Integrating Environmental Justice into EPA Permitting Authority

摘要

A recurrent issue arising out of the President's Executive Order 12898 on Environmental Justice is the extent to which EPA possesses the authority to condition on environmental justice grounds permits that the Agency (and States with federally-approved programs) issues to regulated entities pursuant to the various federal environmental protection laws administered by EPA. A related question is the extent to which the permitting authority (state or federal) may deny a permit altogether solely on environmental justice grounds. The purpose of this paper is to question the apparent assumption of many that no such permit conditioning or denial authority exists relating to environmental justice concerns. The paper is concerned exclusively with the issue whether EPA possesses authority that it has not yet chosen to exercise. The paper does not comprehensively address the distinct question whether EPA is required under existing statutory provisions to impose such conditions or deny such permits. The paper is divided into four parts. First, the paper describes, in general terms, both what kinds of factors might be implicated in the permitting context by "environmental justice" and the types of conditions that might be imposed in response to those concerns. Second, the paper describes and discusses the EPA Environmental Appeals Boards decisions that have addressed the relevancy to EPA's permitting authority of environmental justice concerns. Third, the paper surveys some (not all) of the various federal environmental laws for statutory and regulatory language that might provide a legal basis for EPA conditioning permits, or denying them altogether, on environmental justice grounds. The paper concludes that EPA clearly has considerable authority to promote environmental justice through permit conditions and denials (and registration conditions and denials) that the Agency has yet to enlist effectively. One area plainly ripe for exploitation is EPA's substantial authority to account better for the aggregation and accumulation of risks in environmental justice communities in the Agency's permitting decisions. EPA has far more authority than it has historically acknowledged to restrict and deny the operation of environmentally risky facilities based on the factor that the community to be exposed is already disparately subject to such risks from other sources. EPA also possesses considerable authority to use its permitting authority to condition permits in a manner that requires the regulated entity itself to help the exposed community lo build the community enforcement capacity necessary for the community to oversee and ensure the facility's compliance with applicable environmental laws. Such community enforcement is an indispensable element of the statutory scheme enacted by Congress and a necessary element of any executive branch program intended to fulfill the President's environmental justice mandate in Executive Order 12898.