U.S. Commission on Civil Rights

Not in My Backyard: Executive Order 12,898 and Title VI as Tools for Achieving Environmental Justice

Chapter 7

Establishing Goals, Creating Evaluation Criteria, and Building Accountability in Environmental Justice Programs and Management

Executive Order 12,898 was intended to ensure that federal agencies incorporate the principles of environmental justice into their missions. To do so, agencies must integrate environmental justice into the core design of their programs, and rigorously evaluate the success of these programs in meeting their aims. Agencies must develop accountability standards and evaluation criteria that would measure the success, or lack thereof, their programs have in implementing the goals of the Executive Order.

A major focus of the Commission's investigation is to determine, for each agency being reviewed, to what extent environmental justice issues are being treated as a central element of that agency's mission. In order to do so, the Commission examined (1) the extent to which the agency has proposed and undertaken environmental justice initiatives and programs; and (2) the extent to which the agency has drawn up and implemented outcome expectations, goals, and accountability measures surrounding those initiatives and programs.

As will be discussed below, while each agency has developed and implemented its own policies and programs, critically, none of these agencies report any current agencywide, comprehensive assessments or accountability measures for their environmental justice activities. Without assessments, it is difficult to determine how well agencies are incorporating the Executive Order into their missions.[1] Meaningful evaluation criteria need to be implemented for agencies to assess their efforts, and more specifically, for agencies to measure if their environmental justice initiatives are linked to success in reducing health and environmental concerns for affected communities.

Environmental Program Review by Agency

Section 1-103 of the Executive Order requires federal agencies to adopt environmental justice strategies that address enforcement of health and environmental statutes in minority and low-income populations.[2] The programmatic impacts of the Executive Order vary by agency, as does the extent to which the agencies have incorporated the order into their missions. For example, EPA's Office of Environmental Justice (OEJ) is responsible for integrating environmental justice initiatives into EPA's programs, policies, and activities, and is responsible for providing direction and constructive feedback to the regional and headquarters offices on their implementation strategies and measurable results. HUD has integrated environmental justice concerns into its existing programs in four areas:

• Empowerment Zones and Enterprise Communities.

• Childhood lead-paint poisoning.

• Brownfields redevelopment.

• Colonias, involving impoverished areas along the U.S.-Mexico border.[3]

DOT has issued a departmentwide order incorporating Title VI as part of its official policies, which emphasizes incorporating environmental justice concerns into the planning process as a preventative measure.[4] At DOI, however, there are very few consistent agencywide environmental justice policies and significant variation exists in the way each bureau approaches environmental justice concerns.[5]

The Environmental Protection Agency

EPA s Environmental Justice Initiatives and Programs

Carol Browner, EPA administrator during the Clinton administration, made the advancement of environmental justice part of the mission of the agency. In 1994, the Office of Environmental Equity became the Office of Environmental Justice. OEJ oversees the integration of environmental justice into EPA's policies, programs, and activities, and serves as the agency's central point of contact as part of EPA's decentralized environmental justice program.[6] OEJ conducts outreach and education activities, and helps set EPA's environmental justice priorities and policies.[7] In addition to OEJ, EPA also has an Office of Civil Rights (OCR), which addresses discrimination claims brought under Title VI. Moreover, as will be discussed below, EPA, pursuant to the Executive Order, convenes the Interagency Working Group on Environmental Justice (IWG), and is its chair.[8]

In 1993, EPA established environmental justice as one of the seven guiding principles in its Strategic Plan.[9] In 1994, EPA created the National Environmental Justice Advisory Council (NEJAC) to provide advice and recommendations to the administrator on environmental justice matters and their integration into EPA's core programs.[10] And in April 1995, EPA issued its first Environmental Justice Strategy to implement President Clinton's Executive Order. It contained five major focus areas:

• Public participation and accountability, partnerships, outreach, and communication with stakeholders.

• Health and environmental research.

• Data collection, analysis, and stakeholder access to public information.

• American Indian and Indigenous environmental protections.

• Enforcement, compliance assurance, and regulatory reviews.[11]

Each of EPA's 10 regions also has a regional environmental justice program that serves as the primary resource for environmental justice issues for that geographic area and integrates environmental justice into EPA's activities within its programs.[12]

In August 2001, former EPA Administrator Whitman affirmed the new administration's firm commitment to the issue of environmental justice and its integration into all programs, policies, and activities. [13] In a memorandum to her staff, Administrator Whitman required EPA employees to incorporate environmental justice considerations in their programs, the regional offices, and partnership agreements with the states.[14] She explained that it shall be the continuing responsibility of the federal government to assure all Americans safe, healthful, productive and aesthetically and culturally pleasing surroundings. [15] Following up on the administrator's instructions, the agency has begun to incorporate environmental justice concerns into its activities. For example, in response to her memorandum, each headquarters and regional office has developed, or is currently completing, environmental justice action plans.[16] Each organization began deploying these Action Plans to Integrate Environmental Justice in FY 2003. While flexible in nature, according to EPA, the key elements of the action plans are management accountability, internal/external stakeholder involvement, data collection/management, training, environmental justice assessment, and evaluation.[17] The plans, however, are strategic in nature, representing the commitments of each office over the next one to five years.[18]

Currently, in response to Administrator Whitman's memorandum, OEJ is scheduled to launch an Environmental Justice Collaborative Problem Solving Grant Program for 15 nonprofit community-based organizations.[19] The goal of this $1.5 million grant program is to support community-based organizations utilizing EPA tools to find viable solutions for their communities environmental justice concerns.[20] In addition, EPA has developed a workshop called the Fundamentals of Environmental Justice, which teaches, according to the agency, (1) the analytic skills necessary to identify and address issues of environmental justice and (2) communication skills that allow individuals to have greater confidence and ability in discussing the sometimes complex and controversial aspects of the issue. [21] The workshop is a product of the Environmental Justice Training Collaborative, and led by OEJ.[22] According to EPA, over the past two years, the workshop has trained more than 1,500 people, with participants from federal, state, and local governments, grassroots organizations, business, and academia.[23] OEJ is preparing additional environmental justice training modules for permit writers and inspectors.[24]

Each regional office and several headquarters offices also offer this environmental justice training course to staff. According to EPA, in many offices, training for all new employees is mandatory.[25] In early 2002, EPA reported that each program office within the agency will have trained personnel capable of delivering the workshop by late spring 2002.[26] With the exception of two regional offices, which are using a different training course, all regional offices have the capacity to present this training.[27] Three regional offices have committed to training all personnel using the course, sometime in 2003.[28] The regional offices have also agreed to conduct Regional Listening Sessions to engage the community, in partnership with federal, state, tribal, and local governments, on their environmental, health, and quality of life concerns.[29]

Finally, in 2002, President Bush signed the Small Business Liability Relief and Brownfields Revitalization Act into law, which authorizes up to $250 million a year for Brownfields grants.[30] Brownfields are abandoned or underutilized industrial or commercial properties where redevelopment is hindered by possible environmental contamination.[31] EPA estimates that there are between 500,000 and 1 million Brownfields, typically in urban areas.[32] EPA, with over 20 other agencies, has developed the Brownfields Federal Partnership Action Agenda, through which the agencies work together to help communities prevent, assess, safely clean up, and sustainably reuse Brownfields.[33] In the memorandum of understanding, EPA has committed to providing as much as $850 million for Brownfields over the next five years through assessments, cleanups, revolving loan funds, job training, and state/tribal grants.[34]

The act also amends the Superfund law by removing liability for prospective purchasers, contiguous property owners, and innocent landowners of Brownfields sites.[35] These provisions provide exemptions under the Superfund law for small businesses to avoid fines when, for example, sending waste or trash to waste sites. According to the Bush administration, these exemptions provide an incentive for businesses to redevelop Brownfields without fear of liability.[36] The act provides greater assurances to the states that the federal government will not override Brownfields cleanup decisions under state programs.[37]

While taking further steps to revitalize Brownfields in minority and poor communities is of utmost importance, it is still too soon to tell if this new legislation will remove hindrances to the economic development of these sites, or if removing responsibility from companies will merely remove legal remedies available to those most hurt by contamination. Moreover, an important challenge in the act's implementation will be to ensure that state Brownfields cleanup standards adequately protect public health and the environment in the long run.[38] States must also maintain records, accessible to the public, on sites where toxic substances have not been completely removed after cleanup actions have been completed.[39]

EPA's Accountability Mechanisms and Measures of Progress

In December 2001, the National Academy of Public Administration (NAPA) issued a report titled Environmental Justice in EPA Permitting: Reducing Pollution in High-Risk Communities Is Integral to the Agency's Mission, in which it was recommended that EPA set clear expectations for producing results that are linked to the agency s mission, and that staff be given clear performance measures.[40] The academy's panel stressed that EPA should establish clear accountability for results and ensure that its managers and staff are receptive to, and willing to execute fully, their responsibilities for achieving environmental justice.[41] Administrator Whitman's August 2001 statement is a good example of strong language and expectations, but there are no concrete, agencywide measures of accountability to ensure the success of EPA's environmental justice programs. The panel found that despite the commitment of EPA leadership, EPA had not fully integrated environmental justice considerations into the agency's core mission or its staff functions.[42] NAPA identified several reasons for this deficiency, including EPA leadership's failure to establish goals for specific outcomes, to adopt methods for measuring progress toward EPA's commitment, or to develop accountability measures to ensure that EPA managers and staff work toward implementing environmental justice policies.[43] According to NAPA, the existing agency culture remains a barrier to incorporating environmental justice into EPA's programs, as do inadequate tools and training, workload burdens, and a lack of understanding by EPA staff that environmental justice concerns matter.[44]

NAPA also noted that, with regard to EPA's 1995 Environmental Justice Strategy, EPA has not established any performance or accountability measures for its five goals, making it difficult to assess the degree to which, if any, the agency has made progress in implementing the goals since their inception.[45] NAPA noted that EPA has committed to and published biennial reports on its environmental justice activities, but that those reports merely outline EPA s activities, not whether they were linked to, or successful in, achieving their earlier enunciated environmental justice goals.[46] Similarly, NEJAC reported that EPA, among other agencies, provided no evidence of evaluations of progress in environmental justice program implementation.[47] It is this lack of accountability which, despite leadership's statements professing a commitment to environmental justice, sends a message to managers and staff that the agency does not place sufficient importance on these issues to require that EPA's employees be held accountable for their implementation. Leadership must set expectations that staff not treat environmental justice as an optional exercise.

NAPA recommended, among other things, that EPA should:

• Establish an accountability process that includes clear performance measures for establishing how well EPA managers and staff are able to incorporate environmental justice into their work, especially into air, water, and waste permits.

• Set clear expectations for producing results that are linked to the agency's mission.

• Provide training for staff to fully understand how environmental justice issues have a direct relationship to the agency's mission.

• Provide adequate time and resources so staff can carry out their responsibilities for protecting public health for disproportionately affected communities.

• Link rewards and performance reviews to how fully staff incorporate environmental justice into their work.[48]

In conjunction with its environmental justice hearings, the Commission posed interrogatories to the various agencies regarding their implementation of the Executive Order. When asked if EPA had implemented accountability and performance measures consistent with the NAPA recommendations, the agency responded that it had implemented no new environmental justice accountability and performance measures since the NAPA issued the above referenced report. [49] EPA stated, however, that its Environmental Justice Executive Steering Committee, composed of deputy assistant administrators of various major program offices and the deputy regional administrators of three regions, met on January 24, 2002, to discuss the NAPA report, among other things.[50] The Executive Steering Committee has formed an Accountability Workgroup to explore further some of the NAPA's recommendations [51] and to establish mechanisms to better track and evaluate progress toward achieving environmental justice objectives. [52]

EPA did report that, since the issuance of the NAPA report, it has continued to enhance its capacity to train personnel on environmental justice issues.[53] While at least one EPA region reports that it has sought feedback from training participants,[54] EPA, itself, has not published comprehensive information assessing such training or provided information on how, or if, the training is successfully linked to the integration of environmental justice concepts into its initiative and programs.[55] While the training is a laudable and important effort, without this information, the effect of the training for minority communities cannot be assessed.

Although it is the director of OEJ who is responsible for agencywide environmental justice policy, the agency reports that the issues of environmental justice are decentralized, being the responsibility of each office within the Agency. [56] Indeed, [e]very office within the Agency is responsible for implementing and enforcing environmental justice to the extent of that office's mandate. [57] This lack of centralized responsibility for environmental justice implementation makes it difficult to create agencywide goals, to oversee goals when, and if, they are implemented, or to hold persons and/or offices accountable when the goals are not achieved. Most importantly, it signals that environmental justice is not a priority of the agency's mission. For example, EPA headquarters and regional offices have, on a decentralized basis, recently adopted environmental justice action plans that recognize the need for program accountability. If the plans are carried out, they signal an important beginning.[58] Several of these plans, however, are generally prospective in nature, or provide little detailed or concrete measures that will ensure the successful implementation of environmental justice programs or ensure that agency employees are held responsible for the implementation.[59]

EPA's stated commitment to environmental justice must be followed by measures that have teeth. EPA leadership could signal its commitment by fully implementing current environmental laws and policies. For example, pursuant to 309 of the Clean Air Act, EPA reviews all environmental impact statements (EISs) prepared by other federal agencies.[60] Pursuant to President Clinton's memorandum accompanying the Executive Order, EPA should use its review authority to ensure that the other agencies are analyzing the environmental impacts on minority and low-income populations.[61] While EPA cannot force another agency to rewrite an EIS, it could issue a negative review of the EIS if it does not address the environmental justice concerns of these communities.[62] In addition, EPA could request additional environmental justice funding,[63] or withdraw funding to states without adequate enforcement of environmental laws.[64] It could also review its penalty policies and enhance penalties for willful, repeated noncompliance by any facility located in an environmental justice community.[65] EPA could condition approval of permits on environmental justice grounds, but has chosen not to interpret its authority as broadly as federal environmental laws would allow it.[66]

The Department of Housing and Urban Development

HUD s Environmental Justice Initiatives and Programs

As discussed above, Executive Order 12,898 states that designated federal agencies prepare environmental justice strategies. To fulfill the mandate, HUD issued Achieving Environmental Justice: A Departmental Strategy in March 1995. The statement identified four environmental justice priority areas:

• Revitalizing central cities through Brownfields redevelopment.

• Fighting childhood lead-based paint poisoning.

• Creating healthy, viable environments through Empowerment Zones and Enterprise Communities.

• Improving fundamental living conditions in the Colonias.[67]

Under each of the initiatives, HUD's objective was to integrate environmental justice principles and concerns into existing programs. [68] More recently, HUD has developed an environmental strategy based on three principles:

• Environmentally sound housing policies that preserve affordability and promote economic growth and investment.

• Safe and healthy public housing that promotes greater self-sufficiency.

• A redesign of current programs and services, within an environmental justice framework, to empower citizens to take action in their communities.[69]

Despite the fact that HUD has not assigned personnel to work full time on environmental justice matters,[70] HUD reports that it has made progress in implementing the principles of environmental justice and Executive Order 12,898. This progress includes the Brownfields Economic Development Initiative, a 10 percent set-aside for Colonias in the states Community Development Block Grant program,[71] and extensive policies and procedures for implementing NEPA.[72] In a 1996 report on implementing the Executive Order, HUD stated that it will promote sound environmental considerations in community development and housing policies that, at the same time, will preserve housing affordability and encourage rural and urban economic growth and private sector investment. [73]

As discussed in its 1995 strategy, HUD has primarily integrated environmental justice considerations into four of its existing programs. The first area incorporating environmental justice concerns is HUD's Brownfields cleanup and redevelopment programs. As described above, many minority and poor communities reside near abandoned and contaminated sites.[74] Cleanup efforts are vital to the health and economic development of these communities. HUD and EPA have worked together on various projects to clean up and redevelop Brownfields and to provide assistance to communities on financial, technical, and environmental issues.[75] In addition, in 1997, former Vice President Gore announced the Brownfields National Partnership Action Agenda, in which HUD and EPA partnered with more than 15 federal agencies to address local cleanup issues.[76] In 1998, the program facilitated environment cleanup and economic development and designed 16 Brownfields Showcase Communities to serve as models.[77] In 2000, the partnership selected 12 additional communities.[78] These designated communities received technical and financial assistance from HUD, as well as the time of a HUD staff member to assist in the coordination of the cleanup.[79] Subsequently, the Bush administration developed a new program, the Brownfields Federal Partnership, in which HUD is a partner with more than 20 other federal agencies.[80] The President's FY 2003 budget request included $25 million for urban redevelopment and Brownfields cleanup through HUD.[81]

HUD has also developed environmental justice-related financing and grant programs as part of its Brownfields project. The Brownfields Economic Development Initiative is intended to stimulate and promote economic and community development by making grants available to assist in the financing of Brownfields secured by 108 loan guarantees.[82] Section 108 is the loan guarantee provision of HUD's Community Development Block Grant program, which since 1998, has allocated funds for the cleanup and economic redevelopment of Brownfields.[83] According to HUD, all selected Brownfields projects must meet at least one of the following objectives: benefit to low- and moderate-income persons, elimination of slums and blight, or ability to address imminent threats and urgent needs. [84]

HUD's second main environmental justice project area is its lead-based paint initiative. To combat lead-paint poisoning, HUD is working to fulfill the requirements of both Executive Order 12,898 and the Residential Lead Hazard Reduction Act of 1992.[85] HUD's goal is to ensure lead-free homes without jeopardizing the availability of, or driving up the cost of, affordable housing. HUD has tested 95 percent of the nation's public housing built before 1978 for lead paint.[86] HUD has also established a grant program, the Lead Hazard Control Grant Program, which since its inception has made 245 grants totaling $703 million to state and local governments in 36 states and the District of Columbia to assist in lead education, testing, and abatement in private low-income housing.[87]

The third project incorporating environmental justice considerations is HUD's Initiative for Renewal Communities, urban Empowerment Zones and urban Enterprise Communities (RC/EZ/EC).[88] This program encourages development in neighborhoods with high unemployment and poverty. Designated communities receive federal funding designed to encourage private investment. In 1994, HUD designated six EZs and 66 rural ECs, and in 1999, 20 urban EZs and 20 rural ECs.[89] In December 2001, HUD re-energized the program by designating an additional eight EZs and 40 urban and rural RCs.[90] These new designees will use a $22 billion tax incentive to provide jobs, open businesses, and rehabilitate and build new houses nationwide.[91] Through a program called Healthy Communities Environmental Mapping, or HUD E-MAPS, HUD provides maps of these RC/EZ/EC communities that indicate the location, type, and performance of the HUD-funded activities, as well as some select EPA information on Brownfields, hazardous wastes, air pollution, and water discharges.[92]

Finally, the Colonias program at HUD is designed to provide housing and development needs to impoverished areas along the U.S.-Mexico border. These communities suffer from high poverty, a lack of sewer and water systems, and proper housing. Pursuant to federal statutes, HUD has mandated that Arizona, California, New Mexico, and Texas designate a certain percentage of their Community Development Block Grants (CDBG) to address the infrastructure problems in the Colonias.[93] In addition, some grants provided by HUD's Rural Housing and Economic Development Grant Program, for job creation and housing needs, go to assist Native American communities, including some in the Colonias.[94]

In 2000, as part of the HUD/DOJ Title VI training of HUD's field equal opportunity specialists, instructors provided guidance on environmental justice.[95] Training sessions were held in four cities throughout the country and involved approximately 30 to 35 HUD equal opportunity specialists who work in field offices.[96] Furthermore, over 1,000 other HUD employees received training in environmental justice and Executive Order 12,898.[97] For its Native American programs, HUD has also offered training on how to conduct environmental reviews as stipulated under the Native American Housing and Self-Determination Act of 1996.[98]

HUD s Accountability Mechanisms and Measures of Progress

Under the Clinton administration, HUD demonstrated a commitment to integrating environmental justice into the agency's mission. HUD had directed substantial federal environmental resources at minority and low-income communities, especially in the Brownfields development and the lead-paint abatement programs.[99] Despite integration of environmental justice into a variety of HUD programs, HUD admits that it has not created any outcome expectations and goals for its environmental justice initiatives.[100] Nor has HUD developed a central mechanism for communicating specific environmental justice goals and expectations to staff or managers.[101] The agency also admits to having no specific methods for measuring staff or manager progress toward achieving specific environmental justice goals.[102] This precludes the agency, therefore, from using expectations and goals in evaluating the impact or success of a given initiative or program.[103] Recently, however, HUD did state in a press release that as part of its notice of funding (SuperNOFA) application process, HUD will place a greater emphasis on measuring performance and demonstrating results. . . . HUD's application process require[s] applicants to establish clear goals and create methods for measuring how they are meeting them. [104] This is an important first step, but must be followed up with concrete measures.

The Department of Transportation

DOT's Environmental Justice Initiatives and Programs

DOT asserts that achieving environmental justice is an undeniable mission of the agency. [105] For several years, DOT has had an environmental justice element in its Performance Plan under the Government Performance and Results Act.[106] In June 1995, DOT published its Environmental Justice Strategy.[107] And in 1997, in order to expand upon Executive Order 12,898, DOT issued a departmentwide order titled DOT Order to Address Environmental Justice in Minority Populations and Low-Income Populations, which among other things, incorporates Title VI in its official policy and practices.[108] The order describes how DOT and its operating administrations will integrate the goals of environmental justice in their daily operations.[109] The order also mandates the consideration of environmental justice principles throughout the planning and NEPA processes.[110]

Section 8 of the DOT order, Actions to Address Disproportionately High and Adverse Effects, requires, as part of the normal NEPA process, that the head of each DOT administration determine whether DOT programs will have a disproportionately high adverse impact on minority communities.[111] Importantly, if such adverse impact is found, then the proposed activity cannot move forward unless mitigation or less discriminatory alternatives (LDAs) that could avoid or reduce the problem cannot be practically implemented.[112] For the agency to implement the program, it would have to first prove that the less discriminatory alternatives would impose other adverse health impacts or involve increased costs of an extraordinary magnitude for them to be rejected.[113] Placing this burden of proof on the agency serves to protect communities that can propose LDAs since the agency has to show that the alternative practice has adverse health effects or is too costly to implement.

The order also instructs DOT administrations to use existing authorities to collect data and conduct research associated with environmental justice concerns.[114] According to DOT:

Steps are to be taken to provide members of minority and low-income populations access to information about environmental impacts of programs and seek public involvement. In planning DOT operations, operating administrations are instructed to propose measures to avoid, minimize [and/or] mitigate disproportionately high adverse environmental and public health effects. Where potential disproportionately high and adverse effects are identified, special considerations apply.[115]

DOT established the Environmental Justice Coordinating Council, an environmental justice committee that includes senior DOT leadership, to coordinate the issue agencywide and to review the effect of transportation decisions on minority communities.[116]

The council has encouraged other operating administrations of DOT to incorporate environmental justice issues into their work.[117] Various units, including the Federal Highway Administration (FHWA), the Federal Aviation Administration (FAA), the U.S. Coast Guard (USCG), and the Maritime Administration (MARAD), have also issued their own environmental justice orders or the equivalent for their operating administrations.[118] In 1998, the FHWA and the Federal Transit Administration (FTA) issued guidance to their respective staffs regarding environmental justice and Title VI considerations in the recertification of metropolitan planning organizations.[119] FHWA and FTA have also published outreach assistance material, developed a joint Web site, and created a case study booklet to educate federal transportation agency staff, state transportation departments, metropolitan planning organizations, transit providers, and the public about environmental justice.[120] MARAD has worked on environmental justice issues in the disposal of surplus ships.[121] The USCG has worked with the Department of Justice on using software to identify communities that may be at risk.[122]

With regard to training staff, DOT reports that it has incorporated environmental justice issues into education and training programs for appropriate employees, including senior officials. [123] FWHA and FTA have conducted extensive environmental justice training, including the training of transportation staff in 50 states and Puerto Rico since June 2000.[124] FWHA's Office of Civil Rights has a training program titled Preventing Discrimination Initiative for responsible state staff members that addresses, for example, forms of discrimination, case studies in highway planning and program impacts, and public participation.[125] In addition to the training conducted mostly by FHWA and FTA staff,[126] DOT states that these [environmental justice] matters have generally been discussed in periodic civil rights directors meetings, attended by civil rights directors of all the operating administrations, coordinated by DOCR [the Departmental Office of Civil Rights]. [127] DOT also reports that FTA has sponsored conferences on environmental justice, the FAA has conducted environmental training for its staff, and the Federal Motor Carrier Safety Administration (FMCSA) has developed a training course titled Preventing Discrimination in the Federally-Assisted Motor Carrier Safety Programs. [128] Environmental justice concepts are integrated into FMCSA's training, which was provided four times in 2001 and once in 2002 to FMCSA and grantee staff nationwide.[129]

DOT s Accountability Mechanisms and Measures of Progress

As Dr. Robert Bullard has written, air pollution caused by vehicular emissions is an ongoing environmental justice challenge. [130] He has noted that 65 and 80 percent of African Americans and Hispanics, respectively, compared with just 57 percent of whites, live in counties with substandard air quality, largely caused by vehicle emissions.[131]

DOT's efforts will be critical in alleviating this and other transportation-related concerns. The agency has indicated that it prioritized environmental justice at the highest levels.[132] DOT's Environmental Justice Coordinating Council, composed of senior officials, promotes sustained leadership attention to DOT activities, including environmental justice concerns.[133] According to NEJAC, however, it is not clear to what extent these officials have the ability to influence positive implementation of environmental justice into DOT's key activities.[134] Their active participation is critical.

DOT stated in its interrogatory responses that the agency has not created separate outcome expectations and goals for each [environmental justice] initiative and program it has undertaken or proposes. [135] Moreover, the agency has not adopted methods for measuring staff or manager progress toward achieving specific environmental justice goals. [136] In regard to training, like the other agencies, DOT and some of its operating administrations have made progress in the implementation of training courses to promote the integration of environmental justice principles into their programs, but those courses lack critical assessments necessary to determine the impact or success of the trainings. FHWA recently reported that it has a Preventing Discrimination Initiative for relevant state staff, but it did not provide any supporting data critically assessing the training program or its impact on environmental justice communities.

Finally, while having its own environmental justice order is evidence of progress, without critical assessments or comprehensive accountability measures in place, it is difficult to track or review positive steps in environmental justice program implementation. DOT did report, however, that each external civil rights staff member and manager is evaluated according to a performance plan that incorporates [environmental justice] among more general objectives. [137]

The Department of the Interior

DOI's Environmental Justice Initiatives and Programs

In August 1994, then Secretary of the Department of the Interior Bruce Babbitt initiated activities to support the Executive Order and to work with EPA in achieving an environmental justice strategy that would benefit minority and low-income communities.[138] One of these initiatives was to include environmental justice considerations in NEPA. Accordingly, the director of DOI's Office of Environmental Policy and Compliance (OEPC) mandated that all environmental documents should specifically analyze and evaluate the impacts of any proposed projects, actions or decisions on minority and low-income populations and communities, as well as the equality of the distribution of the benefits and risks of those decisions. [139]

In 1995, DOI published its Strategic Plan on Environmental Justice. The plan outlined four goals for implementing the Executive Order:

• Involve minority and low-income communities in environmental decision-making and ensure access to information.

• Provide environmental justice training to DOI employees.

• Use and expand research and data collection on new solutions to environmental justice concerns.

• Partner with grassroots, community, business, labor, trial, and governmental groups to advance environmental justice.[140]

DOI has a decentralized structure, and each of its eight bureaus implements DOI's strategy independently.[141] The plan outlines what each bureau is doing to comply with the Executive Order and other federal regulations and policies, as well as each bureau's own efforts to solve environmental problems and increase public participation.[142]

Within DOI, the director of the Office of Environmental Policy and Compliance is responsible for environmental justice oversight and initiatives, including implementation of the Executive Order. OEPC facilitates the discussion among DOI's bureaus on environmental issues and formulates DOI's environmental policy after consulting the appropriate bureaus and offices.[143] No one person at DOI, however, has environmental justice compliance as his or her sole responsibility.[144] Environmental justice responsibility is decentralized in each of the eight bureaus, and each bureau is responsible for environmental justice oversight in each of its jurisdictions.[145]

Because of the decentralized responsibility, each bureau has a coordinator who ensures that environmental justice is incorporated into the mission of the bureau.[146] Some bureaus have created offices or other programs related to environmental justice.[147] Examples of programs at the bureau level include efforts by MMS to gather information on the effects of its offshore oil and gas program on affected communities in Alaska.[148] The Office of Surface Mining (OSM) is trying to provide notice of all mining projects on tribal lands to Native tribes.[149] Since 1993, BLM has had a formal policy of identifying minority, tribal, or low-income communities that may be affected during the preliminary NEPA process, assessing the impacts on these populations, and trying to include them in the public participation process.[150] The National Park Service (NPS) has worked to involve potentially affected communities in the NEPA process, including scoping, the development of alternatives, analysis of impacts, and public review of NPS-proposed activities.[151] In urban areas, NPS has programs that introduce minority and low-income children and young adults to environmental and conservation issues.[152] In 1998, FWS issued an environmental justice policy for implementing the Executive Order, calling upon FWS regions to identify and address adverse health and environmental effects of their programs and activities affecting minority and low-income populations.[153]

In addition, the Executive Order directs that DOI consult with tribes and the Interagency Working Group on Environmental Justice (IWG) to coordinate steps to address environmental justice issues for federally recognized tribes.[154] BIA is an active participant in the IWG and its tribal subgroup.[155] BIA, EPA, HUD, and the Indian Health Service meet to address tribal health and environmental concerns, and BIA has prepared a memorandum of understanding with the groups.[156] In August 2000, BIA participated in the Environmental Justice Roundtable in Albuquerque, New Mexico, and, in February 2001, BIA also participated in a similar roundtable held at the Alaska Forum on the Environment in Anchorage, Alaska.[157]

DOI reports that it has begun the integration of environmental justice into its training programs. For example, in May 2003, DOI held a conference on the environment in Phoenix, Arizona.[158] The conference included training on environmental justice concerns, tailored to tribal issues, and was open to and attended by federal government officials, local residents, and tribal members.[159] In compliance with FWS own mandate to implement the Executive Order into its programs, in 1999, FWS Region 5 conducted a one-day training course in Hadley, Massachusetts, for all employees working on environmental justice issues.[160] All members of the Regional Environmental Justice Team were required to attend.[161] FWS Region 5 also conducted an NEPA training workshop in February 2002, which addressed environmental justice and tribal issues.[162] The region plans on offering additional training workshops.[163]

DOI's Accountability Mechanisms and Measures of Progress

As discussed above, EPA, HUD, and DOT have made progress on implementing environmental justice programs, while progress at DOI has been less extensive.[164] Due in part to DOI's decentralized structure, no agencywide process exists for identifying and tracking environmental justice matters.[165] Other than its Strategic Plan, there are very few consistent, centralized environmental justice policies, and significant variation exists in the way each bureau approaches environmental justice concerns.[166]

In response to the Commission's interrogatory regarding the creation of outcome expectations for DOI programs, DOI submitted responses by office and bureau. Not one of the responding entities had developed or implemented any specific performance assessments, outcome expectations, or accountability measures with regard to any of its environmental justice initiatives, programs, or trainings.[167]

While the Executive Order gives little guidance on how environmental justice can be integrated into environmental programs, all the federal agencies subpoenaed to attend the Commission hearings have, at least, begun incorporating environmental justice concerns into their work. In the last few years, these agencies, however, have not made major investments in promoting and integrating environmental justice into the core design of their programs. And possibly with the exception of HUD's lead-paint remediation efforts, no agency has conducted an evaluation or assessment of its environmental justice efforts or has comprehensively developed standards that would measure the degree of success programs have had on affected communities.[168]

Interagency Working Group

In addition to requiring federal agencies to incorporate environmental justice into their own missions, the Executive Order created the federal Interagency Working Group on Environmental Justice (IWG).[169] The IWG is made up of 11 federal agencies, and chaired by the administrator of EPA. It is designed to provide a mechanism for ensuring that federal agencies meet their objectives under the Executive Order.[170] In 1999, IWG began to develop the concept of an Integrated Federal Interagency Environmental Justice Action Agenda as a way of incorporating environmental justice in all the policies and programs of the federal agencies.[171] As Charles Lee, associate director for policy and interagency liaison for EPA's Office of Environmental Justice, testified at the February 2002 Commission hearing, a collaborative model can be effective in comprehensively and proactively addressing the interrelated environmental, public health, economic, and social community-based concerns of environmental justice.[172] He noted that multidimensional problems are most effectively addressed when all the interested parties are involved in crafting solutions.[173]

In May 2000, the IWG developed and issued its Action Agenda, which identified 15 interagency environmental justice demonstration projects, in which two or more federal agencies work with state, local, tribal, business, and community representatives to address community environmental justice concerns.[174] Mr. Lee stated that the Action Agenda, as exemplified by the demonstration projects, should accomplish the following five goals:

• Promote federal support of solutions that begin in and remain in the communities.

• Coordinate federal, state, local, and tribal governments, with comprehensive community-based planning.

• Coordinate activities and multiple government and private entities to use resources more effectively.

• Develop a template for integrated and holistic local solutions to environmental justice issues.

• Serve as a platform for advocating and demonstrating innovation in government at all levels.[175]

In November 2000, OEJ published a report on the progress and successes of the Action Agenda.[176] Echoing that, Mr. Lee testified that the 15 demonstration projects have accomplished a wide range of successes, including:

• Establishing strong working partnerships of more than 150 organizations and 11 federal agencies.

• Securing commitments of more than $15 million in public and private funding to address a range of issues.

• Augmenting existing redevelopment initiatives to fully meet the quality of life and economic development needs of diverse communities.

• Using innovative approaches to foster local partnership-building through alliances or community and faith-based organizations, developing community-based planning, and leveraging existing resources.

• Using alternative dispute resolution and consensus-building processes to address, as appropriate, cases of conflict or potential conflict.

• Addressing children's health issues in minority, low-income, and tribal communities.

• Identifying key elements of a systematic model for holistic integrating and collaborative problem-solving.[177]

In discussing some of the successes, Mr. Lee testified that in Puerto Rico, there has been a comprehensive strategy to address asthma.[178] In Barrio Logan, a Mexican American community in San Diego, 20 organizations have come together to address air quality, children's health, and land-use issues.[179] This process resulted in HUD's working with the city of San Diego to secure a $1 million grant on lead hazard controls for Barrio Logan.[180] In Alaska, the Metlakatla Indian community is undergoing a process of cleaning up contaminated sites and a redevelopment plan that also involves alternative dispute resolution to address the allocation of liability between federal agencies.[181] In New York City, an effort to address the use of alternative fuels led the U.S. Postal System to commit $1.93 million to alternative fuel and clean natural gas vehicles.[182]

In its report to the Congressional Black Caucus and Congressional Black Caucus Foundation Environmental Braintrust, the National Environmental Policy Commission noted:

The IWG demonstration projects are particularly significant. They point to the potential to problem-solve across stakeholder groups in a constructive, collaborative manner, building relationships, avoiding duplicated efforts, and leveraging instead of wasting resources. This is not an easy task given the history of neglect and resistance, capacity problems, and fragmented agency jurisdiction.[183]

In March 2003, the IWG selected 15 more projects to serve as revitalization projects to showcase the continued interagency and stakeholder partnerships in environmental justice.[184] Like the previous projects, the intent of the new demonstration projects is to develop collaborative models to ensure problem-solving and sustainable solutions to a wide range of environmental justice issues that implicate public health, social, and economic concerns.

The Commission sought to determine how the IWG successes are measured, and against what standard. The Commission also wanted to learn how the successes and lessons of the demonstration projects have been incorporated into federal agency environmental justice policies and decision-making. EPA reported that the IWG demonstration projects have produced varied and positive results; however, it also stated that because of the relative newness of the program at the time of its responses not enough time has elapsed to make final judgments as to the projects long-term successes. [185]

EPA responded that in order to measure success, the IWG will develop an evaluation framework for its demonstration projects.[186] EPA reports there are two phases in developing such a framework. The first phase is to identify the elements that promote the success of collaborative problem-solving models. [187] EPA's Office of Policy Economics and Innovation (OPEI), Evaluation Support Division, has begun an evaluation to identify these elements:

• The Evaluation Support Division has conducted systematic interviews with all groups involved with the demonstration project (e.g., community-based organizations, business and industry, academia, civic and faith-based organizations, and state, tribal and local governments). The interview process involves numerous conference calls, meetings, and multi-stakeholder forums.

• The Evaluation Support Division has also conducted a series of case studies designed to understand better the value of a collaborative model for communities and federal agencies, and elements for success. Division staff developed this part of the evaluation framework after involvement from several dozen persons from all stakeholder groups, in which they discussed the evaluation process, questions, and analyses.

• EPA has conducted direct observations and a review of progress reports on each of the 15 demonstration projects. In February 2002, the Office of Environmental Justice published an analysis of project results thus far titled The Environmental Justice Collaborative Model: A Framework to Ensure Local Problem Solving. Besides providing milestones, accomplishments, and lessons learned for each project, the report describes the elements of this emerging model.[188]

EPA reports that the second phase of creating an evaluation framework for IWG's demonstration projects will be to develop both qualitative and quantitative ways of measuring these elements. EPA notes, however, that [i]t should not be assumed that this task will be easy, given the fact that finding common definitions of success among divergent stakeholder groups is going to be a major challenge. [189] It is critical, however, that EPA finalize this evaluation framework and apply it to the projects in order to measure the success of IWG's efforts. As more is learned through the projects about how success is achieved and measured, IWG's policies and project development can be better tailored to achieving those ends.

Conclusion

It has been approximately a decade since the promulgation of Executive Order 12,898, and therefore, much is still unknown about the future impact or continuing existence of the Executive Order under current and future administrations. Agencies have begun work in protecting minority and low-income communities, but much more needs to be done, and measures need to be developed to determine what else must be done. Environmental justice will not become a reality as long as the issue remains an optional exercise by agency staff, an afterthought to existing programs, or an abstract policy statement that does not change conditions in affected communities.

As explored at the hearings, the Commission is interested in determining whether the agencies have implemented environmental justice programs or initiatives, whether the agencies have set goals and expectations for those programs, how those goals and expectations are used to evaluate the programs impact or success, and what, if any, actions are taken to ensure accountability when goals are not met. Although agencies have begun integrating environmental justice concerns into their programs, generally, they have not put accountability measures into place, nor are expectations linked to ways in which success can be measured.

Without accountability measures, it is difficult to track or review positive steps in environmental justice program implementation. Progress began under the former administration, and commitments have been made under the current administration. It remains to be seen, however, if this administration, and recently confirmed EPA Administrator Michael Leavitt, will maintain those commitments and continue to address environmental justice concerns in minority communities with measures that have teeth.

Congress and federal agencies should undertake several steps to better incorporate the goals of the Executive Order into the agencies missions. In order to do so, the Commission recommends the following:

• The federal government should implement and fully enforce its existing environmental laws and policies. Oftentimes, federal agencies do not need to significantly change, if at all, their current laws or policies in order to implement the Executive Order and respond to environmental justice concerns. For example:

  • Federal agencies should augment the work they have done in implementing environmental justice at the program level by ensuring that applicable agency rules and regulations include explicit guidance on reducing the risk of adverse impacts on minority communities.

  • Federal agencies should continue to implement environmental justice programs in tribal communities. Where federal responsibilities and oversight for integrating environmental justice programs in tribal communities overlap, agencies should coordinate their efforts in addressing tribal needs.

  • Federal agencies should utilize the NEPA process to its full capacity in order to promote environmental justice for minority communities, by implementing regulations consistent with the intent of the Executive Order.

  • Once an agency determines that an environmental impact statement is necessary, EPA, using its authority under 309 of the Clean Air Act to review environmental impact statements prepared by other federal agencies, and its authority under the Executive Order to ensure that other agencies are analyzing the environmental impacts on minority and low-income populations, should issue negative reviews if those agencies fail to document any significant disparate impact of proposed projects on these communities.

  • When developing the terms and conditions of federally issued permits, EPA should require that those permits address the concerns of minority communities and the emission exposures in those communities.

  • EPA should condition approval of state programs, which administer federal environmental laws, on the states addressing the concerns of minority communities and the emission exposures in those communities, as part of their permitting processes.

  • Federal agencies should use their current authority to withdraw funding to states that fail to adequately enforce environmental laws.

  • EPA and other federal agencies should assess penalties for willful, repeated noncompliance by any facility located in an environmental justice community.

  • Federal agencies should reassign or devote equitable resources toward achieving environmental justice, which would assist them in integrating environmental justice into all of their programs and their missions.

• To ensure that the federal agencies integrate environmental justice into their core programs and operations, enforcement must be guaranteed in legislation. Either through codification of the Executive Order through an Environmental Justice Act, for example, or amendment or creation of other civil rights laws, there should be federal requirements ensuring that program implementation with performance assessments and accountability measures are put in place. For example:

  • Congress should direct the four agencies, their regional offices, bureaus, and operating administrations to prepare reports annually on their efforts to ensure adequate enforcement in their programs, with emphasis on the incorporation of environmental justice issues into their missions and the development of accountability standards.

  • Federal agencies should encourage states receiving federal funding for, for example, environmental, housing, or transportation programs, to create an Office of Environmental Justice to assess the disproportionate impact of those programs on minority and poor communities. The offices should have accountability measures in place, with reporting obligations back to the federal agencies.

  • Federal agencies should request, and Congress should approve, appropriate levels of environmental justice funding for these and current agency initiatives.

• After program development and implementation, federal agencies should establish clear accountability for implementing environmental justice initiatives. For example:

  • Federal agencies should set clear expectations for producing results in adversely affected communities that are directly linked to the agencies mission. These expectations should be reinforced by agencywide reporting that tracks their progress.

  • EPA's Accountability Workgroup should make its findings public, implement NAPA's recommendations, and finalize its stated goal of establishing mechanisms to better track and evaluate progress toward achieving environmental justice objectives.

  • Similarly, DOT's Environmental Justice Coordinating Council should make its findings public and establish mechanisms to better track and evaluate DOT's progress in integrating environmental justice into the agency's mission.

  • Federal agencies should develop evaluation criteria and have scheduled evaluations of environmental justice programs and initiatives.

  • The commitment of senior leadership is critical, and high-level officials must be held accountable for effective program implementation. Appropriate incentives and disincentive measures should be used to inculcate environmental justice principles into agency management.

  • Strong leadership must be followed by the requirement of accountability by agency employees. Federal agencies should incorporate environmental justice performance standards into their employees job descriptions and performance evaluations. For example, where agency personnel do not enforce compliance and fail to provide protection in communities of color and low-income communities, it should be reflected in their performance reviews.

  • In addition to the integration of environmental justice into the federal agencies programs, the agencies should create outcome expectations for their environmental justice initiatives and specific methods for measuring staff or manager progress toward achieving specific environmental justice goals.

  • Federal agencies should develop in more detail and implement accountability measures begun at the office and regional levels.

  • And while most of the federal agencies have begun some form of environmental justice training, generally, the agencies have not developed evaluation criteria to assess if these courses effectively assist staff in integrating environmental justice concepts into their duties and the agencies programs. Agencies should ensure that staff can recognize when agency decisions will involve disproportionate impacts on minority communities. All training should be followed up with, for example, critical assessments, surveys, and feedback, both by agency staff who have been trained to assist communities, and ultimately by the communities, who are the intended recipients of staffs increased knowledge and sensitivity. Specifically, EPA should evaluate the effectiveness of its national workshop, Fundamentals of Environmental Justice, for both the staff and communities.

The Commission also examined the role of IWG and the ways in which IWG intends to measure success. The Commission recognizes the strides IWG has made during the first few years of its implementation. As the program develops, the Commission recommends the following:

• The Interagency Working Group should be guaranteed and funded in federal legislation, as legislation may be needed to ensure continuing federal interagency cooperation on environmental justice programs.

• EPA and the other federal agencies should support advancement of the Action Agenda and its problem-solving models and continue to select demonstration projects.

• EPA should finalize and implement its evaluation framework in order to measure the success of the projects.

• Once the framework has been implemented, EPA should apply the lessons learned in its current and future demonstration projects.

• Since IWG's collaborative approach may not be appropriate for all situations, policy makers should examine the lessons learned as the projects develop, to better inform potential legislative or other proposals.