Rush to Judgment: An Empirical Analysis of Environmental Equity in U.S. Environmental Protection Agency Enforcement Actions
Atlas, Mark, Law & Society Review
In 1992, the National Law Journal (NLJ) published a study claiming that the U.S. Environmental Protection Agency discriminated against minorities in its civil judicial enforcement actions by penalizing environmental law violators in minority areas far less than in white areas. NLJ claimed that this differential showed a lack of commitment to protecting the environment and public health in minority areas. This article augments, reexamines, and analyzes in a more sophisticated manner the available data. My empirical analyses demonstrate the unreliability of NLJ's methods and conclusions and indicate that minorities have not been discriminated against in these enforcement actions.
Over the past decade, concern has grown about the impact of pollution on particular population groups. Some people have concluded that minority and/or low-income people bear disproportionately adverse health and environmental effects from pollution (Austin & Schill 1991; Bullard 1994a). This conclusion led to the environmental equity movement, which seeks the equitable treatment of people of all races, incomes, and cultures in the development, implementation, and enforcement of environmental laws and policies.
The environmental equity movement emerged in the early 1980s (Hamilton 1995; Szasz & Meuser 1997). Subsequent studies and public attention raised concerns about environmental programs' fairness and protection, concerns that now receive increased attention at all levels of government, as well as in the private sector. The Clinton administration demonstrated its concern in an Executive Order requiring that federal agencies make environmental equity part of their missions (42 U.S.C. 4321 ). Similarly, the U.S. Environmental Protection Agency (EPA) lists environmental equity among its priorities. In 1992 EPA created the Office of Environmental Equity (later renamed the Office of Environmental Justice) and commissioned a task force to address environmental equity issues, and it now oversees the National Environmental Justice Advisory Council, a federal advisory committee composed of citizens with relevant experience who offer guidance to EPA (U.S. EPA 1995a).
Environmental equity research has been done on various topics-location and cleanup of contaminated sites (Hird 1993; Zimmerman 1993), siting of hazardous waste management facilities (Anderton et al. 1994; Boer et al. 1997), location of facilities using large amounts of toxic chemicals (Centner et al. 1996; Ringquist 1997), and distribution of air pollutants (Perlin et al. 1995; Brooks & Sethi 1997). One aspect of environmental equity that created particular controversy in recent years is alleged discrimination by EPA in its civil judicial enforcement actions-- cases in which EPA seeks civil penalties in court against environmental law violators. In 1992 this allegation appeared in articles in the National Law Journal (hereinafter the NLJ articles), a weekly legal periodical (Lavelle & Coyle 1992). The NLJ articles described NLJ's investigation into the environmental equity implications of various EPA actions.
NLJ compared the civil judicial penalties against environmental law violators in disproportionately white, minority, highincome, and low-income areas, respectively. Based on this comparison, NLJ concluded that minority areas were discriminated against because violations there had substantially lower penalties than in white areas. NL believes that when EPA imposes higher penalties in one area compared to others, it demonstrates EPA's greater commitment to protecting the environment and people's health in that area.
NLJ's theory is consistent with much of the reasoning behind environmental equity concerns. The basic assumption is that because of intentional discrimination or a lack of political power to effectively protest nearby environmental risks, those risks become disproportionately concentrated in minority and low-income areas. …