Environmental Justice: EPA Should Devote More Attention to Environmental Justice When Developing Clean Air Rules
Released: 2005-08-04T00:00:00

Letter

Background

Even before Executive Order 12898 was issued in 1994, EPA took steps to address environmental justice. For example, in 1992, it established the Office of Environmental Equity, which is now known as the Office of Environmental Justice, to focus on environmental pollution affecting racial minorities and low-income communities, but this office has no specific role in rulemaking. In 1993, EPA created the National Environmental Justice Advisory Committee to provide independent advice and recommendations to the Administrator on environmental justice matters.

The 1994 executive order stated that EPA and other federal agencies, to the extent practicable and permitted by law, shall make achieving environmental justice part of their missions by identifying and addressing, as appropriate, the disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. The executive order does not create a right to sue the government or seek any judicial remedy for an agency’s failure to comply with the order.

After the issuance of the executive order, EPA took additional steps to identify and address environmental justice. Among other things, in 1994, the Administrator issued guidance for the rulemaking process suggesting that environmental justice be considered early in the rulemaking process. In 1995, EPA issued an Environmental Justice Strategy that included, among other things, (1) ensuring that environmental justice is incorporated into the agency’s regulatory process, (2) continuing to develop human exposure data through model development, and (3) enhancing public participation in agency decision making. In 2001, the Administrator issued a memorandum defining environmental justice more broadly to mean “the fair treatment of people of all races, cultures, and incomes, with respect to the development, implementation, and enforcement of environmental laws and policies, and their meaningful involvement in the decision making processes of the government.” In 2004, EPA developed new guidance for rulemaking that, like its earlier 1994 guidance, suggested that environmental justice be considered early in the rulemaking process.

Under the Clean Air Act, EPA, along with state and local government units and other entities, regulates air emissions of various substances that harm human health. According to EPA data, from 1995 though 2004, emissions of certain air pollutants have declined from 15 percent to as much 31 percent, as shown in table 1.

In addition, EPA sets primary national ambient air quality standards for six principal pollutants that harm human health and the environment. These standards are to be set at a level that protects human health with an adequate margin of safety, which, according to EPA, includes protecting sensitive populations, such as the elderly and people with respiratory or circulatory problems. These six pollutants include the five types of emissions listed in table 1, along with ozone, which is not emitted directly but is formed when nitrogen oxides and volatile organic compounds react in the presence of sunlight. According to EPA, in 2003, about 161 million people (about 56 percent of the population) lived in areas where the concentration of ozone met the standard; about 120 million people (41 percent) lived in areas where the concentration of particulate matter met EPA’s standard; and about 168 million people (58 percent) lived in areas where the concentrations of the other four pollutants met the standards.

EPA has a multistage process for developing clean air and other rules that it considers high priority (the top two of three priority levels) because of the expected involvement of the Administrator, among other factors. Initially, a workgroup chair is chosen from the lead program office, such as the Office of Air and Radiation (Air Office) in the case of clean air rulemaking. The workgroup chair assigns the rule one of the three priority levels, and EPA’s top management makes a final determination of the rule’s priority. The priority level assigned depends on such factors as the level of the Administrator’s involvement and whether more than one office in the agency is involved. The gasoline, diesel, and ozone implementation rules were classified as high-priority rules on the basis of these factors. In addition, these rules were considered significant because they had an effect of $100 million or more a year on the economy, or they raised novel legal or policy issues and, therefore, were required under Executive Order 12866 to be sent to OMB. Among other things, an OMB review is conducted to ensure that the rule is consistent with federal laws and the President’s priorities, including executive orders.

EPA guidance identifies environmental justice as one of many factors to be considered early in the rulemaking process. In 1994, the EPA Administrator established guidance for rulemaking and identified 11 characteristics for “quality actions” in rulemaking. Among these characteristics were (1) consistency with legal requirements and national policies, which would include Executive Order 12898, and (2) adherence to the Administrator’s seven priorities, which included environmental justice. According to the guidance, managers must consider all 11 areas early on and be explicit about any trade-offs made among them.

For high-priority rules, the workgroup chair is responsible for, among other things, ensuring that work gets done and the process is documented. Other workgroup members are assigned from the lead program office and, in the case of the two highest priority rules, from other offices. The workgroup may conduct such activities as (1) collaborating to prepare a plan for developing the rule, (2) seeking early input from senior management, (3) consulting with stakeholders, (4) collecting data and analyzing issues, (5) considering various options, and (6) recommending usually one option to managers. In addition, an economist (who typically participates in the workgroup) prepares an economic review of the proposed rule’s costs to society. According to EPA, the “ultimate purpose” of an economic review is to inform decision makers of the social welfare consequences of the rule. Finally, after the approval of all relevant offices within EPA, the proposed rule is published in the Federal Register, the public is invited to comment on it, and EPA considers the comments. Comments may address any aspect of the proposed rule, including whether environmental justice issues are raised and appropriately addressed in the proposed rule. Sometimes, prior to the publication of the proposed rule, EPA publishes an Advanced Notice of Proposed Rulemaking in the Federal Register. The notice provides an opportunity for interested stakeholders to provide input to EPA early in the process, and the agency takes such comments into account to an appropriate extent, according to EPA.

In finalizing a rule, EPA is required to provide a response to all significant public comments, including those on environmental justice, and to prepare a final economic review. After these tasks are completed, the rule, if it is significant, is sent to OMB for approval. Once OMB approves the final rule and the Administrator signs it, it is published in the Federal Register. After a specified time period, the rule goes into effect.

Within EPA, the Air Office is primarily responsible for implementing the Clean Air Act, as amended. Within that office, the Office of Air Quality Planning and Standards is primarily responsible for developing the majority of new rules for stationary sources resulting from the act. Also within the Air Office, the Office of Transportation and Air Quality has primary responsibility for developing rules and other programs to control mobile source emissions. The Office of Environmental Justice, located within EPA’s Office of Enforcement and Compliance Assurance, provides a central point for the agency to address environmental and human health concerns in minority communities and/or low-income communities—a segment of the population that has been disproportionately exposed to environmental harms and risks, according to the office’s Web site. The office works with EPA’s program and regional offices to ensure that the agency considers environmental justice.

EPA Generally Devoted Little Attention to Environmental Justice in Drafting Three Rules

Although EPA guidance calls for environmental justice to be considered early in the rulemaking process, we found that EPA generally devoted little attention to environmental justice during the drafting of the three rules as proposed. First, environmental justice was not mentioned in an initial form used to flag potential issues for senior management. Second, it is unclear how much the workgroups discussed environmental justice because EPA officials had differing recollections on the matter. Even when the workgroups did discuss environmental justice, their ability to identify potential problems may have been limited by a lack of training and guidance, among other factors. Third, the economic reviews of two of the three proposed rules did not discuss environmental justice. Finally, when the proposed rules were published in the Federal Register and made available for public comment, all three mentioned environmental justice, but the discussion was contradictory in one case.

Initial Form Prepared for Senior Management Did Not Address Environmental Justice

Although EPA guidance suggested that environmental justice was one of the factors that should be considered early in rulemaking, it did not include information on environmental justice in a key form prepared for management at the beginning of the process. After being designated, the workgroup chair is to complete a “tiering form” to help establish the level of senior management involvement needed in drafting the rule. For example, the highest priority rules would involve the Administrator and more than one office in the agency. The forms for the gasoline, diesel, and ozone implementation rules stated that these rules were of the highest priority. In addition, the form asks a series of questions, the answers to which are to be used to alert senior managers to potential issues related to compliance with statutes, executive orders, and other matters. This form specifically asks about, among other things, the rules’ potential to pose disproportionate environmental health risks to children and to have potential Endangered Species Act implications. However, the form does not include a question regarding the rules’ potential to create environmental justice concerns. Moreover, on the forms that were completed for the three rules we reviewed, we found no mention of environmental justice.

Lack of Guidance and Training May Have Limited Workgroups’ Ability to Identify Potential Environmental Justice Concerns

EPA officials had differing recollections about the extent to which the three workgroups considered environmental justice. The chairs of the workgroups for the two mobile source rules told us that they did not recall any specific time when they considered environmental justice during the rules’ drafting, but other EPA officials said environmental justice was considered. The chair of the ozone workgroup told us that his group did consider environmental justice, but that he could not provide any specifics about this.

Because 3 to 7 years have passed since these workgroups were formed and the workgroup members may not have remembered discussions of environmental justice during the rules’ drafting, we asked them to provide us with any documentation that may have indicated that environmental justice was considered. Members of the two mobile source workgroups told us that they did not have any such documents. The chair of the ozone workgroup provided us with a copy of a document, prepared by the workgroup, which identified issues needing analysis. The document stated that information would be developed for an economic review related to the proposed rule, and that such information would be used in part to support compliance with executive orders, including one related to low-income and minority populations.

Even when the workgroups stated that they had considered environmental justice, we identified three factors that may have limited their ability to identify potential environmental justice concerns. First, all three workgroup chairs told us that they received no guidance in how to analyze environmental justice concerns in rulemaking. Second, workgroup members had received little, if any, training on environmental justice. Specifically, all three workgroup chairs told us they received no training in environmental justice. Two chairs did not know whether other members of the workgroups had received any training, and a third chair said at least one member had. Some EPA officials involved in developing these three rules told us that it would have been useful to have a better understanding of the definition of environmental justice and how to consider environmental justice issues in rulemaking. Finally, the Air Office’s environmental justice coordinators, whose full-time responsibility is promoting environmental justice, were not involved in drafting any of the three rules. Neither of the two coordinators we spoke with (the overall coordinator for the Air Office and the coordinator for the unit within the Air Office that prepared the rules) could recall being involved in drafting any of the three rules. Further, the Air Office’s environmental justice coordinators said they rarely served as part of a workgroup for air rulemaking or received questions from a workgroup during the development of any rule under the Clean Air Act.

Economic Reviews Did Not Always Provide Decision Makers with an Environmental Justice Analysis

EPA is required under the Clean Air Act, other statutes, and executive orders to prepare an economic review for proposed rules, and the type of economic review to be prepared depends on the rule’s impact on the economy. Specifically, rules that are expected to have an effect of $100 million or more a year—like the two mobile source rules—require a more detailed “economic analysis.” Other rules—like the ozone implementation rule—still must conduct a less detailed “economic impact assessment.” According to EPA, the “ultimate purpose” of these reviews is to inform decision makers of the social consequences of the rules. According to EPA guidance, both types of review are to discuss the rule’s cost and the distribution of those costs across society. According to EPA officials, both types of review consider environmental justice. The more detailed reviews, or economic analyses, also are to discuss the rule’s benefits and equity effects, which include environmental justice.

For all three rules, an economic review of their economic costs and certain other features was prepared for decision makers before the proposed rules were published. However, the economic analyses of the two mobile source rules did not include an analysis of environmental justice. The supervisor of the economists who prepared the analyses said that environmental justice was not discussed in the analyses due to an oversight. However, he also said (and a senior policy advisor in the Air Office concurred) that EPA has not agreed upon the complete list of data that would be needed to perform an environmental justice analysis. Further, he said that EPA does not have a model with the ability to distinguish localized adverse impacts for a specific community or population.

Although the economic impact assessment of the ozone implementation rule did discuss environmental justice, it inconsistently portrayed some information relevant to the rule’s potential environmental justice impacts. Specifically, the assessment stated that EPA determined the rule would not create environmental justice issues, based on its analysis of the 1997 rule that established the 8-hour ozone national ambient air quality standard. However, the earlier rule referred to its economic review, which stated it was not possible to rigorously consider the potential environmental justice effects of the rule because the states were responsible for its implementation. The inability of EPA to rigorously consider environmental justice in the 1997 rule does not seem to support EPA’s statement that there were no environmental justice issues raised by the ozone implementation rule. Also, the economic impact assessment did not address the potential environmental justice effects of a certain provision, which EPA stated 2 months later, in the proposed rule, might raise environmental justice issues. The provision would attempt to reduce vehicle use generally throughout a large metropolitan area by encouraging mixed-use growth—a combination of industrial, retail, and residential development—in portions of that metropolitan area, so transportation would be concentrated there. According to EPA, concentrating vehicle emissions and stationary emissions might create environmental justice concerns for low-income residents.

All Three Proposed Rules Mentioned Environmental Justice, but the Discussion Appeared Contradictory in One Case

According to EPA’s director of regulatory management, the agency did not have any guidance on whether environmental justice should be included in the preamble of a rule at the time the gasoline and diesel rules were developed. By the time the ozone implementation rule was proposed, EPA had developed guidance, which is still in place today. While this guidance indicates that environmental justice and seven other executive orders should be considered when a new rule is developed, it does not state that officials must include a discussion of environmental justice in the proposed rule. Specifically, the guidance provides that five orders should be discussed in all rules, and that three other orders—including the order relating to environmental justice—may be discussed if necessary and appropriate. (Table 2 contains a list of these executive orders.) EPA officials told us that a discussion of environmental justice was made optional under the guidance because it is infrequently identified by EPA as an issue.

The publication of a proposed rule gives EPA an opportunity to explain how it considered environmental justice in the rule’s development. Although all three rules mentioned environmental justice when they were published in the Federal Register, they differed in the extent to which they discussed this issue and, in one case, the discussion appeared contradictory. In the proposed gasoline rule, EPA stated that environmental justice is an important economic dimension to consider, but it did not describe whether it was considered or whether the proposed rule raised any environmental justice issues. In the proposed diesel rule, in a section on environmental justice, EPA stated that the rule would improve air quality across the country and could be expected to mitigate environmental justice concerns about concentrations of diesel emissions. More particularly, EPA stated that health benefits could be expected for populations near bus terminals and commercial distribution centers, where diesel truck traffic would be concentrated, because pollutants in diesel emissions would be reduced. The treatment of environmental justice in the proposed ozone implementation rule was unclear because two sections of the rule appeared to contradict each other. In one section, EPA stated that it did not believe the rule would raise any environmental justice issues, but in another section, it specifically invited comments on an option to concentrate commercial, industrial, and residential growth, which it said “may raise environmental justice concerns.”

EPA Considered Environmental Justice to Varying Degrees in Finalizing Three Rules

In all three cases, EPA received and generally responded to public comments on environmental justice, although in one case it did not explain the basis for its response. In addition, in all three cases, it completed a final economic review, but these reviews generally did not provide decision makers with an environmental justice analysis. EPA published all three final rules, and EPA officials told us that they believed that these rules did not create an environmental justice issue.

EPA Generally Responded to Public Comments Pertaining to Environmental Justice

In Clean Air Act rulemaking, EPA is required to allow the submission of public comments, and the final rule must be accompanied by a response to each significant comment. These comments are generally submitted during the official public comment period after a rule is proposed, but they may be submitted while EPA is drafting a proposed rule. The act also requires EPA to place written comments in a public docket. In addition, according to EPA’s public involvement policy, agency officials should explain, in their response to comments, how they considered the comments, including any change in the rule or the reason the agency did not make any changes.

The Gasoline Rule

Commenters from the petroleum industry, environmental groups, and elsewhere stated that the proposed gasoline rule raised environmental justice concerns. For example, one commenter representing environmental justice groups stated that the proposed rule was “completely devoid of environmental justice analysis,” and that the national benefits of the rule were derived from transferring broadly distributed emissions into areas around refineries. Also, a representative of a petroleum company stated that EPA needed to address environmental justice issues. EPA responded by taking two actions. It (1) analyzed the rule’s potential impact on communities around refineries and (2) sought stakeholders’ views on environmental justice and other issues relating to refinery emissions.

First, EPA estimated how two types of refinery and vehicle emissions would change, as a result of the rule, in 86 U.S. counties that contained a refinery. The two types of emissions—nitrogen oxides and volatile organic compounds—contribute to the formation of ground-level ozone, which is regulated under the Clean Air Act because it is harmful to human health. EPA estimated that the increase in refinery emissions could be greater than the decrease in vehicle emissions, resulting in a net increase in emissions of one or both substances, in 26 counties (about 30 percent of the total), as shown in table 3. Specifically, it estimated that emissions of both substances could increase in 10 counties, with a population of about 13 million people, and that emissions of only one substance would increase in another 16 counties. On the other hand, EPA estimated that emissions of both substances could decrease in 60 counties. For example, EPA estimated that in Plaquemines Parish, Louisiana, net emissions of nitrogen oxides could increase 298 tons as a result of the rule, reflecting an increase in refinery emissions of 356 tons and a decrease in vehicle emissions of 58 tons. Conversely, it estimated that in Calcasieu Parish, emissions of volatile organic compounds could decrease by 61 tons, reflecting an increase in refinery emissions of 84 tons and a decrease in vehicle emissions of 145 tons.

The results of EPA’s analysis appear to support those commenters who asserted that the rule might create environmental justice issues in some localities. They also appear to conflict with EPA’s statements, in its summary of and response to comments document, that “it would be unacceptable to trade the health of refining communities in exchange for generalized air pollution benefits. However we do not believe the Tier 2/gasoline sulfur control rule will cause such an exchange.” EPA also stated that, for the “vast majority” of areas near refineries, the benefits of reduced emissions from vehicles would “far outweigh” any increase in refinery emissions.

When asked whether this analysis appeared to confirm concerns about the rule’s potential environmental justice impacts, EPA officials told us that the analysis was limited and overstated the net increase in refinery emissions in two ways. First, according to EPA officials, the analysis did not consider the actions that refiners would likely take to offset increases in emissions because of the new rule; EPA assumed that they would seek to reduce emissions in other ways to avoid additional regulation at the state level. EPA said it believed these actions would limit the expected increases in refining emissions. Second, EPA analyzed the effect of the rule only for 2007. EPA officials said they believed that the benefits of the rule would increase after that year, as new (and cleaner) vehicles increasingly replaced older (and less clean) vehicles.

We note two other ways in which the analysis was limited in estimating the potential effects on communities near refineries. First, EPA did not ask refiners about the rule’s impact on their output of these two emissions, nor did EPA perform an analysis to determine how the rule would impact individual refiners’ emissions of these two substances. Instead, EPA assumed that emissions would increase by the same proportion at each refinery—nitrogen oxides, by 4.5 percent, and volatile organic compounds, by 3.32 percent—although individual refineries increases could be lesser or greater than these percentages. Secondly, EPA did not estimate the rules’ impact on other pollutants, such as particulate matter and sulfur dioxide, which might also increase as a result of the increase in refining activity needed to comply with the rule.

EPA did not make the results of its analysis available to the public, either in the economic review of the final rule or elsewhere in the docket, because EPA officials told us they considered the results of the analysis too uncertain to release to the public. However, EPA officials told us that the analysis—along with their assumption that refineries were likely to emit less emissions than the analysis indicated—supported their belief that the rule would be unlikely to cause environmental justice impacts. In addition, these officials said they believed that, if the rule did create environmental justice issues, they could be best addressed by the state or local governments. This is because any refiners needing to increase their emissions to comply with the gasoline rule would have to submit specific plans to such governments during the permitting process.

Second, EPA believed that environmental justice issues would be best addressed during the permitting process, and EPA hired a contractor to solicit stakeholders’ potential concerns about this issue. In September 1999, the contractor interviewed individuals from EPA, environmental organizations, the oil refining industry, and state agencies responsible for regulating refinery emissions to ascertain their views. In December 1999, the contractor again sought stakeholders’ views, focusing largely on local environmental groups, because few of them were interviewed in September. In December, local environmental groups stated that they did not trust the state environmental agencies, and that they perceived that EPA had “talked exclusively with industry representatives prior to developing the proposed rule, but not to the local environmental organizations.” In addition, these groups said that they did not want “any added emissions to their air, even if there will be a net benefit to the nation’s environment.”

In response to the stakeholders’ concerns, the contractor recommended that EPA develop permitting teams, provide information about the rule, and enhance community involvement. The contractor said that these recommendations would improve the permitting process for all stakeholders by addressing issues specific to each permit, potentially including environmental justice. EPA said that it would implement the contractor’s recommendations for improving the permitting process to deal with environmental justice issues.

EPA stated that it believed that environmental justice issues could be dealt with during the permitting process at the state or local level, and officials told us that EPA has limited direct authority over permitting because most permitting occurs at the state level. Several groups commented that the states, not EPA, “act as the permitting authorities” over refineries. EPA said it agreed that states generally have primary authority over permitting. Further, Executive Order 12898 does not apply to state or local permitting authorities, and absent specific state or local law, state and local governments have no obligation to consider environmental justice when issuing permits.

The Diesel Rule

In response to an Advanced Notice of Proposed Rulemaking, several commenters expressed concern that the diesel rule would lead to increased refinery emissions of regulated pollutants. They specifically stated that EPA should address the potential for increased emissions in its economic analysis of the rule. EPA did not respond to these comments and did not factor the potential increase in regulated pollutants into its final economic analysis. In commenting on the proposed rule, several petroleum companies stated that changes they would need to make to comply with the rule might increase emissions and, therefore, lead citizens to raise environmental justice issues. EPA responded that it did not believe that complaints would delay the refineries’ permitting applications. However, EPA did not analyze the rule for environmental justice impacts, such as increases in air emissions in communities surrounding refineries. EPA officials told us that they did not perform such an analysis because they believed that they had sufficiently analyzed these issues in the context of the gasoline rule.

The Ozone Implementation Rule

In the proposed rule on implementing the ozone standard, EPA asked for public comments on potential environmental justice issues stemming from a specific provision that would have encouraged concentrated growth in urban areas to reduce the number of commuter vehicles contributing to ozone emissions. Seven public commenters stated that the provision could have potential environmental justice impacts. However, these comments on environmental justice did not relate to the provisions of the ozone implementation rule that have, thus far, been finalized, and therefore it was not necessary for EPA to respond to these comments. According to an EPA official, EPA is still considering the provision, and the public comments on it, for a second phase of the rule implementing a new ground-level ozone standard that EPA intends to finalize this year.

Final Economic Reviews Generally Did Not Provide Decision Makers with an Environmental Justice Analysis

After taking into consideration public comments, the agency prepares a final economic review. EPA guidance indicates that this final economic review, like the proposed economic review, should identify the distribution of the rule’s social costs across society. After considering public comments, EPA did prepare a final economic review for all three rules, but, for two of the three rules, environmental justice was not discussed.

Even after the public expressed concerns about environmental justice, the final economic analysis of the gasoline rule, like the analysis of the proposed rule, did not discuss environmental justice. According to the supervisory economist, not discussing environmental justice in the final analysis was an oversight.

Similarly, the final economic analysis of the diesel rule, like the analysis of the proposed rule, did not discuss environmental justice. Again, according to the supervisory economist, not discussing environmental justice in the final analysis was an oversight. As a result, EPA did not incorporate the public’s suggestions that EPA include the cost of increased refinery emissions in its economic analysis.

For the ozone implementation rule, EPA did not prepare a new economic impact assessment for its final version. Instead, it issued an addendum to the proposed assessment and stated that it considered the addendum and the proposed assessment to constitute a final economic impact assessment. In addition, because EPA decided to finalize the ozone implementation rule in two phases, the addendum addressed only the part of the rule that was finalized, not the entire proposed rule. Thus, the assessment of the final rule did not change the conclusion of the assessment of the proposed rule, namely that the ozone implementation rule did not create any environmental justice issues.

EPA Officials Believed That the Three Final Rules Did Not Create Environmental Justice Issues

The publication of a final rule gives EPA another opportunity to explain how it considered environmental justice in the rule’s development. For all three rules, EPA discussed environmental justice. The preamble to one rule stated explicitly that it would not create an environmental justice issue. The other two rules did not explicitly state whether they would create an environmental justice issue, although the preambles to both rules discussed the mitigation of potential environmental justice effects. EPA officials told us that they believed that these rules did not create an environmental justice issue.

In the preamble to the final ozone implementation rule, as in the proposed rule, EPA stated that the rule did not raise any environmental justice issues. The agency supported its statement by explaining that the rule was implementing a standard, developed in 1997, that had already taken environmental justice into account.

In the preamble to the final gasoline rule in 2000, EPA stated that areas around the refineries would receive an environmental benefit from the rule, and that emissions at some refineries might increase even after installing equipment to comply with emissions controls in the Clean Air Act. It concluded that the increases in refinery emissions would be very small in proportion to the decreases in vehicle emissions in the areas around refineries. Moreover, EPA discussed its previous actions to consider environmental justice concerns, as previously discussed, and stated that it was committed to resolve environmental justice issues if they arose, through additional outreach efforts to local communities and similar means. Although the final rule did not state explicitly whether it would or would not ultimately create an environmental justice issue, EPA officials told us in late 2004 that, in their opinion, the rule did not create such an issue.

Lastly, in the preamble to the final diesel rule in 2001, EPA stated that the rule could mitigate some of the environmental justice concerns pertaining to the heavy-duty diesel engines that often power city buses. The final rule does not discuss any potential environmental justice issues pertaining to impacts from increased refinery emissions on nearby communities, even though EPA officials told us that they recognized increased refinery emissions could have such impacts. Nevertheless, EPA officials told us in late 2004 that they believed the rule did not create environmental justice issues.

Conclusions

We found some evidence that EPA officials considered environmental justice when drafting or finalizing the three clean air rules we examined. During the drafting of the three rules, even when the workgroups discussed environmental justice, their capability to identify potential concerns may have been limited by a lack of guidance, training, and involvement of EPA’s environmental justice coordinators. It is important that EPA thoroughly consider environmental justice because the states and other entities, which generally have the primary permitting authority, are not subject to Executive Order 12898.

EPA’s capability to identify environmental justice concerns through economic reviews also appears to be limited. More than 10 years have elapsed since the executive order directed federal agencies, to the extent practicable and permitted by law, to identify and address the disproportionately high and adverse human health or environmental effects of their programs, policies, and activities. However, EPA apparently does not have sufficient data and modeling techniques to be able to distinguish localized adverse impacts for a specific community. For example, EPA has not agreed upon the complete list of data that would be needed to perform an environmental justice analysis. This suggests that, although EPA has developed general guidance for considering environmental justice, it has not established specific modeling techniques for assessing the potential environmental justice implications of any clean air rules. In addition, by not including a discussion of environmental justice in all of the economic reviews, EPA decision makers may not have been fully informed about the environmental justice impacts of all the rules.

Finally, even though members of the public commented about two rules’ potential to increase refinery emissions—potential environmental justice issues, (1) in one case, EPA did not provide a response and (2) in the other case, it did not explain the basis for its response, such as the rationale for its beliefs and the data on which it based its beliefs. While these may not have been significant comments requiring a response, EPA’s public involvement policy calls for EPA to provide responses when feasible, and this policy does not appear to distinguish comments on Advanced Notices of Proposed Rulemaking from comments on proposed rules.

Recommendations for Executive Action

In order to ensure that environmental justice issues are adequately identified and considered when clean air rules are being drafted and finalized, we recommend that the EPA Administrator take the following four actions: ensure that the workgroups devote attention to environmental justice while drafting and finalizing clean air rules; enhance the workgroups’ ability to identify potential environmental justice issues through such steps as (1) providing workgroup members with guidance and training to help them identify potential environmental justice problems and (2) involving environmental justice coordinators in the workgroups when appropriate; improve assessments of potential environmental justice impacts in economic reviews by identifying the data and developing the modeling techniques that are needed to assess such impacts; and direct cognizant officials to respond fully, when feasible, to public comments on environmental justice, for example, by better explaining the rationale for EPA’s beliefs and by providing its supporting data.

Agency Comments and Our Evaluation

EPA’s Assistant Administrator for Air and Radiation provided comments on a draft of this report in a letter dated June 10, 2005 (see app. IV). In addition, he provided technical comments that we incorporated where appropriate.

First, EPA expressed the view that its rules have resulted in better air quality nationally. EPA said it was “disappointed” that we did not accurately reflect its progress in achieving environmental justice with respect to air pollution. It noted that the three rules are part of a larger program that is making significant progress in providing cleaner air nationwide. Second, EPA stated that in examining the agency’s process for considering environmental justice, we asked the wrong question, and that we should have focused on the outcome of the rulemaking process—the rules themselves. Finally, it stated that our evidence of how it considered environmental justice during the development of the three final rules did not support our conclusions and recommendations, and it provided detailed information about the efforts it took relating to environmental justice for the three final rules.

We question the relevance of the information provided on air quality nationally and disagree with EPA’s other two points. First, in addition to the data we had already presented on the decrease in emissions of certain air pollutants, EPA provided data on overall improvements in air quality, specifically the decrease in the number of areas throughout the nation that did not meet certain ambient air quality standards. However, because these data provide no detail on the conditions facing specific groups—for example, residents of areas near refineries, who might be negatively affected by the two mobile source rules—these data are not necessarily germane to environmental justice. Although Executive Order 12898 calls on agencies to identify and address the disproportionately high and adverse effects of its programs, policies, and activities on specific groups, EPA provided no information about such groups. Also, we believe that EPA’s statement about the effect of clean air rules on national air quality at some level misses the point. Second, EPA suggested that it would have been more appropriate for us to look at the outcomes of its efforts than at the process that produced the outcomes. We agree with EPA that outcomes are important, but it is not yet clear whether the rules we examined will address environmental justice issues effectively because the rules are being implemented over the next several years. It is also important to examine the process that led to the rules—as we did. The various process steps are intended to help ensure that EPA’s activities during the many phases of drafting and finalizing all rules are efficiently and effectively focused on achieving the desired outcomes.

Third, although EPA stated that our evidence did not support our conclusions and recommendations, it did not challenge the accuracy of the information we provided on how it considered environmental justice during the many phases of developing the three final rules discussed in the body of our report and the three proposed rules discussed in appendix II.

While it provided detailed information on certain activities and the rationale for undertaking them, our report already discussed nearly all of these activities. For example, EPA noted at length its efforts, after drafting the gasoline rule, to hold discussions with environmental justice and other groups on issues relating to permits that refiners would need if they increased their emissions to comply with the rule. We already acknowledged these efforts in our report. However, EPA’s efforts at this stage do not mitigate the fact that it devoted little attention to environmental justice up to that point, nor the fact that discussions with affected groups, while beneficial, do not offset the effects of possible increases in refinery emissions on these groups. EPA is essentially relying on state and local governments to deal with environmental justice concerns as they implement the gasoline and diesel rules at the refinery level, even though the executive order does not apply to state or local governments, and, absent specific state or local law, they have no obligation to consider environmental justice when issuing permits. In addition, the three final rules were selected in part because they mentioned environmental justice and should have showcased EPA’s efforts to consider environmental justice. Thus, we continue to believe that the evidence we provided supports our conclusions and recommendations.

Finally, aside from its general statement that the evidence we presented does not support our conclusions and recommendations, EPA generally did not respond to our four recommendations. We continue to believe that all of them are still warranted. With respect to our recommendation that workgroups devote attention to environmental justice while developing clean air rules, EPA stated that it “devoted appropriate attention to environmental justice issues” in the three final rules. EPA’s guidance suggests that environmental justice be considered both at the beginning of process (when the rules are drafted) and at the end of the process (when they are finalized). However, nearly all of the attention EPA described came at the end of the process—after receiving public comments.

EPA responded in part to our recommendation on the need to provide guidance and training to workgroup members and the need to involve environmental justice coordinators. EPA did not provide any information that would refute the finding on the lack of guidance and training, for example, by bringing to our attention any guidance or training that it provides to workgroup members. However, EPA noted that an environmental justice coordinator “was heavily involved” in one of the three final rules and became an “ad hoc member” of the workgroup for the gasoline rule “around the time the rule was proposed.” From EPA’s comment, it is clear that the coordinator became involved only at the end of the process of drafting this rule (i.e., “around the time the rule was proposed”). Further, EPA did not mention whether a coordinator was involved at all in the other two final rules, nor in the three proposed rules.

EPA did not comment specifically on our recommendation on the need to improve assessments of potential environmental justice impacts in economic reviews or provide any information that would refute the finding that led to it. EPA responded in part to our recommendation on the need to respond fully, when feasible, to public comments on environmental justice. Specifically, it noted that it did not respond to comments on the Advanced Notice of Proposed Rulemaking on the diesel rule, and that it is has no legal or policy obligation to respond to comments on an Advanced Notice of Proposed Rulemaking. Although we understood that EPA’s public involvement policy calls for the agency to include a response to all comments when feasible, we revised our report to reflect EPA’s comment that it had no obligation in such instances.

As arranged with your office, we plan no further distribution of this report until 15 days after the date of this letter, unless you publicly announce its contents earlier. At that time, we will send copies of this report to interested congressional committees and the EPA Administrator. We will make copies available to others upon request. This report will also be available at no cost on GAO’s Web site at http://www.gao.gov.

If you or your staff have any questions about this report, please contact me at (202) 512-3841 or stephensonj@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff that made major contributions to this report are listed in appendix V.

Information about the Three Final Clean Air Rules That We Examined

This rule is designed to significantly reduce the emissions from new passenger cars and light trucks, including pickup trucks, vans, minivans, and sport-utility vehicles, to provide for cleaner air and greater public health protection.

This rule reduces particulate matter and nitrogen oxides emissions from heavy-duty engines by 90 percent and 95 percent below current standard levels, respectively, to decrease health impacts caused by diesel emissions.

To provide certainty to states and tribes regarding classifications for the 8-hour national ambient air quality standards (NAAQS) and their continued obligations with respect to existing requirements.

This rule treats vehicles and fuels as a system, combining requirements for cleaner vehicles with requirements for lower levels of sulfur in gasoline.

Under this rule, a heavy-duty vehicle and its fuel are regulated as a single system, combining requirements for new heavy-duty engines to meet more stringent emission standards and reductions in the level of sulfur allowable in highway diesel fuel.

This rule addresses the following topics: classifications for the 8-hour NAAQS; revocation of the 1-hour NAAQS; how antibacksliding principles will ensure continued progress toward attainment of the 8-hour ozone NAAQS; attainment dates; and the timing of emissions reductions needed for attainment.

EPA’s Consideration of Environmental Justice in the Drafting of Three Proposed Clean Air Rules

Because of substantial congressional interest, we are including information about how the Environmental Protection Agency (EPA) considered environmental justice during the drafting of three additional proposed clean air rules, up through their publication in the Federal Register. The three proposed rules we reviewed were as follows: The December 2002 New Source Review proposed rule, which proposed a change in the category of activities that would be considered routine maintenance, repair, and replacement under the New Source Review Program.

The January 2004 mercury proposed rule, which proposed two methods for regulating mercury emissions from certain power plants.

The January 2004 proposed Clean Air Interstate Rule (interstate rule), which, among other things, proposed a requirement that 29 states and the District of Columbia revise their state plans to include control measures limiting emissions of sulfur dioxide and nitrogen oxides.

When we completed our initial fieldwork, these rules had not been finalized. Since then, the mercury and interstate rules have been finalized and a portion of the New Source Review rule has been finalized. Additional detail on these rules is provided in table 4.

EPA officials told us that they did not consider environmental justice while drafting two of these three proposed rules. Moreover, in our analysis of these rules’ economic reviews, we found no discussion of environmental justice for two of the three rules. Finally, when published in the Federal Register, none of the proposed rules discussed environmental justice.

Workgroups Devoted Little Attention to Environmental Justice

The three workgroup chairs provided initial reports to senior management in tiering forms to help establish the level of senior management involvement needed in developing the rule. In these initial reports, all three proposed rules were classified as top priority. The forms were to be used to alert senior managers to potential issues related to compliance with statutes, executive orders, and other matters. Environmental justice was not a specific element on the form at the time, and the reports for the three rules did not discuss environmental justice.

The chair of the New Source Review workgroup said his group did not consider and address environmental justice early in the development process because the rule was to be applied nationally and was prospective in nature. The chair of the interstate rule workgroup said his group conducted no environmental justice analysis. Finally, the chair for the mercury workgroup said his group considered environmental justice in drafting the proposed rule, but he provided no details about how it was considered.

Workgroup members’ ability to identify potential environmental justice concerns may have been limited by a lack of guidance, training, and involvement by environmental justice coordinators. Specifically, all three chairs said that their workgroups did not receive guidance for how to consider environmental justice when analyzing the rules. Furthermore, while the mercury workgroup chair said that he had received training on environmental justice, the other two chairs said they had received no such training. All three chairs said they did not know whether other members in their workgroups had received environmental justice training. Also, all three chairs said that environmental justice coordinators did not assist their workgroup.

Little Attention Was Devoted to Environmental Justice in the Economic Reviews

EPA prepared an economic analysis for all three rules. Among these economic analyses, only the review for the New Source Review rule stated that environmental justice was unlikely to be a problem because the potential for disproportionate effects generally occurs as a result of decisions on siting new facilities, and EPA noted that this rule dealt exclusively with existing facilities. The analysis for the mercury rule did not discuss environmental justice. The analysis stated that—due to technical, time, and other resource limitations—EPA was unable to model the changes in mercury emissions that might result from the rule. However, EPA stated that to the extent mercury emissions do have adverse health effects, the proposed rule would reduce emissions and subsequent exposures of people living near power plants. The analysis for the interstate rule did not discuss environmental justice. It was not discussed, according to the supervisor for economists in the Office of Air and Radiation, because the rule was expected to provide nationwide benefits and because EPA lacked the data and modeling capability to predict how regulated entities will react to the requirements of the rule.

Proposed Rules Did Not Discuss Environmental Justice

We found no discussion of environmental justice in any of the three rules, as they were published in the Federal Register. Neither Executive Order 12898 nor EPA guidance requires a discussion of environmental justice in proposed rules. According to EPA officials, such a discussion was not necessary for these three rules because they did not believe the rules would have any environmental justice impacts.

Scope and Methodology

To determine how EPA considered environmental justice when developing significant rules under the Clean Air Act, as amended, we reviewed an EPA database of clean air rules finalized during fiscal years 2000 through 2004. We assured ourselves that the database was reliable for our purposes. Rules are considered significant and sent to the Office of Management and Budget for review if their expected annual costs or benefits exceed $100 million; they raise novel legal or policy issues; or they may interfere with actions undertaken by another federal agency or state, local, or tribal governments. In addition, rules that involve the Administrator or an interoffice review are considered high priority within EPA. We identified 19 clean air rules EPA finalized in our time period that were considered significant and a high priority. We then reviewed the 19 rules in the Federal Register to identify those rules that mentioned the terms “environmental justice” or “Executive Order 12898” and found 3 rules that mentioned one or both terms. The 16 rules that did not mention environmental justice included rules relating both to mobile sources, such as a rule to control the emissions of air pollution from nonroad diesel engines and fuels, and rules relating to stationary sources, such as a final rule to establish a national emission standard for hazardous air pollutants at iron and steel foundries. We focused on the three rules that mentioned environmental justice because we believed they were more likely to demonstrate how EPA considered this issue in clean air rulemaking.

To determine how EPA considered environmental justice as it drafted and finalized clean air rules, we reviewed EPA documents and interviewed EPA officials, including workgroup leaders. To characterize how or whether EPA’s economic reviews for the rules considered environmental justice, we analyzed both the preliminary and final economic reviews for each rule and interviewed the supervisor of the economists who developed the reviews. To determine whether the public raised environmental justice concerns in commenting on proposed rules and how EPA addressed those comments, we reviewed EPA documents, such as the agency’s summaries of comments and responses, and the final rules as published in the Federal Register.

We conducted our work between July 2004 and May 2005 in accordance with generally accepted government auditing standards.

Comments from the Environmental Protection Agency

The following are our comments on the Environmental Protection Agency’s letter dated June 10, 2005.

GAO Comments

1. We disagree with EPA’s assertion that the Air Office paid appropriate attention to environmental justice issues. We found that EPA devoted little attention to environmental justice in four phases of drafting the rules and considered environmental justice to varying degrees in the three phases of finalizing them. EPA provided virtually no new information on its activities during these phases. 2. EPA was referring to our report entitled Clean Air Act: EPA Has Completed Most of the Actions Required by the 1990 Amendments, but Many Were Completed Late, GAO-05-613 (Washington, D.C.: May 27, 2005). 3. As we stated, several public commenters said that the ozone implementation rule, as proposed in June 2003, could have potential environmental justice impacts. As we also stated, in April 2004, EPA finalized a portion of the ozone implementation rule, which it then called Phase I; but it did not include the provision that drew the public comments on environmental justice. EPA officials are still considering this provision for a second phase of the rule implementing a new ground-level ozone standard, called Phase II. It is true, as EPA stated, that we did not identify any environmental justice issues in the Phase I rule. However, our objective was not to identify such issues with the rules, but to review how EPA considered environmental justice in developing the rules. 4. On the basis of EPA’s letter, we added clarification about the “seemingly contradictory statements” in our discussion of the ozone implementation rule. 5. As we stated, public commenters did raise such issues about all three rules as they were proposed. As we also stated, EPA did not finalize the portion of the ozone implementation rule that it, and others, said could raise environmental justice issues. 6. While EPA stated that our report is misleading and needs further explanation of context, it is not clear from EPA’s comments how the agency would want us to frame this issue differently. First, EPA comments that EPA staff believed that, as a factual matter, as the rule was implemented, it was unlikely to pose environmental justice issues. Similarly, we state in the report that EPA officials believed that the final rules did not create environmental justice issues. Second, EPA stated that we should note the steps that the agency took to address potential environmental justice concerns. We did so, noting EPA’s discussion of these steps in the final rule. Moreover, in its letter, EPA stated that it agreed with us that the gasoline rule (finalized in February 2000) would create “potential environmental justice issues.” It was public commenters, not we, who raised concerns about potential environmental justice issues. 7. We clarified in the Highlights page and other portions of the report to note that EPA officials told us, after the rules were finalized, that none of the rules created an environmental justice issue. 8. We clarified the source of EPA’s statements. The preamble of the final rule is discussed in our report. 9. According to EPA, we stated that the Air Office’s environmental justice coordinators were not involved in the gasoline rulemaking. In fact, we stated only that the coordinators were not involved in developing the rule, as opposed to public outreach efforts, where they were involved. EPA’s description of how and when a coordinator was involved buttressed our point. According to EPA’s letter, the environmental justice coordinator was involved only in resolving “permitting process issues” and became involved only “around the time the rule was proposed.” Similarly, according to EPA’s letter, the Office of Environmental Justice representative was involved only in discussions of “permitting issues” and only “after the proposed rule was published.” Thus, it appears that in neither case were they substantively involved in drafting this rule. We added language in the report clarifying the discussion of the process. 10. As EPA noted, it devoted resources to seeking public involvement while finalizing the gasoline rule. Accordingly, we changed our characterization of EPA’s efforts in finalizing the three rules. 11. EPA’s public involvement policy provides that it will, to the fullest extent possible, respond to public comments. We did not see a distinction in the policy between comments on Advanced Notices of Proposed Rulemaking and comments on proposed rulemakings. However, EPA interprets its policy as requiring a response to comments on the latter but not the former, and we have revised our report accordingly.

GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the individual named above, the key contributors to this report were John Delicath, Michael A. Kaufman, David Marwick, Thomas Melito, and Daniel J. Semick. Tim Guinane, Anne Rhodes-Kline, and Amy Webbink also made important contributions.