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[Senate Report 110-498]
[From the U.S. Government Publishing Office]

                                                      Calendar No. 1076
110th Congress                                                   Report
                                 SENATE
 2d Session                                                     110-498

======================================================================

 
                   ENVIRONMENTAL JUSTICE RENEWAL ACT

                                _______
                                

  September 24 (legislative day, September 17), 2008.--Ordered to be 
                                printed

                                _______
                                

    Mrs. Boxer, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 2549]

                             together with

                             MINORITY VIEWS

      [Including an estimate from the Congressional Budget Office]

    The Committee on Environment and Public Works, to which was 
referred the bill (S. 2549) to require the Administrator of the 
Environmental Protection Agency to establish an Interagency 
Working Group on Environmental Justice to provide guidance to 
Federal agencies on the development of criteria for identifying 
disproportionately high and adverse human health or 
environmental effects on minority populations and low-income 
populations, and for other purposes, having considered the 
same, reports favorably thereon without amendment and 
recommends that the bill do pass.

                 PURPOSE AND SUMMARY OF THE LEGISLATION

    The purpose of this bill is to ensure that every Federal 
Agency take environmental justice into account when carrying 
our activities and programs; establish an Interagency Working 
Group on environmental justice; expand and create new grant 
programs to help communities and States address environmental 
justice; and increase training and accountability regarding 
environmental justice at the Environmental Protection Agency 
(EPA).

                BACKGROUND AND NEED FOR THE LEGISLATION

Background

    Environmental pollution has a disproportionate impact on 
minority and low-income populations.
    In 1982, residents in Warren County, North Carolina, a 
rural, predominantly low-income, African-American area, 
protested the dumping of soil contaminated with polychlorinated 
biphenyls (PCBs) in their community--a ``solution'' that would 
eventually result in PCB contamination of drinking water. Over 
500 residents were arrested when they tried to stop the trucks 
carrying the soil from dumping them in the town landfill. 
Although they were unsuccessful, this incidence galvanized 
civil rights leaders into action on issues of what they termed 
``environmental racism.'' The term ``environmental justice'' 
(EJ) is now widely used to describe this concern and movement, 
which focuses on addressing the disproportionate impact of 
pollution on low-income and minority communities.
    By 1990, in response to the concerns of environmental 
justice advocates, the George H.W. Bush Administration 
established the Environmental Equity Work Group, which 
eventually determined that ``racial minority and low-income 
populations experience higher than average exposures to 
selected air pollutants, hazardous waste facilities, 
contaminated fish and agricultural pesticides in the 
workplace.'' In 1992, the George H.W. Bush Administration 
established the Office of Environmental Equity, now known as 
the Office of Environmental Justice, at the EPA.
    In 1994, President Clinton signed Executive Order 12898, 
which mandated federal agencies to incorporate environmental 
justice into their work and programs. As part of that Executive 
Order, EPA convened an Interagency Working Group on 
Environmental Justice, and by 1995, the Agency had produced an 
environmental justice strategy. The Clinton Administration also 
formed the National Environmental Justice Advisory Council 
(NEJAC) which met multiple times during the Clinton 
Administration.
    Since the activities of the first Bush and Clinton 
Administrations, however, in 2001 and 2005, EPA Administrators 
released memos attempting to redefine environmental justice as 
something to address environmental pollution among all 
Americans, rather than recognizing the importance of 
environmental justice in addressing the disproportionate impact 
of pollution upon low-income and minority communities.
     Although the NEJAC met 16 times over 7 years 
during the Clinton Administration, it has met only 5 times in 8 
years during the Bush Administration.
     A 2004 report from the Office of the Inspector 
General at the EPA noted that the ``EPA has not fully 
implemented Executive Order 12898 nor consistently integrated 
environmental justice into its day-to-day operations.''
     In 2005, the Government Accountability Office 
released a report concluding that the agency has failed to 
consistently consider environmental justice in making rules 
that protect families from environmental degradation and 
pollution.
     In 2006, the Office of the Inspector General 
released another report on the EPA's environmental justice 
record, concluding that EPA senior management had not 
``sufficiently directed program and regional offices to conduct 
environmental justice reviews.''
    The Environmental Justice Renewal Act was introduced to 
address some of the concerns raised over the Administration's 
handling of environmental justice.

Need for legislation

    S. 2549 was introduced by Senator Reid for Senator Clinton 
on January 23, 2008. The bill's cosponsors are Senator Cardin, 
Boxer, Lautenberg, and Schumer. This bill is designed to 
address numerous aspects of environmental justice issues in our 
country. The Committee notes that studies over a number of 
years have shown that toxic waste dumps are located in minority 
and low-income communities more often than can be explained by 
chance alone.\1\ Studies have also shown that minority 
populations are more likely to breathe dangerous levels of 
toxic pollution than other groups.\2\ It is also important to 
remember that people in low income and minority communities may 
face cumulative threats from several sources of toxins, 
including from the air and water pollution, contaminated lead 
dust, and other dangerous sources of toxins.
---------------------------------------------------------------------------
    \1\G.A.O., ``Siting of Hazardous Waste Landfills and Their 
Correlation With Racial and Economic Status of Surrounding 
Communities.'' (1983); United Church of Christ Commission for Racial 
Justice, Toxic Wastes and Race in the United States: A National Report 
on Racial and Socioeconomic Characteristics of Communities With 
Hazardous Waste Sites (1987); Benjamin Goldman & Laura Fitton, Toxic 
Wastes and Race Revisited: An Update of the 1987 Report on the Racial 
and Socioeconomic Characteristics of Communities With Hazardous Waste 
Sites (1994).
    \2\Paul Mohai & Bunyan Bryant, Environmental Racism: Reviewing the 
Evidence, in Race and the Incidence Of Environmental Hazards: A Time 
For Discourse (Bunyan Bryant & Paul Mohai Eds., 1992); U.S. EPA, 
Environmental Equity: Reducing Risk For All Communities, Vol. 2: 
Supporting Document 7-15 (1992).
---------------------------------------------------------------------------
    Dr. Bob Bullard, a pioneer in the environmental justice 
movement who testified before the Environment and Public Works 
Committee, summed up the threats by stating:

          Poor children . . . are poisoned in their homes. And 
        when they go to school, they get another dose. And when 
        they go outside and play, they get another dose. It's a 
        slow-motion disaster: the most vulnerable population in 
        our society is children, and the most vulnerable 
        children are children of color. If we protect the most 
        vulnerable in our society--these children--we protect 
        everybody.

    Communities of color and low income people should not 
shoulder an unfair burden of the pollution produced in our 
country. By helping to protect these heavily-exposed 
populations, we can improve their lives, the lives of their 
children, and communities across our nation that is burdened by 
a legacy of pollution.
    The Environmental Justice Renewal Act can help to address 
many of the problems that face low income and communities of 
color as they attempt to solve environmental justice problems. 
This Act would hold federal agencies accountable for developing 
and implementing plans to address environmental justice 
problems that may exist as a result of their rules or policies, 
or that may exist within issues that the agencies are actively 
involved in. The ombudsman can serve as an important neutral 
agent--who is extremely important given the long history of 
documented environmental justice problems in this country, and 
the Agency's Inspector General criticizing EPA's actions. 
Issues of Environmental Justice are complicated and include 
many social and demographic factors. It is important that the 
Ombudsmen adequately address these issues with appropriate data 
driven actions that reflect the appropriate accountability to 
federal agencies.
    The grant and training programs will help federal, state, 
and local representatives to be aware of potential 
environmental justice problems and actively find ways to 
address such problems where they occur. This type of training 
is routine in other settings, such as with occupational 
hazards, waste, graft, and corruption. Government employees 
should be similarly trained to address environmental justice 
problems that can have serious consequences for communities of 
people burdened by exposure to dangerous, toxic chemicals.
    The Act would also address the National Environmental 
Justice Advisory Committee (NEJAC). The NEJAC, along with Act's 
emphasis on citizen's meetings and an information clearing 
house are meant to provide tools that can help investigate 
problems, coordinate between different groups and individuals 
to address problems, and to preserve and build on a growing 
body of knowledge on how to best and most efficiently address 
environmental justice problems.
    The Act's reporting requirement will help to provide 
critical oversight and assessment information on the success or 
need for adjustments on certain efforts. Oversight and 
assessment are vitally important on this issue to ensure that 
the federal government not only uses its funds wisely, but to 
ensure that this problem is addressed quickly and thoroughly.

                SUMMARY OF MAJOR PROVISIONS OF THE BILL

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    Section 1 establishes the short title of the Act as ``The 
Environmental Justice Renewal Act.''

Section 2: Definitions

    Section 2 defines terms used in the bill.
    Environmental justice is defined as the fair treatment and 
meaningful involvement of all individuals regardless of race, 
color, or national origin, educational level, or income with 
respect to the development, implementation, and enforcement of 
environmental laws (including regulations) to ensure that--
          (A) minority and low-income populations have access 
        to public information relating to human health and 
        environmental planning, regulations, and enforcement; 
        and
          (B) no minority or low-income population shall be 
        exposed to a disproportionate burden of the negative 
        human health and environmental impacts of pollution or 
        other environmental standards.
    Environmental justice community is defined as a community 
with significant representation of racial or ethnic minorities 
or low-income populations that experiences, or is at risk of 
experiencing, a significant or disproportionate burden of 
environmental stressors, risks, adverse human health effects, 
or environmental effects.
    Fair Treatment is defined as: the conduct of policies and 
practices to ensure that no group of individuals (including 
racial, ethnic, or socioeconomic groups) experiences a 
disproportionate burden of high and adverse human health or 
environmental effects resulting from any program, activity, or 
policy of a Federal agency.

Section 3: Interagency Working Group on Environmental Justice

    This section would codify the Interagency Working Group on 
Environmental Justice, requiring it to outline measurable 
duties and tasks to advance environmental justice throughout 
the government, including both evaluation of current policies 
and programs and development of additional plans to address 
environmental justice. The Working Group will be responsible 
for holding public meetings on environmental justice, 
developing interagency model projects on environmental justice, 
and providing guidance on identification, coordination, and 
consistency among environmental justice projects. Each Federal 
agency participating in the Working Group will be responsible 
for developing an environmental justice strategy for its 
agency, and then bringing them together at the Working Group 
level to develop a coordinated Intergagency Strategy for the 
entire federal government. Such Interagency Strategy will be 
finalized no later than 2 years following the date of enactment 
of this Act.

Section 4: Responsibilities of Federal agencies

    This section requires each Federal agency participating in 
the Working Group to develop an agency-wide environmental 
justice strategy to identify and address adverse health impacts 
on minority and low-income populations, ensure meaningful 
public participation, and integrate environmental justice into 
activities. Such agency-wide strategy will be finalized no 
later than one year following the date of enactment of this 
Act. After finalization, each agency shall submit to the 
Working Group an annual report on progress of implementing such 
strategy.

Section 5: Ombudsmen

    This section shall require the creation of an Environmental 
Justice Ombudsman position at the EPA's main office, and allow 
for the appointment of regional Ombudsman. The duties of such 
Ombudsman shall be to receive, review and process complaints 
and allegations with respect to the environmental justice 
activities and programs of the EPA.

Section 6: Employee training

    This section requires the Administrator to offer 
environmental justice training to each employee of the EPA. Any 
individual hired by the EPA one year after the date of 
enactment of this act shall be required to undergo 
environmental justice training. All individuals who have been 
appointed to the position of environmental justice coordinator, 
environmental justice ombudsman, or any other position 
involving environmental justice activities shall be required to 
complete such training. Failure to do so will result in a 
transfer from EJ-related activities.

Section 7: Grant programs

    This section sets up several grant programs.
    Part (a) codifies the Small Grant Program, through which 
nonprofit, community-based organizations can develop 
collaborative partnerships, educate and provide outreach to the 
community, and identify environmental or public health 
concerns. These grants are authorized at $5 million annually 
for FY 2009 through 2013.
    Part (b) codifies the Collaborative Grant Program, through 
which non-profit community based organizations address local 
environmental justice that fall under the jurisdiction of at 
least two relevant environmental statutes, using an EPA-
developed collaborative problem solving framework. These grants 
are authorized at $5 million annually for FY 2009 through 2013.
    Part (c) establishes the Interagency Grant Program, through 
which partnerships of government agencies, community based 
organizations, educational institutions, and local businesses 
receive grants to address cross-cutting environmental justice 
issues. These grants are authorized at $5 million annually for 
FY 2009 through 2013.
    Part (d) establishes the State Grant Program, through which 
states, tribes, and territories would each receive funding to 
establish and improve environmental justice activities. Such 
funding could not be used to supplant currently existing state 
funds directed toward environmental justice programs. These 
grants would be authorized at $2.5 million annually for FY 2009 
through 2013.
    Part (e) would be used to establish Community-Based 
Participatory Research Grant, through which multiyear grants 
will be given to partnerships of universities and community-
based organizations to research and improve health outcomes for 
residents of environmental justice communities. These grants 
would be authorized at $2.5 million annually for FY 2009 
through 2013.

Section 8: Environmental Justice Basic Training Program

    This section is modeled after the Superfund training 
program, and is designed to ensure that those in impacted 
communities have the tools to begin remediation of the 
environmental hazards in their communities, and have the skills 
needed to detect, assess, and evaluate hazardous substances and 
their impact on human health. $3 million will be authorized for 
this program annually for FY 2009 through 2013.

Section 9: National Environmental Justice Advisory Council

    This section would codify the National Environmental 
Justice Advisory Council (NEJAC), based upon the language of 
the current NEJAC charter, and provide new requirements to 
ensure that the NEJAC meets no less than biannually.

Section 10: Environmental Justice Clearinghouse

    This section requires the establishment, not later than one 
year of the date of enactment, of an Internet-based 
clearinghouse of environmental justice information, including a 
directory of individuals who possess technical expertise in 
environmental justice. The Administrator shall consult with 
academic and community-based organizations in developing such 
clearinghouse, and the NEJAC shall review the contents of such 
clearinghouse on an annual basis.

Section 11: Public meetings

    This section requires the EPA to hold public meetings on 
environmental justice issues in each of its ten regional 
offices on a biennial basis to get public input on the future 
direction of environmental justice activities. The EPA shall be 
required to have at least one staff member at the level of 
Assistant Administrator in attendance.

Section 12: Supplemental environmental projects for environmental 
        justice communities

    This section ensures that all SEPs developed as part of 
settlements relating to violations in environmental justice 
communities are developed with the meaningful participation of 
and result in a quantifiable improvement to the health and 
well-being of individuals in environmental justice communities.

Section 13: Evaluation by Government Accountability Office

    This section requires a biennial GAO report evaluating the 
effectiveness of the activities in this Act.

                     LEGISLATIVE HISTORY AND VOTES

                                 VOTES

    The Committee on Environment and Public Works held a 
business meeting on July 31, 2008. Senator Inhofe offered an 
amendment to strike the provisions of the bill relating to the 
ombudsman, which was rejected by vote of 11 to 8. Senators 
Alexander, Isakson, Barrasso, Bond, Vitter, Craig, Warner, 
Inhofe voted for the amendment. Senators Klobuchar, Baucus, 
Lautenberg, Lieberman, Cardin, Sanders, Carper, Clinton, 
Voinovich, Whitehouse, and Boxer voted against the amendment.
    Senator Inhofe also offered an amendment to express a Sense 
of the Senate on energy, which was rejected by a vote of 10-9. 
Senators Alexander, Isakson, Barrasso, Bond, Vitter, Voinovich, 
Craig, Warner, and Inhofe voted yes. Senators Klobuchar, 
Baucus, Lautenberg, Lieberman, Cardin, Sanders, Carper, 
Clinton, Whitehouse, and Boxer voted no.
    The Committee favorably reportedly the bill out of 
committee on an 11-8 vote, with Senators Boxer, Cardin, 
Klobuchar, Lautenberg, Whitehouse, Sanders, Voinovich, Baucus, 
Carper, Clinton and Lieberman voting for the bill, and Senators 
Alexander, Barrasso, Inhofe, Bond, Craig, Isakson, and Warner 
voting against the bill.

                      REGULATORY IMPACT STATEMENT

    In compliance with section 11(b) of rule XXVI of the 
Standing Rules of the Senate, the committee notes that the 
Congressional Budget Office has found that ``S. 2549 contains 
no . . . private-sector mandates as defined in'' the Unfunded 
Mandates Reform Act (UMRA). In other words, its economic impact 
on private entities would be below the UMRA threshold.

                          MANDATES ASSESSMENT

    In compliance with the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4), the Committee notes that the Congressional 
Budget Office has said that ``S. 2549 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.'' The CBO further found 
that ``The bill would benefit state, local, and tribal 
governments by establishing several grant programs to address 
environmental justice issues within communities and by 
establishing a research grant program for institutions of 
higher education to conduct studies on those issues.''

                  CONGRESSIONAL BUDGET OFFICE ESTIMATE

                                                 September 2, 2008.
Hon. Barbara Boxer,
Chairman, Committee on Environment and Public Works, U.S. Senate, 
        Washington, DC.
    Dear Madam Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2549, the 
Environmental Justice Renewal Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman.
            Sincerely,
                                                   Peter R. Orszag.
    Enclosure.

S. 2549--Environmental Justice Renewal Act

    Summary: S. 2549 would require the Environmental Protection 
Agency (EPA) to establish an Interagency Working Group to 
advise federal agencies about how to best minimize any 
disproportionately high and adverse effects of pollution on 
minority and low-income populations (referred to in the bill as 
environmental justice issues). Enacting this legislation also 
would require EPA to establish an ombudsman to address issues 
concerning such effects, a training program concerning 
environmental justice issues for EPA employees, an advisory 
council, and an Internet-based clearinghouse for information on 
environmental justice. Finally, the bill would authorize 
specified appropriations for EPA to provide grants to states, 
nonprofit organizations, federal agencies, and other entities 
working on those problems.
    CBO estimates that implementing S. 2549 would cost $106 
million over the 2009-2013 period, assuming appropriation of 
the necessary amounts. Enacting S. 2549 would not affect direct 
spending or receipts.
    S. 2549 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no costs on state, local, or tribal 
governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 2549 is shown in the following table. 
The costs of this legislation fall within budget function 300 
(natural resources and environment).

----------------------------------------------------------------------------------------------------------------
                                                                 By fiscal year, in millions of dollars--
                                                         -------------------------------------------------------
                                                            2009     2010     2011     2012     2013   2009-2013
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Grant Programs:
    Authorization Level.................................       26       26       26       26       26       130
    Estimated Outlays...................................       10       20       23       25       26       104
EPA Support for Environmental Justice Activities:
    Estimated Authorization Level.......................        *        *        *        *        *         2
    Estimated Outlays...................................        *        *        *        *        *         2
  Total Changes:
        Authorization Level.............................       26       26       26       26       26       132
        Estimated Outlays...............................       10       20       23       25       26      106
----------------------------------------------------------------------------------------------------------------
Note: * = less than $500,000.
Numbers may not sum to totals because of rounding.

    Basis of estimate: For this estimate, CBO assumes that S. 
2549 will be enacted near the start of fiscal year 2009 and 
that the necessary amounts will be appropriated each year. 
Estimated outlays are based on historical spending patterns for 
similar programs. Implementing this legislation would establish 
several grant programs to address environmental justice issues 
within communities and to support research on such issues. CBO 
estimates that those grant programs would cost $104 million 
over the 2009-2013 period, assuming appropriation of the 
authorized amounts.
    According to EPA, many of the activities required under 
this legislation are already underway. CBO estimates, based on 
information from EPA, that implementing this legislation would 
increase that agency's administrative costs by less than 
$500,000 annually over the 2009-2013 period.
    Intergovernmental and private-sector impact: S. 2549 
contains no intergovernmental or private-sector mandates as 
defined in UMRA. The bill would benefit state, local, and 
tribal governments by establishing several grant programs to 
address environmental justice issues within communities and by 
establishing a research grant program for institutions of 
higher education to conduct studies on those issues.
    Estimate prepared by: Federal costs: Susanne S. Mehlman; 
Impact on state, local, and tribal governments: Burke Doherty; 
Impact on the private sector: Amy Petz.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                             MINORITY VIEWS

                               BACKGROUND

    S. 2549 would create a complex new bureaucratic process 
within all Federal Agencies that will be costly and 
unnecessary. The main component of this bill is the creation of 
an Interagency Working Group where by all Federal Agencies will 
have to develop an Environmental Justice Strategy Guidance 
Document. In effect, before any new highway, water resource of 
infrastructure project, industrial facility or power plant is 
built, it will first be required to go through a new complex 
social, demographic and economic Environmental Justice Review. 
Federal Agencies are not equipped to make these kinds of 
complex environmental justice determinations. S. 2549's new 
requirement creates unprecedented policy mandates which are 
outside the core competencies and missions of the respective 
agencies; as a result of these misplaced new agency functions, 
complex environmental justice determinations will be left up to 
the courts to determine outcomes.
    This new Environmental Justice review process will require 
all Federal Agencies to determine if any new federal actions 
are ``fairly'' affecting minority or low income communities. 
This bill fails to clearly define the meaning of the term 
``fair'' which will undoubtedly lead to inconsistent 
application and will continue to ignore the cumulative factors 
and net socio-economic benefits to consider in environmental 
justice determinations.
    The bill sets forth a long list of criteria that each 
agency-wide strategy plan must contain, with no consideration 
of the potential economic benefits new development brings to 
minority and low income communities. This one sided approach 
will enable federal agencies and environmental activists to 
prevent permits for new industrial facilities and refineries, 
new infrastructure and new jobs without the much needed 
cumulative analysis of all the economic factors.
    S. 2549 authorizes $130 million in new grant programs, 
without an appropriate demonstration of needs. Current EPA 
Office of Environmental Justice grant authorizations are not 
fully subscribed; in light of this the minority believes $130 
is excessive.
    The ambiguous use of the term Environmental Justice within 
this legislation and the unspecified legal standing of the 
actions of the Interagency Working Group will lead to a 
proliferation of lawsuits on environmental justice grounds, 
disrupt plans to revitalize economically depressed areas, and 
deny communities the right to decide what is in its own best 
interest. ``Community leaders should be concerned about the 
health and safety of those who reside near environmental 
hazards. Current federal civil rights law rightly forbids 
policy-makers and other recipients of federal funds from 
considering the ethnic or racial composition of a neighborhood 
when making sitting, permitting or environmental enforcement 
decisions. Environmental justice activists, however, seek to 
create a federal civil rights claim every time an environmental 
or public health problem impacts minorities.''\1\
---------------------------------------------------------------------------
    \1\United States Commission on Civil Rights study: Not in My 
Backyard, Executive Order 12,898 and Title VI as Tools for Achieving 
Environmental Justice, October 2003, Dissenting Views.
---------------------------------------------------------------------------
    Concerns about the erroneous assumptions and duplication of 
existing bureaucracy within S. 2549 prompted this September 22, 
2008 letter to Chairman Boxer and Ranking Member Inhofe of the 
Environment and Public Works Committee, from Peter Kirsanow, a 
Commissioner on the United States Commission on Civil Rights:

          Aside from the unnecessary duplication of existing 
        programs and increased bureaucracy created by this 
        legislation, S. 642 and S. 2549 are particularly 
        troubling because they use civil rights 
        antidiscrimination law and policies as a vehicle for 
        resolving complex environmental and public health 
        issues. This legislation makes the same mistake of many 
        environmental activists in assuming that disparate 
        impact on a local population is evidence of intentional 
        discrimination by government agencies. Results of 
        studies on this issue inevitably depend upon numerous 
        variables, including the size of the study, the 
        definition of ``minority community,'' the aggregation 
        or disaggregation of urban and rural communities, and 
        control for income levels. The evidence of any 
        correlation between environmental hazards and race is 
        mixed at best, and there are a series of studies that 
        show, for example, no disproportionate racial impact in 
        environmental facility citing decisions.
          This legislation is based on entirely erroneous 
        assumptions that also fail to recognize that many 
        minority communities have developed around existing 
        environmental sites because of lower housing costs, 
        increased employment opportunities, or both. Yet, the 
        background of these legislative proposals leave the 
        reader with the impression that environmental 
        ``hazards'' have been thrust upon minority communities 
        specifically because they are minority communities--
        that is a false presumption that lacks merit.
          . . . The real concern in adopting S. 2549 and S. 642 
        is the elimination of limitations on judicial review. 
        Under Title VI, individuals are protected from 
        intentional discrimination. In the landmark case 
        Alexander v. Sandoval,\2\ the U.S. Supreme Court held 
        that Title VI provides no private right of action for 
        claims of disparate impact. In S. 2549, section 4(a) 
        directs the federal agencies involved to conduct every 
        program and evaluate every decision in the context of 
        disparate impact on an individual. This effectively 
        overturns Sandoval and will increase lawsuits, thwart 
        the revitalization of economically depressed areas and 
        deny communities the right to decide what is in their 
        own best interests.
---------------------------------------------------------------------------
    \2\532 U.S. 275 (2001).

    Concerns about the consequences of adopting S. 2549 are not 
only shared by the legal and civil rights community, but also 
shared by many groups. Below is an excerpt from a letter sent 
to Members of Congress on September 19, 2008 from the United 
---------------------------------------------------------------------------
States Chamber of Commerce:

          The U.S. Chamber of Commerce, the world's largest 
        business federation representing more than three 
        million businesses and organizations of every size, 
        sector, and region, strongly opposes S. 642, the 
        ``Environmental Justice Act of 2007'', and S. 2549, the 
        ``Environmental Justice Renewal Act'' which may be 
        offered as amendments to must-pass legislation during 
        the remaining days of the 110th Congress.
          . . . In the years since President Clinton signed 
        Executive Order 12898, titled ``Federal Actions to 
        Address Environmental Justice in Minority Populations 
        and Low-Income Populations,'' misguided environmental 
        justice activism has delayed or permanently derailed 
        countless projects and facilities that would have 
        brought significant economic development to minority 
        and low-income neighborhoods. The environmental justice 
        movement has been used to drive businesses from those 
        areas most in need of economic stimulus and, in the 
        process, operated as a disincentive for businesses to 
        locate in these needy areas. The grim reality is that 
        environmental justice, intended to sensitize policy-
        makers to equitable environmental considerations, has 
        been used to harass businesses, prevent job creation, 
        and stifle economic development in the minority and 
        low-income areas.
          . . . While S. 2549 does not codify the Executive 
        Order, it would create a new NEPA-like process for 
        ensuring agencies include environmental justice 
        considerations in every policy, activity, and program. 
        This review would accomplished by the creation of a new 
        Interagency Working Group tasked with developing a 
        comprehensive ``guidance document'' containing myriad 
        criteria for federal agencies to follow. The 
        Interagency Working Group would have inordinate power 
        over all federal projects and activities as it will be 
        the final arbiter of whether environmental justice 
        considerations have been properly considered by an 
        agency.\3\ Moreover, its decisions are not subject to 
        review or challenge, making its authority on these 
        matters absolute. The need for an Interagency Working 
        Group is especially unclear considering the United 
        States already has an extensive body of environmental 
        and civil rights laws to protect human health, human 
        rights, and the environment for all citizens.
---------------------------------------------------------------------------
    \3\Senator Clinton's bill gives the Interagency Working Group the 
power to ``assess and review'' every federal policy and program and 
take whatever steps are necessary to ``minimize and eliminate'' what it 
considers to be potentially adverse impacts.
---------------------------------------------------------------------------
          The bill also creates, among other things, an 
        Environmental Justice Ombudsman within EPA to process 
        complaints and allegations relating to environmental 
        justice violations. The Ombudsman will have the power 
        to hire an unlimited number of full-time employees at 
        both EPA headquarters and every regional office in the 
        country, further bloating our already swollen 
        bureaucracy. Worse, the Ombudsman is also redundant as 
        there is already an Office of Environmental Justice 
        within EPA created under President Clinton in 1993 that 
        is responsible for coordinating environmental justice 
        efforts among all of EPA's program offices.
          Both S. 642 and S. 2549 advance the failed policies 
        of the environmental justice movement. Rather than 
        injecting the benefits of economic development into our 
        national environmental policy discourse, these bills 
        offer activists the opportunity to prevent businesses 
        and communities from bringing jobs and economic 
        stimulus into the poorest . . .
          These complex and far-reaching bills deserve to be 
        carefully deliberated by Congress, not rushed through 
        the legislative process. Therefore, the U.S. Chamber 
        urges you to oppose any attempt to offer these bills as 
        amendments to important legislation.

             CREATION OF ENVIRONMENTAL JUSTICE COMMUNITIES

    S. 2549 would require the Interagency Working group to 
publish a guidance document to be used by federal agencies in 
identifying areas as ``environmental justice communities''. 
Once a community has been defined in this way, there is 
possibility that existing industry within this area will be 
unjustly targeted by environmental activists. The Minority is 
concerned that industrial complexes and refineries over the 
years have built their facilities near ports and highways for 
production requirements and logistical reasons. Often times 
these areas are associated with lower property values so that 
these facilities can create a ``land buffer'' from the 
surrounding development. Advocates of environmental justice aim 
to hold these facilities accountable for the resulting poor 
conditions and health effects of the neighboring low income 
communities. Unfortunately, in many cases, the industrial 
siting pre-dates the people in the community or has had no 
effect at all.
    In Committee, as we marked up this legislation, I offered 
an amendment to add factors of consideration to be used when 
defining the location of an ``environmental justice 
community''. This legislative change would have protected 
socially responsible industry that after many years of 
operation now finds itself vulnerable to environmental justice 
complaints. My amendment would have required the Interagency 
Working Group to take into account the industrial facilities' 
historical existence in the community and the resulting housing 
migration patterns associated with the low property values. S. 
2549 would seek to penalize industrial facilities that cannot 
logistically function at any other location, and who pre-date 
the surrounding community's poor economic condition.

     THERE IS INSUFFICIENT EVIDENCE OF DISPARATE IMPACT AS NEGATIVE

    Studies on the demographic impact of industrial and 
environmental decisions are mixed. They are based upon many 
variables such as study size, minority community definitions 
and varying income levels. Advocates of this legislation assume 
findings which indicate racially disproportionate impacts are 
correct without creating a consistent decision-making process. 
This will lead to a single claim of the presence of 
disproportionate impacts as proof-positive of discriminatory 
intent. In addition, Environmental Justice claims will fail to 
incorporate cost-benefit analysis and risk assessment; 
sometimes the location of environmental hazards can be very 
beneficial to the local communities. For example, increased 
employment opportunities, increased social services made 
possible by a larger tax base, and lower housing costs and real 
estate prices are quite possible due to the selection of a 
community for a project.\4\
---------------------------------------------------------------------------
    \4\United States Commission on Civil Rights study: Not in My 
Backyard, Executive Order 12,898 and Title VI as Tools for Achieving 
Environmental Justice, October 2003, Dissenting Views
---------------------------------------------------------------------------

 ENVIRONMENTAL AND PUBLIC HEALTH PROGRAMS IN MINORITY COMMUNITIES ARE 
           GENERALLY NOT THE RESULT OF RACIST DECISION-MAKING

    Health problems in minority communities are often the 
result of a ``multitude of factors, including poverty, 
substance abuse, family instability, poor nutrition, and low 
participation rates in preventative care programs.'' The focus 
on environmental justice detracts from the real public policy 
solution: improving the health and safety of all communities, 
while consistently enforcing existing environmental laws.

ANTIDISCRIMINATION LAW IS AN IMPROPER LEGAL APPLICATION FOR ADDRESSING 
ENVIRONMENTAL JUSTICE ISSUES: OVERTURNING ALEXANDER V. SANDOVAL (2001) 
                         IS THE WRONG APPROACH

    Title VI of the Civil Rights Act appropriately forbids 
intentional discrimination but S. 2549 would go one step 
further and utilize federal antidiscrimination law as a method 
of solving complex environmental problems. When evaluating 
environmental justice claims using disparate impact analysis, 
motive is irrelevant--policies are considered 
``discriminatory'' simply because they have a disproportionate 
adverse impact on a protected group.\5\ Although the disparate 
impact model may provide a useful mode of analysis in some 
areas of the law, the Supreme Court has cautioned that 
disparate impact should not be applied reflexively to all areas 
of antidiscrimination law.''\6\ Environmental justice activists 
do not explain this model as meaningful in the public health 
and environmental context, which needlessly forces 
disadvantaged communities into a zero-sum game: deciding 
between health and economic well-being.
---------------------------------------------------------------------------
    \5\United States Commission on Civil Rights study: Not in My 
Backyard, Executive Order 12,898 and Title VI as Tools for Achieving 
Environmental Justice, October 2003, Dissenting Views
    \6\See Washington v. Davis, 426 U.S. 229, 24648 (1976); see also 
Jennifer C. Braceras, Killing the Messenger: The Misuse of Disparate 
Impact Theory to Challenge High-stakes Educational Tests, 55 VAND. L. 
REV. 1111, 1142 (2002)
---------------------------------------------------------------------------

  ENVIRONMENTAL JUSTICE ACTIONS OF THE ENVIRONMENTAL PROTECTION AGENCY

    In the Fiscal Year 2008 House Appropriations Committee 
Report 110-187, EPA was directed to address and implement where 
needed the recommendations of the 2004 and 2006 EPA Inspector 
General and 2005 GAO reports. In this July 18, 2008 report EPA 
states in part:

          . . . As a result of strategic efforts and lessons 
        learned since the program began in 1992, the Agency has 
        made steady progress towards developing coherency and 
        cohesion in its environmental justice visions, goals, 
        expectations, performance measurement, and 
        comprehensive integration into Agency strategic 
        planning. In recent years, efforts to incorporate 
        environmental justice considerations into EPA's core 
        functions have accelerated partly in response to 
        recommendations in the Inspector General's (IG) 
        evaluation reports in 2004 and 2006, and the General 
        Accounting Office (GAO) report in 2005.
          EPA has made tremendous strides to understand and to 
        integrate environmental justice into EPA's daily work. 
        Efforts extend across the Agency's core functions, as 
        reflected in EPA's Strategic Plan, National Program 
        Manager's (NPM) Guidance, Environmental Justice Action 
        Plans, program evaluation activities, and rulemaking 
        activities, as well as to training, collaborative 
        problem-solving efforts and disaster preparation and 
        response activities.
          EPA is learning how to measure the EJ Program's 
        progress in a way that is accurate, meaningful, and 
        cognizant of the unique and complex issues of 
        environmental justice. EPA recognizes that it takes 
        time to build a community's capacity and to identify 
        the shared responsibilities of many levels of 
        government. By continuously improving the EJ Program, 
        the Agency can achieve the tangible results that make a 
        positive impact in the health of communities 
        disproportionately burdened by environmental hazards. . 
        . .

    Since 1992, the EPA has made a consistent, long-term, 
agency-wide commitment to integrate environmental justice, 
promote environmental justice to external stakeholders, and 
provide financial assistance to address local environmental 
and/or public health issues.
    The EPA has identified eight priorities in this area:
    1. Reduction in number of asthma attacks;
    2. Reduce exposure to air toxics;
    3. Safe fish/shellfish;
    4. Clean and safe drinking water;
    5. Revitalization of brownfields and contaminated sites;
    6. Reducing elevated blood lead levels;
    7. Ensuring compliance;
    8. Collaborative problem-solving to address environmental 
justice issues.
    Environmental justice is evidenced in each of the EPA's 
strategic goals. For example, in Goal 1: Clean Air and Global 
Climate Change, EPA set a target to reduce exposure to indoor 
asthma triggers with a special emphasis on children and other 
disproportionately impacted populations.
    In Goal 2: Clean and Safe Water, EPA commits to providing 
small community drinking water systems serving low-income 
populations training and assistance in using cost-effective 
treatment technologies, properly disposing of waste, and 
complying with standards for high-priority contaminants.
    In Goal 3: Land Preservation and Restoration, EPA 
encourages broader use of improved sample collection 
techniques, analytical tools, and indicators to better address 
environmental justice concerns and identify areas that may 
suffer disproportionate impacts.
    In Goal 4: Healthy Communities and Ecosystems, EPA has 
developed transparent, measurable, and accountable 
environmental justice targets, such as reducing blood lead 
levels in low-income children 1-5 years old, and achieving 
significant environmental and public health improvement in 
communities through collaborative problem-solving strategies. 
The goals for the community collaborative problem-solving 
grants are measured in terms of the actions taken within areas 
disproportionately and adversely burdened by environmental 
risks and harms, and the improvements in environmental and 
public health resulting from grants funded by EPA.
    In Goal 5: Compliance and Environmental Stewardship, EPA 
emphasizes achieving results in all areas including those with 
potential environmental justice concerns through compliance 
assistance, compliance incentives, and monitoring and 
enforcement.
    These efforts have been enhanced by the creation of the 
Environmental Justice Executive Steering Committee, which 
directed each national program manager and Regional Office to 
develop and maintain EJ Action Plans. In addition, an EJ review 
process was established to improve the effectiveness of the EJ 
programs. A training program was also created in order ensure 
EPA staff take environmental justice concerns into 
consideration when executing their tasks.

                               CONCLUSION

    This bill would create a complex new process within all 
Federal Agencies that will have far reaching negative legal 
ramifications. The Minority would strongly oppose moving 
forward with this bill, without the opportunity on the Senate 
floor to offer amendments that address the problems with this 
legislation. We strongly oppose attempts to move forward with 
this legislation, as it makes complex changes to existing 
environmental laws, absent the rigor of the full parliamentary 
process.

                        CHANGES IN EXISTING LAW

    Section 12 of rule XXVI of the Standing Rules of the Senate 
requires the committee to publish changes in existing law made 
by the bill as reported. Passage of this bill will make no 
changes to existing law.

                                  
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