the U.S. Environmental Protection Agency’s decisionmaking process with special attention given to permits issued under the Resource Conservation and Recovery Act. In addition, through case study analysis, the article examines how environmental justice issues have been addressed by: EPA in the establishment of water quality criteria under the Clean Water Act; the Nuclear Regulatory Commission’s and the Department of the Interior’s application of the National Environmental Policy Act; and the Army Corps of Engineers’ decisionmaking process under Section 404 of the Clean Water Act.

[*PG2]I.  Natural Resources and Environmental Justice

Recognition of the relationship between natural resources, people, and animals is not new. Marcus Vitruvius Pollio, a Roman architect and engineer, recognized this relationship as far back as the first century B.C. In his influential treatise entitled The Ten Books on Architecture, Vitruvius provided specific instructions on the selection of springs to provide houses with water:

For it is obvious that nothing in the world is so necessary for use as water, seeing that any living creature can, if deprived of grain or fruit or meat or fish, or any one of them, support life by using other foodstuffs; but without water no animal nor any proper food can be produced, kept in good condition, or prepared. Consequently we must take great care and pains in searching for springs and selecting them, keeping in view the health of mankind.

Springs should be tested and proved in advance in the following ways. If they run free and open, inspect and observe the physique of the people who dwell in the vicinity before beginning to conduct the water, and if their frames are strong, their complexion fresh, legs sound, and eyes clear, the spring deserves complete approval. . . .

And if green vegetables cook quickly when put into a vessel of such water and set over a fire, it will be proof that the water is good and wholesome. Likewise if the water in the spring is itself limped and clear, if there is no growth of moss or reeds where it spreads and flows, and if its bed is not polluted by filth of any sort but has a clean appearance, these signs indicate that the water is light and wholesome in the highest degree.1

Thus, more than 2,000 years ago, Vitruvius realized that natural resources need to be protected in order for people and animals to survive and prosper. This link is important because it implicitly recognizes that natural resources are not static elements imbedded in the environment. Rather, they are vital “resource services” dynamically connected to all people and all things.2

[*PG3] Unfortunately, natural resources and the services which they provide have not been adequately protected. Certain populations of people and animals have become threatened and, at times, imperiled. Through enactment of a panoply of modern environmental laws, government (federal, state, local and tribal) has sought to protect not only the natural resources and the environment, but also the well-being of people, threatened species, and their habitats.

“Endangered” or “threatened” species, listed under the Endangered Species Act (ESA),3 have been likened to the proverbial “canary in the coal mine.”4 The ESA informs us not only of the species’ serious condition,5 but also of the serious condition of the species’ habitat—where it sleeps, lives, and what ecological resources it needs in order to nourish itself, successfully reproduce, and rear healthy offspring.6 Congress, like Vitruvius, recognized that degradation of a species’ habitat is inexorably linked to the species’ health. Indeed, one congressional committee observed that “the events of the past few years have shown the critical interrelationship of plants and animals between themselves and with their environment. The hearings proved (if proof is still necessary) that the ecologists’ shorthand phrase ‘everything is connected to everything else’ is nothing more than cold, hard fact.”7

Recognizing the relationship between natural resources and populations, both human and otherwise, Congress placed declining species under the protection of the ESA, requiring human beings to modify their behavior to avoid further disruption of the protected species’ habitats.8 To respond and aid in the species’ recovery, the [*PG4]ESA requires people to look at the environment not only from their own perspective, but also from that of the potentially impacted species. The ESA requires people to act in a deliberate manner, and in a way that respects the ecological needs of the threatened or endangered species, and, from the species’ perspective, conform our behavior.

The ESA recognizes that human actions, both those aggressively hostile and passively destructive to habitats, can have disproportionate impacts on certain species,9 driving them to the brink of extinction or beyond. Because modern society has, generally speaking, become removed from the natural environment, the ESA is a necessary reminder that our actions have direct and indirect links to natural resources and ecological systems.10 By changing human behavior to stop destruction of what various species need to survive, the “road to recovery” is, at least, identified, if not set.11

Environmental justice, as a public policy issue, shares commonalities with the ESA at levels metaphoric and physical. Environmental justice is attentive to the needs and the environment of all communities.12 Therefore, environmental justice shares with the ESA a special [*PG5]concern for environmentally burdened populations. Because of the continuing effects of historical overt discrimination, and passive, race-neutral permitting and regulatory actions, these communities tend to be minority or low-income.13

Like Vitruvius, environmental justice advocates recognize the direct and indirect links between protecting natural resources and the health of community residents. They realize that a clean environment will have a positive impact on the overall health of the residents. They also recognize that the distribution of natural resources services among populations has been uneven. Environmental justice advocates argue that it is the government’s responsibility to protect natural resources in a manner that encompasses the perspectives and needs of the most vulnerable individuals and animals, so that everyone can enjoy the benefit of healthy resources and environmental services.

[*PG6] This article first outlines how federal regulators can use authority under current environmental laws to address a wide range of environmental justice concerns.14 By taking action under the broad regulatory standards that the major environmental statutes establish, the needs, experiences, values, and circumstances of residents of various communities can be addressed, and disproportionate impacts avoided.15 The first section argues that regulatory action can preserve and strengthen community health and well-being if regulators understand the robust and varied manner in which communities’ needs correspond to, and quite literally “map onto,” natural resources.

The following section explores in greater detail three examples in which the federal government has used existing laws to address environmental justice concerns and, by so doing, has buttressed the natural resources and ecological systems upon which the residents of the various communities depend.16 The examples draw from three different statutory provisions: the Clean Water Act’s water quality criteria standards;17 the National Environmental Policy Act (NEPA) requirement of analysis of impacts in the decision-making process;18 and the permitting process under Section 404 of the Clean Water Act.19

The case studies are organized to build on one another. The first demonstrates how race-neutral standards can nonetheless have disproportionate impacts on different communities. It also illustrates how the natural resources upon which communities depend are better protected when the variation among communities’ needs, culture, and interests are taken into consideration. The second example explores how the analytical requirements of NEPA’s decisionmaking process can expose disproportionate impacts caused by natural resource modification. Finally, the third case study illustrates how NEPA and the Clean Water Act, in the wetlands context, can produce environmentally just and ecologically wise natural resource decisions.

The article concludes that when the experiences, needs, and values of all communities are addressed in environmental and natural resources decisions, healthier communities and natural resource sys[*PG7]tems result. Moreover, the article suggests that the contrary is also true: when certain communities are not considered in the decisionmaking process, those communities, and the resources upon which they depend, suffer.

II.  Statutory and Regulatory Authority

A.  Integrating Environmental Justice into Natural Resource and Environmental Decisionmaking

Attention to minority and low-income communities and the natural resources upon which they depend is necessary because actions that adequately protect the general population may not always protect discrete segments of the population.20 Disproportionate impacts on minority and low-income communities and their surrounding environment may result from a host of race-neutral factors, as well as, in some cases, a legacy of historical discrimination. Some of these factors include:

Thus, the use of large scale population averages and mainstream cultural values and experiences may create risk gradients and other disproportionate environmental burdens across variously situated populations, communities, and their environments.

B.  Environmental Justice and Existing Statutory Authority

Many of the statutes that the U.S. Environmental Protection Agency (EPA) implements provide the Agency with the authority to address environmental justice concerns and to support the integrity of the environment and natural resources upon which minority and [*PG9]low-income communities depend.26 These laws, which encompass the breadth of EPA’s activities, include setting standards,27 permitting facilities,28 awarding grants,29 and reviewing actions taken by other federal agencies, states, and tribal authorities.30 Moreover, these laws require EPA to consider a variety of factors, including: public health;31 cumulative impacts;32 social costs;33 welfare,34 and general environmental or human health impacts.35 Other statutes direct EPA and other executive branch departments and agencies to consider special risks posed to vulnerable populations, such as low-income and minority communities, in setting standards.36 In all cases, how the Agency [*PG10]chooses to implement and enforce its authority (whether on a case-by-case basis or through a more general policy) can have substantial effects on the natural and environmental resources and the health of all communities.37

The Environmental Justice Executive Order38 and the accompanying Presidential Memorandum39 recognize that existing “[e]nvi-ronmental and civil rights statutes provide many opportunities to address environmental hazards in minority communities and low-income communities.”40 Among other things, Executive Order 12898 directs EPA and other federal agencies:

[t]o the greatest extent practicable and permitted by law . . . [to] make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations . . . . 41

Thus, the Agency may affect the mutually reinforcing goals of protecting human health and the environment, and paying attention to communities with environmental justice concerns.

C.  Integration of Environmental Justice Concerns into the Review of the Agency’s Permit Programs

Recently, the Environmental Appeals Board (EAB) began reviewing, when petitioned, EPA actions to determine whether the Agency has taken environmental justice concerns into consideration when they arise.42 This review includes examination of issues such as the adequacy of public participation,43 and analysis of disproportionate impacts on minority and low-income communities.44 On a case-by-case [*PG11]basis, the EAB is checking and determining, one permit at a time, what the Executive Order requires: environmental resources (air, water, and land) that are protective of every community.

The EAB review of a RCRA permit that Region V issued in In re: Chemical Waste Management of Indiana is typical of the EAB’s consideration of environmental justice concerns. That case emphasized the important point that environmental justice concerns relate, at least in the first instance, not to a community’s demographic characteristics (e.g., racial composition or income status),45 but rather to attributes frequently associated with low-income and minority communities that may place such communities at special risk.46 Environmental risk factors and tolerance to stressors in minority or low-income communities may differ from communities in the general population. Consequently, the EAB noted that an assessment of effects that looks only at “a broad analysis might mask the effects of the facility on a disparately affected minority or low-income segment of the community.”47 Following this reasoning, the EAB made two basic rulings, the first procedural, and the second substantive:

1. Public Participation: “When the Region has a basis to believe that operation of the facility may have a disproportionate impact on a minority or low-income segment of the affected community, the Region should, as a matter of policy, [*PG12]exercise its discretion to assure early and ongoing opportunities for public involvement in the permitting process.”48

2. Environmental Justice Review: “When a commentor submits at least a superficially plausible claim that operation of the facility will have a disproportionate impact on a minority or low-income segment of the affected community, the Region should, as a matter of policy, exercise its discretion under Section 3005(c)(3)49 to include within its health and environmental impacts assessment an analysis focusing particularly on the minority or low-income community whose health or environment is alleged to be threatened by the facility.”50

The EAB has considered a broad range of environmental justice issues in the permitting context,51 and has examined the effects of proposed permits on the communities’ natural resources. While the EAB has remanded one permit based on environmental justice concerns relating to the sufficiency of the record upon which EPA based its decision, the tribunal has not overturned a permit based on a finding of disproportionate impact.52 The EAB decisions, however, do establish the important point that existing environmental laws can and do address environmental justice issues because those authorities [*PG13]are designed to protect all communities. In the next section, a broader range of activities will be explored.

III.  Protecting a Diversity of Habitats—Starting at Home

A.  Fish Consumption Under the Clean Water Act

Starting from water, the most basic natural resource, Vitruvius’ message tells us that when we protect natural resources that sustain our health, we take steps toward maintaining the health of the environment.53 By contrast, if we degrade the resources upon which we rely, we expose ourselves, through the food chain, to the accumulated contamination of each link which ultimately finds its anchor in natural resources. This relationship has distributive risk implications because each community is linked differently to each component of the ecosystem. Therefore, what is protective of one group almost certainly will not be as protective for another.

The environmental justice implications of Vitruvius’ message rings clear with respect to exposure to pollution through fish consumption, because of the direct link between water quality and fish contamination levels, and variation in the amount of fish consumed among communities. The syllogism runs like this: contaminated rivers and streams (riparian habitats) create unhealthy fish and potentially unhealthy fish consumers. Following naturally from each communities’ distinctive characteristics, including tolerance for, exposure to, and consumption of contaminated fish, each community will necessarily receive different levels of exposure to pollution from water of the same quality.

Environmental justice advocates frequently criticize EPA’s evaluation of diverse communities’ consumption of fish in the methodology used to establish national Ambient Water Quality Criteria (AWQC), upon which permitting authorities may establish water quality standards.54 The criticism typically points out that assumptions used to establish AWQC do not correspond to the amount of fish or portions of fish typically eaten by certain populations.55 Further, the problem [*PG14]with the low or inaccurate consumption values is amplified because AWQC development methodology historically has failed to take into account the actual level of bio-accumulation of contaminants in fish. Thus, environmental justice advocates argue that by not taking into account how certain communities are linked to their environment, those communities are less well-protected than the general public.

1.  Establishment of Ambient Water Quality Criteria

EPA publishes AWQC56 that can be, and often are, used as default criteria by states in the establishment of water quality standards.57 The state regulatory authorities use EPA criteria to establish acceptable ambient levels of pollution, based on the water body’s designated use.58 If a state finds that its water bodies are so polluted that federal technology-based discharge controls will be insufficient to meet water quality standards,59 the regulatory authority must establish the Total Maximum Daily Load (TMDL) for each pollutant.60 The TMDL is then divided among point sources,61 and incorporated into each discharging facility’s National Pollution Discharge Elimination System (NPDES) permit.62

The establishment of national AWQC requires EPA to make decisions at the cutting edge of science.63 In addition to scientific questions, data gaps surrounding the variability of consumption habits of different populations64 make a definitive assessment of the effect of discharges on health tremendously challenging.65 A difficulty fre[*PG15]quently seized upon by environmental justice advocates whose communities are dependent on fish as a major source of protein is that the establishment of AWQC is inherently contextual, and involves issues of risk distribution.66

While the Clean Water Act requires EPA to establish recommended national AWQC that are protective of public health, the meaning of the phrase “protective of public health” is question-begging.67 The Clean Water Act does not define what levels of risk are protective in an absolute sense, much less identify which communities should represent the public. Therefore, if some risk is to be tolerated, that risk will be experienced differently across communities depending on fish consumption patterns, in addition to the sensitivities, vulnerabilities, and the relationship between a given community and its river or estuary resources.68

2.  Current AWQC Management of Risk Distribution

In making these difficult policy and scientific decisions, courts have acknowledged EPA’s technical expertise and given the agency substantial discretion to establish standards. Moreover, the courts have also sanctioned risk gradients across differently situated populations so long as all segments are “adequately protected.” In Dioxin/Organochlorine Center v. Clarke,69 environmental and industry plaintiffs70 challenged EPA’s establishment of TMDLs for discharges of dioxin into the Columbia River.71 The environmental groups, Dioxin/Organoclorine Center and Columbia River United (DOC), [*PG16]claimed that the TMDLs established by EPA failed to conform to the state’s water quality standards, which permit no more than a one-in-a-million risk of cancer in the general population. DOC argued that because EPA based its TMDLs on the average American fish consumption rate of 6.5 grams of fish per day,72 the Native American populations, who consume more than this amount, would not receive adequate protection.73

In response, EPA made two different arguments. First, EPA argued that because of the extremely conservative “potency estimates” (the amount of contamination per fish) used in the establishment of AWQC, the standards would adequately protect the Native American fish eating populations.74 Furthermore, EPA asserted that it was unlikely that each fish eaten would be fully contaminated. Thus, based on the conservative estimates underlying the TMDLs, the Agency argued that there was no reason to believe that Native Americans would have a higher risk of cancer than the general population.

Second, even assuming that Native Americans consumed the 150 grams of fish per day asserted by DOC, and that the fish eaten were fully contaminated, EPA argued that the risk level would be only twenty-three excess deaths per million for the Native American population. While higher than the one in a million level set for the general population, EPA posited that the “risk level mandated by the state water quality standards for the general population does not necessarily reflect state legislative intent to provide the highest level of protection for all sub-populations but could reasonably be construed to allow for lower yet adequate protection of specific subpopulations.”75 The Ninth Circuit upheld EPA’s position, finding that the “ambient dioxin concentrations cannot be considered arbitrary and capricious with regard to the effect of dioxin on human sub-populations, nor was the decision based on an unreasonable interpretation of state water stan[*PG17]dards.”76 The Ninth Circuit deferred to EPA’s expertise and adopted the “lower yet adequate” protection standard for the fish consuming Native American populations.77

In Natural Resources Defense Council v. EPA,78 the Fourth Circuit also considered claims that subsistence fishing communities would be injured because of the low fish consumption values underlying AWQCs. In a ruling similar to Dioxin/Organochlorine Center, the Fourth Circuit found that “it must give due weight to EPA’s interpretation and administration of this highly complex statute, particularly when its determination appears to be reasonable and is supported by substantial evidence in the administrative record.”79 The court elaborated, explaining that its role is merely to “ensure that the underlying criteria . . . are scientifically defensible and are protective of the designated uses.”80 Thus, the Fourth and Ninth Circuits both have evinced an acceptance of the “lower yet adequate” standard and employed a deferential standard to EPA’s scientific analysis.

3.  Towards Establishment of AWQS from the Perspective of the Affected Community

EPA has recognized the equity issues associated with variations among different populations.81 The agency has also improved its understanding of the way water pollution enters the food stream. With improved scientific techniques, a more accurate understanding of fish consumption patterns, and a recognition of the underlying risk distribution issues, EPA is revisiting the national AWQC.82

[*PG18] Based on data from a new fish consumption study, EPA has proposed raising the default fish consumption rate almost threefold, to 17.80 grams per day.83 This value represents the 90th percentile for consumption of freshwater and estuarine fish by the general population.84 In addition, EPA has also proposed a new default fish consumption rate of 86.30 grams per day for “subsistence fishers/minority anglers,” in recognition of variations among populations.85 This value represents the ninety-ninth percentile for consumption of freshwater and estuarine fish by the general population.86

Further, in order to accommodate fish consumption variations among communities, EPA’s draft AWQC urges states and tribes “to use a fish intake level derived from local data on fish consumption in place of these default values when deriving AWQC, ensuring that the fish intake level chosen be protective of highly exposed individuals in the population.”87 To this end, EPA suggests the use of data follow this four-tier hierarchy of preferences: (1) local data; (2) data reflecting similar geographic/population groups; (3) data from national surveys; and (4) proposed default intake rates. By looking to circumstances within specific communities and developing standards based on the actual relationship between the use of natural resources and the community, all communities can receive protection according to their needs.

While EPA has not deviated from the “lower but adequate” position adopted in Dioxin/Organochlorine Center v. Clarke,88 its proposed [*PG19]recommendations recognize the presence of populations composed of other than the “average American.” It also presents a framework for addressing differences between populations. Combined with the recently affirmed right of tribes to set water quality standards on tribal lands,89 the proposed AWQC points the way for increased health in subsistence and other communities and the resources they depend upon.

B.  National Environmental Policy Act

Federal agencies are increasingly attentive to the differences among communities’ experiences, cultures, and vulnerabilities when conducting reviews under the National Environmental Policy Act.90 The result of the government’s attention to these differences, as specifically required under NEPA and emphasized in the President’s Memorandum accompanying the Environmental Justice Executive Order, is that residents of low-income or minority communities and their environments are better protected and understood by decisionmakers.

NEPA mandates that for every proposed major federal action significantly affecting human health or the environment, government decisionmakers must consider the “environmental impact . . . , any adverse environmental effects which cannot be avoided . . . , alternatives, and any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.”91 These requirements accommodate easily the consideration of existing conditions, vulnerabilities, and differences among communities which, in part, define how environmental burdens will be distributed. By considering these issues, NEPA can serve as a window into the effects that a government action will have on a community’s environment and provide an opportunity to mitigate or avoid adverse consequences. Moreover, if an agency fails to consider the social, economic, and environmental impacts on minority or low-income communities, decisionmakers may not be able to accurately conduct the limited balancing of costs and benefits required under NEPA.

[*PG20]1.  Consideration of the Human Environment

Observers have long commented on the breadth92 of NEPA’s scope and upon the opportunities93 it provides to consider and address adverse impacts on affected communities.94 However, many, including some environmental justice advocates,95 have criticized the federal government’s record of considering socio-economic effects that may not be felt equally among communities and populations.96 The issuance of the Environmental Justice Executive Order and the response of the federal departments and agencies gives reason to believe, however, that NEPA can serve as an effective tool for identifying, avoiding, or mitigating disproportionate impacts.

[*PG21] The President’s Memorandum accompanying the Environmental Justice Executive Order97 directly addresses the environmental justice community’s criticism of NEPA’s implementation. The President’s Memorandum directs federal agencies to undertake four specific actions:

(1) analyze environmental effects, including human health, economic, and social effects of federal actions, including effects on minority communities and low-income communities, when such analysis is required by NEPA;98

(2) develop mitigation measures outlined or analyzed in Environmental Assessments (EA),99 Environmental Impact Statements (EIS),100 or records of decisions, whenever feasible, which address significant and adverse environmental effects of proposed federal actions on minority and low-income communities;101

(3) provide opportunities for community input in the NEPA process, including identifying potential effects and mitigation measures in consultation with effected communities and improving accessibility of public meetings, official documents, and notices to affected communities;102 and,

(4) EPA, as directed by the President under its authority pursuant to section 309 of the Clean Air Act,103 must “ensure [*PG22]that the involved agency has fully analyzed environmental effects on minority communities and low-income communities.”104

The President’s Council on Environmental Quality issued guidance to implement the Executive Order.105 While the guidance, by its own terms, is not supposed to be used as a formula, the following four principles stand out. The guidance provides that federal departments and agencies should determine:

(1) whether there are vulnerable populations present in the affected area, and, if so, whether there may be disproportionately high and adverse effects on those populations;106

(2) whether there is the potential for multiple or cumulative exposure to human health or environmental hazards;107

(3) whether there are inter-related cultural, social, occupational, historical, or economic factors that may amplify the physical environmental effects of the proposed action;108 and,

(4) Agencies should assure meaningful community representation in the process, and develop effective public participation strategies.109

These principles direct federal agencies to take into consideration the context, values, experience, practices, and vulnerabilities of the subject populations and their relationships with the environment. Thus, from the perspective of the community, federal agencies can take actions that maintain the natural and environmental resources upon which communities depend.

[*PG23]2.  Administrative Litigation: Environmental Justice in the NEPA Context

The Environmental Justice Executive Order does not “create a right of judicial review against the United States.”110 Therefore, no federal court has remanded a federal action based upon an agency’s failure to consider disproportionate impacts in the NEPA process.111 However, at least two administrative tribunals have held that agency actions must adequately consider environmental justice issues, pursuant to the Executive Order and as part of the agency’s NEPA analysis.112 In these cases, the agency tribunals expressed a willingness to review agency NEPA analyses for disproportionate impacts.113 However, like the EAB, the agency tribunals looked only to the nexus between the community and the environment, and the way in which the government action affects that relationship.114 The tribunals have not examined allegations of outright discrimination on the part of the state or local regulatory agency responsible for approving a facility’s siting.

a.  Nuclear Regulatory Commission

For example, a panel of three Nuclear Regulatory Commissioners, sitting as an appellate body, reviewed an Atomic Safety and Licensing Board’s (“Board”) determination that an EIS for a uranium enrichment facility failed to adequately consider disproportionate socio-economic impacts on a low-income, minority community.115 The preferred alternative placed the facility on a 70-acre parcel of land located on a larger 442-acre woodland area and between two unin[*PG24]corporated African-American communities in Louisiana.116 The EIS alluded to a number of environmental impacts to surface and groundwater, and to air quality.117 However, before the Board and the Nuclear Regulatory Commissioners, the project proponents and petitioners were most concerned with issues relating to disproportionate impacts of a socio-economic nature.

The Commissioners found a link between social and economic impacts and environmental quality issues. Specifically, the Commissioners found:

Necessarily . . . agencies frequently do consider proposed project’s social and economic effects, even if only to a limited extent, given that NEPA generally calls for at least a broad and informal balancing of environmental costs of a project against its technical, economic or other public benefits. Misleading information on the economic cost of a project, therefore, could skew an agency’s overall assessment of a project’s costs and benefits, and potentially result in approval of a project that otherwise would not have been approved because of its adverse environmental effects.118

Without consideration of impacts that especially affect low-income or minority communities, the impacts might be permitted where, in truth, the total costs of the project outweigh the benefits. The Commissioners also found that because “adverse impacts that fall heavily on minority and impoverished citizens call for particular close scrutiny,” such issues must be included within NEPA’s ambit.119 Thus, the Commissioners agreed with the Board that issues of disproportionate impact needed to be addressed.

Concurring with the Board that the EIS failed to adequately consider issues of disproportionate impacts, the Commissioners paid close attention to the impact of a road closing (called for in the proposal) on the social and economic fiber of the two minority communities. The Commissioners found that by not analyzing the impact of the transportation corridor’s closure on pedestrian traffic, the EIS failed to adequately consider the indirect impact of the facility on the [*PG25]communities’ social, cultural, and economic life. The Commissioners noted that while a road closing might be only a minor inconvenience for people who drive, the closing would create significant life issues for approximately one-third of the local African-American population who did not own automobiles, as well as for the “old, ill or otherwise infirm.”120 Without understanding the effect of the closing from the communities’ perspective, the Commissioners, like the Board, found that a reasoned decision based on the environmental impacts of the proposal could not be made.121

However, the Commissioners did not uphold the Board’s order for additional investigation with respect to allegations of racial discrimination in the siting process.122 Although they did not find the Board’s analysis with respect to the claims of discrimination to be necessarily flawed, the Commissioners recognized that NEPA is designed to review impacts associated with projects, not the underlying motives of the action. Therefore, examination of possible discriminatory intent within the context of NEPA was not appropriate.123

b.  Bureau of Land Management

The Department of the Interior, like the Nuclear Regulatory Commission, reviews NEPA analysis for consideration of disproportionate impacts on minority and low-income communities both under the policy established by the Executive Order and as a matter of course.124 In Southern Utah Wilderness Alliance (SUWA),125 the Department of the Interior Board of Land Appeals (IBLA) reviewed and remanded a Bureau of Land Management (BLM) decision to construct a visitor station at Kane Gulch on the Grand Gulch Plateau, Utah. In that case, environmental organizations and the Navajo Nation, among others, objected to BLM’s decision to construct a visitor center in Utah’s canyon country because of possible harm to cultural and natural resources. Specifically, the appellants objected to BLM’s failure to consider, in an EA prepared for the facility, the possible harm to natu[*PG26]ral and cultural resources caused by the potential increase in the number of visitors to the area.126

Degradation from increased use has caused significant impacts to substantial portions of Utah’s canyon lands. According to local accounts:

The confluence and narrows are being hammered by too much use. . . . Sandbars, or benches, which offer the only place to camp above the river bed, suffer the most impact. Campers erode trails across vegetated areas, leave messy ‘cat holes’ with toilet paper sticking out, and build rings for illegal campfires.127

The loss of desert habitat is of special concern to local tribes who “gather pinyon nuts from the canyons for food and collect herbs indigenous only to [Cedar Mesa] for traditional medicines and blessing rituals.”128

Preparing the NEPA analysis for the visitor center, BLM identified potential impacts to resources as a concern and entered into a dialogue with local tribes.129 However, BLM expressly decided not to address the possibility that “new facilities would increase visitor use, because it assumed that visitor use would increase with or without construction of the facility.”130 Therefore, BLM did not consider the facility’s potential impact on cultural values caused by possible increased use and damage to natural resources. Consistent with this understanding, “BLM also declined to address environmental justice concerns, stating that a ‘new visitor contact station would have no adverse impacts to minority or low income populations’.”131 Further, because it concluded that the facility would not injure any natural or cultural resources, BLM decided to respond to issues on a continuing basis and as the need arose rather than completing consultation with the tribes.132

[*PG27] Noting that BLM had described the proposed visitor center as an “effective portal to the world-class resources of the Cedar Mesa ‘outdoor museum’” and planned to provide potable water in the high desert canyon land,133 IBLA found that the EA should have determined whether the facility would, in fact, attract more visitors. Perhaps presupposing an answer, IBLA expressed concern that the EA did not consider the direct effect or indirect effects on cultural resources of the increased number of visitors.134 Moreover, IBLA was “troubled by BLM’s treatment of Native concerns, since it expressly declined to address these issues and effectively acknowledged that, as of the issuance of the decision to go ahead, it had not fully resolved those concerns, but that it would do so in the future.”135 Remanding the decision to BLM, IBLA ordered BLM to complete the dialogue entered into with the tribes, consider the effect of increased visitors to the area, and identify vulnerable cultural resources likely to be impacted by increased use of the area.136 Thus, if BLM constructs the visitor center, the impacts to the land will be understood and addressed from the perspective of the local community.

Both the IBLA and the NRC have recognized that the Environmental Justice Executive Order carries no third party rights of action in federal court. However, they found that executive branch agencies were bound by the President’s Executive Order. Moreover, as SUWA makes clear, where an action’s impact to a natural resource creates an adverse social or cultural change to a distinct community, those impacts must be examined from the communities’ point of view. By examining and avoiding those impacts, both the community and the natural resources upon which the community depends may be maintained .

C.  Resource Specific Analysis

Regulation of specific natural or environmental resources137 can act to protect ecosystems and the people whose lives are intertwined [*PG28]with them.138 Federal regulation of place-based resources typically limits use, not only to activities that are protective of human health and the environment, but also to those uses of natural resources that are found to be in the public interest.139 Based upon increasingly common cultural understandings140 and executive branch policy, as stated in the Environmental Justice Executive Order, this public interest requirement may either limit or require examination of activities that disproportionately impact minority and low-income communities. Thus, the public interest determination requirement, imbedded in most place-based or resource-based acts, can give substance to the impacts identified through NEPA’s procedural requirements.141

1.  Environmental Justice and Public Interest Considerations in Issuance of Section 404 Permits to Dredge and Fill Wetlands—A Case Study

Planning for expected regional growth, the City of Newport News and a group of counties and cities in Virginia’s lower peninsula formed the Regional Raw Water Study Group (RRWSG)142 to develop a municipal water source that would satisfy the predicted demand for water through 2040. Projecting a 39.8 million gallon per day water supply deficit,143 the RRWSG proposed a 1,526-acre impoundment on Cohoke Creek—the King William Reservoir. The site was selected, in part, because of the deeply incised valley through which the Cohoke Creek, a tributary of the Pamunkey River, flows. In addition to the [*PG29]geologic suitability of the river valley for impoundment purposes, the apparent availability of supplemental raw water (75 million gallons per day) from the nearby Mattaponi River144 made the location desirable from an engineering perspective.145

The King William Reservoir would have a substantial effect on regional ecological resources.146 The impoundment would create a 1,526-acre lake147 and result in a loss of a total of 437-acres of highly diverse wetlands and uplands.148 In fact, the Army Corps of Engineers (Corps) found that the project ranks as the largest single destruction of wetlands and their associated habitat ever evaluated in the Norfolk District.149

Animal and plant species would be significantly impacted by the project as well. The Department of the Interior’s Fish and Wildlife Service found that the Small Whorled Pogonia150 and Sensitive Joint-Vetch,151 both listed as “threatened” under the ESA, are located in and around the project area.152 Further, the project may have the potential to impact the local shad population both from direct effects and, potentially more seriously, from the indirect effects.153 “The significance of these impacts is amplified by the alarming rate of habitat loss, particularly of wetland resources, in the Chesapeake Bay [area],”154 where the proposed reservoir would be located.

[*PG30] Two Native American tribes recognized by the State of Virginia,155 the Mattaponi and Pamunkey, would also be impacted.156 Members of the Mattaponi have subsisted on a 150-acre reservation on the banks of the Mattaponi River157 since entering into a treaty with the then colony of Virginia in 1677.158 The Mattaponi are decedents of Chief Powhatan, father of Pocahontas and ruler of large portions of what is now tidewater Virginia.159

The river for which the Mattaponi tribe is named,160 as well as the surrounding land, have special meaning to the tribe, at levels cultural, spiritual, and physical. The Mattaponi “have fished, farmed, hunted, gathered, and worshiped in this area for hundreds of years, making its land the cultural and economic base of the Tribe.”161 Moreover, the potentially impacted area contains archaeological sites potentially eligible for inclusion in the National Register of Historic Places.162 Among other spiritual and cultural resources, the Mattaponi revealed that the area includes a sacred site, which the Corps found to be of extreme archaeologic and anthropologic importance.163

[*PG31] The Mattaponi perceived the proposed project as having the potential to cause a catastrophic impact on its way of life. The Corps characterized the tribe’s view of the project, as follows:

[T]he reservoir would destroy their way of life through the loss of hunting, gathering and fishing habitat, by changing the rural setting from increased residential growth around their reservations, and by severing ties to their ancestors. . . . Also, the Mattaponi people believe that their subsistence shad fishery and hatchery operation will be lost or irreparably harmed by changes in salinity and impacts to shad eggs and fry associated with the raw water intake on the Mattaponi River.164

Because the Mattaponi are profoundly connected to the local ecology, it follows that adversely affecting the natural resources surrounding them would also adversely impact the tribe.

2.  Review of the Environmental Impact Statement for the Proposed Permit

The Corps issued the Final EIS on January 24, 1997.165 The document, which recommended the preferred alternative of the RRWGS, would have permitted the construction of the reservoir.166 In July 1997, the Corps accepted comments submitted by, among others, the Mattaponi,167 a number of environmental and natural resources organizations,168 an environmental law clinic,169 and EPA Region III, which filed comments pursuant to Section 309 of the Clean Air Act.170 The environmental and natural resources advocate organizations submitted studies that called into question the assumptions that the [*PG32]project proponents used in deriving the anticipated future demand for water.171 Additionally, the groups raised many concerns relating to the proposed project’s impacts to the ecology of the watershed and its indirect effects on the Mattaponi.

While noting the concerns raised by the other commentors with respect to the assessment of water needs, EPA Region III deferred to the technical expertise of the Corps.172 Rather than focusing on the predicted availability and demand for water, EPA analyzed the project’s direct and indirect effects on cultural,173 water quality,174 hydrology,175 fisheries,176 and wetland resources.177 Moreover, in its comments, EPA extensively addressed the intricate relationship between the local ecology and the Mattaponi under the rubric of environmental justice.178 On this issue, EPA found that the Environmental Justice Executive Order and the accompanying memorandum “sets up a clear mandate for the Army Corps of Engineers to look seriously at this issue within the context of the . . . NEPA document.”179 While the project proponents had made a good faith effort to achieve some of the stated principles, EPA found that “key components of identifying and addressing concerns, in consultation with the affected communities have yet to be completed.”180

[*PG33] Significantly, EPA found that the Corps should prepare a supplement to the EIS addressing unresolved questions relating to the impact the ecological modifications on the affected Native American communities. In anticipated preparation of this additional analysis, EPA urged the Corps “to work directly with the affected communities as well as seek professional assistance in this matter as they would any other environmental issue.”181 In particular, EPA recommended examination of the following:

(a) impacts or possible violation of a community’s customs or religious practices;

(b) impacts to cultural and historic properties and areas, the degree to which the effects of the actions can be absorbed by the affected population without harm to its cohesiveness;

(c) impacts to fish and wildlife on which a minority population or low-income population depends, cultural differences in environmental expectations (endangered species vs. traditional hunting or ceremonial use);

(d) impacts on the health and sustainability of ecosystem or watershed within which a population is located (e.g. religious use of natural resources); and

(e) degradation of aesthetic values.182

3.  Response to Comments on the FEIS

In response to comments received, the Corps prepared supplemental studies183 and conducted additional public outreach.184 In addition, the deciding official of the Corps met with the Mattaponi and Pamunkey tribes in person to hear the concerns of the tribes and vis[*PG34]ited the cultural sites identified by the impacted communities.185 The Corps also used the services of its research arm, the Institute for Water Resources (“Institute”), to evaluate the need for and alternatives to the proposed reservoir.186

The Institute concluded that the consortium “significantly overestimated future demand and that the stated need is not supported by their data.”187 Rather than the 39.8 million gallon per day deficit predicted by the consortium, the Institute found that the RRSWG only convincingly demonstrated a need for an additional 17 million gallons per day in 2040.188 According to the Institute’s measures, that level of deficit corresponds roughly to the amount of water the consortium estimated that could be obtained through conservation measures (7 million to 11.1 million gallons per day) and the amount that could be developed from fresh and brackish ground water supplies (10.1 million gallons per day).189

4.  Position to Deny

On June 4, 1999, Colonel Allan B. Carroll of the Corps stated the Corps’ position to deny the consortium’s request for permits to construct the proposed reservoir.190 The Corps issued the position to deny based on regulations governing wetlands and information compiled as part of the NEPA review process.191 Specifically, it considered “the lack of a demonstrated need to destroy 437 acres of wetlands as well as the cumulative adverse environmental impacts of the project, particularly the potential for a disproportionately high and adverse effect to an American Indian minority population.”192

For such projects, two broad findings must be met before the Corps will issue a federal permit to dredge and fill a wetland. The [*PG35]regulations implementing Section 404 of the Clean Water Act provide that the Corps must determine: (1) whether a practicable alternative exists that would have less adverse impact on the environment;193 and (2) whether the project is in the public interest.194 Factors that the Corps must consider under the public interest determination include, among other things, “conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, flood plain values, land use, . . . recreation, water supply and conservation, water quality, . . . considerations of property ownership, and, in general, the needs and welfare of people.”195

The Corps, which based its position to deny the permit on the Institute’s analysis of future water demand and supplemental cultural studies, found that the consortium had overstated the projected need by more than a factor of two.196 Moreover, the Corps found that conservation and “non-reservoir [sources] would meet the 2040 deficit.”197 Consequently, the Corps found that there “does not appear to be a supportable, demonstrated need for the destruction of 437-acres of wetland and the functions they perform.”198

Furthermore, the Corps found that the reservoir would not be in the public interest.199 First, the Corps’ position to deny enumerated the ecological and cultural impacts of the proposed reservoir project.200 Next, the Corps addressed these resources from the tribes’ perspective, and found that:

The project has the potential to impact a sacred site, traditional hunting, gathering and religious practice, subsistence fisheries, and the way of the Mattaponi. . . . Because the proposed reservoir is located between Virginia’s only two American Indian Reservations, and the proposed intake is located upstream of the Mattaponi Reservation, the project [*PG36]has the potential to result in disproportionately high and adverse environmental effects to minority populations as described in Executive Order 12898.201

The legal weight given to the Environmental Justice Executive Order by the Corps is debatable. For example, it is not entirely clear whether the Corps interpreted the Executive Order as creating a policy finding that disproportionate impacts are necessarily or presumptively against public interest under Section 404 of the Clean Water Act. However, their decision was clearly based on the principle that actions that disproportionately impact the resources of minority or low-income communities are against the public interest.202 In the case of the Mattaponi, the Corps clearly found environmental justice concerns to have a great bearing on the public interest determination under Section 404 of the Clean Water Act.203

Conclusion

These examples do not define the universe of environmental statutes that have environmental justice implications on natural resources. To the contrary, the point is that all environmental laws have [*PG37]environmental justice implications imbedded within them. The only question is how we will use them. If statutes are applied using broad, generic averages, as the EAB points out, minority or low-income populations may well be excluded and environmental injustices will occur. However, if regulators view the environmental and natural resources services from the communities’ point of view, the health of both the residents and the resources will be maintained.

The examples are also not meant to imply that the use of environmental statutes to protect sub-populations is new. The opposite is true. In most cases, protective environmental laws, regulations, and policies, if they are appropriately and fairly applied and equally enforced, do protect all people, including minority and low-income populations. What is new, however, is the increasing awareness of federal agencies that inattention to issues faced by minority or low-income populations can lead to disproportionate exposure to environmental harms and risks. As a consequence of that awareness, the environmental and natural resources of those populations are beginning to benefit.

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