Enforcing environmental laws is a key to environmental justice

Now that the nation’s eye is on racial justice, the Environmental and Protection Agency (EPA) Administrator Andrew Wheeler has discovered that he wants “to solve the environmental justice issues we face today.” 

As a whopper, this may not quite match President Trump’s claim to be America’s “number one environmental president,” but it is a remarkably strange way to describe the Trump-Wheeler team’s record of attacking environmental protections for low-income communities, communities of color and indigenous people. Those attacks include reduced enforcement of laws protecting clean air and water and proposals for drastic cuts to programs that protect our most vulnerable communities.

The attacks began while Wheeler was still lobbying for the coal industry, when the Trump administration’s first EPA budget proposed to eliminate funding for EPA’s environmental justice program. When that proved politically unpalatable, the administration contented itself with starving the program, cutting its staff nearly in half, and funding it with a minuscule 1/1500th of the agency’s budget.

Evidently, that still provides too much support for environmental justice. So the 2021 Trump-Wheeler budget proposes to shrink spending for the environmental justice program to its lowest level ever, eliminate the Superfund environmental justice program and cut $240 million from programs serving low-income communities and people of color. These cuts would virtually wipe out water infrastructure programs for poor and disadvantaged communities, and slash grants to control deadly air pollution, reduce diesel emissions and support tribal environmental programs.

The Trump-Wheeler team’s most forceful attack on environmental justice lies in its failure to enforce our nation’s environmental laws. Too often people in low-wealth communities and communities of color live, work or attend school near sources of harmful environmental contamination. Many of these facilities are regulated and there is a general assumption that they comply with their environmental requirements. But that assumption is wrong. Violation rates of 25 percent are present in nearly all programs, with rates of 50 percent to 70 percent under many of the programs with the biggest impact on health. For example, there have been serious Clean Air Act violations at 70 percent of the largest coal-fired power plants, 80 percent of concrete manufacturers and 95 percent of petroleum refineries. Many violations go unreported, from leaking tanks, unlit flares, smokestacks, wastewater treatment plants, spills or outright dumping.   

Compounding the problem, a few of the worst polluting facilities are responsible for an enormous share of all toxic contamination. A third of toxic air releases in 2014 came from just 100 complexes. A study of 16,000 facilities found that fewer than 5 percent of them were responsible for 90 percent of the pollution and a study of 25,000 facilities found the same pattern, with the worst facilities producing pollutants at rates hundreds or thousands of times higher than similar facilities. 

Moreover, a disproportionate share of these super polluters operate near low-income communities and communities of color. Researchers examining pollution distribution confirmed the existence of sacrifice zones — majority minority, low-income neighborhoods where super polluters operate below the radar, avoiding compliance costs by inflicting enormous health burdens on marginalized communities with little power to resist. 

The obvious response to these shocking injustices is to focus priority enforcement and compliance attention, using a robust regime of inspections and monitoring to identify and address the heaviest pollution burdens on low-income and communities of color. But the EPA has been moving in the opposite direction, reducing agency enforcement activities.  

The reductions have been widespread and dramatic. Inspections were cut in half over the last decade. From 2016 to 2018, civil investigations were down by 80 percent, and civil penalties reached their lowest levels since 1994. Criminal fines and restitution dropped by $120 million, or 60 percent, from 2016 to 2018. In the first two years of the Trump administration, criminal prosecutions under the Clean Air Act decreased more than 50 percent, while Clean Water Act prosecutions were down 70 percent.  

Earlier this year, as the country began to grapple with COVID-19, whose severe effects on low-income and communities of color are exacerbated by air pollution, the EPA devised a perverse “COVID relief” program. “Relief” was granted to power plants and waste treatment systems, freeing them from obligations to monitor their pollution, leaving communities most vulnerable to COVID-19 to suffer the consequences. The program was suspended on Aug. 31, but monitoring and enforcement declined while it was in place.  

Wheeler has recognized that “neglect is a form of harm,” and that it is “unfair for communities to be abandoned just because they don’t have enough political power to stop the neglect.” But, despite this noble rhetoric, the EPA has consistently undermined environmental justice by denying low income and communities of color the protection of our nation’s environmental laws.

David F. Coursen is a former EPA attorney and a member of the Environmental Protection Network, a nonprofit organization of EPA alumni working to protect the agency’s progress toward clean air, water, land and climate protection.