The incoming EPA will likely lean toward less oversight over state public health programs – and lax enforcement is one of the causes behind the Flint water crisis.
President-elect Donald Trump on Dec. 7 nominated Scott Pruitt to head the U.S. Environmental Protection Agency. Pruitt has close ties with the fossil fuel industry and has been an ardent critic of the agency. As attorney general of Oklahoma, Pruitt has led the legal fight against many of the EPA’s signature regulations during the Obama administration, including the Clean Power Plan, the Waters of the United States rule and standards on toxic and interstate air pollution.
Given Pruitt’s hostility to EPA policy and President-elect Trump’s stated positions on climate change, energy and regulation in general, the direction of federal environmental policy is about to shift abruptly.
This change in policy also has potentially enormous ramifications for the EPA’s efforts to promote environmental justice. Over the past year, the lead contamination of Flint, Michigan’s public water supply and the protests in North Dakota over the Dakota Access oil pipeline have provided stark reminders that environmental burdens are often borne disproportionately by low-income and minority communities.
During the Obama administration, the EPA has made achieving environmental justice a key priority. Earlier this fall, the agency released its long-term strategy, EJ 2020 Action Agenda, to better deliver on its historical promises of reducing disparities in environmental protection. Although the agency still has much to accomplish, recent reforms, for example, to better incorporate equity into regulatory decision-making and to improve agency implementation of Title VI of the Civil Rights Act, are clear steps in the right direction.
With the EPA under new leadership, however, the durability of these reforms are now in doubt.
In the month since the presidential election, considerable attention has been given to what environmental policy might look like in the Trump administration. For good reason, much of the emphasis has been on climate change, given President-elect Trump’s own climate denial and the appointment of Myron Ebell, a long-time critic of the EPA, to direct the agency’s transition team.
The EPA’s portfolio, of course, is much broader than climate change. With some recent regulatory initiatives, such as the Clean Power Plan, there are significant limits on what can be easily undone. However, little can prevent the new administration from changing or even eliminating discretionary, voluntary EPA initiatives.
This is why recent environmental justice efforts are at such risk. During the Obama administration, the EPA has invested significant time and effort to develop new policies, tools and strategies to address income- and race-based disparities in environmental protection. Yet, because nearly all of these efforts have been pursued without the force of law or regulation, they can be easily (and quietly) reversed.
Redirected or ignored
There are many ways in which the new leadership at the EPA can undermine federal environmental justice policies and programs.
First, President Trump could revoke President Clinton’s 1994 executive order on environmental justice. Executive Order 12898 requires federal agencies to make “achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.”Until recently, implementation of Executive Order 12898 has been weak and inconsistent, as I wrote about in “Failed Promises: Evaluating the Federal Government’s Response to Environmental Justice.” But, it remains the core statement of federal policy, and it has important symbolic value for environmental justice advocates.
Short of revocation, the EPA administrator could reinterpret the executive order to make it virtually meaningless. This occurred under the leadership of former EPA administrators Christie Todd Whitman and Stephen Johnson during the George W. Bush administration, when the EPA essentially redefined environmental justice to diminish its focus on poor and minority communities. The consequence of this action was to signal to EPA staff, and the states that help implement federal programs, that promoting environmental justice was not an agency priority.
Second, the Trump EPA could set aside the agency’s EJ 2020 Action Agenda, either formally or simply by ignoring it. The EPA is under no legal requirement to pursue the items enumerated in this agenda. Similarly, the new administrator and politically appointed program heads could instruct staff to set aside procedures set forth in new policy guidance. This guidance, developed as part of the EPA’s Plan EJ 2014 program, created procedures to consider environmental justice routinely throughout agency decisions, in areas ranging from permitting to rulemaking to enforcement. But, because these procedures are discretionary, they can be formally replaced, or just neglected.
What is at stake?
To the extent that the Trump EPA either relaxes the stringency of current regulations and/or elects not to pursue new protections, the effects could fall disproportionately on historically vulnerable communities.
Because major sources of pollution are more likely to be located in poor and minority communities, efforts to reduce pollution tend to positively affect people living in these areas. As a result, recent EPA efforts to tighten air quality standards, for example, on toxic emissions from oil refineries, specifically benefit many low-income and minority communities.
If the EPA, most likely with a drastically reduced budget, pulls back from enforcing existing pollution control programs, this may create further inequities in environmental burdens. More “business-friendly” permitting and lax compliance monitoring are relatively discreet ways to lower the regulatory burden facing power plants, factories and other major sources of pollution.
Further, most of the day-to-day implementation of major federal pollution control statutes is managed by state agencies. And under the leadership of Scott Pruitt, the EPA is likely to look for opportunities to hand off additional responsibilities to state governments.
State efforts are supposed to be overseen by EPA’s ten regional offices. But if these offices do not perform robust oversight, states are left to administer these programs as they see fit. In some states, this could exacerbate class- and race-based disparities in regulatory enforcement, as I have found already to exist in research with Chris Reenock on the Clean Air Act, and in other research on the Clean Water Act and Resource Conservation and Recovery Act.
Indeed, lack of federal oversight by EPA’s Region 5 office was a significant contributing factor to the Flint crisis. If oversight becomes even less rigorous, the potential for Flint-like situations to emerge elsewhere in the country only increases.
Any reason for optimism?
Perhaps, these worst-case scenarios will not come to pass. Career staff could push back against a new leadership team hostile to its ideals. In some respects, agency personnel responded this way to the anti-regulatory, budget-minimizing tenure of Ann Gorsuch, the first EPA administrator appointed by President Reagan.
And, perhaps, President-elect Trump will surprise. A consistent policy priority of the incoming administration has been rebuilding the country through new infrastructure. If such an infrastructure program includes major investments in wastewater treatment, for example, this may enhance environmental quality for some poor and minority communities.
Details of this and other priorities have yet to emerge, however. And, the early signs from the campaign trail and now the appointment of Scott Pruitt to head the agency portend an EPA that is likely to deprioritize, if not attempt to dismantle, important environmental protection measures. For the people living in already overburdened communities, the potential risks of this type of retrenchment are real and personal.