Human Rights and the Environment: A Synopsis and Some Predictions

Georgetown International Environmental Law Review, Spring 2004 by Hill, Barry E, Wolfson, Steve, Targ, Nicholas

In his view, environmental justice had reached the Sixth Degree, but had not reached the Seventh Degree.

C. THE UNITED STATES FEDERAL GOVERNMENT EXPERIENCE - HARDENING OF THE LAW

Since Professor Ruhl's 1998 article, despite legislative actions in the states of California, Florida, Arkansas, and others, there is, as yet, no specific environmental justice legislation at the federal level. However, it has become clear that if environmental justice issues and concerns are going to be successfully addressed by the EPA, in particular, and the federal government, in general, existing environmental laws have to be used more extensively and more creatively. Since the EPA implements and enforces environmental laws to protect human health and the environment of all people, including residents living in minority and/or low-income communities that tend to be disproportionately exposed to environmental harms and risks, it logically follows that the greatest chance of successfully addressing their issues and concerns would have to be subsumed within the context of traditional environmental laws. Indeed, the first clause of the federal Environmental Justice Executive Order, directs federal agencies, "[t]o the greatest extent practicable and permitted by law. . . each Federal agency shall make environmental justice part of its mission. . "38 Therefore, both to help achieve the goal of environmental justice and to satisfy the requirements of Executive Order 12898, it was essential for the EPA's chief legal officer, the General Counsel, to issue a legal memorandum setting forth how environmental justice can be incorporated into the Agency's programs through the effective use of environmental laws and their implementing regulations.

As reflected in former EPA General Counsel Gary Guzy's December 1, 2000 memorandum to senior officials, the Agency determined that many of the statutes it implements provide the various EPA regulatory programs with the authority to address environmental justice issues and concerns.39 These laws, which encompass the breadth of the EPA's activities, include, among others:

a) setting standards under section 304(a)(1) of the Clean Water Act;

b) permitting facilities pursuant to Section 305(c)(3) of the Resource Conservation and Recovery Act;

c) awarding grants in accordance with Section 117(e) of the Comprehensive Environmental Response, Compensation, and Liability Act; and

d) reviewing actions taken by other Federal agencies, states, and tribal governments as a result of Section 309 of the Clean Air Act.40

Moreover, these laws require the Agency to consider a variety of factors, including: (a) public health; (b) cumulative impacts; (c) social costs; (d) welfare; and (e) general environmental and human health impacts.41 This release of this wide-ranging memorandum was the first time that the Office of General Counsel explicitly recognized that existing environmental laws could allow the Agency to address environmental justice issues and concerns.

Consistent with this legal opinion, former Administrator Christine Todd Whitman issued a memorandum, dated August 9, 2001, to senior EPA officials where she categorically stated that: