Convent is a small, relatively poor town in St. James Parish, Louisiana, that lies along the Mississippi River between Baton Rouge and New Orleans. As of the last Census, per capita income in Convent was scarcely $7,600, nearly 30 percent below that of Louisiana and just over half of that for the nation as a whole. In 1989, approximately one in three Convent residents was below the poverty line. In recent years, unemployment in the parish has been nearly double the national jobless rate. Convent also was to be home to a new $700 million plastics manufacturing plant – until environmental activists cried environmental racism.
The new facility was put on hold because Convent is not only poor; it is also predominantly black. Therefore, the Environmental Protection Agency (EPA) determined that allowing Shintech to build its plant might produce a "disparate impact" on the local community and therefore violate the EPA’s interpretation of Title VI of the Civil Rights Act of 1964. In response to a complaint filed by local activists, with the help of the Tulane Environmental Law Clinic, the EPA voided the permits Shintec obtained from the Louisiana Department of Environmental Quality and referred the Title VI matter to the EPA’s Office of Civil Rights. For the first time, the EPA is holding up economic development in the name of "environmental justice."
The EPA is concerned that racial discrimination has resulted in the disproportionate siting of industrial facilities and environmental hazards in low-income and minority communities. There is no doubt that racism exists, and there is evidence suggesting a confluence of industrial facilities and low-income neighborhoods, but "environmental racism" is not responsible for the prevalence of industrial facilities in lower income communities.
Those studies that examined historical land-use patterns and neighborhood composition at the time the facilities were sited found little, if any, evidence that siting and permitting decisions are responsible for the existence of industrial facilities in low-income and minority communities. Rather, they have found that the prevalence of industrial facilities in particular areas has tended to drive down neighboring property values, encouraging those who can afford it to move to more desirable neighborhoods, and inducing an influx of low-income residents.
"The coincidence of environmental hazards in minority communities is a matter of economics. Property values and shifts in desirable business properties are the main reasons," testified Harry Alford of the National Black Chamber of Commerce to the Senate Environment and Public Works Committee in April 1997. If one is looking for environmental racism, one would probably do better to look at the agendas of environmental establishment organizations that historically had little concern for the impact of their policies on poor communities. The Shintech facility would be a source of jobs, tax revenue, and funding for local schools and medical services in St. James Parish. Polls also indicated that most parish residents supported the plant. Nonetheless, environmental activists jumped in to stop the development plans.
Although the EPA may be doing more to suppress economic development in poor communities than it is to protect public health, it still appeals to environmental justice in advancing its regulatory agenda. Under Carol Browner, the EPA has made environmental justice a priority. Each year the Agency doles out over $1 million to groups pursuing the environmental justice agenda. In February 1994, President Clinton signed Executive Order 12,898 requiring each federal agency to make "environmental justice a part of its mission."
This year, the EPA issued its Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits to respond to environmentalist complaints, like that which derailed the Shintech plant, filed by activists seeking to slow development. Under the EPA’s new policy, states cannot issue or renew permits to facilities that, in the EPA’s judgment, will cause or contribute to disparate environmental impact in minority communities.
Under the guidance, "merely demonstrating that the permit complies with applicable environmental regulations will not ordinarily be considered a substantial, legitimate justification." In other words, complying with the law does not guarantee a company that it will get a permit. It must also demonstrate that its facility, in conjunction with other facilities already in the area, does not impose a disparate impact on a local minority population, and that no "less discriminatory" alternative exists.
For companies seeking to comply with the EPA’s newfound concern for minority communities, the Title VI guidance doesn’t provide much guidance at all. The "disparate impact analysis" outlined by the EPA is based upon subjective criteria that could easily be applied in an arbitrary fashion. In evaluating complaints, the EPA plans to use "several techniques within a broad framework," none of which are defined, to evaluate disparate impact allegations. Thus, there is no standard that a state agency or private company can use to assess their own operations and ensure their compliance with the EPA’s new requirements.
Presumably the EPA will seek to define the affected community and identify the impact of a new facility by measuring permitted and reported releases of regulated emissions. Such information bears no relation to actual human exposures to environmental contaminants or human health risks. Compiling aggregate data about the volume of reported or permitted releases within a particular zip code, Congressional district, or census tract reveals no meaningful information about actual exposures to environmental contaminants. Such information, without actual exposure data and information about the relative toxicity of the substances involved, cannot be used to meaningfully improve the protection of public health and the environment. Nor can these measures be used to determine whether there is truly a "less discriminatory alternative" to the issuance of a given permit. After all, if it is discriminatory to permit a facility in a disproportionately minority community, is it not also discriminatory to deny economic development in the same community by denying a permit?
The EPA’s new policy has state environmental officials up in arms. In March, the Environmental Council of the States (ECOS), which represents 49 of the 50 state environmental agencies, passed a resolution calling upon the EPA to withdraw the guidance altogether. ECOS labeled the guidance unworkable saying that it would impose substantial new burdens on state agencies and obstruct the operation of environmental permitting programs. The guidance would encourage the EPA and activist groups to second-guess the issuance of permits to private companies that need environmental permits to operate. "If a company can’t get a permit from my agency in a reasonable time frame, it can’t stay competitive in a global situation," commented Russell Harding, director of the Michigan Department of Environmental Quality, to Investor’s Business Daily.
The stated aim of the EPA’s new policy is to ensure that the issuance of pollution control permits does not cause adverse impacts on low-income or minority populations. As written, however, the guidance will do nothing to advance this aim, and may even be counterproductive, increasing risks to human health and the environment in affected communities.
Study after study indicates that wealthier populations are healthier populations. The more money in a community, the more resources can be devoted to health care, nutrition, education, and safety. Diminishing the wealth of a regional economy through unnecessary environmental regulation can have the perverse effect of actually increasing mortality. A similar impact upon human health can be observed from unemployment. Studies have demonstrated conclusively that higher unemployment and lower levels of economic growth correlate with increased mortality and ill health.
The connection between wealth and health is observable in southern Louisiana. In the infamous "Cancer Alley" there is substantial environmental pollution from industrial facilities. Mortality rates for several types of cancer are also above the national average. However, while some cancer death rates are higher, the incidence of cancer is not. In other words, people in southern Louisiana are not more likely to get cancer than others, but they are more likely to die from it. This suggests that the problem is not environmental exposure, or any disparate impact caused by industrial facilities, but a lack of health care. The problem in "Cancer Alley" and many similarly situated communities is not so much environmental as it is socio-economic. The remedy is not yet another bureaucratic hurdle to the permitting or new and existing facilities, it is encouraging community development and empowering communities to have greater control over their economic destiny.
Discouraging economic development by imposing a vague and arbitrary "disparate impact" standard on state-level permitting decisions is likely do more harm than good. There is no substantial evidence that the EPA’s new Title VI guidelines will do anything to alleviate poor environmental conditions or public health problems in low-income and minority communities. However, there is substantial evidence that these guidelines, by discouraging economic development, will impose greater hardship on these communities and impose a substantial obstacle to health and environmental improvements. Indeed, by erecting the greatest barriers to economic development in those communities with disproportionate minority populations, the EPA’s new policy will have a disparate impact on the people it purports to help. If the EPA is truly interested in advancing environmental justice, the Interim Guidance should be withdrawn.
Jonathan H. Adler ([email protected]) is Director of Environmental Studies at CEI.