In 1994, President Clinton issued Executive Order 12898, which directed each federal agency to “make achieving environmental justice part of its mission….” Not too much damage was done during the Clinton administration, and the initiative happily languished under President Bush. But under Lisa Jackson’s leadership of the Environmental Protection Agency, environmental justice is back with a vengeance.
The EPA has promulgated Plan EJ 2014 as its implementation of Executive Order 12898. There is a basic problem, of course, from the agency’s perspective: it doesn’t actually have statutory authority to enforce standards of “environmental justice.” The EPA acknowledges this in its description of Plan EJ 2014:
Plan EJ 2014 is not a rule or regulation. It is a strategy to help integrate environmental justice into EPA’s day to day activities.
From the public’s perspective, the hazard of what is an essentially extra-legal set of ideologically-driven policies is that the EPA may abuse its permitting powers by making demands on the companies it regulates that are not justified by any statute or regulation, but that are backed by the implicit threat that if the company fails to do the EPA’s bidding, it won’t get the permits it needs to operate.
The EPA hints at such a strategy in its plan document:
This implementation plan outlines a process by which the workgroup will research, solicit ideas for, prioritize, and then develop a suite of tools to better enable overburdened communities to have full and meaningful access to the permitting process and for permits to address environmental justice issues to the greatest extent practicable. For the first year, our activities will focus on developing a cohesive suite of tools most applicable to EPA-issued permits, and also collecting a larger set of tools for a public database.
What does that mean, exactly? It is deliberately vague, but a later discussion of “tools” that are “outside of traditional permitting” sheds some light:
§ Guidance and trainings on using resources and programs outside of permitting including:
o Helping communities develop and adopt community-specific, comprehensive environmental justice plans.
o Community Action for a Renewed Environment (CARE).
o Encouraging the creation of Supplemental Environmental Project (SEP)-like mitigation projects (diesel retrofits, off-site street sweeping, tree planting, landscaping, public playgrounds and green spaces, etc.).
o Good Neighbor/Environmental Benefit Agreements.
o Performance Partnership Agreements.
o Memoranda of Agreement/Understanding involving EPA, communities, facilities; and state, local, or tribal governments.
o Increasing and maintaining active listening, engagement, and follow-up with communities outside of permitting actions.
o Creating plain language summaries of proposed or existing permit-related regulations that have a greater impact on overburdened communities, and/or a plain language guide for rulemaking with the purpose of educating citizens on how to influence the rulemaking process in a meaningful way.
This passage on “enforcement tools” provides the clearest glimpse into how the EPA thinks it can pursue an “environmental justice” agenda for which it has no real authority:
In situations where air emissions from individual or multiple industrial facilities continue to adversely affect community health despite their compliance with emission limitations, some businesses may be willing to take voluntary action to further reduce the emissions that adversely affect the community. Examples of such voluntary actions include: a health clinic established and operated together with local, state, and community members; a household hazardous waste collection drive; a local company voluntarily agreeing to post compliance monitoring information directly on a public website, to allow community members to check on compliance; and “good neighbor agreements” between local companies and communities to address facility effects not regulated by a permit or other law.
Emphasis added. So, putting it all together, the EPA is asserting that it can use the permitting and enforcement authority granted to it by Congress to extract “voluntary” concessions from the regulated community to advance the goals of a program created through an Executive Order. This is the sort of lawlessness that the administrative state fosters.
Is this concern only hypothetical? No. Tomorrow, we will give an example of how the EPA tries to achieve an illegal end by intimidating the companies that are subject to its regulations.