Integrating Environmental Justice into EPA Permitting Authority

Abstract

A recurrent issue arising out of the President?s Executive Order 12898 on Environmental Justice is the extent to which EPA possesses the authority to condition on environmental justice grounds permits that the Agency (and States with federally-approved programs) issues to regulated entities pursuant to the various federal environmental protection laws administered by EPA. A related question is the extent to which the permitting authority (state or federal) may deny a permit altogether solely on environmental justice grounds. This article questions the apparent assumption of many that no such permit conditioning or denial authority exists relating to environmental justice concerns. The article is concerned exclusively with the issue whether EPA possesses authority that it has not yet chosen to exercise. The article does not comprehensively address the distinct question whether EPA is required under existing statutory provisions to impose such conditions or deny such permits. The article concludes that EPA clearly has considerable authority to promote environmental justice through permit conditions and denials (and registration conditions and denials) that the Agency has yet to enlist effectively. More particularly, the article explores EPA's authority to restrict and deny the operation of environmentally risky facilities based on the factor that the community to be exposed is already disparately subject to such risks from other sources as well as the Agency?s authority to condition permits in a manner that requires the regulated entity itself to help the exposed community to build the community enforcement capacity necessary for the community to oversee and ensure the facility's compliance with applicable environmental laws.