1998 CPEO Brownfields List Archive

From: Lenny Siegel <lsiegel@igc.apc.org>
Date: Wed, 05 Aug 1998 12:43:37 -0700 (PDT)
Reply: cpeo-brownfields
Subject: Title VI - Resolving Uncertainty

On the surface, EPA's Title VI guidance seems to be a straightforward
implementation of the fundamental principles of environmental justice.
However, it has generated a firestorm of concern from state regulators,
local government, and brownfields development interests. Critics argue
that the guidance places a new, major obstacle, in the path of
brownfields development. 

That is, anyone who proposes an activity requiring environmental permits
in an area - typically, an inner city - with a high concentration of
people of color must jump through a new, flaming environmental hoop.
They must demonstrate that their proposal will NOT - unless there is
mitigation or justification - contribute to the disparate impact of
pollution on people of color. Even when project proponents can make such
a case, the work required to convince EPA could be enormous. Since Title
VI consideration is likely to emerge at the tail end of a long planning,
financing, and permitting process, the process - as currently envisioned
- creates significant financial uncertainty. Developers and
manufacturers seeking to locate industrial operations may in many cases
simply eschew inner cities and other areas with large non-white
populations, investing instead in legally safer or at least more certain
greenfields areas. That is, policies designed to enhance run-down
neighborhoods could actually discourage otherwise viable projects.

However, testimony from residents of many of those communities - at the
NEJAC (National Environmental Justice Advisory Council) Brownfields
Dialogues and elsewhere - suggests strongly that building facilities
that are likely to generate pollution in mixed-use inner city
neighborhoods is usually a bad idea. In fact, residents have rejected
the notion of only "cleaning up to industrial standards" if that means
perpetuation of undesirable land uses. The Title VI program, if
reasonably implemented, may hinder certain types of development, but in
these cases that's exactly what the communities want and need.

On the other hand, the Title VI process itself may also discourage
important projects that would not contribute to disparate impact either
because they would not generate appreciable pollution or because the
area is not already subject to undesirable factories and other
activities. That is, the project would probably be approved, but because
it is proposed for a community of color, developers are afraid that it
won't be, or simply don't want to go through the extra paperwork of
demonstrating to the permitting agencies that it should be.

The problem, as I see it, lies not with Title VI and the guidance, but
with the standard permitting or environmental impact assessment process.
In most cases, a project proponent has to do market studies, find
property, line up financing, and design the project before it even seeks
an environmental permit. That is, the sponsors - often including local
redevelopment agencies as well as the private sector - expend large
amounts of time, energy, and money before they know whether they can
build. While they may know their own business and the particular piece
of property well, they haven't a clue whether the neighbors will
consider the project an exacerbation of disparate environmental impact.

The solution, as I originally proposed about 18 months ago, lies in the
preparation of Community Impact Statements designed to compile and
analyze the environmental load on a community independent of any
particular project proposal. I envision Community Impact Statements that
differ from the conventional environmental impact study model in two

First, they would examine the universe of environmental hazards in a
community, rather than the incremental impact of an individual project.
This would not only make it easier to identify cumulative and
synergistic impacts, but it would give communities the tools they need
earlier in the siting process. That is, study could take place before a
company or agency had invested significant time and energy putting
together a proposal that was ready for environmental review.

Second, because the study would take place independent of particular
project proposals, it would be easier to insist that they be
community-based. That is, members of the affected communities would
directly determine the scope and findings of the study, in consultation
with appropriate technical experts and legal authorities. For example,
the residents would determine whether noise, visual blight, and safety
hazards (such as auto traffic) are key environmental issues.

It's important to go beyond the quantitative measurement of hazards. Are
they persistent? Are they reversible? Are people exposed voluntarily or
involuntarily? In what way to residents or others reap economic or
cultural benefits from the activity creating the hazard? The
applicability and actual implementation of regulatory authorities to
each hazard should be noted.

CISs should prove to be valuable resources for siting and permitting
decisions. While they obviously could provide ammunition to opponents of
projects, they should also help communities overwhelmed by blight to
target their concern where it belongs. In some case, community-based
studies are likely to show that perceived threats are merely that.

CISs should be designed broadly enough to serve other purposes. For
example, they could be used to consider requests for relocation. They
could be used to guide government agencies in the allocation of
resources for environmental protection. On the broadest level, they
could serve as a foundation for evaluating the level of environmental
justice/injustice in a community. Often, that's exactly what industry
decision-makers - not just activists and regulators - want to know.


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 222B View St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/968-1126

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