NMELC Comments on EPA’s Plan to Integrate EJ Principles Into Their Programs
Dear Administrator Jackson:
Thank you for the opportunity to comment on Plan EJ 2014 (the Plan). We commend your effort to further environmental justice in the Environmental Protection Agency’s (EPA’ s) work and we appreciate your solicitation of input from groups working on environmental justice issues before putting the proposed Plan into effect.
INTRODUCTION
By way of introduction, I am the Executive Director of the New Mexico Environmental Law Center (the Law Center), a non-profit public interest law firm that provides free and low cost legal services for protection of the environment in our state. The majority of the work of the Law Center is representing communities here that are either being impacted by or are threatened by existing or proposed facilities such as airports, chemical plants, landfills, and roads, and by existing or proposed operations such as extraction of ground water, mining, and oil and gas production. Almost all of the communities with which the Law Center works are communities whose residents are predominantly low-income and communities whose residents are people of color. In most cases, the communities that are our clients are both low-income communities and communities of color.
The following comments are based upon the Law Center’s experience working for these communities and for environmental justice in statewide contexts such as the successful effort to include environmental justice provisions in New Mexico’s Solid Waste Management Regulations and the effort that resulted in New Mexico Governor Bill Richardson signing an environmental justice executive order.
COMMENTS
I. The Plan’s Focus Areas are important but should be strengthened.
The EPA’ s request for comments on the Plan asks three questions. The first is whether the five Cross-Agency Focus Areas are the appropriate areas; the second is what can be done to strengthen the five Focus Areas; and the third is what priority should be given to each of the five Focus Areas.
The following comments address each of the five Focus Areas in the order of the priority that the Plan should assign to them. As is indicated in the comments, each of the five Focus Areas is important. As is also indicated, however, the protection that each Area would provide for communities can be strengthened. Finally, these comments include two recommendations for strengthening specific actions within each of the Focus Areas
A. The five Focus Areas listed are appropriate.
1. The Plan’s first priority should be support for communities.
The first priority of the Plan should be the concerns of residents of communities of color and low-income communities that are subjected to environmental degradation. Protection of environmental justice communities must begin with consideration of the concerns of the residents of those communities. One of the most fundamental principles of the environmental justice movement is that community residents speak for themselves, and the Plan should explicitly recognize that principle and require action based on it.
The Plan’s focus on community-based action programs appears, however, to limit providing support for environmental justice communities to supporting existing programs. The Plan also should include the provision of resources for community residents so that they can participate effectively in rulemaking proceedings, permitting processes, and other contexts in which environmental justice questions are determined.
The Plan should recognize three fundamental points about community engagement, particularly in the context of environmental justice. First. community engagement must mean engagement in which members of impacted communities speak for themselves. It is not appropriate for rulemaking officials and officials determining whether to issue permits for polluting facilities to act on the basis of what they believe to be community members’ concerns. Second, in order for community members to be able to participate effectively in rulemaking, they must have access to resources. Many members of low-income communities and communities of color have full time jobs, and do not have either the time or the resources to travel to rulemaking negotiations or hearings. Third, community members can participate in rulemaking effectively only if they have meaningful access to the proceedings. In some cases this means having services such as translation. In many cases, particularly in a rural state like New Mexico, it means having access in forms other than the electronic media. The Plan’s proposal to utilize the Regulatory Gateway is appropriate for people who have access to the Internet, but in many areas of New Mexico residents do not have electricity, let alone Internet access.
2. The manner in which permits for polluting facilities are issued should be the Plan’s second priority.
In New Mexico, the permitting of polluting facilities is a critical factor in the subjugation of communities of color and low-income communities to environmental degradation. Permits for such facilities are frequently issued by state or local regulators implementing EPA programs, and they are issued without regard to the impacts of the facilities involved on the communities where the facilities are or are proposed to be located. This happens in part because of the failure of regulators to take into account the impacts of polluting facilities on communities as well as the cumulative and synergistic effects that multiple facilities have.
The Plan should make clear that consideration of, and action on, environmental justice concerns must be mandatory in the permitting context. Too often regulators view environmental justice concerns as issues that may, but do not have to be, taken into account. In New Mexico, very few regulators believe that environmental justice concerns should dictate results. The view of these regulators is that the only action required to provide environmental justice is giving community residents an opportunity to voice their concerns. Such regulators do not understand that in order to provide environmental justice they must take into account and act upon the concerns of residents of low-income communities and communities of color. Even among regulators here who take seriously the concept of consultation with community members, very few understand that environmental justice also means not making decisions that cause disproportionate impacts on low-income communities and communities of color.
The only exception to this approach to permitting of polluting facilities in New Mexico concerns the siting of solid waste facilities. In 2005, the New Mexico Supreme Court ruled that the State Environment Department must take into account the impacts that a proposed landfill would have on the community of Chaparral (a predominantly low-income immigrant community near El Paso) when the Department determines whether to issue a permit for the landfill. Colonias Development Council v Rhino Environmental Services, Inc., 2005 NMSC 24, 138 N.M. 133. Following that ruling, the State Environment Department initiated a successful effort, which was joined by environmental justice advocates (including the Law Center) to amend the State Solid Waste Management Regulations to limit the siting of solid waste facilities in low-income communities where there already are facilities that degrade the environment.
Environmental justice advocates here (including the Law Center) are working to expand that ruling and the example of the Solid Waste Management Regulations to other areas. The success of those efforts will be measured in part by the extent to which the results mandate both that residents of environmental justice communities be given opportunities to speak for themselves and that regulators take into account and act on those residents’ concerns.
3. Rulemaking and resulting regulations should be the Plan’s third priority because of their impacts in permitting decisions.
One of the arguments frequently used by regulators to justify their failure to take into account and act on environmental justice concerns is that they are not authorized to do so by the regulations that they implement. For that reason, the Plan’s focus on rulemaking processes is important, but the Plan should go further and require that regulations implementing EPA programs include mandatory environmental justice provisions.
Taking environmental justice concerns into account in rulemaking proceedings often is viewed by decision makers as being limited to providing residents of low-income communities and communities of color with opportunities to express their views. This is not sufficient to protect the residents of those communities. The regulations that result from those proceedings must contain mandatory provisions that prevent permitting and other decisions that result in disproportionate environmental impacts on such communities.
4. The Plan’s fourth priority should be enforcement.
In New Mexico, enforcement of environmental protection mandates in communities of color and low-income communities is less rigorous than it is in Anglo communities and affluent communities. An example of lax enforcement in environmental justice communities is the ongoing effort to regulate the Helena Chemical Company plant in the community of Mesquite, a predominantly Hispanic and moderate income community in southern New Mexico. That plant operated for almost a decade without an air quality permit from the State Environment Department, even though there was little question about the need for such a permit. Even now, the plant and the Department are involved in an ongoing legal battle about whether such a permit is required.
The lesson from the Helena Chemical Company situation is that provisions mandating efforts to protect communities will be ineffective if they are not enforced. Agencies that administer EPA programs should not be able to avoid protecting communities of color and low-income communities by failing to enforce the mandates of applicable statutes and regulations. The Plan therefore should provide for mandatory environmental justice provisions and penalties for state and other agencies that do not enforce those provisions.
5. Administration-wide action on environmental justice should be promoted as the Plan’s fifth priority.
It is appropriate for the Plan to promote administration-wide action on environmental justice because action by one agency or in one program will not address the needs of low-income communities and communities of color. In New Mexico, there is only area in which environmental justice concerns have been recognized – the permitting of solid waste facilities. As a result, although environmental justice communities that are threatened by such facilities may expect some consideration of their environmental justice concerns, equally disadvantaged communities facing threats by other facilities cannot expect that their concerns will play a role in a permitting process or other context.
In order to avoid the inequitable situation that has developed in New Mexico, the Plan should call for active efforts on the part of the EPA and other agencies to promote understanding of and action on environmental justice concerns throughout all agencies and programs. Only with that approach can the Plan address all of the ways in which environmental justice communities are subjected to the disproportionate impacts of environmental contamination.
II. The Plan should strengthen all of the Focus Areas by requiring effective input from communities and by applying environmental justice mandates to all implementation of EPA programs.
A. Provisions to mandate effective community involvement are essential.
As was pointed out above, residents of communities of color and low-income communities must speak for themselves on environmental justice issues. The Plan should include specific provisions for the active involvement of environmental justice communities both in the development of the Plan and in the processes to which the Plan will apply. Although the EPA is soliciting comments on the Plan, there does not appear to be any ongoing mechanism for obtaining and acting upon input about the Plan from communities of color and low-income communities that are impacted by environmental degradation. More importantly, although the Plan lists supporting community-based action program as one of the five Focus Areas, there is no indication that each of the other Focus Areas must include effective means to obtain and act on the concerns of environmental justice communities.
The EPA should consider establishing an advisory council consisting of members of low-income communities and communities of color that are either impacted by or threatened by environmental degradation. To facilitate the involvement of those community members, the EPA also should commit resources to cover their time and expenses. The EPA also should undertake amending substantive regulations to include provisions that will insure that input from impacted communities is acted upon, not merely solicited and then ignored.
B. The Plan should call for application of environmental justice mandates to all implementation of EPA programs.
In New Mexico almost all of the major environmental programs administered by the EPA are delegated to state and local agencies. For that reason, the adoption of environmental justice mandates will not achieve results here unless those mandates are applicable to the agencies that implement the EPA programs.
Moreover, environmental justice can be achieved only if the delegation of programs to state and other agencies includes requirements that those agencies adopt enforceable provisions mandating consideration of and action on environmental justice principles. In New Mexico, regulators have for years conducted permitting processes without consideration of environmental justice issues, and with few exceptions providing those regulators with the discretion to implement environmental justice mandates will not be sufficient. Regulators must be required to comply with those mandates, and communities must have the ability to enforce them.
CONCLUSION
On behalf of the Law Center and the environmental justice communities with which we work, thank you again for your efforts to promote environmental justice and for the opportunity to comment on Plan EJ 2014. We commend you for developing the draft of the Plan, and we would appreciate it if you would keep us informed about future developments and about further opportunities to provide comments.
Yours truly,
Douglas Meiklejohn
Executive Director