Environmental justice: A new movement to restrict your movement
by: Katherine Timpf Thursday, May 31, 2012
First in a series
When most people talk about President Obama's influence on America, they mention reforming health care, repealing "don't ask, don't tell" or ending the war in Iraq.
But a nearly unknown executive order could have a greater impact on the future of America than all of those things combined, potentially giving the federal government power to control every project in the country.
The obscure memorandum of understanding, based on a long-forgotten executive order signed by President Clinton in 1994, marries the issues of environmentalism and social justice. The federal government can use the laws from one to control the other.
Seventeen federal agencies signed the Aug. 4, 2011, memorandum — a clear indication of its widespread implications. By signing it, “Each Federal agency agrees to the framework, procedures, and responsibilities” of integrating environmental justice into all of its “programs, policies, and activities.”
This integration was the topic of the State of Environmental Justice in 2012 Conference held April 5 in Crystal City, Va. The low-key conference featured speakers who are key players in the movement, offering a rare glimpse into how the federal government intends to use this new tool as an instrument of power and control over the lives of every American.
Environmental justice has already stopped transportation projects in their tracks by using Title VI, the Civil Rights Act of 1964, which prohibits racial "discrimination under any program or activity receiving Federal financial assistance."
Mr. Obama explicitly suggests using Title VI to achieve environmental justice in his memorandum.
“This is all about integrating environmental justice into the transportation decision-making process,” said conference speaker Glenn Robinson, director of the Environmental Justice in Transportation Project at Morgan State University in Baltimore.
The president had taken steps to integrate environmental justice into transportation even before he wrote the memo. In 2009, the Environmental Protection Agency joined with the Department of Housing and Urban Development and the Department of Transportation to create the HUD-DOT-EPA Partnership for Sustainable Communities.
This partnership, according to the "Environmental Justice and Sustainability Reference Deskbook," “marks a fundamental shift in the way the federal government structures its transportation, housing, and environmental policies, programs and spending” to include environmental justice concerns.
James Cheatham, director of the Office of Planning at the Federal Highway Administration, is listed as an environmental justice contact in this book, which EPA published in December 2010. At the conference, he explained that the movement's early focus on transportation was no accident.
“Transportation is that vital link that moves our economy one way or another,” he said.
But what do civil rights have to do with transportation projects? When combined with environmentalism, they can stop almost anything.
Last year, an environmental justice claim prevented the state of Virginia from installing express toll lanes to help alleviate traffic congestion on Interstate 395 in Arlington County. The county alleged that the state had violated a series of laws that Mr. Obama suggested as enforcement tools for environmental justice.
First, emissions from vehicles operating in the toll lanes would have violated the Clean Air Act. And, since the lanes would have run mostly through a low-income minority community, they also violated Title VI by discriminating against residents who live there.
The lanes also would have violated the National Environmental Policy Act, according to Arlington County Attorney Stephen A. MacIsaac.
“What NEPA requires is a study of traffic impacts, air quality impacts and impacts on disadvantaged and minority communities … and we felt like that wasn't an adequate review,” Mr. MacIsaac said.
Mr. MacIsaac insisted that the county's lawsuit did not allege racial discrimination, even though traffic studies projected that mostly affluent white people would use the HOT lanes, which he referred to as “Lexus lanes.”
But conference speaker Sharlene Reed, community planner at FHWA, suggested conferees adopt exactly that strategy for filing project-stopping lawsuits.
“If environmental justice is looking at minorities and low income," she asked, "can you actually afford to utilize this road, or are you being disadvantaged as a result of them having a price associated with it?”
Like Mr. Cheatham, Ms. Reed is listed as an environmental contact in the HUD-DOT-EPA Partnership. She helped develop "EPA's Action Development Process: Interim Guidance on Considering Environmental Justice During the Development of an Action," published in July 2010.
All told, the HOT lanes lawsuit cost Arlington County taxpayers about $2 million, Mr. MacIsaac said. Fearing a long, expensive court battle, the Virginia Department of Transportation dropped Arlington from the project and began an intensive environmental review.
Arlington County government considers this a victory, but James Corocan, head of the chamber of commerce in neighboring Fairfax County, has a different take on it.
“It's businesses and citizens that are going to pay for this government's decision not to move forward with the HOT lanes,” Mr. Corocan said. “It's a shame for Arlington, because other areas are going to leave them behind when it comes to moving traffic around. … When businesses are looking at where do they want to locate, obviously access is key.”
He said he had talked to several Arlington business leaders who would have welcomed HOT lanes in their county.
Paul Driessen, senior policy fellow at the Center for Defense of Free Enterprise, said one of the dangers of environmental justice is that it gives the federal government power to make decisions that should be made by the people affected by them.
“There's a huge element within the environmental community, … within the various government agencies and so forth, of desire to control what people can or can't do,” Mr. Driessen said.
Mr. Driessen said he lamented the fact that environmental regulations placed “so many controls” over “free markets that have advanced us in so many ways. We're really holding back entrepreneurship. People are not investing because they don't know what the next round of regulations is going to do.”
But conference speakers lauded the use of Title VI in this way.
“File a complaint under the Title VI Administrative Enforcement Process if you cannot get the results that you want in other ways,” advised Marc Brenman, a former senior policy adviser to the U.S. Department of Transportation.
Mr. Brenman recounted how he did just that to stop a train route from being extended from downtown Oakland, Calif., to Oakland International Airport. He alleged that the project violated Title VI because it better served whites than minorities since the trains would pass by so many low-income minority neighborhoods along the way.
And, as environmental contractor Alexander Bond reminded the group, there are plenty of other laws people can use the same way as Title VI.
“The American Disabilities Act, the National Restorative Preservation Act for some visually impaired people, … [there is] lots of room built into this process for bringing environmental justice to the table,” said Mr. Bond, a senior associate at energy and environmental contractor ICF International in Fairfax.
Mr. Corocan disputed environmentalists' claims that HOT lanes would worsen air quality in Arlington, since the same number of cars will be on the road anyway, only now they will travel at a slower pace. That, if anything, will increase pollution.
David Almasi, executive director of the National Center for Public Policy Research, did not find this surprising at all. Environmental justice claims very rarely have anything to do with actually helping anyone, he said.
“They're not thinking about economic consequences to the everyman, but they're pushing environmental justice not in my opinion as a way to help a minority community but as a way to play the race card and make their arguments harder to fight,” Mr. Almasi said.
Another thing that makes environmental justice hard to fight is the vague terms EPA uses to define it, according to Mr. Driessen.
“The EPA's agenda is so broad, it's used to advance any new regulation that they have conceived of over this little bit in the past administration,” he said.
Conference speaker Eloisa Reynault, transportation, health and equity program manager at the American Public Health Association, described public health and transportation as issues married by environmental justice.
Ms. Reynault said the combined cost of four chronic problems — traffic deaths and injuries, obesity, lack of physical activity, and air pollution — cost taxpayers an estimated $478 billion per year. She assured conferees that environmental justice could offset those costs by addressing health and safety issues "connected to transportation."
She said that while "car travel is sedentary travel," getting to the bus or train stop often requires walking. She also asserted that a lack of public transit in low-income communities causes greater air pollution and, in turn, more lung disease. Another example? Car accidents, since minorities are often "overrepresented" in traffic fatalities and injuries.
Under these definitions, members of a low-income or minority community could file a Title VI complaint by claiming that lack of access to public transportation made them fat and sick — and win.
The wide scope of environmental justice also makes it easier for government offices to share funds to achieve it.
Just ask conference speaker Kim Lambert, environmental justice coordinator for the U.S. Fish and Wildlife Service.
“Because there’s no resources for most federal agencies, you’ve got to go to someone who has money," Lambert told conferees. "I’ve got to beg for their resources, I’ve got to show there’s a nexus between environmental justice and the community."
If Ms. Lambert wants money from a well-funded project to go toward her cause, all she needs to do is show a relevant link to the admittedly broad category of environmental justice. She said she does this often with her department, the Bureau of Fish and Wildlife.
"I work directly with the director of Fish and Wildlife," she said. "At my level I shouldn’t be. But I make sure I am getting right to him.
"Fish and Wildlife — which is one of the smaller bureaus — that’s the job that pays me. My passion, though, is civil rights.”