Letter Opposing S. 642, "Environmental Justice Act of 2007" and S. 2549, "Environmental Justice Renewal Act"
September 12, 2008
TO THE MEMBERS OF THE UNITED STATES CONGRESS:
The U.S. Chamber of Commerce, the world's largest business federation representing more than three million businesses and organizations of every size, sector, and region, strongly opposes Senator Durbin's "Environmental Justice Act of 2007" (S. 642), and Senator Clinton's "Environmental Justice Renewal Act" (S. 2549), which are expected to be offered as amendments to certain must-pass legislation during the remaining days of the 110th Congress.
In the years since President Clinton signed Executive Order 12898, titled "Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations," misguided environmental justice activism has delayed or permanently derailed countless projects and facilities that would have brought significant economic development to minority and low-income neighborhoods. The environmental justice movement has been used to drive businesses from those areas most in need of economic stimulus and, in the process, operated as a disincentive for businesses to locate in these needy areas. The grim reality is that environmental justice, intended to sensitize policy-makers to equitable environmental considerations, has been used to harass businesses, prevent job creation, and stifle economic development in the minority and low-income areas of our country.
The current bills would exacerbate, rather than alleviate, the fundamental problems inherent in environmental justice. For example, Senator Durbin's bill would overturn the U.S. Supreme Court's decision in Sandoval¹ and codify Executive Order 12898 except for the ban on judicial review. In other words, it would create a private right of action for environmental activists to sue government and effectively block businesses from bringing economic development to blighted regions. This is particularly perverse in light of our current energy crisis as it will promote endless litigation on the permitting of new energy facilities, such as nuclear plants, oil refineries, and coal-fired power plants.
While Senator Clinton's bill doesn't codify the Executive Order, it is in many ways much worse as it creates a new NEPA-like process for ensuring agencies include environmental justice considerations in every policy, activity, and program. This is accomplished by the creation of a new Interagency Working Group tasked with developing a comprehensive "guidance document" containing myriad criteria for federal agencies to follow. The Interagency Working Group would have inordinate power over all federal projects and activities as it will be the final arbiter of whether environmental justice considerations have been properly considered by an agency. ² And its decisions are not subject to review or challenge, making its authority on these matters absolute. The need for an Interagency Working Group is especially unclear considering the United States already has an extensive body of environmental and civil rights laws to protect human health, human rights, and the environment for all of our country's citizens.
The bill also creates, among other things, an Environmental Justice Ombudsman within EPA to process complaints and allegations relating to environmental justice violations. The Ombudsman will have the power to hire an unlimited number of full-time employees at both EPA headquarters and every regional office in the country, further bloating our already swollen bureaucracy. Worse, the creation of the Ombudsman is also redundant as there is already an Office of Environmental Justice within EPA (created under President Clinton in 1993) that is responsible for coordinating environmental justice efforts among all of EPA's program offices.
Both S. 642 and S. 2549 advance the failed policies of the environmental justice movement. Rather than injecting the benefits of economic development into our national environmental policy discourse, these bills offer activists the opportunity to prevent businesses and communities from bringing jobs and economic stimulus into the poorest communities in the nation.
These complex and far-reaching bills deserve to be carefully deliberated by Congress, not rushed through the legislative process. Therefore, the U.S. Chamber urges you to oppose any attempt to offer these bills as amendments to important legislation.
R. Bruce Josten
¹In Alexander v. Sandoval, 523 US 275 (2001), the Supreme Court considered held that there exists no private right of action to enforce disparate-impact regulations under Title VI of the Civil Rights Act of 1964.
²Senator Clinton's bill gives the Interagency Working Group the power to "assess and review" every federal policy and program and take whatever steps are necessary to "minimize and eliminate" what it considers to be potentially adverse impacts.