The GAO's New Environmental Justice Report

by Dave Owen

October 24, 2019

Originally published on Environmental Law Prof Blog.

Last Thursday, the Government Accountability Office released a new study on federal agencies and environmental justice. The narrow purpose of the report is to assess the extent to which federal agencies are implementing Executive Order 12898, which was issued by President Clinton in 1994 and theoretically remains in force, along with subsequent agency commitments, some made in response to prior GAO studies.

For environmental justice advocates, much of the report will paint a depressing, if unsurprising, picture. In 2011, federal agencies participating in an environmental justice working group agreed to develop and periodically update environmental justice strategic plans, but some agencies have never developed plans, and others have stopped updating their plans. Ideally, those plans would include ambitious goals for progress and measurable indicators for evaluating progress toward (or past) those goals, but many agency plans include no such things.

Agencies also had committed to preparing annual reports documenting their progress toward achieving environmental justice goals, and most agencies have stopped submitting those reports. In interviews and written correspondence, some agencies – including the Department of Defense, which is involved in dozens of Superfund sites – questioned whether environmental justice is even relevant to their work. These issues seem particularly concerning because neither Executive Order 12898 nor the subsequent individual-agency and interagency plans established demanding standards. Agencies' commitments are modest, yet even those modest commitments are mostly unachieved.

The report also documents some EJ achievements. Perhaps most importantly, EPA has achieved one of its key environmental justice goals, which was to substantially reduce the number of people exposed to air quality that fails to attain national ambient air quality standards. That isn't purely an environmental justice achievement, of course; its benefits cut more broadly. But air quality impairment has been a common problem for EJ communities, and steps toward ameliorating that problem are a big deal. EPA also has handed out lots of grants and developed EJScreen, a widely-used tool for mapping and assessing communities' environmental risks. No other agency has quite this list of achievements (and one might expect more EJ work from the Environmental Protection Agency), but the report does identify steps by other agencies, as well as commitments to address some of the problems identified in the report.

All of that raises an interesting question: Should we be more surprised that the federal-agency-EJ glass is mostly empty or that it is even somewhat full? After all, while the report depicts rather spotty efforts to address environmental justice concerns, one might have anticipated much less. Environmental justice is ultimately about using environmental regulation, which often generates well-funded and well-connected resistance, to protect people who are particularly politically disempowered. That can be an uphill climb under any circumstances, and the climb is particularly steep at this present moment, when our nation is governed by an administration that is openly opposed to environmental protection and openly disdainful of disempowered communities. Perhaps, then, it is a wonder that federal agencies are still doing anything for environmental justice or that Executive Order 12898 hasn't been repealed.

The report also hints at some interesting questions about how EJ might be turned from activists' aspiration into institutional reality. As the report explains (and it is also part of this ongoing process), an executive order devoid of substantive mandates has become part of agency practice through largely voluntary agency commitments – some of which were spurred by oversight from the GAO, a body whose limited leverage derives from its ability to provide information to Congress and non-binding recommendations to agencies. In exercising that oversight, the GAO has asked agencies to define their own goals, establish benchmarks toward achieving those goals, and then measure and document their progress. To a business school professor, that might sound perfectly sensible, but to many environmental lawyers, it may all sound quite soft. Where are the statutes and regulations and enforcement actions that define environmental law, and in which we tend to place our faith? But the (somewhat limited) empirical evidence I have seen doesn't paint a black-and-white picture favoring either the hard regulatory mechanisms favored by many lawyers or the softer ones that are more fashionable in the business-academic world. It could be that the GAO's vision – specifically, that management strategy is key to environmental justice – reflects some wisdom, or, at least, the absence of better options.

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Dave Owen is a Professor of Law at the University of California, Hastings, College of the Law.

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