30 ELR 10992 | Environmental Law Reporter | copyright © 2000 | All rights reserved

Meeting the Environmental Justice Challenge: Evolving Norms in Environmental Decisionmaking

Sheila Foster is a Professor of Law at Rutgers University-Camden. The author wishes to thank Shantonu Basu for expert research assistance.

[30 ELR 10992]

The environmental justice movement seems to have come of age. The past two decades have seen increasing empirical evidence documenting racial disparities in sitinghazardous waste facilities and a nascent grass-roots movement bearing witness to the disproportionate effects of numerous environmental and health hazards in low-income communities of color.¹ Never have environmental justice claims been taken so seriously in environmental policymaking and adjudication than they have over the past five years. On a policy level, this seriousness is illustrated by two important events. The first is President Clinton's Executive Order on environmental justice, which directs all federal agencies to identify and address "disproportionately high and adverse human health or environmental effects" of its actions on minority and low-income populations, and calls for "early and ongoing public participation in permitting and siting decisions."² The second is the U.S. Environmental Protection Agency's (EPA's) recent issuance of its Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits, which allows community groups to challenge state permit decisions (including permit modifications and renewals) upon showing that the permit will have a disparate impact on a minority community.³

Following closely behind the issuance of both of these policies are a number of decisions implementing them. Relying on President Clinton's Executive Order No. 12898, EPA's Environmental Appeals Board (EAB) has ruled that environmental decisionmakers have discretionary authority, under three federal environmental statutes, to implement the dictates of the Executive Order in the permitting process.⁴ Additionally, the first, and only, adjudication of a claim under EPA's Interim Guidance (the predecessor to its recently issued Draft Revised Guidance) was recently handed down in spite of intense opposition to the policy by state and local officials.⁵

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These recent policy and adjudicative decisions undoubtedly signal an evolution in environmental decisionmaking norms toward being more responsive to environmental justice concerns. The rallying cry of the environmental justice movement has been for environmental decisionmakers to pay more attention to the distribution of environmental risks on disproportionately impacted populations, namely low-income and minority communities. However, the environmental justice challenge goes beyond the "distributive" paradigm reflected in the focus of the empirical studies tracking racial and class disparities in environmental hazard distribution and much of the ensuing grass-roots activism.⁶

The environmental justice challenge is much more multifaceted, involving three analytically distinct, but interrelated, critiques of environmental decisionmaking. Environmental justice advocates have challenged environmental decisionmakers not only to (1) take into account the distribution of environmental benefits and burdens as they impact on vulnerable populations (e.g., low-income and minority populations), but also to (2) empower communities subjected to involuntary environmental and health risks by giving them a meaningful role in the process of assessing and managing the risks in their communities, and (3) equalize the influence of stakeholders in the decisionmaking process by involving affected communities at the beginning and providing them with technical and other resources comparable to those used by risk producers.⁷

A series of eight recent decisions by the EAB illustrates that environmental decisionmakers are responding to the concerns articulated by the environmental justice movement and its critique of environmental decisionmaking norms. In particular, environmental decisionmakers are increasingly willing to determine whether a permit will be issued in a minority or low-income community, to assess whether that community has been exposed to a disproportionate number of facilities posing risks to their environment or health, to assure community participation in the permitting process, and to respond to and incorporate community concerns into the ultimate permit decision.⁸

Despite this evolution, paradoxically, not one environmental justice challenge, either reported in the eight recent EAB decisions or the decision under EPA's Interim Guidance, has been successful.⁹ Indeed, there is a stark contrast between the increasing seriousness with which decisionmakers treat environmental justice challenges and the over-whelmingly negative outcomes of those challenges. Of course, there might be a number of reasons why the environmental justice challenges failed. In a couple of these challenges, the challengers simply failed to articulate with specificity their challenges to the permitting Region's environmental justice determination and, hence, were summarily dismissed.¹⁰ The challenges also might have failed simply due to the relative merit of the environmental justice claim, given the complex factual context of these challenges.¹¹

Setting aside the factual disputes, however, these decisions reveal a deep tension between two competing norms of environmental risk decisionmaking. On the one hand, environmental risk decisions are characterized by an underlying utilitarian philosophy that seeks optimal environmental protection and administrative efficiency. On the other hand, environmental justice advocates have pointed out how these very norms lead to the inequitable distribution of environmental hazards and exclude risk-bearers from participating in the assessment of risks in their communities. The adjudications of environmental justice challenges in the recent EAB decisions illustrate both the tension between utilitarian/efficiency norms and equity/justice norms, as well as the efforts by environmental decisionmakers to mediate this tension.

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The EAB has attempted to mediate the normative tension embodied in the environmental justice challenges by tempering the utilitarian impulses underlying risk decisionmaking with equity considerations, following the dictates of the Executive Order. However, while this mediation addresses the most glaring deficiencies of the current risk decisionmaking paradigm, it nevertheless leaves intact many aspects of the deeper normative conflict. This Article argues that resolving this conflict will require more fundamental changes in environmental risk decisionmaking methodology and process. In particular, risk decisionmakers should acknowledge the limits of strictly technical, quantitative assessments of risk and the importance of meaningful participation by the risk-bearing public.

Addressing Environmental Justice Through Environmental Laws: The Influence of the Executive Order

Much has been written about the efficacy of legal challenges to achieve a more equitable distribution of hazardous waste and other facilities that are regulated by federal (and state) environmental statutes.¹² Civil rights lawsuits, particularly those that rely on disparate impact theories, appear to be well suited to challenge disproportionate siting patterns by environmental agency officials. However, environmental justice advocates aptly point out numerous obstacles—substantive,¹³ procedural,¹⁴ and structural¹⁵—that call into question the wisdom of trying to achieve environmental justice through civil rights litigation. EPA's recent Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits promises to overcome some of these obstacles, but how much it will do so has been seriously called into doubt by the only adjudication of a claim under the previous Interim Guidance.¹⁶

Historically, the most successful legal challenges are based on environmental law, particularly claims relying on the substantive and procedural requirements embedded in permitting and other environmental review regulations.¹⁷ While the National Environmental Policy Act (NEPA) has been the most discussed tool in which to incorporate environmental justice concerns, it is widely recognized as a procedural statute without any substantive "teeth."¹⁸ The legal means to address environmental justice concerns, and distributive issues in general, is arguably embedded in the substantive and broadly worded provisions of federal environmental statutes.¹⁹ The most recent string of administrative appeals decisions poignantly illustrate this fact and make clear that there are important substantive opportunities to implement President Clinton's Executive Order in permitting processes pursuant to most federal environmental statutes.

Between 1995 and 2000, the EAB issued eight decisions addressing, inter alia, environmental justice challenges to permit decisions under three federal environmental statutes. Two of the challenges involved the issuance, renewal and/or modification of a permit under the Resource Conservation and Recovery Act (RCRA),²⁰ two involved challenges to underground injection control (UIC) permits under the Safe Drinking Water Act (SDWA),²¹ and four involved challenges to prevention of significant deterioration (PSD) permits under the Clean Air Act (CAA).²² The challengers in most of these cases are citizens living near the proposed permitted activity, or who otherwise opposed the permit, and have petitioned the EAB either individually or as part of a [30 ELR 10995] local community organization.²³ The challengers argue, inter alia, that environmental justice concerns were not properly addressed as part of the permitting process, thereby violating President Clinton's Executive Order.

Finding the Authority

Prior to 1994, the year that President Clinton issued his Executive Order, there was no reported decision addressing the authority of EPA to consider environmental justice concerns within the context of the permitting process under federal environmental statutes. The Executive Order provided the necessary tool to persuade EPA, as a means of implementing the dictates of the Executive Order, to take into account the health and environmental impact of a permitting activity on low-income and minority communities and to expand public participation opportunities in these communities. Notably, as the EAB acknowledges, the Executive Order does not purport to, nor has the ability to, change the substantive requirements of permit issuance under federal environmental law. However, the EAB has made clear that there are areas where the permitting Region has the discretion to implement the Executive Order within the constraints of the relevant statute and that the permitting Region should exercise that discretion "to the greatest extent practicable" as a matter of policy.²⁴ As part of its review authority under permitting regulations, the EAB has, in these opinions, taken on the task of examining a Region's compliance with the Executive Order when faced with an environmental justice challenge to a federal permit.²⁵

The 1995 watershed decision, In re Chemical Waste Management of Indiana, Inc.,²⁶ involved a challenge to the issuance of a permit under RCRA. There, the EAB relied on broad language in the preamble to RCRA and on well-established public participation guarantees, contained in the regulations governing most permitting activities under federal environmental statutes, to find ample discretion for environmental decisionmakers to implement the dictates of the Executive Order. RCRA's omnibus clause counsels that "each permit" contain "such terms and conditions" as the EPA Administrator or state agency "determines necessary to protect human health and environment."²⁷ Pursuant to this clause, the EAB reasoned that if the operation of a permitted facility "truly poses a threat" to the health or environment of a surrounding low-income or minority community, the permitting agency would be required to include permit terms or conditions that would ensure that such impacts do not occur.²⁸ Moreover, if the nature of the facility and its proximity to the community would make it impossible to craft a set of permit terms that would adequately protect the health and environment of such populations, the agency would have the authority to deny the permit.²⁹

The authority to implement the Executive Order pursuant to permitting processes under other environmental statutes was similarly found in subsequent decisions. For instance, the EAB held that the Executive Order can be implemented in a similar way under the SDWA, particularly its UIC regulations. In In re Envotech, L.P.,³⁰ the EAB mirrored its ruling in Chemical Waste and held that the UIC omnibus clause, like the RCRA omnibus clause, contains the authority to impose special permit conditions or to reject a permit application, in an effort to prevent drinking water sources from being endangered by underground injection. The EAB has applied the Envotech analysis to another environmental justice challenge to a UIC permit issued under the SDWA.³¹

In cases challenging PSD permits under the CAA, the EAB simply relied on the Executive Order as well as its decisions in Chemical Waste and Envotech to justify its review of environmental justice challenges.³² The EAB did not explicitly locate this authority within statutory or regulatory language, as it did with the omnibus clauses of RCRA and the UIC regulation, but rather in the nature of administrative agencies' general discretion, supported by President Clinton's Executive Order.³³ This is not to say that statutory authority does not exist. To the contrary, as Richard Lazarus and Stephanie Tai have persuasively illustrated, the CAA contains numerous provisions and various statutory language to justify integration of environmental justice concerns into the Act's substantive permitting standards.³⁴ That the EAB felt it unnecessary to explicitly cite to a provision of the CAA or its regulations may say more about the way in which environmental justice is becoming part of the land-scape [30 ELR 10996] of federal environmental law than about the lack of authority to address those challenges.

Substantive Opportunities and Limitations

In Chemical Waste, the EAB held that there are two areas in the federal permitting scheme that gives the permitting Region significant discretion to implement the mandates of the Executive Order. The first area is public participation. The regulations that govern permitting procedures under most environmental laws ensure a specific level of public participation in the permit process.³⁵ The EAB found, essentially, that these regulatory procedures are a floor above which a permitting Region may go in providing other opportunities for public involvement. As such, the EAB concluded, "when a [permitting Region] has a basis to believe that operation of the facility may have a disproportionate impact on a minority or low-income segment of the affected community, the Region should, as a matter of policy, exercise its discretion to assure early and ongoing opportunities for public involvement in the permitting process."³⁶ In Chemical Waste, as in most of the eight cases, the permitting Regions not only satisfied the minimum statutory and regulatory requirements, but often went a step beyond to provide additional public participation opportunities. These opportunities included providing additional days for public comment, holding meetings and translating documents in Spanish, and conducting extensive correspondence with the community throughout the permit process.³⁷

The second area in which a permitting agency has discretion to implement the Executive Order, the EAB reasoned in Chemical Waste, is through an assessment of the impact that a permitted facility will have on the surrounding minority or low-income community. The EAB held that when a "superficially plausible" claim of disproportionate impact is alleged, the agency should, "as a matter of policy," exercise its discretion to include a health and environmental impact assessment "focusing particularly" on the vulnerable community. To be sure, this is a more substantive impact assessment review process, and one that focuses specifically on race and class, than what has been available under federal environmental laws. The EAB stresses that the Executive Order does not change the substantive requirements for issuing permits under any of the federal environmental statutes and their implementing regulations. Rather, the Executive Order simply grants the permitting agency the authority to implement its recommendations within the confines of existing statutory/regulatory language and permitting processes.³⁸ However, the EAB requires the modification of, and allows the denial of, a permit upon a finding that the permit would disproportionately impact a minority or lowincome population.³⁹

The requirement of modification and allowance of permit rejection goes beyond what is available to disproportionately impacted communities under NEPA, the only environmental statute that mandates a formal assessment of a range of impacts—ecological, aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative—pertaining to actions undertaken either by federal agencies or with substantial federal participation. However, NEPA's impact assessment requirement is procedural, only requiring the decisionmaker to consider the impacts of its action, not to take the least environmentally burdensome alternative, and most permitting decisions under federal environmental law are exempt from its mandate.⁴⁰

Nevertheless, there are important prerequisites limiting a permitting Region's determination, and the EAB's review, that environmental justice considerations should compel the modification or rejection of the permitting activity. These limitations are contained in the language of the Executive Order itself, which the EAB has read quite literally in deciding whether a permitting agency has been appropriately responsive to environmental justice concerns. The text of the Executive Order requires federal agencies and state agencies implementing federal programs to identify and address "disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority and low-income populations."⁴¹ The EAB opinions make clear that an environmental justice challenge is not ripe unless three things can be demonstrated: the permit will have an impact that (1) disproportionately affects a minority or low-income population, (2) is related to the public [30 ELR 10997] health or environment of that population, and (3) is adverse. The meaning and measurement of these requirements are not at all self-evident. In fact, as explained below, they contain the seeds of contention between current norms of environmental risk decisionmaking and the environmental justice challenge. As the challengers in many of these cases illustrate, environmental decisionmakers' ability to mediate the normative tension evident in these cases will inevitably involve a reexamination of the reflexive reliance on traditional norms of risk decisionmaking that, as environmental justice advocates persuasively argue, have led to the current equity crisis at issue in these cases.

The Deeper Normative Tension: The Environmental Justice Critique of Comparative Risk Assessment

In each of the EAB cases mentioned above, the Board agreed with the permitting agency that there would not be "disproportionately high and adverse human health or environmental effects" from the decision to permit the contested activity. This conclusion was always challenged, to varying degrees of specificity, by those opposed to the permit decision. Many of the challenger's grounds for disputing the permitting Region's analysis, detailed in the next section, track widespread criticism by environmental justice advocates of the predominant decisionmaking paradigm for assessing environmental risks. The environmental justice movement has called for a reexamination of both the normative underpinnings of agency risk decisionmaking, as well as the process by which those decisions are made.⁴²

Risk Assessment, Utilitarianism, and Efficiency

Central to the environmental justice movement is a challenge to the limitations and normative choices that characterize environmental decisionmaking. According to environmental justice critics, the distribution of environmental hazards is a result of a particular decisionmaking norm underlying risk decisions. This norm is best described as utilitarian.⁴³ "Utilitarianism," in its simplest form, stands for the proposition that ethical decisions be made in a manner that maximizes happiness or some substitute thereof. In its original formulation, this was styled "felicity," but soon evolved to be the more enlightened form of the "greatest good for the greatest number."⁴⁴ Utilitarianism is a form of consequentialism. That is, utilitarianism is most concerned with outcomes, evaluating the extent to which aggregate social welfare or utility is maximized by a particular decision.⁴⁵ In having such a focus, however, utilitarianism has been criticized for, among other things, its fungibleness in treating all individuals alike in terms of their pleasure and pain, and its ambivalence toward incommensurable values in the utility calculation.⁴⁶

The utilitarianism underlying environmental decisionmaking is illustrated in many environmental regulatory programs, such as the cleanup of contaminated land under the Superfund program and the regulation of drinking water, air pollution, pesticides, and waste disposal—decisions that rely, to a large extent, on comparative risk analysis. As Daniel Hornstein has persuasively illustrated, the comparative risk analysis used under traditional (i.e., command-and-control) environmental regulation mimics the comparative methodology of utilitarianism.⁴⁷ This mimicry results from the fact that (at its most extreme) comparative risk analysis focuses on society's aggregate risk level, or welfare, and bases its judgments about the acceptability of any particular environmental risk on comparisons to other risks facing society.⁴⁸ Comparative risk assessment attempts to quantify, through the most current scientific data/knowledge, the magnitude and probability of harm to public health (and, to a lesser extent, the environment) posed by each type of environmental contaminant regulated.⁴⁹ Rational policymaking then must compare those expected [30 ELR 10998] losses against one another, using a common metric—quantitative measurement of risk—to structure society's response in a way that directs relatively more resources to problems with high risk measurements than to problems with lower risk measurements.⁵⁰ "The impulse toward making decisions according to a common metric is predominantly a utilitarian one," because it treats different risks as "sufficiently fungible as to be compared, traded off, or otherwise aggregated by analysts."⁵¹

The process of reducing complex environmental problems to one measurable dimension, to be sure, furthers the efficient expenditure of resources and, hence, "optimal" environmental protection.⁵² In this sense, utilitarianism is certainly a worthy goal for public agencies. Obviously resources are limited and it would be irresponsible for EPA or any government agency to not consider the results gained by every dollar spent.⁵³ Both the public and the policymakers expect that the dollars spent will bear some relationship to lives saved, and comparative risk analysis offers an efficient way to do this by employing a common metric.

Leaving Out Equity

Nevertheless, environmental justice critics and others have decried the inability of comparative risk analysis to meet the goals of equity, as well other ethical and political goals that transcend one-dimensional, quantitative assessments of risk.⁵⁴ In particular, environmental justice advocates have bemoaned the failure of comparative risk analysis to consider the distributional effects of environmental and health risks on subpopulations who may be disproportionately impacted by various environmental hazards.⁵⁵ As one commentator phrases it: "Comparative risk analysts tend to emphasize aggregate effects and to downplay how public health risks are distributed."⁵⁶ The point being that an environmental decision that distributes risks so that 400 people are exposed might be a more "fair" policy than one that exposes only 100 people, if those 100 are concentrated within a particular subpopulation who may have already borne their fair share of environmental risks, who may not share in the benefits produced by the risks, and/or who will likely suffer heightened indirect effects of the health risk such as destroying whole families or neighborhoods.⁵⁷

Ignoring distributional concerns is one way that comparative risk analysis fails to take into account equity, though it is not the only one. Environmental justice critics have pointed out other ways in which the current methodology of quantifying risks is reductionist and limited in ways that are of special concern to highly exposed communities who are disproportionately low income and minority. An important limitation of comparative risk assessment is the failure to take into account cumulative and multiple exposures to various sources of pollutants, a problem that is particularly acute in low-income and minority subpopulations. Risk assessments tend to quantify the risks posed by one chemical or one polluting source and decide what is an acceptable "risk" according to that single chemical or source without considering already existing exposures to other chemicals and/or non-site specific pollution sources.⁵⁸ Moreover, "to the extent that cumulative risks are recognized, they are calculated by adding together the separate risks of exposure to single chemicals" instead of measuring the "synergistic or antagonistic interactions among multiple chemicals."⁵⁹ Failure to take these cumulative and synergistic risks into account often result in risk assessments for low-income and minority populations that are significantly underestimated.

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Process, Values, and Justice

Comparative risk analysis also fails to incorporate "process and participatory values," an important aspect of environmental justice, because it often excludes those asked to bearenvironmental risks from a meaningful role in the assessment and management of risks in their communities.⁶⁰ This exclusion is particularly salient given that the risk assessment process can be fraught with scientific uncertainty, and, as a result, risk assessors must make subjective judgments and value choices at various steps in the process.⁶¹ Risk decisions thus do not simply reduce themselves to matters of scientific judgment embodied in "a concrete problem-solving calculus," but are instead "inherently infused with value judgments."⁶² The question of whose values are represented in risk assessments are central to environmental justice norms, particularly the requirement of a fair decision-making process.

While the experts tend to speak of and measure risk in terms of probabilities and consequences, the public has its own "models, assumptions and subjective techniques (intuitive risk assessments), reflecting a broad and complex conception of risk that is not often as dependent upon quantification and classification as that of the experts"⁶³ Public conceptions of risk incorporate qualitative considerations of dread, catastrophic potential, controllability, equity, uncertainty, risk to future generations, trust and confidence in management, as well as descriptive "facts," into the risk equation.⁶⁴ In contrast, comparative risk analysis tends to reduce diversely perceived risks to a measurable, comparable dimension, squeezing out nonquantifiable aspects of risk that are important to the public.⁶⁵

Partly because of the public's concern with qualitative factors in its assessment of risk, environmental decisionmakers tend to view the public, in general, as irrational when it comes to evaluating environmental and other public health risks.⁶⁶ The public is thought to habitually [30 ELR 11000] overestimate low public risks, such as commercial nuclear power plants, and to underestimate large public risks, such as the consumption of high-fat diets.⁶⁷ Given this "irrationality," the use of comparative risk analysis operates as a check on the public's errors in evaluating the seriousness of risks, again by offering a unified concept of risk assessment that can cut across a wide variety of different problems, such as air pollution, conservation, and siting, and, importantly, it does so by instituting objective, rational guidelines.

Although reliance upon the comparative risk assessment allows environmental decisionmakers to argue that thorny social and political questions are being resolved "scientifically,"⁶⁸ risk decisionmakers cannot afford to ignore the concerns of the very public who is asked to bear those risks. Environmental decisionmakers are democratically accountable and thus must confront the public's valuation of risk as well as the lack of trust in institutions responsible for risk judgments.⁶⁹ This lack of trust is most pronounced among minority populations and accounts for the widely divergent perceptions of risk by ethnicity and gender.⁷⁰ Therefore, as one environmental justice commentator aptly put it, "how questions about risk are decided may be as important as what is decided."⁷¹

Mediating the Tension: Risk Decisionmaking in Overburdened Communities

The current environmental decisionmaking paradigm for measuring risks to human health is, theoretically, in tension with the goal of environmental justice.⁷² On its face, this tension would seem to force decisionmakers to either reconcile the two approaches or to choose between them. The recent EAB cases enforcing the Executive Order in the permitting context attempt to forge a reconciliation between utilitarian and equitable goals in risk decisionmaking. These cases attempt such a reconciliation by mandating that permitting Regions take into account considerations of distributional equity and procedural fairness in risk decisions.⁷³ However, as the challenges to the risk assessments underlying the disputed permit decisions indicate, this reconciliation fails to fully incorporate justice/equity norms in the risk decisionmaking process. A closer look at the challenges reveals the incomplete mediation of the normative tension underlying risk decisionmaking in vulnerable communities. Underlying the adjudication over whether a "disproportionately high and adverse" impact exists are many of the most intractable questions about the justice of current risk decisionmaking.

Taming the Utilitarian Impulse: Incorporating Equity and Community Concerns

President Clinton's Executive Order directs federal agencies to "improve research and data collection relating to the health and environment of minority and low-income populations."⁷⁴ The risk assessment methodology used by the permitting Regions in the EAB decisions undoubtedly embrace the need for the collection of better exposure data for vulnerable populations, particularly data on the distribution and cumulation of exposures from multiple sources within the impacted community. In each of these cases, the permitting Region of EPA performed a disproportionate impact analysis in response to environmental justice concerns raised during the public comment period. The permitting Regions gathered census data, source location data, data reporting the quantity of toxic chemical releases from the most recent toxic release inventory, and data from the Region's [30 ELR 11001] own permitting compliance system.⁷⁵ The location of the proposed facility, the existence of other facilities, and maximum emission data was then plotted (sometimes using a geographical information mapping system) to determine if the facility would be located, and if the maximum emission impacts occurred, in predominantly minority and/or low-income areas. In all but one case, theRegion concluded that there would not be a disproportionate impact on a minority or low-income community from the permitting of another facility.⁷⁶

The challengers in most of these cases asserted a number of problems with the permitting Regions' disproportionate impact analysis. For instance, in some cases the challengers thought that the area focused on by the Region was too small to constitute a proper evaluation of the range of impacts—sociological, health, and economic—on the surrounding communities. The Regions' analysis in these cases ranged from a one-mile radius to a five-mile radius surrounding the facility. The opinions do not always make clear how the Region came to this determination, except that it was a "highly technical judgment" as to the "probable dispersion of pollutants through various media" into the surrounding community.⁷⁷ These opinions do make clear, however, that the EAB will not grant a harder look, or serious review, of a permit decision (or its underlying risk assessments) unless the permitting Region's decision (or the procedures followed to reach that decision) involves a clear error of fact or law or involves an important matter of policy or exercise of discretion that warrants review.⁷⁸ As such, there is a "heavy burden" on challengers who seek to review such technical decisions, including the decision as to whether a disproportionate impact exists.⁷⁹

The EAB, while deferring to the permitting Region's impact assessment, nevertheless was careful to point out that the decisions about the risks that these communities were asked to bear did not take place in a technocratic vacuum. The EAB took special notice in three of these cases to the fact that the permitting Region had either added permit conditions, such as more stringent monitoring requirements, or changed permit conditions, such as reducing the emission levels of certain pollutants, as the result of increased community participation in the permitting process and in response to environmental justice concerns.⁸⁰

There are limits, however, to how much influence the challengers were able to exert in the risk decisionmaking process. The aggrieved communities did not appear able to effectively participate in the process of assessing, versus managing (through permit conditions), the risks in their communities. Clearly, given the nature of these challenges, the challengers did not believe that the risks posed by the permitted activity could, or would, be addressed through revisions of the permit.⁸¹ Indeed, in most of these appeals, the entire permit decision and its underlying assessment of risks to the community was challenged in its entirety. Yet, the highly deferential standard of review of "technical judgments" employed by the EAB effectively shields the Regions' risk assessments from being seriously engaged and, [30 ELR 11002] thus, ultimately masks the normative tension embedded in the environmental justice challenges.

The Tension Re-Emerges

The challengers' arguments contesting the determinations of "disproportionate" and "adverse" environmental and health impacts, when articulated with the requisite specificity, mirror the empirical weaknesses in comparative risk assessment methodology. For instance, challengers articulated their concerns about the lack of adequate data underlying quantitative risk assessments and contested the subjective assumptions employed in models used to extrapolate risks.⁸² Some challengers submitted evidence that highlighted the characteristic uncertainties embedded in the risk assessment methodology—including studies that identify various exposure pathways not taken into account by the permitting Region's risk analysis.⁸³ The EAB was sympathetic to these arguments and, in some cases, looked more closely into the record to articulate why the permitting Regions and the permit applicant had adequately justified their risk assessments and why the challengers had failed to persuasively undermine those assessments.⁸⁴

The empirical weaknesses that characterize comparative risk assessment methodology certainly problematizes the risk decisionmaking process from an environmental justice viewpoint. The amount of technical resources and information required to engage in the risk assessment process creates a virtually no-win situation for the average risk-bearer or risk-bearing community who challenges risk assessments performed with industry data and analyzed by technical bureaucrats.⁸⁵ Yet there is a more fundamental tension underlying the dispute about risk assessment evident in these EAB decisions. Stated simply, to the extent that incommensurable values come into play in risk assessment analysis, a one-size-fits-all, quantitative measurement of risk will fail to completely and accurately account for the variety of risks posed by an environmental agent or source. The fact that individuals (and communities) assess risks to their health and environment in qualitatively different ways calls into question the use of a static conception (or measurement) of risk. The different assessments and valuations made by individuals (and communities) cannot simply be reduced to a single metric without transforming and eliding those differences in the risk equation.⁸⁶ Taking into account, as the EAB does in these decisions, distributional concerns is certainly a first step away from a static conception of risk and toward a more context-sensitive and fuller assessment of risk. However, even the EAB's improved model of risk assessment "cannot account for the different mixes of values and contexts that influence the way individuals and communities measure the utilities of public risks."⁸⁷

The adjudication by the EAB of environmental justice claims reveals that the reflexive reliance on technocratic, narrow risk measurements, that exclude all that they cannot quantify, inevitably translates into less protective rather than more protective outcomes in risk assessment analysis, particularly for the most vulnerable communities. The current risk assessment methodology, reflected in these decisions, assumes that there is a level of risk that is "acceptable" to everyone regardless of the socioeconomic and health status of the particular risk-bearers, ignores a whole range of health and environmental impacts that cannot or have not been quantified by risk assessors, and accepts only certain types of knowledge (scientific) in assessing those impacts.⁸⁸ As the EAB decisions illustrate, to the extent that there are qualitative choices made about which environmental and health impacts to measure and which hazards to count in the risk assessment process, they are made by the technical risk assessor, to the near complete exclusion of the risk-bearing community. Not surprisingly, then, "who conducts the risk assessment, or has the access and resources to influence its content, is critical in determining the result."⁸⁹

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The Tension Illustrated

The language of the Executive Order directing agencies to avoid "disproportionately high and adverse human health or environmental" impacts appears clear enough on its face. Despite this rhetoric, however, it is not at all intuitively obvious what types of impacts properly fall within the scope of a risk assessment. Health impacts would appear to be self-defining, requiring a quantitative showing of expected or probable harm to human health. Yet, the types of health impacts that concern many vulnerable communities are often not measured by health-based environmental standards or by agency decisionmakers performing risk assessments in these communities. These impacts include respiratory illnesses, birth defects, and effects on the quality of one's living environment, such as noise and odor, many of which may fall more heavily on minority and low-income populations.⁹⁰

The EAB, in two of its recent decisions, squarely faced the determination of whether any "adverse" health impacts would result from the proposed activity, regardless of whether those impacts would be disproportionately distributed.⁹¹ In the two decisions that addressed this discreet issue, the Region simply equates adverse health effects with noncompliance with health-based environmental standards. In In re AES Puerto Rico, L.P.,⁹² and In re Knauf Fiber Glass, GmbH,⁹³ both decisions challenging PSD permits under the CAA, the EAB found that since the maximum predicted concentrations of the regulated pollutants at issue (including fine particulate matter, nitrogen oxides, carbon monoxide, and sulfur dioxide) were below the national ambient air quality standards (NAAQS) for those pollutants, then there would be no adverse health impact on the affected populations.⁹⁴ The EAB was content to defer to the Region's no "adversity" finding from these emissions because, as it reasoned, NAAQS are health-based environmental standards designed to protect the public health within an adequate margin of safety, including sensitive populations such as children, the elderly, and asthmatics.⁹⁵ Thus, facility impacts that do not exceed health-based environmental standards are presumably "healthful" and "environmentally acceptable."⁹⁶

However, even health-based environmental standards, such as NAAQS, are not indicative of the full health risk presented to individuals exposed to regulated pollutants. Indeed, "U.S. environmental history is replete with examples of facilities that have had a significant impact on the health of nearby residents while the air basin remained in compliance with the NAAQS."⁹⁷ As an example, environmental justice advocates point to the existence of toxic hot spots, or localized impacts from air pollution sources, in minority communities that do not cause an areawide effect that is measurable by ambient standards.⁹⁸ Such localized impacts "may be diluted or lessened when averaged or spread across an entire air basin."⁹⁹ Researchers continue to document the fact that significant health damage, even measured by cancer effects, can occur at exposure levels well below those considered "safe" under health-based environmental standards.¹⁰⁰ Reliance on "health-based standards" for individual [30 ELR 11004] air pollutants also does not take into account the various cumulative physiological and psychological effects of environmental pollution from trucking, odors, noise, vibration, and stigma, all of which increase human stress, a "health" problem increasingly recognized in the debate over national health policy. Thus, being in "attainment" for health-based environmental standards is not the same as having no "adverse" health impact.¹⁰¹

Similarly, the question of how to measure the existence of "adverse" environmental impacts is a decision that is not susceptible to a one-dimensional, technical measurement. Instead, the meaning of an adverse environmental impact involves a qualitative judgment that reflects, at least partly, the particular cultural and social context in which the decision is made. The environmental justice movement, for instance, has defined the environment as "where we live, work and play."¹⁰² Grass-roots activists in many low-income and minority communities have taken issue with a broad array of "environmental" concerns, such as those that have a significant impact on the quality of their living environment, including odor, noise, traffic congestion, and property damage from truck traffic associated with waste facilities. Indeed, the challengers in these cases pointed to the variety of ways in which their living environment would be diminished by the presence of the permitting activity. Whether or not those impacts to their living environment were considered as part of the risk assessment process was left entirely up to agency risk assessors.

The EAB summarily limited the scope of the disproportionate impact assessment and adopted a narrower version of "environmental" impacts by tying the concept of environmental harm to the particular environmental media regulated by the statute at issue. Thus, for instance, an impact assessment for permits issued pursuant to the UIC regulations in the SDWA must focus exclusively on identifying and addressing disproportionate impacts to a vulnerable community's drinking water. A permitting Region has no authority, the EAB held in Envotech, to redress impacts "unrelated to the protection of underground sources or drinking water, such as alleged negative economic impacts on the community, diminution in property values, or alleged proliferation of local undesirable land uses."¹⁰³ Curiously, despite this narrowing of the meaning of "environment," the permitting Regions in two cases did assess a broader range of impacts than were required to adequately respond to an environmental justice challenge. In both Envotech and In re Environmental Disposal Systems, Inc.,¹⁰⁴ the Region looked beyond the particular environmental media regulated by the statute at issue to broader "environmental" impacts such as odor, noise, increased vehicular traffic, and decreased property values. This may indicate more of a willingness by some permitting Regions to consider a broader range of impacts than is mandated by the EAB to adequately address an environmental justice challenge. However, as is often the case, "when . . . the issue becomes what the Agency is required to do, rather than simply authorized to do, environmental justice advocates will most often lose."¹⁰⁵

"Meaningful" Community Involvement and Influence in Questions of Risk: A Way Out?

The above analysis may beg the central jurisprudential question at issue here. That is, under what circumstances would it ever be possible to resolve the normative tension between the predominant utilitarian-based risk decisionmaking paradigm and calls for "justice" in environmental decisionmaking? One frequently advocated answer is to put comparative risk assessment (and its quantitative focus) in its proper place and allow a fuller risk analysis of environmental decisions, one that would incorporate qualitative and incommensurable values through enhanced public involvement. Various commentators have called for "meaningful" participation by risk-bearing communities in the risk assessment process. "Meaningful" encompasses not only a methodology of risk assessment, but also a particular decisionmaking norm. On a methodological level, meaningful participation requires explicit recognition of the practical limitations of technical risk analysis, affords a greater role to distributional and equity concerns, and incorporates multidimensional risk measurements, particularly those of the risk-bearing public.¹⁰⁶ On a normative level, meaningful participation requires moving away from a synoptic decisionmaking process toward a more deliberative one; a process that doesn't simply aggregate self-interested/maximizing preferences of the participants but rather brings forth alternative perspectives and additional information in an effort to discover the common good—a multidimensional analysis of the risks and benefits of an environmental decision—through self-reflective discourse.¹⁰⁷

[30 ELR 11005]

"Meaningful" public participation necessarily requires more decentralized risk decisionmaking but it does not require a complete abdication of the risk decision to private citizens, nor does it involve discarding with good technical analysis as a baseline for risk decisionmaking. Good technical analysis is certainly vital for informing risk decisions, but it should be used cautiously and not replace a fuller analysis of risk that would "reflect and define our values and not simply count how many of us will suffer."¹⁰⁸ The best way to incorporate public values into the risk assessment process is to incorporate the publicitself, particularly those segments who are being asked to bear the very risks that are being analyzed. An added benefit to enhanced public involvement, beyond improving the quality of risk analysis, is that it would contribute to the legitimacy and public acceptance of the final outcomes.¹⁰⁹

There is, notably, a shift underway to decentralize environmental decisionmaking and devolve more degree of influence to the "community" or local level. The shift is most discernable in a number of recent initiatives by EPA, particularly its Community-Based Environmental Protection (CBEP) initiative.¹¹⁰ If the last wave of environmental decisionmaking was marked by a "command-and-control" approach, the CBEP suggests that the next wave will be marked by the empowerment of those individuals who physically live in the communities most impacted by environmental decisions.

Community-based environmental decisionmaking promises, in theory, enhanced dialogue and shared power between governmental decisionmakers and ordinary citizens (public-private), as well as between citizens differently situated vis-a-vis particular environmental decisions (private-private). The promise of more egalitarian and meaningful public-private and private-private relations follows, in part, from the devolution of varying degrees of decision-making responsibility and influence to the local or "community" level.¹¹¹ The CBEP recognizes, at least implicitly, that risk-bearing communities provide an important type of expertise in, and are more effectively able to bring forth public/community values into, the decisionmaking process.¹¹²

How much the move toward community-based environmental decisionmaking will address the challenges of incorporating "justice" into environmental law remains to be seen. In many ways, such an approach mimics ongoing efforts to employ alternative dispute resolution processes in siting and other environmental decisions. Like those efforts, there may still be unresolved problems of representation, resource inequality (due to differences in education and training), and capture by more powerful interests in the deliberation process.¹¹³ Unfortunately, not enough research has been conducted on whether informal dispute resolution processes are necessarily the most appropriate or effective method of resolving conflicts with traditionally disempowered groups of people, such as racial minorities and the poor.¹¹⁴ Nevertheless, the movement toward more decentralized environmental decisionmaking is encouraging for its embrace of the importance of moving away from a narrow, technocratic decisionmaking and its effort to provide all communities with more meaningful participation with regard to the environmental and health risks they bear.

Conclusion

Environmental justice norms have increasingly permeated agency decisionmaking processes over the last few years, thanks in large part to President Clinton's Executive Order. The recent EAB decisions and EPA's recent Draft Revised Guidance justify cautious optimism that this trend will continue and perhaps become a permanent fixture on the landscape of environmental decisionmaking. At the same time, however, a more detailed look at adjudications of environmental justice claims by EPA illustrates a stubborn reliance on old norms of decisionmaking and resistance to changing those norms at a deeper level. On the other hand, recent initiatives, such as the move toward community-based environmental decisionmaking, may open up new participatory opportunities to those historically excluded from the decisions that most effect their health and environment. Until these recent initiatives take root, however, environmental decision-makers should explicitly acknowledge the limitations of current risk assessment methodology and seek to bridge the normative gap that must be overcome in order to fully respond to calls for "justice" in environmental decisionmaking.

1. See Luke W. Cole & Sheila R. Foster, FROM THE GROUND UP: ENVIRONMENTAL RACISM AND THE RISE OF THE ENVIRONMENTAL JUSTICE MOVEMENT (New York Univ. Press 2000).

2. Exec. Order No. 12898, 3 C.F.R. 859 (1995), ADMIN. MAT. 45075.

3. U.S. EPA, Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits, 65 Fed. Reg. 39649 (June 27, 2000) http://www.epa.gov/ocrpagel/docs/frn_t6_pub 06272000.txt (also available from the ELR Document Service, ELR Order No. AD-4516) [hereinafter Draft Revised Guidance]. The Draft Revised Guidance is a response to the comments by various stakeholders on an earlier guidance document, U.S. EPA. Interim Guidance for Investigation Title VI Administrative Complaints Challenging Permits (Feb. 1998) http://www.epa.gove/civilrights/new.htm (also available from the ELR Document Service, ELR Order No. AD-3660) [hereinafter Interim Guidance].

4. These decisions are as follows: In re Chemical Waste Management of Ind., Inc., RCRA Appeal Nos. 95-2, -3, 6 E.A.D. 66, ADMIN. MAT. 40392 (June 29, 1995); In re Puerto Rico Elec. Power Auth. (Cambalache Combustion Turbine Project), PSD Appeal No. 95-2, 6 E.A.D. 253, ADMIN. MAT. 40452 (Dec. 11, 1995); In re Envotech, L.P., UIC Appeal Nos. 95-2 et al., 6 E.A.D. 260, ADMIN. MAT. 40454 (Feb. 15, 1996); In re EcoElectrica, L.P., PSD Appeal Nos. 96-8, -13, ADMIN. MAT. 40632 (Apr. 8, 1997); In re Ash Grove Cement Co., RCRA Appeal Nos. 96-4, -5, ADMIN. MAT. 40732 (Nov. 14, 1997); In re Environmental Disposal Sys., Inc., UIC Appeal Nos. 98-1, -2, ADMIN. MAT. 41073 (Oct. 15, 1998); In re AES Puerto Rico, L.P., PSD Appeal Nos. 98-29 et al., ADMIN. MAT. 41132 (May 27, 1999); In re Knauf Fiber Glass, GmbH, PSD Appeal Nos. 98-3 et al., ADMIN. MAT. 41218 (Mar. 14, 2000).

An earlier case foreshadowed these recent EAB decisions. In that case, EPA revoked air permits issued by the state of Louisiana to the Shintech Corporation for a multimillion dollar chemical plant proposed in a community that is over 80% African American. In response to a local group's opposition to the facility, and the filing of an environmental justice petition with EPA, EPA Administrator Carol Browner rejected Shintech's air permit on technical grounds—for its failure to regulate all potential sources of pollution. See R. Gregory Roberts, Environmental Justice and Community Empowerment: Learning From the Civil Rights Movement, 48 AM. U. L. REV. 229, 260 n.172 (1998) (citing Letter from Carol Browner, EPA Administrator, to J. Dale Givens, Secretary, LDEQ 1-2 (Sept. 10, 1997)). Browner was forced to "find a 'technical' violation of the Clean Air Act requirement in order to revoke the permits," because the Clean Air Act does not authorize EPA to revoke a permit for environmental justice reasons. See id. at 260 n.174 (citing Browner letter explaining that "Petitioners have not shown how their particular environmental justice concerns demonstrate that the Shintech Permits [sic] do not comply with applicable requirements of the [Clean Air] Act."). However, in her letter explaining the decision to revoke the permit, Administrator Browner emphasized EPA's belief that "it is essential that minority and low-income communities not be disproportionately subjected to environmental hazards, and that the concerns of their residents be adequately addressed in the permitting process." See id. at 260 n.175 (citing Browner letter). See also Alec Zacaroli, Air Pollution: EPA Grants First Petition Under Title V Blocking Construction of New Facility, Daily Env't Rep. (BNA), Sept. 11, 1997, at D22.

5. See Letter from Ann E. Goode, Director, Office of Civil Rights, U.S. EPA, 1 (Oct. 30, 1998) http://www.epa.gov/region5/steelcvr.htm [hereinafter Select Steel]. The criticism from state and local officials to the Interim Guidance is based partly on the fear that allowing environmental justice challenges to permits will stifle economic redevelopment efforts in the most impoverished and economically distressed areas. See, e.g., Pamela Newman-Barnett, Mayors Join Critics of EPA Environmental Justice Rule, CONG. DAILY AM., July 7, 1998, at 1, 8. But see Sheila Foster, Piercing the Veil of Economic Arguments Against Title VI Enforcement, 10 FORDHAM ENVTL. L.J. 331 (1999).

Additionally, the Environmental Council of the States, an organization of environmental officials from 49 states, the District of Colombia, and the 2 U.S. territories, issued a resolution asking EPA to withdraw the Interim Guidance, noting that it would "clearly disrupt the management of environmental permitting programs." See State Agency Chiefs Ask EPA to Withdraw New Guidance on Civil Rights Complaints, 28 Env't Rep. (BNA) 2531 (Apr. 3, 1998); See also David Mastio, Black Lawmakers Join Critics of EPA Policy, DET. NEWS, Dec. 4, 1998, at 10A.

On the other hand, from a civil rights and environmental justice perspective, there is much to criticize about both the Interim Guidance and the Draft Revised Guidance. For instance, both the Interim Guidance and the Draft Revised Guidance depart from established Title VI case law in significant ways. In particular, the Interim Guidance sets out a review process that fails to compare environmental and health impacts among different demographic groups, narrowly construes the type of impacts cognizable under the review process, and creates a presumption that compliance with health-based environmental standards is not an "adverse" impact within the meaning of Title VI. See generally Luke Cole, Wrong on the Facts, Wrong on the Law: Civil Rights Advocates Excoriate EPA's Most Recent Title VI Misstep, 29 ELR 10775 (Dec. 1999); Foster, supra. These are some of the same shortcomings that characterize the eight EAB decisions discussed in this Article.

6. See Sheila Foster, Justice From the Ground Up: Distributive Inequities, Grassroots Resistance, and the Transformative Politics of the Environmental Justice Movement, 86 CAL. L. REV. 775 (1998); Robert R. Kuehn, A Taxonomy of Environmental Justice, 30 ELR 10681 (Sept. 2000).

7. See generally Robert R. Kuehn, The Environmental Justice Implications of Quantitative Risk Assessment, 1996 U. ILL. L. REV.103, 151-67; Eileen Gaura, The Environmental Justice Misfit: Public Participation and the Paradigm Paradox, 17 STAN. ENVTL. L.J. 3, 21-22 (1998); Foster, Justice From the Ground Up, supra note 6, at 826-41; Carl F. Cranor, Risk Assessment, Susceptible Subpopulations, and Environmental Justice, in THE LAW OF ENVIRONMENTAL JUSTICE: THEORIES AND PROCEDURES TO ADDRESS DISPROPORTIONATE RISKS 307, 327 (Michael B. Gerrard ed., 1999) [hereinafter THEORIES AND PROCEDURES].

8. These evolving norms appear only in federal agency decisionmaking. State administrative decisions consider the adjudication of environmental justice challenges to be outside of their jurisdiction and not part of their statutory authority to make such considerations a part of the permit process. See, e.g., Holmes v. Alabama Dep't of Envtl. Management, 1998 Ala. ENV LEXIS 1, 15 (Feb. 17, 1998) ("Parties complaining of environmental justice issues must go to the EPA."); Rowe v. Oleander Power Project, 1999 Fla. ENV LEXIS 296 (Sept. 27, 1999) ("Petitioner's environmental justice allegations raise federal law issues which are beyond the jurisdiction of this state administrative proceeding."). However, many states are in the process of developing programs and statutory tools to address environmental justice claims both as part of the permitting process and in the enforcement of environmental regulation of existing facilities. See Chuck D. Barlow, State Environmental Justice Programs and Related Authorities, in THEORIES AND PROCEDURES, supra note 7, at 140-56; see also Sheila Foster, Impact Assessment, in THEORIES AND PROCEDURES, supra note 7, at 256-306 (discussing state laws which explicitly consider socioeconomic impact assessment and distributional concerns in their hazardous waste siting process).

9. In fact, EPA has never found a Title VI violation among any of the more than 50 administrative civil rights complaints filed by the Agency. See, e.g., Cole, supra note 5.

10. See, e.g., In re EcoElectrica, supra note 4. This failure may be due to a reason that goes right to the heart of environmental justice: the lack of technical and legal resources available to low-income and minority communities which disable them from being able to "articulate their concerns in a manner likely to prompt the EAB to second-guess the Region." Richard J. Lazarus & Stephanie Tai, Integrating Environmental Justice Into EPA Permitting Authority, 26 ECOLOGY L.Q. 617, 664 (1999).

11. To be sure, it is difficult to speak with any specificity about the merits of the claims in the decisions at issue here without delving deeply into the complex factual background of each case. It might be that a close examination of the factual context of each of the reported decisions reveals their accuracy. At the least, a close scrutiny might reveal reasonable differences of opinions on whether the facts indicate a clear case of environmental injustice or not. See, e.g., Cole, supra note 5 (arguing that EPA's first and only adjudication of an environmental justice claim under its Title VI Interim Guidance was wrong because, among other things, its assumption that the community was "in attainment" under the Clean Air Act for ozone, and, hence, there was no adverse impact on the community, was wrong as a factual matter).

12. See generally Luke Cole, Environmental Justice Litigation: Another Stone in David's Sling, 21 FORDHAM URB. L.J. 523 (1994); THEORIES AND PROCEDURES, supra note 7.

13. See Sheila Foster, Race(ial) Matters: The Quest for Environmental Justice, 20 ECOLOGY L.Q. 721, 731-32, 739-40 (1993) (noting the requirements of intent and causation in civil rights theories, both constitutional and statutory, and the failure of environmental racism lawsuits to satisfy those legal requirements).

14. In particular, courts are divided on whether Title VI's § 602 discriminatory effects regulations can be enforced by a private right of action. In June 1998, the U.S. Supreme Court in a lawsuit alleging environmental racism under Title VI § 602, granted Pennsylvania's petition for writ of certiorari to review the Third Circuit's holding that there is a private right of action under § 602 of Title VI, embodied in EPA's Title VI regulations. However, shortly thereafter, the Court dismissed the cases as moot and vacated the Third Circuit's decision. See Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925, 28 ELR 20487 (3d Cir. 1997), vacated, 119 S. Ct. 22 (1998). Several other cases have raised the same issue of whether a private action exists, and the question may yet again reach the Supreme Court. For now, however, the question remains unresolved. See also Bradford C. Mank, Is There a Private Right of Action Under EPA's Title VI Regulations?, 24 COLUM. J. ENVTL. L. 1 (1998).

15. Tseming Yang has argued, convincingly, that there is a "mismatch" between the decisionmaking approaches that characterize civil rights and environmental adjudication and that this explains, in part, the lack of success that civil rights claims have encountered in the environmental context. See Tseming Yang, Balancing Interests and Maximizing Rights in Environmental Justice, 23 VT. L. REV. 529 (1999).

16. See, e.g., Cole, supra note 5 (taking issue with the first complaint adjudicated under EPA's Title VI Interim Guidance); Foster, supra note 5 (also taking issue with the case).

17. See, e.g., Michael B. Gerrard, Stopping and Building New Facilities, in THEORIES AND PROCEDURES, supra note 7, at 465, 472-79 (noting the "long history of successes for plaintiffs" challenging permits); see also Alice Kaswan, Environmental Justice: Bridging the Gap Between Environmental Laws and "Justice," 47 AM. U. L. REV. 221 (1997).

18. Some state versions of NEPA do, however, include substantive provisions that might go further in achieving environmental responding to the environmental justice concerns. See Foster, Impact Assessment, in THEORIES AND PROCEDURES, supra note 7, at 265, 286-87 (discussing socioeconomic impact assessment under state mini-NEPAs); El Pueblo Para el Aire y Agua Limpio v. County of Kings, No. 366045, 22 ELR 20357 (Cal. Super. Ct. Dec. 30, 1991) (ruling that the environmental review process, under California's version of NEPA, must be made accessible to the community, including translation of all documents in Spanish).

19. Lazarus & Tai, supra note 10, at 625-49 (discussing statutory language of several environmental protection laws and their ability to incorporate environmental justice concerns into the permitting process).

20. In re Chemical Waste Management, supra note 4 (permit issuance and modification for a landfill facility in Fort Wayne, Indiana); In re Ash Grove Cement Co., supra note 4 (permit for hazardous waste combustion for a cement plant in Chanute, Kansas).

21. In re Envotech, supra note 4 (permits authorized company to drill, construct, test, and operate two hazardous waste injection wells in Washtenaw County, Michigan); In re Environmental Disposal Sys., supra note 4 (permits authorize the construction and operation of two injection wells in Romulus, Michigan, to be used for the commercial disposal of hazardous liquid waste from a variety of sources).

22. In re Puerto Rico Elec. Power Auth., supra note 4 (permit authorized construction of an electric-generating station in Puerto Rico). In re EcoElectrica, supra note 4 (permit authorized installation and operation of a 461 megawatt cogeneration plant in Penuelas, Puerto Rico). In re Aes Puerto Rico, supra note 4 (permit authorized construction of a 454 megawatt coal-fired power plant in Guayama, Puerto Rico). In re Knauf Fiber Glass, supra note 4 (permit authorized construction of a new fiberglass manufacturing facility in the City of Shasta Lake, California).

23. In one case, however, the challenger was a Michigan State Representative. In some of the cases, local community organizations and individuals were joined in their challenges by national environmental organizations, a particular Region of EPA, and, in one case a competitor to the permitee.

24. See, e.g., In re Chemical Waste Management, supra note 4, at 14-15, ADMIN. MAT. at 40393.

25. Id. at 23-24, ADMIN. MAT. at 40395. The EAB rationalized its authority to review compliance with the Executive Order under existing environmental permitting regulations as follows:

While section 6-609 [of the Executive Order] precludes judicial review of the Agency's efforts to comply with the [Executive Order], it does not affect implementation of the [Executive Order] within an agency. More specifically, it does not preclude the Board, in an appropriate circumstance, from reviewing a Region's compliance with the Executive Order as a matter of policy or exercise of discretion to the extent relevant under section 124.19(a). Section 124.19(a) authorizes the Board to review any condition of a permit (or, as here, the permit decision in its entirety). Accordingly, the Board can review the Region's efforts to implement the Executive Order in the course of determining the validity or appropriateness of the permit decision at issue.

Id. (emphasis in original).

26. RCRA Appeal Nos. 95-2, -3, 6 E.A.D. 66, ADMIN. MAT. 40392 (June 29, 1995).

27. See In re Chemical Waste Management, supra note 4, at 18, ADMIN. MAT. at 40394 (citing 42 U.S.C. § 6925(c)(3), ELR STAT. RCRA § 3005(c)(3)).

28. The EAB added: "This would be true even without a finding of disparate impact." Id.

29. Id. at 19, ADMIN. MAT. at 40394 (citing In re Marine Shale Processors, Inc., RCRA Appeal No. 94-12, at 48 n.64, ADMIN. MAT. 40350 (Mar. 17, 1995)).

30. In re Envotech, supra note 4, at 47, ADMIN. MAT. at 40460 (relying on omnibus authority contained in 40 C.F.R. § 144.52(a)(9)).

31. See In re Environmental Disposal Sys., supra note 4.

32. See In re Puerto Rico Elec. Power Auth., supra note 4, In re EcoElectrica, supra note 4, In re AES Puerto Rico, supra note 4, and In re Knauf Fiber Glass, supra note 4.

33. See In re EcoEclectrica, supra note 4, ADMIN. MAT. at 40635 n.15 (noting that "although EPA has not issued formal rules or detailed written guidance on environmental justice with respect to PSD permitting . . . the absence of such guidance does not prevent the Agency from addressing environmental justice issues" (citing In re Chemical Waste Management and In re Envotech); see also In re AES Puerto Rico, supra note 4 (petitioners there simply cited the Executive Order as the basis for their environmental justice challenge on appeal, which the EAB readily accepted for review).

34. See Lazarus & Tai, supra note 10, at 631-39.

35. See 40 C.F.R. § 124 (covering permit issuance, modification, revocation, and termination under RCRA, the Clean Water Act (CWA), the SDWA, and the CAA). In particular, the regulation covers all RCRA, UIC, PSD, and national pollutant discharge elimination system permits).

36. In re Chemical Waste Management, supra note 4, at 17-18, ADMIN. MAT. at 40394.

37. Some of these additional steps taken are those recommended by President Clinton's Executive Order, particularly its recommendation to "translate crucial documents, notices and hearings relating to human health to the environment for limited English speaking populations." Exec. Order No. 12898, supra note 2, § 5-5(b), ADMIN. MAT. at 45076. See, e.g., In re Chemical Waste Management, supra note 4 (held additional "informational meeting" in response to environmental justice concerns raised during the comment period on the draft permit); In re Envotech, supra note 4 (two-day "informal" hearing held in order to ensure views of community surrounding sites were "received and considered," broad dissemination of information about draft permits, including press releases and wide media outreach); In re AES Puerto Rico, supra note 4 (provided expanded public comment opportunities, engaged in extensive correspondence with local community group over course of permit process, ensured that comments could be received in either english or spanish and that comments were granted "equal consideration").

38. See, e.g., In re Chemical Waste Management, supra note 4, at 18 ADMIN. MAT. at 40393:

We conclude that the Executive Order does not purport to, and does not have the effect of, changing the substantive requirements for issuance of a permit under RCRA and its implementing regulations. We conclude, nevertheless, that there are areas where the Region has discretion to act within the constraints of the RCRA regulations and, in such areas, as a matter of policy, the Region should exercise that discretion to implement the Executive Order to the greatest extent practicable.

39. See supra notes 28-29 and accompanying text.

40. Most actions under the CAA, the SDWA, and RCRA are exempt from NEPA either under the "functional equivalence" doctrine or by congressional action. See Foster, Impact Assessment, in THEORIES AND PROCEDURES, supra note 7. Moreover, even if NEPA applies to permitting actions, it is essentially a "procedural" guarantee, and does not establish any substantive environmental standards nor mandate particular outcomes. That is, a reviewing court or administrative body cannot order an agency, on the basis of its conclusion that an impact assessment is inadequate, to reject or modify a decision. See generally Daniel R. Mandelker, NEPA LAW AND LITIGATION § 10.01, 10-3 (2d ed. 1997). This is in stark contrast to what the EAB has made clear is the case in the context of implementing the Executive Order as part of environmental permitting processes under federal environmental statutes.

41. Exec. Order No. 12898, supra note 2, § 1-101, ADMIN. MAT. at 45075 (emphasis added).

42. The environmental justice critique of current risk assessment analysis, to be sure, builds on other normative critiques of environmental decisionmaking processes. This is an important point because the environmental justice movement is not simply concerned with certain subpopulations or vulnerable populations. Rather, it is concerned with better environmental protection for all, pollution prevention, and more democratic environmental decisionmaking processes. Robert D. Bullard, Environmental Justice for All, in UNEQUAL PROTECTION: ENVIRONMENTAL JUSTICE AND COMMUNITIES OF COLOR 3, 10-11 (Robert D. Bullard ed., 1996).

43. Utilitarianism was founded in the 19th century by three British philosophers, John Stuart Mill, his father John Mill, and Jeremy Bentham. Historically, the theory grew out of a reaction to British moral intuitionism and European Kantian idealism. Utilitarianism hoped to build an ethical system for a new liberal "bourgeois"—as opposed to "aristocratic," and not in the pejorative sense—society. This is made clear when one looks at the virtues of the system. First, utilitarianism hopes to treat each individual as an individual and, moreover, treat their preferences and pleasures as equal. Thus, the Duke of York is treated, for the purposes of a utilitarian analysis, in exactly the same way as James Joyce, who is treated exactly the same way as a bus driver. Second, utilitarianism removes ethical/justice theory out of the province of religious analysis and places it on relatively more firm and objective grounds. Utilitarianism is supposed to be quasi-scientific. I might therefore be seen as the venue for continuing the ancient debate between the Enlightenment and the Romantics. See, e.g., ROGER SCRUTON, MODERN PHILOSOPHY 283 (1994) ("the astonishing success of utilitarianism in colonizing the English temperament is due to two factors: its provision of a secular goal for morality, and its promise to reduce ethics to a mathematical calculation"); id. at 298 (explaining the tension between the Enlightenment's reasonable "new man" who desires happiness for all and the Romantic, emotional, self-actualizing philosophy typified by Nietzsche who Scruton quotes as stating, "as for happiness only the Englishman wants that"); see also 8 FREDERICK COPLESTON, A HISTORY OF PHILOSOPHY 1-11 (1994).

44. See J.S. MILL, ON LIBERTY AND UTILITARIANISM iv ff. (1992) (Sir Isaiah Berlin's introduction).

45. Philip Pettit, Consequentialism, in A COMPANION TO ETHICS 232 (Peter Singer ed., 1999).

46. For a general overview of the early criticisms of utilitarianism, see J.O. Urmson, The Interpretation of the Moral Philosophy of J.S. Mill, and D.G. Brown, What Is Mill's Principle of Utility?, in MILL'S UTILITARIANISM: CRITICAL ESSAYS 1-8, 9-24 (David Lyons ed., 1997). Over the years, utilitarianism has gone through various changes to accommodate its critics. COPLESTON, supra note 43, at 28-31 (for an account of early changes in utilitarian theory); see also Robin West, The Other Utilitarians, in ANALYZING LAW: NEW ESSAYS IN LEGAL THEORY 197 (Brian Bix ed., 1998) (identifying three types of utilitarianism: "hedonic utilitarianism," "ideal utilitarianism," and "preference-based utilitarianism").

47. See Donald T. Hornstein, Reclaiming Environmental Law: A Normative Critique of Comparative Risk Analysis, 92 COLUM. L. REV. 562, 575-79 (1992).

48. Id. at 585. See also id. at 585 n.108 (comparing this "hard" version of comparative risk analysis with a softer version that "fully recognizes that risk has dimensions that should be measured in terms other than population or aggregate risk").

49. Comparative risk analysis has been formally divided into four steps: hazard identification, toxicity or dose-response assessment, exposure assessment, and risk characterization. See NATIONAL RESEARCH COUNCIL, RISK ASSESSMENT IN THE FEDERAL GOVERNMENT: MANAGING THE PROCESS 3 (1983). Risk assessments that calculate expected losses are then used in three different approaches to environmental protection: health-based provisions that typically do not tolerate "any" significant risk to public health or welfare; technology-based provisions that do not tolerate risks that can be "feasibly" eliminated; and risk-benefit provisions that find intolerable technologies, substances, or processes that pose "unreasonable" risk. Hornstein, supra note 47, at 575-76.

50. Hornstein, supra note 47, at 576, 579. In its simplest form, according to comparative risk analysis, if the risk of contracting a terminal illness from a certain pollutant is substantially greater than the risk of contracting such a disease from another pollutant, EPA is justified in spending more resources in dealing with the first pollutant.

51. Id. at 576, 585; see also id. at 591 (like expected utility theory, comparative risk analysis "attempts to achieve consistency by forcing decision makers to compare outcomes and make choices"). As Hornstein argues, this reliance on utilitarianism comes from the Agency's difficult tasks of administering statutes that follow different, and sometimes conflicting, policy paradigms, and from dealing with a political system in which the orderly administration of programs sometimes disintegrate into a regulatory bazaar, with legislators and administrative managers responding to whatever combinations of political/interest groups exert the most pressure. Id. at 576-77.

52. See, e.g., Catherine A. O'Neill, Variable Justice: Environmental Standards, Contaminated Fish, and "Acceptable" Risk to Native Peoples, 19 STAN. ENVTL. L.J. 3, 26 (2000) ("the choice of [quantitative risk assessment] presupposes, for example, that "optimal" pollution or risk control is the end to which environmental policy aspires").

53. In this regard utilitarian approaches have a particular appeal to public officials and agencies. As one defender of utilitarianism as applied to governmental activities put it, "in the case of public officials . . . it is the height of irresponsibility to proceed careless of the consequences." ROBERT E. GOODIN, UTILITARIANISM AS A PUBLIC PHILOSOPHY 9 (1995).

54. See, e.g., Robert R. Kuehn, The Environmental Justice Implications of Quantitative Risk Assessment, 1996 U. ILL. L. REV. 103, 116-39; O'Neill, supra note 52, at 24-27; Clayton P. Gillette & James E. Krier, Risk, Courts, and Agencies, 138 U. PA. L. REV. 1027, 1085 (1990) (noting that the risk assessment determination is "an ethical and political one that technical experts have neither the knowledge nor the authority to dictate, because the issue transcends technocratic expertise").

55. Kuehn, supra note 54, at 128:

The almost obsessive nature of risk discussions that revolve around the difference between risks of one in 100,000 and two in 100,000 undoubtedly ignore equally important questions such as who are the persons who are at risk; what benefits will those who must bear the risk receive from the increased risk; what benefits will those who produce the risk enjoy; and it is really necessary to impose the risks on these or any other people.

56. Hornstein, supra note 47, at 601.

57. Id. at 593. The poor, children, racial minorities, the elderly, and those who do not share in the benefits of the environmentally harmful activity might be such categories. Id. at 601.

58. Kuehn, supra note 54, at 117.

59. See O'Neill, supra note 52, at 29 (emphasis added); Kuehn, supra note 54, at 117-21 (emphasis added). A related limitation is the failure to account for variability in human susceptibility to environmental hazards, which may vary by age, lifestyle, sex, ethnicity, and race. Risk assessors tend, instead, to focus on the person of "average" susceptibility. Health-based environmental standards have historically been set using the norm of a healthy, white male of average weight and do not account for the way in which different cultures are exposed to toxins in different ways. For example, EPA's establishment of national ambient water quality criteria under the CWA have contained faulty assumptions about fish consumption in diverse communities, adopting criteria that do not correspond to the amount of fish or portions of fish that certain minority populations eat (Native Americans, Asian Americans, and African Americans). See O'Neill, supra note 52, at 55-57; see also Brian D. Israel, An Environmental Justice Critique of Risk Assessment, 3 N.Y.U. ENVTL. L.J. 469, 501 (1995).

60. As environmental justice advocates have argued, early and meaningful participation by those most affected by environmental decisions is a crucial component of assessing the justice of a particular decision. Kuehn, supra note 54, at 160 ("environmental justice is not only concerned with the scientific methods of risk assessment, but also with the process of decisionmaking. It seeks to empower those persons subjected to involuntary risk and to give them a major role in the process of assessing and managing risks in their communities"). Hornstein, supra note 47, at 601 ("Equity also involves process and participatory values, by which the ability of risk-bearers to share power in decision making is independently valued."). See generally Robert D. Bullard, Introduction, in UNEQUAL PROTECTION: ENVIRONMENTAL JUSTICE AND COMMUNITIES OF COLOR xvii (Robert D. Bullard ed., 1994) ("what do grass-roots leaders want? These leaders are demanding a shared role in decisionmaking processes that affect their communities. They want participatory democracy to work for them."); Deeohn Ferris, Communities of Color and Hazardous Waste Cleanup: Expanding Public Participation in the Federal Superfund Program, 21 FORDHAM URB. L.J. 671, 675 (1994) (suggesting that limited community involvement in cleanup decisions may explain why a National Law Journal study found that cleanups under the Superfund program took longer in minority and low-in-come communities).

61. See, e.g., James Flynn & Paul Slovic, Expert and Public Evaluations of Technological Risks: Searching for Common Ground, 10 RISK: HEALTH, SAFETY & ENV'T 333, 334-35 (1999):

The nuclear engineer's probabilistic risk assessment or the toxicologist's quantitative estimate of a chemical's carcinogenic risk are both based on theoretical models, whose structures are assumption-laden and whose inputs depend on judgments to account for uncertainties in theory, data, or coincidence. Careful examination shows subjectivity at every stage of risk assessment, from initial problem structuring to deciding which endpoints or consequences to analyze, identifying and estimating exposures, choosing does-response relationships, and so on.

Mark Eliot Shere, The Myth of Meaningful Environmental Risk Assessment, 19 HARV. ENVTL. L. REV. 409, 413-14 (1995):

The unreliability of risk assessment is an open secret. Commentators have described risk assessment as being "fraught with gaps in knowledge that are filled with guesses and assumptions." Because of these guesses and assumptions, "while EPA cancer risk estimates appear precise, the final numbers conceal profound scientific uncertainties."; . . . In this context, the National Academy of Sciences has similarly observed that "conclusions based on a larger number of sequential, discretionary choices necessarily entail a large, cumulative uncertainty."

COMMITTEE ON RISK ASSESSMENT OF HAZARDOUS AIR POLLUTANTS, NAT'L RESEARCH COUNCIL, SCIENCE AND JUDGEMENT IN RISK ASSESSMENT 160-61 (1994) (calling the gaps in the data necessary for quantitative risk assessment "uniquely large" and characterized by "pervasive uncertainty" in the "estimates of the types, probability, and magnitude of health effects associated with a chemical agent"); William D. Ruckelshaus, Risk, Science and Democracy, in ISSUES IN SCIENCE AND TECHNOLOGY 19-20 (Spring 1985, National Academy of Sciences, Washington, D.C.) (risk assessment is essentially a "kind of pretense; to avoid the paralysis of protective action that would result from waiting for 'definitive' data, we assume we have greater knowledge than scientists actually possess and make decisions based on those assumptions"); see also id. at 20 (also noting that "of course, not all risk assessment is on the controversial outer edge of science. We have been looking at the phenomenon of toxic risk from environmental levels of chemicals for a number of years, and as evidence has accumulated for certain chemicals, controversy has diminished and consensus among scientists has become easier to obtain.").

62. Jim Rossi, Participation Run Amok: The Costs of Mass Participation for Deliberative Agency Decisionmaking, 92 NW. U. L. REV. 173, 198 (1997); Hornstein, supra note 47, at 630 ("comparative risk analysis gives an undeserved assurance or scientific legitimacy to the inescapably collective (and political) process of establishing social policies and priorities on environmental problems").

63. Flynn & Slovic, supra note 61, at 335.

64. Id. at 336; see also Kuehn, supra note 54, at 128 (noting public perceptions include "voluntariness, control, receipt of benefits . . . familiarity, knowledge, dread, catastrophic potential" and so on); Gillette & Krier, supra note 54, at 1071-74 (explaining why public risk perceptions include factors that are not captured in the statistical measurement of risk).

65. Laurence Tribe has made the argument that quantitative decisionmaking techniques squeeze out plausible conclusions based upon qualitative information since the qualitative information is much harder to assimilate. Laurence A. Tribe, Policy Science: Analysis or Ideology, 2 PHIL. & PUB. AFF. 66, 96-97 (1972). More directly, "EPA will emphasize those aspects of risk that its scientific bureaucracy has the tools to measure (expected losses) at the expense of less easily measured, but not necessarily less important, aspects of risk-bearing." Hornstein, supra note 47, at 575. More simply, "while it cannot be said in the abstract that a hammer is better than a screwdriver, those with hammers tend to believe in the inherent usefulness of hammering." Id. at n.62 (citing WILLIAM D. MEYERS, THE EVALUATION ENTERPRISE 62 (1981)).

66. For a discussion of the wealth of empirical evidence demonstrating this irrationality see Hornstein, supra note 47, at 607-10; see also STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION (Harvard Univ. Press 1993) (describing a "vicious circle" of uninformed public perceptions, political over reaction, and stringent regulation). This irrationality is palpable not only in the decisions of individuals but in those of governmental agencies. For example, after subjecting itself to a comparative risk analysis, EPA reported that there was "a mismatch between the Agency's high regulatory effort on 'medium to low' risks (mostly involving groundwater pollution) and low regulatory effort on 'high' risks (especially various forms of indoor and global air pollution)." Hornstein, supra note 47, at 579 (quoting Kristin Sharader-Frechette, Scientific Method, Anti-Foundationalism, and Public Decisionmaking, 1 RISK 23, 24 (1990)). Aware that it too may be inconsistent and irrational, part of the technical machinations of EPA's risk guidelines regarding, for example, the "hazard index" and the "hazard quotient" are designed to "implement . . . consistency in the agency's risk assessment process." Kuehn, supra note 54, at 115.

67. Hornstein, supra note 47, at 608. Hornstein cites another example: automobile travel is far more dangerous for one's health than living next to a nuclear reactor, thus, "'anyone who travels by automobile, but opposes commercial nuclear fission is irrational,'" at least according to comparative risk analyses. Id. at 579 (quoting Shrader-Frechette, supra note 66) (internal bracketed words omitted). The reasons for such an "irrational" decision may be that humans have evolved using rules of thumb and "mental 'biases' that people tend to use in lieu of expected-utility-type calculations in approaching risk." Hornstein, supra note 47, at 606.

68. Hornstein, supra note 47, at 567.

69. Id. at 611 (observing that "a fully synoptic system of comparative risk analysis would lack legitimacy because its decisions would be despised as undemocratic"). See also Michael B. Gerrard, Fear and Loathing in the Siting of Hazardous and Radioactive Waste Facilities: A Comprehensive Approach to a Misperceived Crisis, 68 TUL. L. REV. 1047, 1164-65 (1994).

70. Studies show that women and nonwhites perceive higher environmental health risks than white males. See James Flynn et al., Gender, Race and Perception of Environmental Health Risks, 14 RISK ANALYSIS 1101 (1994) (1992 survey of the U.S. public examining the factors that influence risk judgments and analyzing the data by gender, race, and ethnicity); See also Flynn & Slovic, supra note 61, at 351-56 (summarizing results of 1992 study and finding that the low risk of white males can be characterized by trust in institutions and authorities and also finding that white men are less inclined to give decisionmaking power to local citizens in areas of risk management).

71. Kuehn, supra note 54, at 130.

72. Two commentators framed the conflict this way:

At least in theory, to the extent that priority is given to addressing the environmental needs of minorities and the poor, it may not be given to actions that may protect a larger number of people. The overarching strategy of environmental protection in this country has been based not on a standard of justice that assumes government regulation should be directed to improving the conditions of some particular members of society but on utilitarian principles—the greatest good for the greatest number of people. The utilitarian principles are incorporated into environmental policies through such tools as benefit-cost analysis and, more recently, comparative risk. The potential conflict between environmental justice and utilitarianism will not be easy to reconcile.

J. CLARENCE DAVIES & JAN MAZUREK, REGULATING POLLUTION; DOES THE U.S. SYSTEM WORK 37 (Resources for the Future, 1997). See also Cranor, Risk Assessment, Susceptible Subpopulations and Environmental Justice, in THEORIES AND PROCEDURES, supra note 7, at 307, 328 (noting that "since a cost-benefit analysis of a toxic pollution problem typically does not support protecting all persons (because the marginal costs will be too high) . . . cost-benefit analysis and is philosophical ancestor, utilitarianism, compared with environmental justice are simply too different and incompatible views for addressing the problems of guiding exposures to toxic substances").

73. But see Hornstein, supra note 47, at 600-03 (explaining the difficulty with ever trying to completely "model" equity to fit into comparative risk analysis; this difficulty is due to the various "types" of equity that can be abstracted for formal consideration by the experts and the various incommensurable values that inform conceptions of equity by the public).

74. Exec. Order No. 12898, supra note 2, § 1-103(a), ADMIN. MAT. at 45075.

75. See, e.g., In re Puerto Rico Elec. Power Auth, supra note 4; In re EcoElectrica, supra note 4; In re AES Puerto Rico, supra note 4. One Region also determined the existence of federal or state Superfund sites within the studied radius around the proposed facility. See In re Envotech, supra note 4.

76. In re Chemical Waste Management, supra note 4 (using a 1-mile radius, concluded that no minority or low-income populations would face a disproportionate impact from the facility); In re Puerto Rico Elec. Power Auth., supra note 4 (same); In re Envotech, supra note 4 (using a 2-mile radius, concluded minority and low-income populations would be "minimally," if at all, impacted); In re EcoElectrica, supra note 4 (concluded that location of proposed facility was characterized by a median household income lower than the commonwealth of Puerto Rico average but higher than the median income elsewhere in the town where facility will be located, or nearby towns; maximum emission impacts from proposed facility would occur primarily in areas of higher median household income than the surrounding areas); In re Ash Grove Cement Co., supra note 4 (concluded that principle areas impacted are within 0-5 miles of facility, demographic data indicated very low percentage of minorities in county and surrounding counties, and average per capita income in county where facility located is similar to that of surrounding counties); In re Environmental Disposal Sys., supra note 4 (using a 2-mile radius concluded that no impact because minority populations within the census block group of the facility (1%) and within 2 miles of proposed site (9%) are less than state's minority population of 18%. Also, low-income population within the census block group (20%) and within 2 miles of the proposed site (26.8%) is less than Michigan's low-income population of 28%).

77. However, in one case challenging a RCRA permit, the Region chose the one-mile radius based on a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Hazard Ranking System Guidance Manual that was developed for CERCLA sites without groundwater contamination, and its evaluation did not exclude populations outside the one-mile radius. In re Chemical Waste Management, supra note 4. In two other cases challenging UIC permits under the SDWA, the Regions chose a two-mile radius based on the "nature of injection well operations and the effect injection wells may have on the surrounding community." See In re Envotech, supra note 4; In re Environmental Disposal Sys., supra note 4.

78. In re Chemical Waste Management, supra note 4, at 37-38, ADMIN. MAT. at 40393; In re Puerto Rico Elec. Power Auth., supra note 4, at 5, ADMIN. MAT. at 40452. The administrative standard of review is that a permit decision will not ordinarily be reviewed unless it is based on either a clearly erroneous finding of fact or conclusion of law (clearly erroneous review), or involves an important matter of policy or exercise of discretion (discretionary review) that warrants review. 40 C.F.R. § 124.19(a). As stressed by the EAB in most of these cases, the Preamble to § 124.19 states that review power be only "sparingly exercised" and that most permit conditions should be "finally determined at the regional level." The burden is on the petitioner challenging the Region's permit decision to set forth convincing reasons for review.

79. Successful challenge of a permitting Region's disproportionate impact analysis, for instance, requires the demonstration that the Region erred in concluding that the permit would be protective of people within the chosen radius or for some reason would not protect the health or the environment of people who live at greater distance from facility. See, e.g., In re Chemical Waste Management, supra note 4, and In re Envotech, supra note 4 (noting that the "procedural rules governing appeals of permitting decisions place a heavy burden on petitioners who seek EAB review of such technical decisions" and that Petitioners failed to meet that burden in this case).

80. See In re Envotech, supra note 4 (in response to environmental justice concerns raised during the public comment period, more stringent monitoring included in the permit conditions; specifically, the permit required daily sampling of waterstream during the first 90 days of the operation and weekly sampling thereafter, expanded monthly and annual sample constituent lists, and full RCRA Appendix IX analysis prior to commencing); In re Puerto Rico Elec. Power Auth., supra note 4 (the EAB says additional permit conditions are a "testament to the role of public participation in the permit process"; because of concerns raised during the public comment period, this permit contains additional conditions not mandated by PSD regulations but are within the Region's discretion to require); In re Knauf Fiber Glass, supra note 4 (the EAB says the public's involvement has had a "significant role in shaping conditions of the PSD permit ultimately issued"; these conditions include revised emission limits less than one-half the level of emissions proposed by the applicant in the initial permit application, and are "largely attributable to active community interest and involvement in the permit process").

81. See, e.g., In re Chemical Waste Management, supra note 4 (the EAB notes that challengers believe their concerns "can be addressed only by permanently halting operation of the facility at its present location or, at a minimum, preventing the [expansion] of the facility").

82. See In re AES Puerto Rico, supra note 4, and In re Knauf Fiber Glass, supra note 4.

83. See In re Chemical Waste Management, supra note 4; In re AES Puerto Rico, supra note 4; and In re Knauf Fiber Glass, supra note 4. An example of this type of challenge occurred in In re Chemical Waste Management, a challenge to a RCRA permit. There, the challenger submitted an environmental impacts study during the public comment period that identified the various exposure pathways by which citizens living near the facility may be exposed to pollutants from the facility. The study, the challengers contended, demonstrated that minority and low-income populations, including those at distances greater than the chosen one-mile radius studied by the Region, would be impacted by such exposures. The study pointed to, among other things: past problems with containment of hazardous materials at the facility, visible dust clouds that form during stabilization of incoming wastes at the site, problems in management of groundwater and leachate, moderately to heavily polluted sediments in a nearby watershed, and pollutant elevations above expected background levels in fish in a nearby river. At the least, these challengers argued, more risk assessment was needed to accurately determine the extent and probability of exposure pathways.

84. See In re AES Puerto Rico, supra note 4, and In re Knauf Fiber Glass, supra note 4. In In re Chemical Waste Management, for instance, the EAB dismissed the challenger's evidence, as contained in its risk assessment study, as too "tentative" and not conclusive enough on the "probabilities" involved or the adverse effects, if any, increased exposure might cause. In re Chemical Waste Management, supra note 4 (reasoning that the challenger's study simply indicates that particulates from the facility "could" affect an African American community living as far as two miles away (versus the one-mile radius chosen by the Region) due in part to the direction of the wind).

85. See O'Neill, supra note 52, at 32:

Given the highly technocratic, resource-intensive nature of [quantitative risk assessment] as practiced, affected individuals and communities are often the least well equipped to participate meaningfully in public debate about inputs to the quantitative risk assessment and to challenge the numerous assumptions and judgments that are made by agencies in the process.

This disparity can be even more pronounced in minority and low-in-come communities due to fewer technical resources, less access to decisionmakers, and less education. See Kuehn, supra note 54, at 131-33.

86. See Cass R. Sunstein, Incommensurability and Valuation in Law, 92 MICH. L. REV. 782-97 (1994).

87. Hornstein, supra note 47, at 602-03 (also noting that these differences

cannot be resolved simply by combining equity "points" that might be generated even by a richer model of expected utility; incommensurability means that there cannot be a single equity scale that can generate the "points" which represent meaningful conclusions about the equitable thing to do in any particular [risk] decision.

See also O'Neill, supra note 52, at 26 (noting that quantitative risk assessment "excludes all experience or understanding that is not amenable to quantification" and that qualitatively different values "cannot without significant loss be reduced to a single metric such as money or utility").

88. See O'Neill, supra note 52, at 33.

89. Kuehn, supra note 54, at 134 (emphasis added).

90. As one commentator explains:

although nothing in the methodology limits its use to cancer effects, risk assessment, as presently practiced, usually limits itself to an examination of the risks of developing cancer, apparently viewing cancer as a proxy for all risks posed by an environmental agent or sources. Non-cancer health effects, such as respiratory, neurologic, reproductive, psychological, liver damage, birth defects, cardiovascular, and hormonal or immune deficiencies, as well as effects on ecology, welfare, and quality of life, are often overlooked in the risk characterization.

Kuehn, supra note 54, at 127.

91. As one of these decisions, and EPA's first adjudication of a claim under its Interim Guidance, concluded, if the impact from the facility will not be "adverse" it doesn't matter which communities are impacted. Hence, if a "non-adverse" determination is made first, the decisionmakers may never perform a disparate impact assessment to determine whether a minority or low-income community would be effected by the permit issuance. See In re Knauf Fiber Glass, supra note 4 (concluding that "as there has been no serious contention that the additional . . . emissions from the proposed facility would in fact lead to an adverse impact, and as the Executive Order concerns itself with effects that are 'adverse,' we find it unnecessary to address petitioners' other objections, including those related to the demographic analysis."); Select Steel, supra note 5 (rejecting Title VI challenge because of finding that the proposed facility would not pose an "adverse" effect on the community, thereby obviating the need to look at whether the effects would be disproportionate).

92. PSD Appeal Nos. 98-29 et al., ADMIN. MAT. 41132 (May 27, 1999).

93. PSD Appeal Nos. 98-3 et al., ADMIN. MAT. 41218 (Mar. 14, 2000).

94. Additionally, in In re Knauf Fiber Glass, the EAB found that the county area had been designated as in "attainment" for fine particulate matter and that additional particulate matter from the proposed facility will not exceed the NAAQS or PSD increment for that pollutant.

95. See, e.g., In re AES Puerto Rico, supra note 4. Similarly, EPA's first adjudication of a complaint under its Interim Guidance, curiously, reached the same conclusion of "non-adversity" in the case of a challenged PSD permit where a proposed facility's emissions met the NAAQS standard for ozone and where the area was in "attainment" for ozone. There, EPA dismissed the Title VI complaint as well, never reaching the question of disparate impact. Select Steel, supra note 5.

96. In re Knauf Fiber Glass, supra note 4. EPA's recently issued Draft Revised Guidance for Investigation Title VI Complaints Challenging Permits also makes this (rebuttable) presumption. The Guidance explicitly states that:

If an investigation includes an allegation raising air quality concerns regarding a pollutant regulated pursuant to a primary NAAQS, and where the area in question is attaining that standard, the air quality in the surrounding community will generally be considered presumptively protective and emissions of that pollutant should not be viewed as "adverse" within the meaning of Title VI. However, if the investigation produces evidence that significant adverse impacts may occur, this presumption of no adverse impact may be overcome.

See Draft Revised Guidance, supra note 3, at 36.

97. Cole, supra note 5 (further explaining that EPA's equation of compliance with ambient air quality standards with no adverse impact "ignores the fact that significant health damage can occur at exposure levels well below NAAQS levels").

98. See, e.g., Dominique Shelton, Environmental Justice and Cumulative Impact Analysis, 7 ENVTL. L. NEWS 25-29 (1998) (discussing need for cumulative impact analysis in minority communities, particularly those with air toxic "hot spots," or dense toxic air emissions, and noting that prior to 1994 little agency time was devoted to assessing cumulative health risks caused by exposure to multiple hazardous facilities).

99. Cole, supra note 5 (also explaining that "this is particularly true for some VOCs [volatile organic compounds] when they are most concentrated, and for lead, which tends to 'fall out' close to its source of emissions").

100. For example, researchers at Loma Linda University studied more than 6,000 nonsmoking volunteers over 15 years to determine the impact of ozone and other airborne pollutants on them. The study found that men exposed to ozone levels of 80 parts per billion (ppb), EPA's 8-hour "health-based" NAAQS standard, ran three times the risk of lung cancer as men exposed to lower levels. Additionally, both men and women regularly exposed to levels of particulate matter lower than the NAAQS of 50 micrograms per cubic meter ran an increased risk of lung cancer. Both men and women exposed to elevated levels of sulfur dioxide also ran increased risk of lung cancer. See W. Lawrence Beeson et al., Long-Term Concentrations of Ambient Air Pollutants and Incident Lung Cancer in California Adults, 106 ENVTL. HEALTH PERSP. 813-23 (1998).

101. Cole, supra note 5 ("toxic hot spots, significant health impacts even at 'attainment' levels of air pollution, acute effects of pollution, industrial accidents and upset conditions, data gaps, and inappropriate health standards all combine to discredit the exclusive reliance on health-based standards").

102. See Charles Lee, Environment: Where We Live, Work, Play, and Learn, 6 RACE, POVERTY & THE ENV'T 6 (1996).

103. See In re Envotech, supra note 4. In this sense, the EABs' ruling is consistent with impact assessment under NEPA. Socioeconomic effects alone do not trigger the environmental review process under NEPA. Even though NEPA speaks of the impact of proposed actions on the "human" environment, its primary concern is with significant impacts on the natural and physical environment. 40 C.F.R. § 1508.14. Case law and the Commission on Environmental Quality (CEQ) regulations make clear that NEPA is triggered only when impacts on the physical environment are the primary effects stemming from the federal action. The CEQ states plainly that "economic or social effects are not intended by themselves to require preparation of an environmental impact statement." 40 C.F.R. § 1509.14; Image of Greater San Antonio v. Brown, 570 F.2d 517, 8 ELR 20324 (5th Cir. 1978). Social and economic effects that are not physical in nature must have a nexus—a clear causal relationship—to the impact on the physical environment resulting from the major federal action. Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 773, 13 ELR 20515, 20516 (1983) (to determine if a particular effect must be considered, one must look at the relationship between the effect and the change in the physical environment caused by the major federal action issue).

104. UIC Appeal Nos. 98-1, -2, ADMIN. MAT. 41073 (Oct. 15, 1998).

105. Lazarus & Tai, supra note 10, at 665 (emphasis added).

106. See Kuehn, supra note 54, at 150-60 (advocating improving the characterization of risks by addressing distributions of risks, discouraging the absence of data, making the risk characterization more inclusive, and advertising uncertainties, assumptions, and missing information); James S. Freeman & Rachel D. Godsil, The Question of Risk: Incorporating Community Perceptions Into Environmental Risk Assessments, 21 FORDHAM URB. L.J. 547 (1994).

107. See generally Eileen Gauna, The Environmental Justice Misfit: Public Participation and the Paradigm Paradox, 17 STAN. ENVTL. L.J. 3 (1998).

108. Hornstein, supra note 47, at 593; see also Flynn & Slovic, supra note 61, at 357-58 ("good technical analysis is vital for informing risk decisions" but such analysis should "contribute to decisions and not replace them").

109. Flynn & Slovic, supra note 61, at 357.

110. See, e.g., OFFICE OF SUSTAINABLE ECOSYSTEMS AND COMMUNITIES, U.S. EPA, EPA'S DRAFT "FRAMEWORK FOR COMMUNITY-BASED ENVIRONMENTAL PROTECTION" SUMMARY (Aug. 27, 1998) http://yosemite.epa.gov/osec/osechome.nsf/all/d-cbep.html.

111. How the "community" is defined will vary, however, depending on the environmental concern. In some contexts, the community may be a geographically compact and clearly delineated area (like a city or county). In other contexts, the community may be narrower (as in a neighborhood) or broader (as in a region spanning city and county lines). These communities may be either communities of place—those tied to physical space through geography—and/or communities of interest—those who may have commonalities in how they relate to a particular ecosystem or resource as beneficiaries of that place or contributors to its condition. Of course, these communities overlap in most instances, and conflict in others. See generally, Timothy P. Duane, Community Participation in Ecosystem Management, 24 ECOLOGY L.Q. 771, 772 (1997) (also comparing to communities of identity, which are tied to each other through social characteristics but may transcend place). Thus, for instance, "community" might consist of naturally bounded areas, such as species habitat ranges, watershed basins, and forest regions. Moreover, individuals "living in a watershed or ecosystem are the most likely to identify with that place and to work to protect it, regardless of what political unit they nominally inhabit." Mere Volunteer? The Promise and Limits of Community-Based Environmental Protection, 84 VA. L. REV. 1371, 1372 (1998).

112. Indeed, it structures the role of EPA as "capacity-builder" for, and promoter of, community-level environmental protection efforts. See OFFICE OF SUSTAINABLE ECOSYSTEMS AND COMMUNITIES, U.S. EPA, PEOPLE, PLACES, AND PARTNERSHIPS: A PROGRESS REPORT ON COMMUNITY BASED ENVIRONMENTAL PROTECTION (1997) http://yosemite.epa.gov/osec/osechome.nsf/All/d-cbepprogressreport.html?Opendocument.

113. See Sheila Foster, To Devolve and Collaborate: Examining Community-Based Environmental Protection (forthcoming) (draft on file with author); see generally Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545, 1549-50 (1991) (informal methods of dispute resolution can be destructive for participants because it requires them to speak in a setting that they have not chosen and often imposes rigid orthodoxy as to how they should speak, make decisions, and be); Richard Delgado et al., Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, 1985 WIS. L. REV. 1359; Luke W. Cole. The Theory and Reality of Community-Based Environmental Decisionmaking: The Failure of California's Tanner Act and Its Implications for Environmental Justice, 25 ECOLOGY L.Q. 751 (1999) (informality of the local advisory committee process led to disenfranchisement of communities of color).

114. Cherise D. Hairston, African Americans in Mediation Literature: A Neglected Population, 16 MEDIATION Q. 360, 370 (1999).

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