WaterLegacy Seeks Stronger U.S. EPA Environmental Justice Action 

In May 2016, the U.S. Environmental Protection Agency released its EJ 2020 Action Agenda that provides a strategic plan for environmental justice across the United States.
 
WaterLegacy met with environmental justice organizers and congressional staff to jointly analyze the EPA’s EJ 2020 plan. Although we strongly support the EPA in taking this step to begin rectifying environmental injustice for racial minorities, low-income communities and Native American tribes, we believe that the EJ 2020 Action Plan must be strengthened so that it will actually change rules, permits, funding and public engagement to reduce the burden of pollution, contamination and destruction of natural resources in EJ communities.
 
READ WaterLegacy’s detailed June 28, 2016 comments on the EPA’s EJ 2020 Action Agenda.
 
Our recommendations to EPA to strengthen its EJ Action Plan are summarized here:
 
  • EPA should make a commitment that no facility (mine, pipeline, factory hog farm) should be permitted if its effects on pollution, health, lands or economics put an unfair burden on minority, low-income or tribal communities.
  • EPA should set up face-to-face meetings with minority, low-income and tribal people in their communities and use this process to set priorities for changes in federal rules, scientific research and funding.
  • EPA should provide online public access to all EPA permit information and reports and require states to provide the same open access as a condition for EPA approval of state permits and programs.
  • EPA should provide financial and technical support so that environmental justice communities can monitor and do their own scientific analysis of pollution threats in their communities. 
  • EPA should include protection of tribal treaty resources as well as tribal reservations in its plans to prevent harm to Native American tribes.
  • EPA should set standards that all federal projects must meet to protect environmental justice. If these standards are not met, EPA should reject the project plans or refer the project to the Council on Environmental Quality so that project and process changes can be required.
 
WaterLegacy also reached out to our members and our allies to educate and engage citizens to Take Action on the EPA’s EJ 2020 strategic plan. 
 

Environmental Justice and Expanding Tribal Authority under the Clean Water Act – NEW Published Scholarship 2015

Sulfide mining and other industrial activities that destroy wetlands have the potential to affect tribal waters both where the discharge originates and downstream. Pollution and destruction of habitats can impair treaty rights to hunt, fish and gather.

Since 1987, federally recognized tribes have had the right to apply for and obtain Treatment as a State authority under the Clean Water Act. Several Bands of the Lake Superior Chippewa have secured the right to regulate water quality and object to Clean Water Act Section 404 permits that allow wetlands destruction and pollution.

The Clean Water Act allows tribes to object to projects located on the reservation and allows downstream tribes to object to federal permits and enlist the Environmental Protection Agency in determining whether the action will harm reservation water quality. However, this tribal authority has never been exercised to protect tribes from pollution originating off the reservation.

In addition, although many cases recognize a theoretical trust obligation on the part of the federal government to Indian tribes, this obligation is rarely applied to protect tribal resources.

After several months of research, as part of the Environmental Justice and Tribal Environmental Regulation issue of the William Mitchell Law Review in Spring 2015, WaterLegacy's Advocacy Director/Counsel, Paula Goodman Maccabee, published an article recommending an expansive view of tribal authority under the Clean Water Act to veto, condition, or deny federal permits affecting water quality and reserved tribal treaty rights to hunt, fish and gather.

Read here: TRIBAL AUTHORITY TO PROTECT WATER RESOURCES AND RESERVED RIGHTS UNDER CLEAN WATER ACT SECTION 401 (William Mitchell Law Review Vol 41:2)

 

Minnesota Pollution Control Agency proposes Environmental Justice Plan

 

In May 2015, the Minnesota Pollution Control Agency (MPCA) proposed an Environmental Justice Framework - allowing public comments until July 15, 2015.

Although WaterLegacy doesn’t question the sincerity of the individual staff members who drafted the MPCA’s Environmental Justice Framework, we question the efficacy of this Framework either to protect the environment or to prevent continued environmental injustice in Minnesota.

In our comments, filed on June 29, 2015, WaterLegacy recommended that the MPCA’s EJ Framework include actionable and enforceable measures well within the discretion of the Agency, if not already required by applicable law, as follows:

 

1. Upon a request for a hearing by any interested person showing that any NPDES permit may have the potential to cause or contribute to disparate impacts on an environmental justice community or a showing of significant public interest through either 25 or more citizen comments or the expressed concern of a tribal government or non-governmental organization representing a low-income community or community of color, MPCA shall strictly comply with federal regulations requiring a public hearing for NPDES permits. 40 Code of Federal Regulations, §§ 124.11, 124.12 and 124.13 (2015).

2. Upon a request by either 25 or more medical or public health professionals, an association of medical or public health professionals serving potentially affected communities, or the request of a tribal government or a non-governmental organization representing a low-income community or community of color for a health risk assessment (HRA) or health impact assessment (HIA) for a proposed water, air, solid waste, hazardous waste permit or any project subject to environmental review that may have the potential to cause or contribute to environmental injustice or environmental health impacts on children or the elderly, MPCA shall engage the affected community in scoping and provide the requested HRA and/or HIA, in collaboration with the Minnesota Department of Health.

3. Upon a petition by 25 or more interested persons, or a request from a tribal government or a non-governmental organization representing a low-income community or community of color showing that the MPCA’s failure to issue a current NPDES permit where the prior permit has expired may have the potential to cause or contribute to disparate impacts on an environmental justice community, the MPCA shall prepare a public notice for issuance of that NPDES permit within 90 days and directly involve the petitioners and the affected environmental justice community in determination of the conditions for the permit.

4. MPCA shall adopt no rule or rule amendment that has a reasonable potential to cause or contribute to disparate impacts on an environmental justice community.

 

LEARN & TAKE ACTION:

 

What is Environmental Justice?

Executive Order 12898, established by President Bill Clinton on February 11, 1994, states that federal programs, policies and activities should not have a disparate effect on communities of color.

Each Federal agency shall conduct its programs, policies, and activities that substantially affect human health or the environment, in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination under such programs, policies, and activities because of their race, Color, or national origin.

Each federal agency is required to make achieving environmental justice for communities of color and low-income communities a part of its mission, as summarized in Executive Order 12898:

To the greatest extent practicable and permitted by law, and consistent with the principles set forth In the report on the National Performance Review, each Federal agency shall 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 in the United States and its territories and possessions

The US Environmental Protection Agency (EPA) has explained what Environmental Justice means:

Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. EPA has this goal for all communities and persons across this Nation. It will be achieved when everyone enjoys the same degree of protection from environmental and health hazards and equal access to the decision-making process to have a healthy environment in which to live, learn, and work.

For more information, see the EPA's Environmental Justice webpage.

 

How is Environmental Justice Important in WaterLegacy’s Work?

From the start, WaterLegacy identified Environmental Justice as a critical issue for review of the PolyMet NorthMet open pit sulfide mine. Read Environmental Justice – PolyMet Project.

The PolyMet project may disproportionately impact Anishinaabe tribes – the Fond du Lac and Grand Portage Bands of the Lake Superior Chippewa/Ojibwe peoples and people in diverse lower income communities who hunt, fish and gather wild rice as part of their subsistence food supply.

WaterLegacy makes all decisions on strategy and tactics in collaboration with tribal staff and persons who live in Northern Minnesota and depend on natural resources for food, safe drinking water and economic sustenance. WaterLegacy’s emphasis on preventing mercury contamination of fish, protecting natural stands of wild rice and ensuring that drinking water is not polluted with toxic chemicals arises from our commitment to environmental justice.

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