Chapter 5: Alternative Dispute Resolution and Meaningful

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

During the last two decades, agencies have increasingly supported alternative dispute resolution (ADR) as a way of resolving environmental conflicts with communities.[1] ADR refers to voluntary techniques for preventing and resolving conflict with the help of neutral third parties. ADR is broadly understood to include, but not be limited to, mediation, arbitration, negotiation, mini-trials, or negotiated rule-making.[2] Generally, ADR has not been viewed as a form of public participation; rather, it is considered an initial alternative to litigation and other court action.[3]

Agencies assert that ADR promotes more creative and enduring solutions, fosters a culture of trust between the agencies and the stakeholders, and results in faster resolution of issues. In testimony before the Commission, the Environmental Protection Agency stated that ADR allows for a quick, voluntary, and community-based resolution.[4] EPA also explained that complainants have full rights in the process, since ADR is voluntary and disputes will return to EPA to investigate if ADR fails.[5] Community interest groups, however, are concerned that ADR focuses on achieving consensus, rather than eliminating discrimination. They suggest that for ADR to be effective, safeguards need to be put into place to equalize the bargaining power between them and industry,[6] and to protect communities from being disadvantaged by a lack of access to technical data, research, and other information.

Federal agencies have also tried to make progress with communities to increase and improve meaningful public participation in information gathering and dissemination, and to a lesser extent, in the decision-making process as a means of preventing conflicts before the need for litigation or ADR arises. After the Commission's hearings, however, the Natural Resources Defense Council, a national nonprofit environmental organization, reported that the President's Council on Environmental Quality (CEQ) and other agencies have moved, through a series of proposals, to undercut the National Environmental Protection Act (NEPA).[7] It is this statute that requires agencies to have public participation in certain environmental decisions and to prepare environmental impact statements[8] for federal actions with potentially important environmental repercussions.[9] In recent proposals, the Bush administration has sought to roll back requirements for public participation and environmental reviews applying, for example, to highway construction and forest management plans.[10]

Even prior to the administration's proposals, some environmental justice advocates found that problems such as nonexistent or very limited public notice periods, combined, in some instances, with a community s difficulty in wading through complicated technical information, prevented participation from being meaningful in any sense.[11] Others have commented that even where communities have been able to organize, mobilize, and lead efforts to oppose a siting decision, for example, government agencies do not view the communities as legitimate actors in the situation whose concerns must be addressed.[12] Unfortunately, the recent moves by the administration in seeking to scale back opportunities for meaningful participation will not foster additional trust in these communities.

ADR has been rapidly growing due to early successes in the labor community and some early environmental mediation cases.[13] This led federal and state governments to pass legislation calling for the use of ADR for environmental disputes.[14] Proponents of ADR see these approaches as speedier and less costly than litigation, as providing for greater and more effective public participation than litigation, and as potentially allowing a more agreeable solution than one that can be obtained through litigation.[15] Recently, there have been some major events in the environmental ADR field. These include the creation of the United States Institute for Environmental Conflict Resolution (IECR),[16] with which EPA has entered into an interagency agreement, and EPA's final promulgation of its policy on environmental ADR.[17] EPA issued this final policy in December 2000 pursuant to the Administrative Dispute Act,[18] which requires all federal agencies to appoint a senior official as agency dispute resolution specialist and implement a policy designed to encourage the use of ADR.[19] EPA's policy emphasizes its support of ADR to resolve disputes and potential conflicts.[20] EPA has also established within its Office of General Counsel the Alternative Dispute Resolution Law Office, which houses EPA's Conflict Prevention and Resolution Center.[21] The center is headed by EPA's dispute resolution specialist and serves as EPA's national program office for environmental dispute resolution.[22]

Furthermore, as discussed in Chapter 3, EPA's Title VI regulations[23] require that agencies try to resolve complaints informally, whenever possible.[24] EPA has stated that it wants to encourage informal approaches to dealing with Title VI problems due to the backlog of these administrative complaints.[25] If the parties choose not to engage in informal resolution, EPA will investigate the accepted allegations in the complaint.[26]

As will be discussed further below, those critical of ADR have suggested that safeguards are needed during the ADR of a Title VI complaint to protect communities from being disadvantaged by unequal bargaining power, and a lack of judicial safeguards and access to technical data, research, and other information. According to EPA, in response to these concerns, it has incorporated the following three safeguards into its dispute resolution program:

Nevertheless, EPA has not conducted or funded any research or empirical analyses to assess whether ADR, despite these safeguards, is the most appropriate or effective method for resolving conflicts with traditionally disadvantaged groups and groups with limited-English proficiency.[30] In March 2000, however, EPA did publish its ADR Accomplishments Report, which examined its ADR activities generally.[31] And since July 2000, EPA's Office of Environmental Justice (OEJ) has funded a pilot project to help facilitate consultative decision-making processes in order to achieve equitable resolution of situations involving environmental justice concerns.[32] EPA reports that it will analyze the success of these efforts to evaluate and improve the use of consultative processes in situations involving environmental justice concerns [33] and to understand better the value and appropriate use of dispute resolution techniques . . . to environmental justice disputes. [34] The agency also has a three-year cooperative agreement with the Consensus Building Institute (CBI) to train members of affected community groups in ADR.[35] In addition, on September 20 21, 2002, OEJ sponsored a pilot training session in El Monte, California, in which 30 community representatives participated in a workshop to learn about basic dispute resolution techniques.[36] CBI is also developing six environmental justice dispute resolution case studies as a supplement to the workshop.[37]

Environmental ADR has been considered by many as a boon to the environmental justice arena. Complainants may find a less formal adversarial system less intimating and more accessible. It is important, however, that citizen groups make informed decisions about whether dispute resolution ultimately will resolve their conflicts effectively, efficiently, and finally. The affected communities must weigh the advantages and potential disadvantages of ADR. For example, while ADR may be appealing as a streamlined version of litigation, ADR is not necessarily speedier than litigation. Most environmental disputes go on for years and frequently have already been to court first or ultimately proceed to court.[38] In addition, ADR may not be cheaper than litigation. Before reaching the impasse requiring mediation, time and money had been expended. Often communities will hire attorneys and experts, and costs will be incurred preparing for mediation or arbitration.[39] Moreover, while a judge, jury, and court personnel are free to litigants (other than nominal filing fees), costs for third-party neutrals, who normally charge for their time, travel, and expenses, will be borne by the parties.[40]

Although the informality of ADR may appeal to community groups, it may be this quality that could make these groups vulnerable when using ADR. Legal protections involved in litigation ensure due process and a fair trial. These procedural safeguards help to minimize differences between the parties and ensure that parties of unequal power have equal and full rights in litigation. These assurances are not normally provided in ADR,[41] nor does ADR account for these inherent inequalities in bargaining power. Industry is often very experienced in the field of ADR, having used it for decades in many of its other disputes.[42] Community or public interest groups would not commonly have the same degree of knowledge or experience using ADR.[43] Unequal bargaining power can arise because of differences in education, culture, and experience or training for negotiations.[44] The imbalance of power in an informal negotiation is exacerbated by the fact that ADR may favor the party with more funding, greater and earlier access to information, and a greater availability of technical resources.[45] The imbalance creates a danger that community groups will be disadvantaged throughout the ADR process and coerced into settlements they may not think they have the power to reject.[46]

EPA asserts that the very heart of ADR processes . . . is to level the playing field, neutralize power imbalances during negotiations, and empower all stakeholders to participate on an equal footing. This is accomplished through . . . the skills held by trained neutral third-parties. [47] Nevertheless, community groups can be disadvantaged in this process because they lack the resources and influence to gather crucial data about the environmental hazards that are in the hands of industry.[48] According to one environmental advocate, [i]n any negotiation, knowledge is power. [49] Low-income or minority complainants may not have the leverage to gain this information through negotiation, nor would they have the money or resources to hire legal and technical experts to develop it for them.[50] Without some form of a formal discovery process, ADR fails to provide for the equal exchange of information, as guaranteed in litigation, resulting in facts that may be incomplete, one-sided, and inaccurate. [51] Moreover, a third-party neutral in an ADR process may not have the same authority or enforcement power as a judge to force a fair exchange of facts and data.[52]

In addition to ADR lacking discovery requirements, it also fails to provide any structure of legal precedent a fundamental principle of our legal system. A system of precedence provides that similar cases will be treated alike, provides uniformity and fairness in decision-making, and allows the participants to draw on lessons learned in past disputes.[53] Parties in an ADR are unable to use favorable or adverse prior decisions as binding authority, nor will future communities be able to have guarantees of guidance from battles fought today. And, unlike a court proceeding, ADR is generally closed to the public and not on a public record.[54] This creates little opportunity for public scrutiny, accountability or accessibility. [55]

Moreover, ADR poorly serves Title VI's purpose of remedying discrimination because it focuses on individual disputes rather than on larger patterns of racial inequities.[56] By looking at discrimination on a case-by-case basis and the community s inability to use precedent-setting cases as binding authority, ADR cannot address potentially larger and reoccurring patterns of systemic discrimination by industry. Indeed, ADR focuses much more on achieving consensus than on eliminating discrimination.[57] While ADR may remove complaints from EPA's caseload, which still remains to be seen, the underlying racial inequities may not have been addressed.[58]

Finally, the purpose of mediation or ADR is to reach compromise. The difficulty with imposing this goal, in addition to resolving environmental disputes, is that for many communities the environmental issues may be an emotionally charged debate over their historic or cultural values, such as the use of sacred grounds, and the well-being of their neighborhoods, families, and future generations.[59] These values cannot be easily compromised in return for a certain result. Agencies may measure success by their ability to gain consensus among the parties, however, communities and public interest groups may feel that consensus can only mean compromising the environment, their health, or their values.

To adequately address environmental justice concerns, agencies must recognize the role of communities in every step of their programs. Agencies have increasingly supported alternative dispute resolution as a way of resolving environmental conflicts with communities. With proper protections in place, ADR could be a useful tool, but agencies need to recognize that community interest groups do not always come to the table with equal bargaining power. As it is currently conceived, ADR does not generally afford safeguards needed to equalize the power differential between the complainants and industry, nor does it protect complainants from being disadvantaged by a lack of access to technical data, research, and other information.

Meaningful participation of affected communities is one of the cornerstones of environmental justice and should be used to prevent conflicts before the need for ADR or litigation arises.[60] One of the goals of Executive Order 12,898 is to give minority and low-income communities greater opportunities for public participation and access to information relating to human health and the environment.[61] Federal agencies have begun to recognize the need to increase and improve the meaningful public participation of communities in information gathering, dissemination, and decision-making processes as a method of empowering communities, avoiding conflict, and fostering trust.

In the memorandum to heads of departments and agencies that accompanied Executive Order 12,898, President Clinton recognized the importance of procedures under the National Environmental Policy Act[62] for identifying and addressing environmental justice concerns. The memorandum states that [e]ach Federal agency shall analyze the environmental effects, including human health, economic and social effects, of Federal actions, including effects on minority communities and low-income communities, when such analysis is required by [NEPA]. [63] The memorandum emphasizes the importance of NEPA's public participation process, directing that [e]ach Federal agency shall provide opportunities for community input in the NEPA process. [64] Agencies are further directed to identify[] potential effects and mitigation measures in consultation with affected communities, and improve[] the accessibility of meetings, crucial documents, and notices. [65] Specifically, in the order, President Clinton called on the agencies to translate crucial public documents, notices, and hearings for limited-English-speaking populations, and ensure that such documents are also concise, understandable, and readily accessible to the public. [66]

Public participation is already mandated by NEPA. The Executive Order broadens that approach, provides environmental justice communities with another mechanism to use concurrently with the NEPA requirement of public participation,[67] and encourages community involvement in the phases of environmental decision-making, including scoping, data gathering, identification of alternatives, analysis of impacts, and mitigation options.[68]

The Executive Order's intent is to give those communities previously disenfranchised from the decision-making arena greater ability to be part of the debate.[69] For example, many minority and low-income communities have been victims of discrimination caused by many years of the segregation that was part of land-use planning policies.[70] Even ostensibly neutral decisions, such as burying hazardous material or siting a chemical plant on cheap land, have racial implications because the cheapest land may have become the least valuable because of previous discrimination and racial segregation.[71] Having greater public participation allows such communities access to the processes that affect their lives, as well as educates the public, fosters trust in institutions, incorporates the community values into decision-making, reduces conflict, and may reduce costs associated with prolonged disputes.[72]

As part of its fact-finding mission, the Commission wanted to determine what efforts the federal agencies have taken to increase meaningful public participation, by examining (1) whether the agencies were giving communities early opportunity for participation in decision-making processes; and (2) whether the federal agencies were making it a priority to translate material into native languages.

The Environmental Protection Agency has several programs and policies that aim to increase community involvement by minority and low-income groups. EPA has stated that it strives to involve the public at the earliest point and as often as practicable in [its] decision making processes . . . [and] . . . works to provide sufficient information for meaningful public participation. [73] In December 2000, EPA s Public Participation Workgroup examined the agency's 1981 public participation policy and issued Engaging the American People: A Review of EPA's Public Participation Policy and Regulations with Recommendations for Action.[74] The report included goals and objectives for the gamut of public involvement, from building awareness to participating in binding agreement activities.[75] EPA observed that active public participation in EPA decision-making processes is critical to ensuring long-term solutions for affected communities, industries, public health and the environment. [76] The report also notes that to engage the public in this new century, EPA will need to reach out to a more diverse society, enhance public participation practices, and work more closely with our co-regulators. [77] In 2000, EPA published The Model Plan for Public Participation, developed by the National Environmental Justice Advisory Council, which sets out a model for the core values and guiding principles of public participation, critical elements for conducting public participation, and an environmental public participation checklist for government agencies.[78]

Building on these recommendations, in May 2003, the Office of Policy, Economics, and Innovation (OPEI) published EPA's final Public Involvement Policy, providing guidance to EPA staff on effective and reasonable ways to involve the public in the agency's regulatory and program implementation decisions.[79] According to EPA, the Public Involvement Policy is to accomplish the following:

The policy applies to all EPA programs and activities, and according to EPA, should be particularly considered in, for example, EPA rule-making; EPA issuance or significant modification of permits, licenses, or renewals; and selection of plans for cleanup, remediation, or restoration of hazardous waste sites or Brownfields properties.[81] The agency identified seven steps to consider when planning public involvement, but notes that budgetary constraints may affect the implementation of any of these elements. [82] The policy specifies that EPA employees should consider the following steps for effective public involvement in any environmental decision or activity:

The policy continues by giving guidance on ways to meet the goals of each of these steps.[84] According to EPA, the policy reflects changes over 22 years, such as new and expanding public participation techniques, new opportunities for public involvement through the Internet, and increased capacity of states, tribes, and local governments to carry out delegated programs.[85] The policy also reflects EPA's experience with public involvement and many of the ideas provided to EPA through public comments on the draft policy.[86]

In conjunction with the final policy, in June 2003, EPA released its Framework for Implementing EPA s Public Involvement Policy.[87] The guidance proposes and outlines information sharing, training, and evaluation activities to support the implementation of the policy.[88]

The Framework notes that, although some individual programs evaluate their public participation activities, EPA has not encouraged a sustained agency-wide effort to determine the extent and quality of such activities and to improve their effectiveness for both participants and EPA. [89] Moreover, like the public involvement policy itself, the Framework states that it is internal EPA guidance and does not describe mandatory activities. [90] Nevertheless, the Framework provides suggestions for measuring results and increasing accountability, including, for example:

Before issuing the final policy, EPA headquarters and regional offices had begun reaching out to communities on the programmatic level. EPA s OCR is responsible, along with the agency's program and regional offices, for helping low-income and limited-English-proficient communities obtain access to information, resources, and decision makers that may lead to the resolution of environmental issues.[92] For example, the agency translates documents into languages other than English and has published documents on how communities can get involved in the permitting process.[93] EPA has also produced a videotape in both English and Spanish that explains how the Superfund risk assessment process works in communities near Superfund sites.[94] In addition, while not an EPA publication, the Environmental Law Institute, supported by OEJ under an assistance agreement, published A Citizen's Guide to Using Environmental Laws to Secure Environmental Justice as a plain English resource to familiarize communities with federal statutes and help them find opportunities to participate in environmental decision-making.[95]

Other public participation initiatives include the Office of Enforcement and Compliance Assurance's recently issued interim guidance for EPA staff on involving communities in the selection and implementation of Supplemental Environmental Projects (SEPs) in settlement agreements in certain enforcement cases.[96] In addition, the regional offices have 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.[97]

Despite EPA's efforts in integrating discretionary public involvement initiatives into its programs, much remains to be done to increase the involvement of minority communities. For example, OEJ reports in its answers to the Commission's interrogatories that it had conducted no public meetings for the purpose of discussing EPA's environmental justice policies, the Executive Order, or how minority and low-income communities can participate in the decision-making. [98] Furthermore, EPA's permit programs, such as those concerning permits for air and water emissions,[99] allow formal opportunities for public participation, although opportunities often occur late in the process once most projects have been fully conceived.[100] Public hearings and review and comment periods are often held after main first steps have been taken in the project.[101] This late participation significantly limits the community's ability to influence the debate, and may lead the community to believe that EPA and the industry permit applicant are allies.[102] Communities do not always trust the objectivity of EPA staff, and may feel further concerned by limited access to experts and technical assistance.[103] As discussed more fully in Chapter 6, while EPA provides limited grants for communities to acquire technical assistance, groups often have to jump through hoops to qualify for assistance,[104] and some are concerned about the complexities and long delays when applying for the grants.[105] Communities often lack information that would put them on a level playing field with industry, government, and scientists.[106]

Despite the programs described above and the numerous laws, mandates, and directives by the federal government to involve the public in decision-making, communities and tribal leaders have expressed their frustration over the continued lack of involvement in decisions that affect their daily lives and the lives of their future generations.[107] One problem is that executive orders are essentially tentative and unenforceable legal endeavors, [108] and as such, Executive Order 12,898 has no enforcement power.[109] Furthermore, NEPA's public participation guidance is merely procedural, and agencies public participation programs and policies are generally discretionary.[110]

And while EPA has finalized its public involvement policy since the Commission's hearings, it is too soon to determine whether it will satisfy public concerns on meaningful involvement. EPA is to be commended for issuing a comprehensive, centralized, agencywide and programwide public involvement policy, and many of the concerns voiced by environmental justice advocates are discussed in the policy, such as access to technical and financial assistance and early participation in decision-making. Nothing in the policy, however, makes these aspirational goals binding upon the agency or its employees, and much of the policy is qualified by language acknowledging that implementation may be hampered by financial constraints.[111] For example, the policy acknowledges the importance of providing technical or financial assistance to the public to facilitate involvement, but essentially summarizes existing programs, and does not provide any mandatory services to communities or additional funding.[112]

Moreover, the policy acknowledges the need for agency accountability,[113] and the Framework discusses the implementation of a five-year evaluation plan (including the development of performance standards for managers and staff involved in public participation activities).[114] But nothing in the policy or Framework makes any measure mandatory or requires assessments of the agency's success in increasing public participation.[115] Furthermore, the policy indicates that managers will be responsible for implementing this policy, but gives them the discretion to do so or not.[116] Worse still, the new policy eliminates accountability portions of the 1981 policy, including a requirement that EPA programs create public participation plans and a provision for withholding grant funds from grantees whose public involvement activities are not sufficient.[117]

The Department of Housing and Urban Development had several community outreach projects and public participation procedures in place prior to the Executive Order. Community education is a large part of its lead-paint program, and HUD translates the material for that program into foreign languages to reach diverse communities.[118] In general, however, HUD does not undertake projects directly, but provides financial assistance for projects of HUD recipients.[119] HUD, therefore, has provisions in its program regulations requiring recipients to ensure public and community participation, including specific criteria and time periods to allow for public comments after notices are published.[120] For example, federal regulations require all local governments receiving HUD assistance to develop a citizen participation plan.[121] In addition, the regulations for HUD's Community Development Block Grant program set forth requirements for public participation,[122] reporting,[123] and public access to records.[124] HUD also requires bilingual notices as needed, and routinely, in certain regions of the country.[125]

In responding to Commission interrogatories, HUD stated that it has conducted major public education efforts to translate material into understandable explanations.[126] HUD cited several examples of these efforts, most of which attempt to educate people on protecting themselves from lead in their homes.[127] HUD also responded, however, that it has not held any public meetings to discuss environmental justice issues.[128] Instead, according to HUD, such information is disseminated mainly through training, [129] although staff training does not directly inform or engage environmental justice communities in meaningful public participation. And while the agency has not conducted any general education campaigns on environmental justice [or] how agency decisions impact low-income and minority communities, former HUD Secretary Mel Martinez has discussed in various articles, press releases, and statements the department's commitment to suitable living environments, affordable housing, and improving housing and employment opportunities for low-income populations and minorities. [130]

The Department of Transportation (DOT) has designed programs to improve public participation outreach to facilitate cooperative efforts in resolving pressing environmental justice concerns. When asked, through interrogatory, to describe what public outreach has been done by [DOT] to inform affected communities of projects undertaken by [DOT] to ensure their participation and early input in the environmental decision-making process, [131] the agency responded:

DOT guidelines require stakeholder involvement during the planning process.[133] The agency has also held several national and regional conferences and workshops to address environmental justice issues.[134] In addition, DOT has taken several steps to reduce cultural barriers to community participation in environmental decision-making. For example, DOT has issued a Native American Policy Order and Guidance to Recipients of Federal Financial Assistance on Services to Limited English Proficient Beneficiaries.[135] DOT also participates in the federal government's plain English initiative.[136]

Within DOT, operating administrations also provide instruction, opportunities for community involvement, and programs designed to reduce cultural barriers to meaningful involvement. For example, the Federal Highway Administration has prepared and distributed two publications informing people how they can become involved in state and regional transportation decision-making titled A Citizen s Guide to Transportation Decisionmaking and Overview of Transportation and Environmental Justice.[137] FHWA also conducts public involvement training for staff, which includes a unit on Cultural Variables That Can Impact Participation. [138] FWHA and FTA jointly produced the publication Public Involvement Techniques for Transportation Decision-making, which includes guidelines for designing a public involvement program, with techniques designed to respect cultural differences. [139] They, jointly, have also published an environmental justice brochure discussing Title VI and the executive order for Spanish-speaking communities.[140] In addition, the Federal Railroad Administration (FRA) led the formation of a Partnership in Promoting Diversity with the railroad industry.[141] The partnership includes representatives from the Office of the Secretary of Transportation, Burlington Northern Santa Fe, and Amtrak.[142] DOT reports:

Moreover, whenever the Federal Railroad Administration proposes rule-making that affects citizens or communities, public hearings are held.[144]

Having input into where bus depots, railways, or highways are located, for example, may be of utmost importance to some communities, especially those who suffer with cumulative exposure from transportation-related pollution. The hallmarks of meaningful participation are whether the public can change a feature of the transportation project or plan, how the project is evaluated, and whether the public is involved before it is too late in the decision-making.[145] While DOT has Web sites, programs, and publications devoted to helping communities participate,[146] when asked how it measures the effectiveness of programs designed to reduce and eliminate cultural barriers to participation, the agency responded that it does not have a formal mechanism to measure the effectiveness of such programs.[147] Indeed, the Federal Highway Administration responded that while [it does] measure the effectiveness of public involvement processes in general through the use of Community Satisfaction Surveys, [it does] not differentiate the results of different racial, cultural or income groups. [148] Nevertheless, the agency asserts that notice is taken of such matters through certification reviews of metropolitan planning organizations and other methods, such as meetings with community and advocacy groups. [149] The agency also recently noted that its statewide and metropolitan planning regulations call for regular review by DOT of the recipients public involvement process.[150] The regulations, however, do not provide detailed information on how the process is carried out in environmental justice communities.

Like the other agencies, the Department of the Interior (DOI) is required to comply with the Executive Order and address issues of environmental justice in its operations. DOI has incorporated public participation requirements as part of its land and resource management responsibilities, although generally, as discussed more fully in Chapter 7, DOI's individual bureaus independently choose how, and the extent to which, they will implement environmental justice initiatives.[151] And while none of the responding bureaus report that they had had public meetings specifically to discuss environmental justice or the Executive Order, many did report that they had conducted meetings with affected communities as part of the NEPA process or to discuss project-related issues.[152] The Bureau of Land Management (BLM), for example, requires public participation before resource management plans are finalized.[153] The Minerals Management Service (MMS) reports that it involves communities and tribal governments in environmental decision-making through the NEPA process.[154] MMS notes that, in connection with potential development of the Outer Continental Shelf, it conducted meetings with Native American communities, using Inupiat translators at public meetings.[155] The Bureau of Reclamation (BOR) holds public meetings by field offices with Indian tribes to discuss water project issues, typically as part of the NEPA process for a particular proposed action.[156] Each BOR environmental impact statement process includes public meetings at which potential environmental justice issues are discussed.[157] The Office of Surface Mining (OSM) reports that it holds public meetings early in the decision-making process regarding all significant permitting actions near mines that are on the reservations of affected Indian tribes and tribal members.[158] Lastly, the Bureau of Indian Affairs (BIA) has a policy requiring consultation with the elected government of the tribes on actions that will affect them.[159]

Only two bureaus, the Fish and Wildlife Service (FWS) and MMS, report conducting any public education campaigns on environmental justice, including how environmental decisions can affect Native American and other communities, and how they can participate in decision-making.[160] FWS has developed five major public education activities for rural and Alaska Native villages.[161] MMS includes an education component on environmental justice as part of the NEPA process for oil and gas activities proposed in the Alaska Outer Continental Shelf Region.[162] MMS further reports that during scoping meetings held in local Native communities, prior to commencing an environmental impact statement, MMS explains its environmental justice policy and how input from Native communities will be used to help identify the issues, alternatives, and mitigation measures to be analyzed to support decisions for the proposed oil and gas activities.[163]

Finally, DOI reports some agencywide initiatives. According to the Office of American Indian Trust (OAIT), the Secretary has required, partly to protect tribal health and safety, that each bureau and office is to engage in meaningful consultation with tribal government(s) when impacts on Indian trust resources, tribal rights, and tribal health and safety are identified. Consultation must be open and candid with respect for the sovereign status of American Indian tribal governments. [164] In addition, the Office of Equal Opportunity reports that on September 22, 2000, it ordered all bureau and office heads throughout DOI to develop and implement a plan for making their programs, activities, and services readily accessible to all people who do not speak or understand English.[165]

Despite these mandates, however, according to its interrogatory responses, no DOI bureau or office, other than OAIT, reports implementing programs to increase public participation by reducing or eliminating cultural barriers.[166] Nor does any bureau or office report having current measures in place to determine the effectiveness of any such program.[167] Moreover, only a few offices or bureaus report engaging in outreach programs in areas where English is not the primary language.[168]

A criticism of DOI is that programs are often implemented in a decentralized way, where each office or bureau has the discretion to determine the manner and the extent to which the office will implement environmental justice policies.[169] To the extent that DOI has issued agencywide public participation policies, it has made steps forward. The key, however, is to ensure that each bureau and office implement these policies, and that there is agency, office, bureau, and staff accountability for failure to do so. Federal, state, and tribal government collaboration should be a critical element of federal executive and staff training and incorporated into performance evaluations.[170] Consultation with tribes, for example, is important, but it is critical that this consultation be meaningful that is, involving the affected communities at a point in the process where their input can influence agency decision-making. Many bureaus report consultations with the tribes, but they do not indicate at what point in the process, and to what extent, they involve the tribes in decision-making.

Agencies have made progress with affected minority communities in trying to increase and improve meaningful public participation, but as long as agencies continue to view public participation as a programmatic appendage to existing policies or as a discretionary option not linked to any meaningful consequences, the full participation of affected communities in their own destinies will never be realized. Communities must have a basic right to be an integral part of decision-making, planning, monitoring, problem solving, implementation and evaluation of environmental policy and practice. [171]

ADR can be a useful tool, but to address environmental justice concerns adequately, agencies must recognize the role of minority communities in every step of their programs and the unique needs of those communities in the ADR process. As it is currently conceived, however, ADR does not afford communities the safeguards needed to equalize the power differential between them and industry. Through the administrative process or a guaranteed private right of action, communities will be allowed the procedural safeguards and civil rights protections needed in securing environmental justice. If ADR is pursued by the parties or required by agencies guidelines, the Commission recommends that the federal agencies do the following:

Similarly, communities have been equally disadvantaged in having meaningful access to agency decision-making. The federal agencies have made progress with affected minority communities in trying to increase and improve meaningful public participation in information gathering and dissemination, and to a lesser extent, in decision-making processes, but more work remains to be done. The Commission, therefore, recommends the following:

[1] Matthew Patrick Clagett, Environmental ADR and Negotiated Rule and Policy Making: Criticisms of the Institute for Environmental Conflict Resolution and the U.S. Environmental Protection Agency, 15 Tul. Envtl. L.J. 409 (Summer 2002) (hereafter cited as Clagett, Environmental ADR).

[2] Ibid.

[3] J. Clarence Davies, Environmental ADR and Public Participation, 34 Val. U.L. Rev. 389 (Spring 2000).

[4] Linda Fisher, deputy administrator, U.S. Environmental Protection Agency, testimony before the U.S. Commission on Civil Rights, hearing, Washington, DC, Feb. 8, 2002, official transcript, p. 81 (hereafter cited as February Hearing Transcript).

[5] Gail Ginsberg, chairperson, EPA Title VI Task Force, Testimony, February Hearing Transcript, p. 82.

[6] Mary M. O Lone, director, Environmental Justice Project, Lawyers Committee for Civil Rights Under Law, Comments of the Lawyer s Commission for Civil Rights Under Law Before the United States Commission on Civil Rights, Apr. 9, 2002, pp. 11 12. For example, advocates view ADR as ineffective in permitting disputes, since the process already favors industry because complaints cannot be filed until after permits are granted, making agencies less inclined to revoke them. See, e.g., Luke W. Cole, director, Center on Race, Poverty, & the Environment, California Rural Legal Assistance Foundation, letter to EPA Administrator Carol Browner, re: Comments on Draft Revised Guidance Investigating Title VI Administrative Complaints Challenging Permits and Draft Title VI Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs, Aug. 26, 2000, pp. 25 26 (hereafter cited as Cole, Comments on Draft Revised Guidance ).

[7] Robert Perks and Gregory Wetstone, Natural Resources Defense Council, Rewriting the Rules, Year-End Report 2002, January 2003, p. v (hereafter cited as NRDC, Rewriting the Rules).

[8] In an early step under NEPA, an agency must decide whether to prepare an environmental impact statement (EIS). See 40 C.F.R. 1501.4 (2002). EISs are required under NEPA for major federal actions significantly affecting the environment. See National Environmental Protection Act of 1969, 42 U.S.C. 4332(2)(C) (1994). In order to make this determination, the agency first prepares an environmental assessment (EA) that focuses on whether the possible proposed action may have a significant impact on the human environment. If it might, the agency will prepare an EIS. See id.; see also 40 C.F.R. pts. 1501 1508. The EIS serves two main purposes: to ensure that agencies consider environmental impacts in their decision-making, and to ensure that the agencies disclose the relevant information to the public. Michael B. Gerrard, ed., The Law of Environmental Justice: Theories and Procedures to Address Disproportionate Risks, Impact Assessment, by Sheila Foster (Chicago: ABA Publishing, 1999), p. 265 (hereafter cited as Foster, Impact Assessment ).

If the agency determines that an EIS is required, it usually must begin a process called scoping during which the agency holds a meeting to identify the issues for the EIS. 40 C.F.R. 1501.7. If the scoping meeting is held, it is supposed to seek the participation of other agencies and the public. Id. Scoping comments can occur in writing or at public meetings held by the agency. After scoping, the agency prepares the draft EIS detailing the potential effects of the project. NEPA requires that the EIS analyze the direct and indirect environmental consequences of the proposed action, as well as any alternatives or mitigation measures. 42 U.S.C. 4332(2)(C); 40 C.F.R. 1502.14, 1502.16. The agency distributes the EIS to the public for written comment, although a public hearing is discretionary. See 40 C.F.R. 1502.19; Michael B. Gerrard, ed., The Law of Environmental Justice: Theories and Procedures to Address Disproportionate Risks, Public Participation, by Sheila Foster (Chicago: ABA Publishing, 1999), pp. 196 97 (hereafter cited as Foster, Public Participation ). After receiving comments, the agency revises the draft EIS to produce a final EIS. Foster, Public Participation, p. 197. Thirty days after the agency distributes the final EIS, the agency must issue a record of decision, which should state the agency's decision, identify the alternatives considered, specify the environmentally preferable alternatives, discuss factors that the agency balanced in making its decision, and indicate whether all practical means of avoiding or minimizing the environmental harm were incorporated into the decision. Ibid.It is important to note that while the information disclosed as part of NEPA can affect official or public opinion in a way that affects the outcome, NEPA is essentially a procedural guarantee that does not establish any substantive standards or mandate particular outcomes. Foster, Impact Assessment, p. 264. Nevertheless, the agencies use of the public participation aspects of NEPA and the EIS process play a critical role in meaningfully involving communities in agency decision-making.

[9] NRDC, Rewriting the Rules, p. v.

[10] Ibid. President Bush has set up an NEPA task force headed by the CEQ to help federal agencies update their practices and procedures and better integrate NEPA into federal agency decision making. See National Environmental Policy Task Force, 67 Fed. Reg. 45,510, 45,511 (July 9, 2002); see also Council on Environmental Quality, NEPA Task Force, <http://ceq.eh.doe.gov/ntf/> (last accessed Aug. 14, 2003). While the administration indicates it intends to enhance or streamline NEPA, environmental advocates argue that many recent actions by the administration work to circumvent NEPA. See Natural Resources Defense Council, NRDC Backgrounder, Defending NEPA from Assault, July 2003, p. 1. For example, the CEQ is considering stripping NEPA protection, including public participation requirements, from the oceans. Ibid., p. 3. If this occurs, waste dumping, commercial fishing, and oil and gas drilling, for example, could take place without careful review of their environmental impacts, assessment of alternatives, or opportunity for public participation and scrutiny. Ibid. The administration has also proposed exempting forest management plans from NEPA review. Ibid., p. 2. In addition, on August 7, 2003, as part of its implementation of President Bush's National Energy Policy, the Bureau of Land Management issued new policies aimed at reducing or eliminating impediments to oil and gas leasing on BLM-managed lands, and to do so in a timely manner. See BLM Web site, <www.blm.gov/nhp/index.htm> (last accessed Aug. 15, 2003). According to NRDC, this policy expedites the permitting process by limiting environmental reviews and shortening public comment periods under NEPA. Robert Perks, Natural Resources Defense Council, telephone interview, Aug. 12, 2003. Finally, President Bush signed an executive order to streamline the environmental review process for transportation projects, after which DOT announced its first NEPA expedited projects. See Environmental Stewardship and Transportation Infrastructure Project Reviews, Exec. Order No. 13,274, 67 Fed. Reg. 59,449 (Sept. 23, 2002); U.S. Department of Transportation, Report to Congress on Federal Highway Administration Environmental Streamlining Activities During 2002, April 2003, <www.fhwa.dot.gov/enviornment/strmlmg/final02rpt.htm> (last accessed Aug. 14, 2003); see also, e.g., U.S. Department of Transportation, Environmental Impact Statement Notice for Philadelphia International Airport, 68 Fed. Reg. 44,834 (July 30, 2003).

Finally, Congress is considering several provisions that also would limit public participation and weaken environmental reviews of environmental projects. For example, Title III of Senate Bill S. 14 could remove the application of NEPA from energy development decisions on tribal lands. Natural Resources Defense Council, NRDC Backgrounder, Defending NEPA from Assault, July 2003, p. 1. Moreover, the Senate majority staff of the Environmental and Public Works Committee has included language limiting public participation and environmental review requirements for highway projects in its legislative proposal to reauthorize the Transportation Equity Act for the 21st Century. Ibid., p. 2.

[11] Elizabeth Teel Testimony, deputy director, Environmental Law Clinic, Tulane Law School, testimony before the U.S. Commission on Civil Rights, hearing, Washington, DC, Jan. 11, 2002, official transcript, pp. 132 33 (hereafter cited as January Hearing Transcript).

[12] Damu Smith, campaigner, Greenpeace Toxic Campaign, Greenpeace, USA, Testimony, January Hearing Transcript, p. 133.

[13] Michelle Ryan, Comment, Alternative Dispute Resolution in Environmental Cases: Friend or Foe? 10 Tul. Envtl. L.J. 397, 399 (Summer 1997) (hereafter cited as Ryan, Friend or Foe?).

[14] Ibid.

[15] Ibid., pp. 401 02.

[16] According to the Environmental Policy and Conflict Resolution Act of 1998, IECR will identify and conduct such programs, activities and services as the foundation determines appropriate and to permit [it] to provide assessment, mediation, training, and other related services to resolve environmental disputes. Environmental Policy and Conflict Resolution Act of 1998, Pub. L. 105-156, 112 Stat. 8 (1998). Furthermore, a federal agency may use the foundation and the institute to provide assessment, mediation, or other related services in connection with a dispute or conflict related to the environment, public lands, or natural resources. Id. There are two types of disputes the IECR will not hear: (1) those that concern purely legal issues, interpretations or determination of law, or enforcement by one agency against another, and (2) where Congress has mandated another ADR mechanism to resolve the dispute. Id.

[17] Clagett, Environmental ADR, p. 417.

[18] See 5 U.S.C. 571 et seq. (1994 & Supp. IV 1998).

[19] Karen D. Higginbotham, director, Office of Civil Rights, U.S. Environmental Protection Agency, letter to Office of the General Counsel, U.S. Commission on Civil Rights, Aug. 22, 2003, p. 12 (hereafter cited as Higginbotham letter).

[20] See Policy on Alternative Dispute Resolution, 65 Fed. Reg. 81,858 (Dec. 27, 2000).

[21] Higginbotham letter, p. 12.

[22] Ibid.

[23] See 40 C.F.R. 7.120(d)(2) (2002). Participation in any type of informal resolution process is voluntary and must be agreed to by both the complainant and the recipient. There is no exhaustion requirement. See U.S. Environmental Protection Agency, Response to the Commission s Interrogatory Question 5, April 2002 (hereafter cited as EPA, Response to Interrogatory Question).

[24] Environmental ADR has been implemented in varying degrees by other agencies as well. Other than EPA, it has been most notably used by DOI. See Clagett, Environmental ADR, p. 416. HUD does not have a formal alternative dispute resolution process for Title VI complaints. See U.S. Department of Housing and Urban Development, Response to the Commission's Interrogatory Question 3, April 2002 (hereafter cited as HUD, Response to Interrogatory Question). HUD's Title VI regulations, however, do set forth a mechanism for achieving voluntary compliance. 24 C.F.R. 1.7(d); see also HUD, Response to Interrogatory Question 3. Since FY 2000, HUD's Office of Fair Housing and Equal Opportunity (FHEO) has tracked Title VI cases through its Title Eight Automated Paperless Office Tracking System (TEAPOTS). Voluntary Compliance Agreements (VCAs) and informal resolutions of Title VI complaints are tracked, along with other case activities, in TEAPOTS. See HUD, Response to Interrogatory Question 5.

DOT does not require Title VI complainants to participate in ADR before pursing administrative remedies. See U.S. Department of Transportation, Response to the Commission s Interrogatory Question 7, April 2002 (hereafter cited as DOT, Response to Interrogatory Question). The agency, however, encourages parties to all types of conflict to pursue ADR, and said that ADR was used in three Title VI environmental justice complaints between 1995 and 2001. Ibid. Two involved the funding of surface transportation projects in a major metropolitan area, and one involved the routing of a new highway. All three alleged disparate impact on African American communities. See DOT, Responses to Interrogatory Questions 7 and 10. The agency said it informally tracks Title VI agreements reached through ADR, but that the number of Title VI environmental justice complaints has been too few to establish a pattern or practice of discrimination. DOT, Response to Interrogatory Question 9.

[25] U.S. Environmental Protection Agency, ADR Accomplishments Report, EPA-100-R-00-003, March 2000, p. 9.

[26] EPA, Response to Interrogatory Question 5. As of March 2002, the date of its responses to the Commission's interrogatories, EPA reported that it had resolved only one Title VI complaint through an informal resolution process. It reported that [b]ased upon this limited experience, EPA is not in a position to evaluate whether such negotiated agreements to Title VI complaints can be used to establish a pattern or practice of discrimination, or serve as precedents for other complaints. See EPA, Response to Interrogatory Question 6. As of June 30, 2003, EPA reports that it has informally resolved an additional complaint. See U.S. Environmental Protection Agency, Title VI Complaints Filed with EPA, June 20, 2003, pp. 4, 20, <www.epa.gov/ocrpage1/docs/t6csjune2003.pdf> (last accessed July 30, 2003).

[27] EPA, Response to Interrogatory Question 7.

[28] Ibid.

[29] Ibid.

[30] EPA, Response to Interrogatory Question 9.

[31] U.S. Environmental Protection Agency, ADR Accomplishments Report, EPA-100-R-00-003, March 2000. This report discusses EPA's use of ADR in Title VI programs, permitting programs, Brownfields pilot programs, regional Superfund activities, and enforcement actions. See also U.S. Environmental Protection Agency, Status Report on the Use of Alternative Dispute Resolution in U.S. Environmental Protection Agency Enforcement and Site-Related Actions through Fiscal Years 1997 & 1998, EPA-330-R-00-001, December 1999 (providing an overview of EPA's ADR programs, including the use of ADR in Superfund remedy disputes and Brownfields facilitation pilots).

[32] U.S. Environmental Protection Agency, Contract 68-W99-0010, Task Order No. 66, Consultative Decisionmaking in Support of Environmental Justice.

[33] Ibid.

[34] U.S. Environmental Protection Agency, Environmental Justice 2000 Biennial Report: Continuing to Move Towards Collaborative and Constructive Problem-Solving, EPA/300-R-01-005, October 2001, p. 2.26.

[35] EPA, Response to Interrogatory Question 9.

[36] U.S. Environmental Protection Agency, Office of Environmental Justice, Environmental Justice Fact Sheet, EPA's Commitment to Environmental Justice, EPA/300-F-03-003, May 2003 (hereafter cited as EPA, Environmental Justice Fact Sheet ).

[37] Ibid. As of this writing, a similar workshop is being planned for September 2003 in Memphis, Tennessee. Ibid.

[38] See Ryan, Friend or Foe? p. 412.

[39] See ibid.

[40] See, e.g., Shankle v. B-G Maint. of Colorado, Inc., 163 F.3d 1230, 1234 35 (10th Cir. 1999) (affirming district court's holding that an arbitration agreement was unenforceable where arbitration costs exceeded judicial forum costs); see generally Brief for Respondent at 31 33, Green Tree Financial Corp. v. Randolph, 51 U.S. 79 (2000) (No. 99-1235) (discussing cases where arbitration agreements were unenforceable because arbitration costs exceeded those in a judicial forum).

[41] Ryan, Friend or Foe? p. 413.

[42] Ibid., p. 412.

[43] Ibid., p. 413.

[44] Cole, Comments on Draft Revised Guidance, p. 26.

[45] See Ryan, Friend or Foe? p. 413.

[46] See ibid., pp. 413 14; Clagett, Environmental ADR, p. 422.

[47] Higginbotham letter, p. 6.

[48] Cole, Comments on Draft Revised Guidance, p. 27.

[49] Ibid.

[50] Ibid.

[51] Ibid., pp. 29 30.

[52] Lawyers Committee for Civil Rights Under Law, Comments before the U.S. Commission on Civil Rights, Apr. 9, 2002, p. 12.

[53] Cole, Comments on Draft Revised Guidance, p. 30.

[54] Ibid., p. 28.

[55] Ibid.

[56] Ibid., p. 30.

[57] Mary M. O Lone, Lawyers Committee for Civil Rights Under Law, Remarks Before the National Academy of Public Administration, Aug. 30, 2001, <www.lawyerscomm.org/projects/environmentalspeech2.html> (last accessed June 30, 2003).

[58] Ibid.

[59] See, e.g., Clagett, Environmental ADR, pp. 421 22.

[60] EPA defines meaningful involvement as meaning that:

(1) potentially affected community residents have an appropriate opportunity to participate in decisions about a proposed activity that will affect their environment and/or health; (2) the public's contribution can influence the regulatory agency's decision; (3) the concern of all participants involved will be considered in the decision making process; and (4) the decision makers seek out and facilitate the involvement of those potentially affected.

See U.S. Environmental Protection Agency, Environmental Justice Web site, <http://www.epa.gov/compliance/environmentaljustice/index.html> (last accessed June 30, 2003).

[61] Denis Binder et al., A Survey of Federal Agency Response to President Clinton's Executive Order No. 12898 on Environmental Justice, 31 Envtl. L. Rep. 11134 (2001) (hereafter cited as Binder et al., Federal Agency Response to President Clinton's Executive Order No. 12898).

[62] National Environmental Policy Act of 1969, 42 U.S.C. 4321 4370 (1994).

[63] Presidential Memorandum Accompanying Executive Order 12,898, 30 Weekly Comp. Pres. Doc. 279, 280 (Feb. 11, 1994).

[64] Id.

[65] Id.

[66] Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, Exec. Order No. 12,898, 3 C.F.R. 859 (1995), reprinted as amended in 42 U.S.C. 4321 at 73, 5-5(b), (c) (1994 & Supp. VI 1998) (hereafter cited as Exec. Order No. 12,898).

[67] Presidential Memorandum Accompanying Executive Order 12,898, 30 Weekly Comp. Pres. Doc. 279, 280 (Feb. 11, 1994). Public participation requirements can be found in the Counsel on Environmental Quality s Regulations for Implementing the Procedural Provisions of NEPA. See 40 C.F.R. pts. 1500 1508. While the regulations state broad goals for public participation in the NEPA process, they do provide that federal agencies are required, to the fullest extent possible, to encourage and facilitate public participation in agency decisions that affect the quality of the human environment. See 40 C.F.R. 1500.2(d). Agencies must also make diligent efforts to involve the public in preparing and implementing their NEPA procedures. See 40 C.F.R. 1506.6(a).

[68] Robert D. Bullard, Ph.D., Environmental Justice in the 21st Century, p. 3, <www.ejrc.cau.edu/ejinthe21century.htm> (last accessed July 10, 2003).

[69] National Environmental Policy Commission, Report to the Congressional Black Caucus & Congressional Black Caucus Foundation Environmental Justice Braintrust, Sept., 28, 2001, p. 41 (hereafter cited as NEPC, Report to the Congressional Black Caucus).

[70] Sara Pirk, Expanding Public Participation in Environmental Justice, 17 Envtl. L. & Litig. 207 (Spring 2002) (hereafter cited as Pirk, Expanding Public Participation); see also Lawyers Committee for Civil Rights Under Law, Comments before the U.S. Commission on Civil Rights, Apr. 9, 2002, p. 4.

[71] Pirk, Expanding Public Participation, pp. 207 08.

[72] Thomas C. Beierle, Public Participation in Environmental Decisions: An Evaluation Framework Using Social Goals, Discussion Paper 99-06, November 1998, p. 25.

[73] EPA, Response to Interrogatory Question 27.

[74] U.S. Environmental Protection Agency, Engaging the American People: A Review of EPA's Public Participation Policy and Regulations with Recommendations for Action, EPA-240-R-00-005, December 2000.

[75] Ibid.

[76] Ibid., p. 1.

[77] Ibid.

[78] U.S. Environmental Protection Agency, Office of Environmental Justice, The Model Plan for Public Participation, EPA-300-K-00-001, February 2000.

[79] U.S. Environmental Protection Agency, Office of Policy, Economics, and Innovation, Public Involvement Policy of the U.S. Environmental Protection Agency, EPA 223-B-03-002, May 2003 (hereafter cited as EPA, Public Involvement Policy). In 1981, EPA published its first agencywide Public Participation Policy. See Final EPA Policy on Public Participation, 46 Fed. Reg. 5736 (Jan. 19, 1981). In November 1999, EPA requested public comment on whether and how to change that policy, and subsequently began a process to revise the policy and a plan to implement it across EPA. In December 2000, EPA released a draft revised Public Involvement Policy for public comment. See EPA Draft Public Involvement Policy, 65 Fed. Reg. 82,335 (Dec. 28, 2000). The comment period closed on July 31, 2001, following a two-week Internet dialogue on Public Involvement in EPA Decisions, which included more than 1,000 participants from all 50 states, two territories, and several other nations. See EPA, Public Involvement Policy, p. 32; see also Higginbotham letter, pp. 12 13. EPA recruited national and regional environmental justice advocates as expert panelists and participants in that event, whose ideas helped EPA complete the Framework. Higginbotham letter, pp. 12 13. EPA's OPEI used some of the information from the Internet dialogue and public comments to develop a series of public involvement brochures aimed at, for example, discussing the policy itself, improving hearing and meetings, involving environmental justice communities in EPA decision-making processes, and consulting with tribes and overcoming barriers to public involvement. EPA expects all the brochures to be available in 2003. Ibid., p. 13.

[80] EPA, Public Involvement Policy, p. 2.

[81] Ibid., p. 3.

[82] Ibid., p. 5.

[83] Ibid., p. 6.

[84] Ibid., Appendix 1, pp. 7 20.

[85] Ibid., p. 32.

[86] Ibid.

[87] U.S. Environmental Protection Agency, Office of Policy, Economics, and Innovation, Framework for Implementing EPA's Public Involvement Policy, EPA-233-F-03-001, May 2003 (hereafter cited as EPA, Framework for Implementing Public Involvement Policy).

[88] Ibid., p. 1.

[89] Ibid., p. 8.

[90] Ibid., p. 1, n. 1.

[91] Ibid., pp. 8 10. EPA recently reported that OPEI has completed the baseline survey and has drafted 20 feedback questionnaires, which include minimum expectations for performance of public involvement activities. Higginbotham letter, p. 13.

[92] See EPA, Response to Interrogatory Question 9; Higginbotham letter, p. 13.

[93] See, e.g., U.S. Environmental Protection Agency, Office of Solid Waste and Emergency Response, Public Involvement in Environmental Permits: A Reference Guide, EPA-500-R-00-007, August 2000.

[94] EPA, Response to Interrogatory Question 21. The agency also reported that it makes available to the general public various outreach materials and publications, including climate change outreach material from the Office of Air and Radiation, designed to inform the public about global warming; publications from the Office of Pesticide Programs, offering information about reducing pesticide exposure; and general publications from the Office of Wetlands, Oceans, and Watersheds, expressly intended for lay readers. Ibid.

[95] Environmental Law Institute, A Citizen's Guide to Using Federal Environmental Laws to Secure Environmental Justice, 2002, <www.eli.org> (last accessed June 30, 2003) (hereafter cited as Environmental Law Institute, A Citizen's Guide). As discussed in more depth in Chapter 6, Congress has decided that EPA should provide funds for community participation in some selected government decisions considered so vital that it acknowledges communities should have money for necessary technical assistance. Ibid., pp. 35 36. Examples of funding and other assistance for public participation provisions in environmental laws include under Superfund (CERLA), the Technical Assistance Grants (TAGS), which offers $50,000 to groups affected by a release or threatened release of hazardous substances from a listed Superfund site, and the Technical Outreach for Communities (TOSC) program, which uses university educational and technical resources to help community groups understand the technical issues relating to hazardous waste sites. Ibid., p. 35.

[96] U.S. Environmental Protection Agency, Interim Guidance for Community Involvement in Supplemental U.S. Environmental Projects, 68 Fed. Reg. 35,884 (June 17, 2003). The May 1998 SEP policy allows EPA to consider a defendant's willingness to perform an environmentally beneficial project when setting an appropriate penalty to settle an enforcement action. The purpose of an SEP is to secure significant environmental protection improvements beyond those achieved by bringing the defendant into compliance. The June 2003 interim policy encourages EPA staff to include community involvement in settlements, where appropriate. EPA notes that not every settlement can include an SEP or an SEP that is proposed or favored by community members. SEPs are projects undertaken voluntarily by defendants, and certain defendants may not be willing to solicit input from the community. 68 Fed. Reg. at 35,886 & n.3. This SEP public participation guidance is not mandatory, and the agency may determine, for example, that a settlement with an SEP, even if not obtained with community involvement, is better than a settlement without an SEP. Id. at 35,885.

[97] EPA, Environmental Justice Fact Sheet.

[98] EPA, Response to Interrogatory Question 36.

[99] EPA has implemented environmental laws, such as the Clean Air Act and the Clean Water Act, by establishing permit application and review procedures for facilities, including opportunities for public comment. See National Academy of Public Administration, Environmental Justice in EPA Permitting: Reducing Pollution in High-Risk Communities Is Integral to the Agency's Mission, December 2001, p. 13 (hereafter cited as NAPA, Environmental Justice in EPA Permitting). These are designed to help regulatory officials make informed decisions about whether to allow the emission of specified amounts of pollution proposed by a facility. Ibid.

[100] See ibid., p. 63 (discussing how EPA can incorporate environmental justice into EPA's water, air, and waste permitting programs).

[101] Pirk, Expanding Public Participation, p. 209.

[102] Ibid.

[103] NAPA, Environmental Justice in EPA Permitting, p. 68.

[104] Environmental Law Institute, A Citizen's Guide, pp. 35 36.

[105] NAPA, Environmental Justice in EPA Permitting, p. 68.

[106] Pirk, Expanding Public Participation, p. 210.

[107] National Environmental Justice Advisory Council, Integration of Environmental Justice in Federal Agency Programs (report developed from NEJAC Meeting, Dec. 11 14, 2000), p. 43 (hereafter cited as NEJAC, Integration of Environmental Justice).

[108] William H. Rodgers, Jr., Executive Orders and Presidential Commands: Presidents Riding to the Rescue of the Environment, 21 J. Land Resources & Envtl. L. 13, 17 (2001).

[109] See NEPC, Report to the Congressional Black Caucus, p. 97.

[110] Binder et al., A Survey of Federal Agency Response to President Clinton's Executive Order No. 12898, p. 11149. See generally Foster, Impact Assessment, p. 264.

[111] See, e.g., EPA, Public Involvement Policy, pp. 3, 10.

[112] Ibid., pp. 9 10.

[113] Ibid., p. 20.

[114] EPA, Framework for Implementing Public Involvement Policy, pp. 8 10.

[115] See EPA, Public Involvement Policy, p. 3 (stating that the Public Involvement Policy is not a rule, is not legally enforceable, and does not confer legal rights or impose legal obligations upon any member of the public, EPA or any other agency ); EPA, Framework for Implementing Public Involvement Policy, p. 1, n. 1 (stating that the Framework is internal EPA guidance; it does not describe mandatory activities ).

[116] Compare EPA, Public Involvement Policy, p. 6, with pp. 3 4.

[117] U.S. Environmental Protection Agency, Frequently Asked Questions on the Final Public Involvement Policy, Response 15, <www.epa.gov/publicinvolvement/policy2003/faqs.pdf> (last accessed July 9, 2003). EPA recently reported that, like the current public involvement policy, the 1981 policy was similarly not binding. Higginbotham letter, p. 14. It also noted that the 1981 provision for withholding grant funds was never implemented, so EPA found no reason to include it in the new policy. Ibid. EPA's decision not to include or implement accountability measures in its 1981 public involvement policy does not diminish the fact that the current policy still does not put such important measures into place.

[118] Binder et al., A Survey of Federal Agency Response to President Clinton's Executive Order No. 12898, p. 11138.

[119] HUD, Response to Interrogatory Question 26.

[120] Ibid.

[121] See 24 C.F.R. 91.105 (2002).

[122] HUD, Response to Interrogatory Question 28. According to HUD, jurisdictions are expected to take whatever actions are appropriate to encourage the involvement of all their residents, including minorities, non-English speaking persons, and persons with disabilities. . . . When submitting their Consolidated Plan to HUD, local jurisdictions must summarize the citizen participation process, as well as citizens commentary on the plan, and document their efforts to broaden public participation in developing the plan. Ibid.

[123] 24 C.F.R. 570.507 (2002).

[124] Id. 570.508. In addition, HUD's environmental regulations require that, before HUD may release project funds, state and local governments that are responsible for environmental reviews must provide public notice and comment periods concerning those reviews. See 24 C.F.R. pt. 58. HUD's environmental regulations require additional public notice for projects proposed in floodplains and wetlands. See 24 C.F.R. pt. 55. HUD's environmental regulations also incorporate by reference the public participation requirements of the Advisory Council on Historic Preservation. HUD, Response to Interrogatory Question 26.

[125] HUD, Response to Interrogatory Question 26.

[126] HUD, Response to Interrogatory Question 45.

[127] These included (1) the joint HUD/EPA/CPSC brochure Protect Your Family From Lead in Your Home, a pamphlet that is required to be provided by landlords and sellers to tenants and buyers for most pre-1978 housing, numbering an estimated 12 million transactions under the HUD/EPA Lead-based Paint Disclosure Regulation; (2) Lead Paint Safety Field Guide, a picture book for maintenance and rehabilitation workers, developed jointly by HUD, CDC, and EPA; (3) Danger in the Home, a large one-page brochure summarizing major health and safety hazards in the home environment and how to eliminate them; and (4) Help Yourself to a Healthy Home, a booklet developed by the Home-A-Syst program (Department of Agriculture) with funding from HUD's Healthy Homes program. See HUD, Response to Interrogatory Question 45.

[128] HUD, Response to Interrogatory Question 23.

[129] Ibid.

[130] HUD, Response to Interrogatory Question 25.

[131] DOT, Response to Interrogatory Question 31.

[132] Ibid. The agency also responded that it has held a series of meetings around the country on proposed environmental planning, that it has received input on what should be included in the reauthorization of the Transportation Equity Act for the 21st Century, that it has active relations with minority serving institutions of higher education, including intern programs, and that the agency has memoranda of understanding for mutual cooperation with a large number of community-based organizations, including the National Urban League. Ibid.

[133] NEJAC, Integration of Environmental Justice, p. 18.

[134] The workshops and conferences included (1) a national conference, Environmental Justice and Transportation: Building Model Partnerships, held in Atlanta, GA, on May 11 13, 1995; (2) regional and locally based transportation workshops in Atlanta, Harlem, San Francisco, and Marysville, WA, during October and November, 1998; (3) a regional workshop, Making Environmental Justice Work, in Atlanta on December 14 15, 1999; (4) the National Environmental Justice Summit held in the Washington, DC, metropolitan area in September 2000; and (5) a public meeting in Lake Charles, LA, in which Federal Railroad Administration staff participated, to address its process for transporting and storing hazardous materials. See DOT, Response to Interrogatory Question 28.

[135] DOT, Response to Interrogatory Question 36.

[136] DOT, Response to Interrogatory Question 34. Plain language resources are also linked to the agency's Office of Civil Rights Web site. Ibid. In addition, the agency points out that the Federal Motor Carrier Safety Administration (FMCSA) has developed a Web site written in Spanish and has translated a broad range of documents into Spanish, including several that are related to environmental justice issues, such as various hazardous materials regulations and its Educational and Technical Assistance Manual. Ibid.

[137] DOT, Response to Interrogatory Question 31.

[138] DOT, Response to Interrogatory Question 36. FHWA also reports that it delivers training in public involvement and Title VI in transportation decision-making for state and local transportation professionals. It has offered the course six times in FY 2003 and plans to offer it eight times in FY 2004. Marc Brenman, senior policy advisor, Office of the Secretary, U.S. Department of Transportation, e-mail to Office of the General Counsel, U.S. Commission on Civil Rights, Aug. 26, 2003, pp. 6 7 (hereafter cited as Brenman Aug. 26, 2003, e-mail).

[139] Ibid. DOT reports that FHWA and FTA also have a joint planning rule requiring their recipients to engage in public participation. Marc Brenman, senior policy advisor, Office of the Secretary, U.S. Department of Transportation, e-mail to Office of the General Counsel, U.S. Commission on Civil Rights, Aug. 26, 2003, p. 4 (hereafter cited as Brenman Aug. 15, 2003, e-mail).

[140] See U.S. Department of Transportation, Justicia Ambiental, No. FHWA-EP-01-020.

[141] DOT, Response to Interrogatory Question 36.

[142] Ibid.

[143] Ibid.

[144] DOT, Response to Interrogatory Question. 31.

[145] See Shannon Cairns et al., Institute of Transportation Studies, Environmental Justice & Transportation, A Citizen's Handbook (University of California, Berkeley, 2003), p. 20.

[146] DOT, Responses to Interrogatory Questions 30 and 31.

[147] DOT, Response to Interrogatory Question 37.

[148] Ibid. Recently, DOT commented that its 2000 Moving Ahead survey, intended to measure public satisfaction with the nation's highways and with community transportation systems, included information about race, ethnicity and income so FHWA did analyze the survey responses from different populations. Brenman Aug. 15, 2003, e-mail. DOT did not explain, however, the nature of this survey as it related to DOT's environmental justice activities or the promotion of meaningful public participation of minority communities. Nor did DOT explain the nature of the analysis conducted or the survey's findings as they related to the racial data collected in the survey. See generally U.S. Department of Transportation, Moving Ahead: The American Public Speaks on Roadways and Transportation in Communities, A Report from the Federal Highway Administration, February 2001, <www.movingahead.pdf> (last accessed Aug. 24, 2003).

[149] DOT, Response to Interrogatory Question 37.

[150] Brenman Aug. 26, 2003, e-mail, p. 4; see also 23 C.F.R. 450.212 (2002), Public Involvement; id. 450.316, Metropolitan Transportation Planning: Elements.

[151] The bureaus are the Bureau of Land Management (BLM), Office of Surface Mining (OSM), Minerals Management Service (MMS), Bureau of Reclamation (BOR), U.S. Fish and Wildlife Park Service (FWS), National Park Service (NPS), Bureau of Indian Affairs (BIA), and U.S. Geological Survey (USGS).

[152] U.S. Department of the Interior, Response to the Commission s Interrogatory Question 21, May 2002 (hereafter cited as DOI, Response to Interrogatory Question).

[153] Binder et al., A Survey of Federal Agency Response to President Clinton's Executive Order No. 12898, p. 11139.

[154] DOI, Response to Interrogatory Question 24. MMS also notes that it is a party to DOI's Alaska Policy on Government-to-Government Relations with Alaska Native Tribes, which was signed in January 2001. Ibid. According to MMS, the policy is intended to promote and reinforce the foundation for establishing and maintaining effective governmental communication, consultation, and coordination with federally recognized tribes in Alaska. Ibid. BLM also reported that it engages in government-to-government consultations with tribes, which provides the tribes with early and frequent input in environmental decision-making. Ibid.

[155] Binder et al., A Survey of Federal Agency Response to President Clinton's Executive Order No. 12898, p. 11139.

[156] DOI, Response to Interrogatory Question 21.

[157] Ibid.

[158] Ibid.

[159] DOI, Response to Interrogatory Question 26.

[160] DOI, Response to Interrogatory Question 23.

[161] Ibid. These programs include the Subsistence Radio Documentary, Alaska Waterfowl Calendar, Emperor Goose Harvest Outreach, Walrus Waste Harvest Outreach, and Communication on Subsistence Regulations. Ibid.

[162] Ibid.

[163] Ibid.

[164] See U.S. Department of the Interior, Office of American Indian Trust, Mission Statement & Responsibilities, <www.doi.gov/oait/mission.htm> (last accessed Aug. 4, 2003).

[165] DOI, Response to Interrogatory Question 27.

[166] DOI, Response to Interrogatory Question 28. FWS recently reported that, in the year since it responded to the Commission's interrogatories, it has implemented programs designed to increase public participation by reducing or eliminating cultural barriers. According to DOI, these have included, for example, two training sessions, open to federal employees, state recipient staff, and multicultural community partners on cultural barrier issues, Environmental Justice and Civil Rights. See Deborah Charette, assistant solicitor, Branch of Personnel Litigation and Civil Rights, Office of the Solicitor, U.S. Department of the Interior, facsimile to Office of the General Counsel, U.S. Commission on Civil Rights, Aug. 20, 2003, p. 2 (hereafter cited as Charette facsimile). FWS has also developed an ongoing partnership with an association of African American mayors to discuss critical issues involving cultural barriers, environmental equity, brown fields [sic], and disparate health patterns affecting minority and tribal groups. FWS also reported that in the Alaska Regional Office, Regional Advisory Councils have been established to encourage participation by Alaska Natives in the management of subsistence resources, and to address cultural barriers impacting indigenous populations. Ibid. Other than with the possible exception of the Regional Advisory Councils, FWS did not note, however, if these activities were specifically devoted to increasing communities meaningful public participation in DOI's environmental decision-making.

[167] DOI, Response to Interrogatory Question 29. FWS reports that it is currently developing criteria to measure the effectiveness of programs designed to increase public participation of communities of different racial and cultural backgrounds. Ibid.

[168] For example, OSM reported that notices of public meetings are advertised in newspapers circulated on the reservations and are broadcast in native languages on radio stations serving the reservations. DOI, Response to Interrogatory Question 21. The National Park Service (NPS), Southwest System Support Office, which covers Texas, Oklahoma, and portions of New Mexico, Arizona, and Colorado, reported that it is working with the Hispanic Radio Network to provide public service announcements in Spanish to ensure that they have greater access to information regarding their natural resources and cultural heritage. U.S. Department of the Interior, Environmental Justice at DOI, Environmental Justice Project Examples, <www.doi.gov/oepc/ej_examples.html> (last accessed June 30, 2003). FWS reported that its Southeast Region's Environmental Justice Team has developed, in conjunction with the public affairs office, outreach planning tools that incorporate sensitivity to communities where English is not the primary language. Charette facsimile, pp. 3 4. This team also has a tribal liaison component, includes Spanish language translators, and has worked with the regional director to ensure that in Caribbean areas, key FWS managers are fluent in Spanish. Ibid.

[169] For a further discussion, see Chapter 7.

[170] Federal Interagency Working Group, American Indian & Alaska Native Environmental Justice Roundtable, Albuquerque, New Mexico, Final Report (Environmental Biosciences Program, Medical University of South Carolina, ed., Jan. 31, 2001), p. xv.

[171] NEPC, Report to the Congressional Black Caucus, p. 45.