EPA at Thirty: Fairness in Environmental Protection

This Article looks at how EPA is managing the fairness issue in a discrete but highly charged context: permit issuances that affect heavily impacted communities. This Article first provides a discussion of how fairness-oriented reform might evolve within the permit process. This section also examines permit issuances that were appealed to the U.S. Environmental Appeals Board (EAB) on environmental justice grounds. Proceeding one step beyond environmental law, the Article looks at how EPA is responding to claims of disparate impact under Title VI of the Civil Rights Act. However, rather than focus on the intricacies of legal doctrine under Title VI law, this Article instead examines the analytical framework that the Agency devised to investigate disparate impact claims. This Article briefly examines brownfield initiatives, the Tier 2 refinery proposal, which is an aspect of implementing the Clean Air Act (CAA) mobile source provisions that necessitate new air permits at refineries, and White Paper Number 3, a recently proposed guidance that pertains to efforts to reform new source permitting under the CAA.13. This Article examines the Agency\u27s response to this potential conflict and, ultimately, how its guidance for investigating Title VI claims reveals in part the resolution of this conflict. The Article then concludes with exploratory suggestions for alternative approaches to fairness-oriented reform in permitting