The Environmental Protection Agency's controversial interim guidance designed to resolve environmental justice complaints has elicited a hue and cry from the U.S. Conference of Mayors, the latest in a series of critics to attack the proposal, adding fresh impetus to a congressional investigation into the agency's plan.
The guidance caught the attention of House Commerce Chairman Thomas Bliley, R-Va., earlier this year, after several state and local groups came out strongly against the proposal. So far, Bliley's office continues to withhold judgment on the guidance, but has requested numerous agency documents to support an investigation into the matter, including reports that there is dissension over the guidance within the ranks of the EPA.
The EPA guidance provides a framework for investigating charges of environmental racism in connection with the issuance of permits by state or local agencies that receive EPA funding. While the proposal has drawn intense, widespread criticism both from regulators and members of the regulated community, concerns are perhaps most notable in brownfields redevelopment, given that the half-million U.S. brownfield sites requiring redevelopment tend to be confined almost exclusively to urban, mostly minority communities.
At its annual meeting late last month, the mayors passed a strongly worded resolution urging the EPA "to suspend its current interim guidance" and develop a new one that is more favorable to brownfields redevelopment.
The resolution was submitted by Detroit Mayor Dennis Archer, whose city is home to a disproportionate share of the nation's brownfields.
In an apparent pre-emptive strike, EPA Administrator Carol Browner a few days before the meeting sent a letter to the mayors saying concerns about the guidance's impact on urban redevelopment are overblown.
Browner also said the agency will not finalize the document until a special advisory committee appointed by Browner to study the issue releases its findings in December.
The EPA guidance is meant to conform with President Clinton's edict that all federal programs must comply with Title VI of the Civil Rights Act, which disallows federal funding for any project that is proven to be "discriminatory."
While the EPA's guidance, better known as the "environmental justice memo", was in the offing, "most people [believed] that [the EPA] would interpret that [presidential directive] to stop copper smelters from being packed into Harlem, or something like that," said Steve Kidney, editor of the Washington, D.C.-based newsletter Brownfields Report.
"But the [EPA interim guidance, which was released in February] is so vague in the way [discrimination is defined], that it is generating a lot of apprehension," he added.
Critics of the EPA guidance, like Bill Kovacks of the U.S. Chamber of Commerce, say it will throw up new roadblocks to brownfields redevelopment.
The Chamber's concern, and those of the Chemical Manufacturers Association and the National Association of Manufacturers, is that the EPA guidance will lead to a rash of environmental racism petitions, similar to one that has indefinitely hung up a $700 million vinyl plastics facility slated for operation in Convent, La.
That case, which Greenpeace has touted "as the leading example of environmental racism in the nation," involves Japanese-owned Shintech's plans to build a facility in a mostly low-income and African-American community, a project that would bring about 165 new jobs to the struggling area.
However, Tulane University's Environmental Law Clinic accused state officials, who issued the Houston-based Shintech air pollution permits last summer, of "environmental racism," and lodged a complaint with the EPA's regional office in Dallas, charging Shintech's plant would unfairly burden people near its site with disproportionate pollution.
If it sides with Shintech's opponents, the EPA could order Louisiana to pull or revise Shintech's permit, or risk losing federal funds.
The Shintech case does not deal with brownfields, and neither have any of the nearly 50 such environmental racism complaints filed with the EPA in the last three years.
However, many on all sides believe the Louisiana case foreshadows tougher battles over plant moves into minority areas, an issue that strikes a particular chord with brownfields development supporters, who worry more companies will not want to move to areas with high levels of minority residents.
The business community also is irked that the guidance will allow outsiders to intervene at apparently any stage of the permitting or repermitting process, even in projects like the Shintech facility, which appears to have the support of a majority of the local residents.
Said Kovacks: "We would argue that all facility siting is local. [This is a case] of the EPA making local decisions." And, Kovacks argued, a project that is subject to a protracted investigation likely will be destroyed, regardless of the outcome of the case.
In the meantime, eco-justice groups may have more avenues for their complaints. In early June, the U.S. Supreme Court granted the state of Pennsylvania's request to hear arguments in a case that likely will determine whether racial discrimination lawsuits must prove that the alleged discrimination was intentional.
A group of Chester, Pa., citizens have sued the state's Department of Environmental Quality, alleging that its permitting policies concentrated a disparate share of pollution in Chester, a community that includes a high percentage of African-Americans. If the Chester group's lawsuit prevails, Kovacks said, state and local agencies receiving federal funds might be sued at any time by anyone who believes the agency's policies or practices have a discriminatory effect.
One of the more onerous aspects of the EPA guidance, added Paul Kamenar, executive director of the pro-business Washington Legal Foundation, concerns the "disparate impact" standard the agency plans to use in determining whether a charge of environmental racism is merited.
Under that standard, a party alleging environmental racism would need only show that a minority community is being treated differently than other communities.
Traditionally, Kamenar said, complainants have had to prove the project in question would have a "discriminatory effect" on a community, a "tougher standard" to meet."
NEXT STORY: Education budget standoff looms