Last April, in one of The Legal Pulse’s first ever posts, we spotlighted signs that the “environmental justice” movement, largely moribund for the past ten years, was mounting a comeback at the Environmental Protection Agency (“EPA”).  The issue injects a touchy subject into the controversial realm of environmental law and policy.  Invoking the broad and amorphous concept of environmental justice (“EJ”) – which equates “disparate impact” (rather than intentional acts) with discrimination – affords activists a highly effective new way to demonize free enterprise and demagogue the building of new business facilities and the award of pollution emission permits.

The movement’s comeback advanced further this past December with a barely reported on “White House Forum on Environmental Justice.”  The New York Times gave it some attention, as did the consistently spot-on National Association of Manufacturers’ Shopfloor site.  A procession of cabinet secretaries spoke including, oddly enough, Homeland Security Secretary Napolitano.  She rambled on about her agency’s concerns over climate change, which reflects how every environmental issue can be about environmental justice.  The Times story repeated EJ activists’ frustrations, expressed at the forum, that federal officials give speeches and push out a lot of paper but have done little more.  Administration environmental officials responded by touting that they have a concrete plan to do more – Plan EJ2014.

Why 2014?  Because that’s the 20th anniversary of President Clinton’s Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.  The  Plan EJ2014 document describes various activities EPA will pursue including “identify[ing] opportunities to utilize EPA’s statutory authorities to advance environmental justice.”  The agency has a rather sweeping interpretation of the “protecting public health” goals of laws such as the Clean Air Act and the Resource Conservation and Recovery Act, broad enough to sweep in EJ theories.  Such an interpretation would likely be vulnerable to legal challenge.  EPA has already moved forward on another tool devised for EJ2014 implementation through the July 2010 issuance of  an “interim guidance,” a policy-setting maneuver EPA and other agencies use to circumvent the legal protections of the Administrative Procedures Act and other laws.

As explained in a cover memo to EPA employees, the Interim Guidance on Considering Environmental Justice During the Development of an Action is a “step-by-step guide [to] help EPA staff determine whether actions raise possible environmental justice concerns,” which will allow EPA to “explicitly integrate environmental justice considerations into the fabric of EPA’s process for developing actions,” according to a  which accompanied the guidance.  Agency “actions” include, “rules, policy statements, risk assessments, guidance documents, models that may be used in future rulemakings, and strategies that are related to regulations.”  In other words, essentially everything that EPA does on a daily basis.  The document’s two sections are a thorough roadmap on how EPA bureaucrats can weave a seemingly infinite number of EJ “concerns” into their  decisions, moves which can create a great deal of discomfort for regulatory targets challenging EPA future actions.

Through either actual EPA actions or the threat of being accused of discrimination, businesses can be whipsawed into either staying out of  “overburdened” (as EPA terms them) communities (where unemployment is high), or forced to invest in the kind of “green” technology which will make EPA and activists happy but limit business growth and job creation.  Such overcompliance is exactly what federal officials have in mind with environmental justice.  Consider, for instance, what the Assistant Attorney General for environment at the Justice Department said at the White House EJ forum:

I met with corporate counsel recently. . . . You know what we spent almost the whole time talking about? Environmental justice. . . . We’ve talked to them about doing more [than just complying with the law]: green technology, green jobs, and retrofitting.  . . . [W]hen we’re talking about injunctive relief with you, looking forward, we’re also going to be talking about enhanced injunctive relief.  What more can you do so you go beyond compliance?

If elected officials with oversight authority are looking for activity at the Environmental Protection Agency which reduces economic opportunity, environmental justice should be on their list.