EPA falls short on environmental justice, IU expert says

Post by IU Newsroom intern Annie Brackemyre

The U.S. Environmental Protection Agency has fallen short in its efforts to include environmental justice considerations in its enforcement of federal environmental regulations, Indiana University faculty member David Konisky told the U.S. Commission on Civil Rights today.

Konisky, an associate professor in the IU School of Public and Environmental Affairs, addressed the commission in a Washington, D.C., hearing on its 2016 report “Environmental Justice: Toxic Materials, Poor Economies and the Impact on the Environment of Low-Income, Minority Communities.”

David Konisky

David Konisky

The hearing included five panels with 20 witnesses focused on EPA Plan EJ 2014, a 2011 initiative to integrate environmental justice in federal environmental programs. The plan was named in recognition of the 20th anniversary of President Bill Clinton’s executive order on environmental justice.

Testifiers included residents affected by environmental injustices, physicians, coal industry executives and lobbyists, coal ash activists and environmental justice advocates. Although Konisky testified with the coal ash activists and advocates, he does not consider his own testimony activism.

Konisky outlined three reflections on the shortcomings of EPA Plan EJ 2014:

  • The EPA has a poor record of integrating environmental justice into its decision-making.
  • The EPA has not effectively encouraged or required state agencies to consider environmental justice in their implementation of federal pollution control laws.
  • The enforcement of the new coal ash regulations is likely to be hindered by these two systemic and enduring problems, with potentially important implications for communities living near coal ash disposal facilities.

After research for his 2015 book “Failed Promises,” which evaluates the federal government’s environmental justice policies from the 1970s onward, Konisky concluded that the EPA has repeatedly failed to accommodate environmental justice considerations in core programming such as agency permitting, economic analysis, regulatory enforcement and standard setting.

Despite these inadequacies, Konisky argued in his testimony, Plan EJ 2014 shows promise for improvements, but outcomes will take years to evaluate.

Konisky also spoke to the shortcomings of EPA oversight of policy implementation on the state levels. Significant state discretion on implementation procedures led to large disparities between states. And a breakdown of regulation enabled practices such as state agencies ignoring waste handling violations in poor and minority communities.

Pointing to the vital role of state officials in enforcement of EPA policies, Konisky suggested that the EPA must more rigorously oversee state agencies but that Plan EJ 2014 fails to include such measures.

“Without more active federal oversight, variation in permit and enforcement outcomes will continue, with likely disproportionate impacts for some poor and minority communities,” Konisky said.

The systemic failure of the states to prevent the practice of targeting vulnerable communities is a concern when it comes to the EPA’s new regulation on coal ash disposal facilities, he said. All regulation of such facilities is under state control, and the EPA offers no formal oversight or enforcement measures of coal ash facilities.

“This does not in itself mean that poor and minority communities will be unfairly treated or subjected to unequal pollution burdens,” Konisky said. “However, if history is any indication, there is reason for concern.”

Konisky concluded by offering four suggestions to improve the EPA’s oversight of coal ash.

  • The EPA should set federal guidelines mandating that state agencies conduct environmental justice analyses.
  • The EPA should involve environmental justice communities and state agencies in public participatory processes for new state solid waste management plans.
  • The EPA’s Office of Civil Rights should be better funded to handle all coal ash disposal-related complaints under Title VI of the Civil Rights Act.
  • The EPA should work more closely with state agencies to regulate coal combustion residual disposal units and share the monitoring results with the public.

“Collectively, these actions can start to address, if only incompletely, some of the potential environmental justice impacts that are likely to result from implementation of the new rules for coal ash disposal,” Konisky said.

The public may submit written comments on the briefing topic until March 6 to EJcomments@usccr.gov.

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