For Real Environmental Justice, We Need Community Input into Federal Rules

January 24, 2024 | 3:32 pm
An aerial view of a neighborhood with the focus on an industrial facility spewing smoke into the airMarcin Jozwiak/Unsplash
Darya Minovi
Senior Analyst

With the 2024 election just months away, it’s hard not to reflect on what’s at stake: addressing the climate crisis, upholding democratic electoral processes, and healing the cracks in our social safety nets exacerbated by the COVID-19 pandemic, among other pressing issues.

At the top of my mind are efforts to defend and advance environmental justice, the idea that all people have the right to equal protection under environmental laws and regulations, as defined by scholar and advocate Dr. Robert Bullard. I was heartened by the Biden-Harris administration’s sweeping executive order related to environmental justice (EO 14096), which was among the most explicit commitments to addressing environmental injustice made by any administration.

Embedded throughout EO 14096 is not only the need for federal agencies to evaluate and enhance environmental justice strategies and research methods and address the legacy of toxic pollution that disproportionately affects people’s health, but to also ensure that the public can effectively participate in regulatory processes that impact their wellbeing. The EO charges the federal government to “continue to remove barriers to the meaningful involvement of the public in such decision-making, particularly those barriers that affect members of communities with environmental justice concerns…”

In plainer language, the Biden-Harris administration is explicitly ordering the federal government, including its agencies, to make it easier for everyone to have the opportunity to weigh in on regulations, especially the people most affected by what is being regulated. For a completely hypothetical example, if the U.S. Environmental Protection Agency (EPA) were in the process of developing rules around how much air pollution oil refineries were “allowed” to emit, then it should be easy and straightforward for the people who work at and live near these facilities to access information about the proposed regulations and raise their concerns and priorities to the EPA.

The concept of being able to meaningfully access a process is known as “procedural equity.” The EPA defines procedural equity as “inclusive, accessible, authentic engagement and representation in decision-making processes.” Indeed, this concept has long existed as a core tenet of the environmental justice movement. The Principles of Environmental Justice, adopted at the First National People of Color Environmental Leadership Summit in 1991, states that “environmental justice demands the right to participate as equal partners at every level of decision-making.” Public participation and accountability in decision-making is also core to the A. Donald McEachin Environmental Justice for All Act, the seminal federal legislation developed in partnership with frontline communities and environmental justice groups across the nation.

Environmental decision-making often excludes the people most impacted

It almost goes without saying that our current environmental health decision-making processes have historically (and presently) excluded the people with the least amount of social and political power—often Black, Brown, and Indigenous communities, people with low incomes, and people with disabilities. Oftentimes, opportunities for the public to weigh in or comment on a regulation (also called a rule) or permit, for example, are posted on hard-to-navigate websites or not shared at all, decision-making timelines are not communicated, and information is not provided in multiple languages, or even in plain language. Additionally, the public participation processes employed across federal and state agencies, and even offices within those agencies, can vary significantly, often unfairly foisting the responsibility on communities to ensure that decisions are not made without them (for tips on how to participate in public rulemaking processes, see this helpful post from my colleague). As concisely summarized in the Washington Law Review, “Environmental regulation is difficult, dense, and often inaccessible to people without extremely specific training. […] How then can impacted communities’ perspectives be given real weight, shaping important decisions that affect their daily lives?”

Disentangling a complex regulatory system that is not designed to prioritize the needs of the people most impacted will take time. However, there have been some recent notable efforts to advance the goals laid out in EO 14096.

EPA proposes a policy to improve meaningful participation in agency decisions

In November, EPA published a draft agency-wide policy providing guidance to staff on opportunities to ensure meaningful public involvement in agency decision-making. It updates a 20-year-old EPA policy and proposes a public participation model to guide offices in more thoughtfully and proactively engaging the public in regulatory processes. The proposal considers important aspects of ensuring public participation, such as:

  • technical and financial assistance to ensure community members have the necessary resources to participate in the decision-making process;
  • providing information through multiple channels like social and print media, public meetings, and email and mailed announcements, in accessible languages that are appropriate to the impacted communities; and
  • ensuring that agency staff report back on if and how input was used in a decision to ensure accountability.

While the proposal is commendable, the guidance was optional, and the EPA did not lay out a clear mechanism for evaluating the effectiveness of public participation strategies. As UCS noted in our comments on the draft, for this policy to meaningfully engage impacted communities, offices must be required to use the model and there must be greater accountability for implementation of public participation policies.

Agency-wide policies like these are necessary to accelerate systemic change. However, environmental justice advocates are also watching whether EPA proves these commitments on the specific issues that impact their communities, such as exposure to toxic chemicals.

Will EPA follow through on commitments to protect overburdened communities from toxic chemicals?

For the past several years, UCS has been working to support our partners in pushing EPA to strengthen critical protections for communities impacted by air pollution—especially those at risk of chemical disasters, and located near facilities that emit cancer-causing toxics. EPA is poised to issue two final rules that would address these harms in the coming weeks, and UCS will be watching alongside environmental, public health, labor, and environmental justice groups to see if communities were meaningfully heard. Both issues have garnered a significant amount of public attention and input over the last several years, in large part because the risks and effects of toxic chemical exposure, especially disaster-related, are disproportionately concentrated in communities of color and communities with low income. And without stronger regulations in place, disasters continue to happen.

For example, numerous deadly and devastating chemical disasters—such as the Arkema explosion after Hurricane Harvey in Houston and last year’s train derailment in East Palestine—galvanized communities around the nation calling on EPA to require hazardous chemical facilities to not only plan for, but also prevent, these disasters from happening. Last year alone, there were at least 323 chemical incidents, many of which were at highly hazardous facilities. Owing to the significant public pressure on the agency to protect communities from these disasters, EPA’s proposed rule included at least three public hearings and received nearly 400 public comments, most of which were submitted by people who live near these hazardous facilities.

EPA’s commitment to advancing environmental justice will not only be measured in broad orders and policies, but also in the specific decisions that affect the everyday lives of the people most overburdened and historically excluded from the decisions that created the disparities in the first place. Regardless of the outcome in November, and perhaps even more because of the stakes, UCS will be eagerly watching to see whether EPA is able to create substantive changes that alleviate harms in overburdened communities and help ensure that the people most impacted by regulatory decisions are trusted to weigh in on those processes.