PERMITTING ENVIRONMENTAL INJUSTICE AT THE U.S. ENVIRONMENTAL PROTECTION AGENCY


As part of efforts to reform how facilities receive permits, the United States Environmental Protection Agency (EPA) is promoting policies that effectively entrust corporations with protecting our most vulnerable communities from environmental hazards that their own businesses produce. By encouraging fenceline residents—people who live next to toxic facilities—and corporations to enter into informal talks about the location and management of potentially dangerous operations, EPA officials show little commitment to compensating for differences in power, let alone redressing discrimination by race and class.

On June 6, 2018, I observed this philosophy in action during an all-day conference at Columbia Law School, “Key Issues in US EPA Region 2”. The U.S. EPA has ten regional offices, and I live in Region 2, which encompasses New York, New Jersey, Puerto Rico, the U.S. Virgin Islands and eight tribal nations.

Only one panelist, Carol Ann Siciliano, explicitly addressed environmental justice, a movement seeking to prevent and remediate the disproportionate impact of environmental hazards on low-income people and communities of color. Even given the deregulation frenzy at today’s EPA, Siciliano’s statements startled me. She presented corporate social responsibility programs as effective tools for advancing environmental justice. And for her, the “regulator”—a local, state, or federal government agency—should have a modest role in the permitting process for facilities that emit pollutants. “What’s the role of the permit writer?” she asked. “To start the conversation and get out of the way.”

Siciliano, a career EPA lawyer, leads the Cross-Cutting Issues Law Office within the agency’s Office of the General Counsel at D.C. headquarters – “the chief legal advisor to the EPA.” In addition to environmental justice, attorneys in the cross-cutting group specialize in a number of areas, including children’s health and the Endangered Species Act. Siciliano also co-leads the EPA’s initiative to consider environmental justice in the permitting process and works actively with the EPA’s National Environmental Justice Advisory Council.

Her brand of environmental justice reflects both the Trump Administration’s particular assault on social justice and longstanding trends in neoliberal governance. In early spring 2017, Trump’s proposed 2018 budget eliminated the U.S EPA’s Office of Environmental Justice, which had been established in the early 1990s. Soon after, Mustafa Ali, one of that officer’s senior advisers, resigned, telling The Washington Post, “I haven’t seen yet any engagement with communities with environmental justice concerns.”

Ultimately, the Trump administration kept the Office of Environmental Justice, but moved it from the Office of Enforcement and Compliance Assurance to the Office of Policy in April 2018. E&E News reports that while some cast the move as promoting efficiency, others feared environmental justice would become more vulnerable to prevailing politics in the Office of Policy.

But Siciliano’s belief that corporate social responsibility can mitigate environmental justice precedes the Trump Administration and will likely survive it. The EPA Region 2 Update is a biennial conference, and in 2016, Siciliano spoke there about citizen science and environmental justice under Obama. In that talk, she encouraged corporations to “engage effectively” with communities, in order to minimize the need for government intervention. She wanted the regulator’s role in permitting negotiations to decrease, saying, “The facility and the regulator engage in permitting and enforcement together. The community and the regulator engage in tips and conversation but the two sets that should be talking are the community and the facility.”

At the 2018 Region 2 Update, Siciliano spoke about community-industry partnerships with even greater optimism, asserting that facilities, like oil refineries and waste incinerators, in fact benefit fenceline communities. “The business, and you know this, is deeply important to the community,” she said. “They provide the jobs. They provide tax revenues that support municipal services. They engage in local philanthropy and they might even provide a little bit of a community identity. So there are natural allies here—the community and the business should be able to work together.”

Siciliano suggested that corporations act in the best interests of communities where they locate environmental hazards, but even their assurances of economic prosperity usually fall flat. Georgetown Law Professor Sheila Foster and environmental justice lawyer Luke Cole have noted, “The economic development promises are rarely realized,” and local residents receive “few, if any, jobs” at a given facility.

Siciliano’s choice to largely ignore the inequities that produce environmental injustice perhaps made her cheerful outlook possible. She viewed decisions to site facilities in particular places as reasonable business decisions, minimizing the discrimination that continues to explain the location of environmental hazards in low-income areas and communities of color.

“The factory, the incinerator, the wastewater treatment plant arrives, probably in a borderland somewhere where property values are very low,” Siciliano generalized. “There may have been neighbors and the neighbors may care but back in those days they didn’t have a voice and they didn’t have a say. So here we are.” She did not explore why these neighbors “didn’t have a say.”

In fact, Foster and Cole have also argued that residential segregation, by race and class, creates conditions ripe for environmental injustice, with corporations siting environmental hazards where real estate is cheap, after decades of disinvestment, where businesses believe poor and non-white residents are unlikely to obstruct operations. By eliding the reasons why some people live near environmental hazards and others do not, Siciliano absolved government actors from the responsibility of remedying past wrongs, namely the ways in which officials made residential segregation public policy through tactics like redlining and what Richard Rothstein calls “racial zoning.”

Rather, Siciliano encouraged community organizers in the audience to share their concerns with industry representatives in informal meetings, with no government presence or legal representation. “Reach out to the facility that’s across the street,” she recommended. “Ask for a tour. Ask for a meeting or three. Ask them the hard questions.” These included: “What are the pollutants you discharge? What is your compliance history?” She directed community organizers to tell facility representatives “what you’re worried about,” including “the smells, the scum, the early morning trucks.”

Siciliano further counseled residents to “go in there, if you can, with a spirit of curiosity and an open mind.” She also had advice for industry on how to best manage their relationships with communities. “Listen compassionately to your neighbor…let folks yell at you. They will yell at you. But if you listen in a spirit of generosity and courage, you might be able to build a bridge of trust.”

Science and Technology Scholar Gwen Ottinger has shown how these kinds of informal encounters and cooperative relationships can effectively disempower fenceline communities through her research in Louisiana’s Cancer Alley. She recounts how once refinery officials in New Sarpy, LA began listening to community members and treating them with respect during meetings, local citizen scientists stopped sampling air quality and ended their demands for relocation, despite continuously high rates of cancer and respiratory illness among residents. Refinery officials further appeased neighbors with cheap and easy fixes, like cleaning up litter that had accumulated on facility grounds. To use Siciliano’s language, the oil refinery successfully built a “bridge of trust” so that the community no longer protested its operations, even though the health risks of the facility’s chemical emissions remained unknown.

Endorsing the tactics Ottinger criticizes, Siciliano stated in her June remarks that industry could mollify locals with modest fixes that did not transform fundamental operations. “You might learn that the community isn’t so much worried about pollution. They might be worried about the trucks that rumble past the school bus stop every single morning. Or idle next to the bus stop. That’s what they’re worried about. Well maybe that’s something that you can address.” She further outlined how a facility’s efforts to “listen” and “hide nothing” could prove economically profitable: “There is a return on the investment of a clean relationship with the community that can in turn facilitate rapid permit issuance, and stability and predictability.”

Siciliano concluded her talk at the Region 2 Update by describing a particularly successful community-industry partnership that culminated in the U.S. EPA awarding a Clean Air Act permit for a “waste-to-energy” facility in Puerto Rico. She left the company unnamed, saying it approached the community where they wanted to build “on their own initiative and with some encouragement from EPA and they learned the community was deeply worried about lead.” In response, the company conducted its own study modeling how much lead the facility would emit, showing “their treatment would be very effective and that their levels of [lead] release would be about 200x lower than the applicable standard.”

Siciliano continued to gush over the facility’s actions. “And then, I love this part…as a final display of goodwill, they volunteered to install monitors, ambient air monitors in the community so that they in the community could know in real time how much lead was actually in the environment. This was a lot…It costs money. But for some members of the community, their fears were relieved, they were alleviated.” Siciliano acknowledged that other community members remained dissatisfied, saying, “We did end up getting litigation.” Still, she described the case as “a really great example of how a community and a facility can work together to try to figure out what was deeply concerning and what to do about it.”

In fact, the facility and the community reached no such consensus. Based on my own digging after the conference, I figured out Siciliano was describing Energy Answer’s permit application to build a waste-to-energy facility (or waste incinerator, as the community called it) in Arecibo, Puerto Rico. On its website, EPA Region 2 describes the project as “a new resource recovery facility capable of generating 77 MW.” The EPA issued the facility’s final permit in 2014, and then extended it in 2015 and 2017.

Energy Answers still has not built the facility in part due to local opposition in Arecibo, a community already living with an old battery recycling facility that is now a Superfund site. Carlos Garcia, a resident of Arecibo who is asthmatic and whose daughter and grandchildren are also asthmatic, called the incinerator’s construction a “matter of life and death” for the community, according to a video released by Earthjustice. Social Justice News Nexus reports that a number of community organizations share Garcia’s view and are fighting the incinerator, including Ciudadanos en Defensa del Ambiente, Comité Basura Cero Arecibo, and Madres de Negro de Arecibo.

Vermont Law School and Earthjustice are now representing the local coalition and have, among other actions, submitted comments under the National Environmental Protection Act (1970) opposing the U.S. Department of Agriculture’s funding of the facility. The community coalition has gained ground. According to Earthjustice Attorney Jonathan Smith, the USDA now seems unlikely to finance the project. And this past February, Puerto Rico Governor Ricardo Rossello withdrew his support of the incinerator.

Contrary to Siciliano’s message, the case of Arecibo serves as a “really great example” of how corporate social responsibility programs fail to alleviate local concerns about environmental injustice and establishes the dangers of government officials entrusting public health to corporations. Instead, we need regulators to manage formal processes for the permits of polluting facilities, with procedures that ensure fenceline communities have meaningful involvement and effective representation.

Natalie Bump Vena is an assistant professor in the Urban Studies Department at Queens College-CUNY. She specializes in the environmental law and policy of U.S. cities.

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