Gary Wilson's thoughts on Great Lakes issues and occasionally, other things
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Commentary
Past presidents have made big EJ pledges only to see their efforts fade. Now comes the Biden administration with a splashy new initiative. As announcements go, they don’t get much bigger or more important than one last week from the U.S. Environmental Protection Agency. “EPA Launches New National Office Dedicated to Advancing Environmental Justice and Civil Rights,” read the press release headline. In it, Administrator Michael Regan talked about the commitment he and President Joe Biden have made to right the wrongs that have historically impacted communities of color; think Flint and Benton Harbor drinking water crises and Detroit's air quality in the Great Lakes region. “With the launch of a new national program office, we are embedding environmental justice and civil rights into the DNA of EPA and ensuring that people who’ve struggled to have their concerns addressed see action to solve the problems they’ve been facing for generations,” Regan said. At the nuts and bolts level, the new EJ office will be elevated to the status of the air and water programs, the traditional pillars of EPA’s work. There will be a $60 billion dollar investment in EJ and “more than 200 policy actions to move the president’s ambitious environmental justice and civil rights agenda forward,” according to the press release. The new office will be the successor to three existing offices including environmental justice and civil rights compliance. Heady stuff and good news, right? Sure, but some background is relevant. This isn’t the first time a presidential administration put a spotlight on environmental justice. Sympathetic Democratic Presidents Bill Clinton and Barack Obama also made EJ pledges. In 2011 Obama announced a plan to “take a big step forward on environmental justice.” The plan would help federal agencies “integrate environmental justice into the programs they run, the policies they make and the activities they engage in,” according to the announcement on the White House website. To codify his emphasis on EJ, President Obama brought federal agency executives together to sign a Memorandum of Understanding that committed each agency to development of environmental justice strategies, which Obama said was a “top priority” for his administration. Before Obama in 1994, President Clinton issued an executive order that directed federal agencies to “develop a strategy for implementing environmental justice” and promote nondiscrimination in federal programs that affect human health and the environment.” Presumably, if either the Clinton or Obama plans had been successful or even advanced the cause, there would be no need for another big splash environmental justice announcement from the Biden EPA. So now the task falls to Michael Regan, the seemingly affable former top environmental executive from North Carolina who was tabbed for the top EPA job by President Biden. Can Regan make good on EJ pledges where his predecessors failed? Will he avoid the entrenched bureaucratic tendencies of big federal agencies that focus on process? Or will he defy the odds and fix his attention on delivering positive outcomes, results that actually improve the lives of people in EJ communities? Regan inherited an EPA that was at best deprioritized and ignored by the Trump administration. And remember it was the Obama EPA under Gina McCarthy that botched its oversight responsibility that could have prevented or lessened the impact of the Flint water crisis. Years later, there is still a citizen lawsuit against the EPA pending in federal court over the agency’s handling of Flint. Then came Benton Harbor’s Flint-like water crisis last year where activists had to petition the EPA to intervene as it did in Flint. Similar to Flint, the EPA Inspector General recently announced it is examining the agency’s role in Benton Harbor. That was on Regan’s watch. The new Biden, Regan EJ initiative has the advantage of a lot of money to distribute and doling out big chunks of money makes for big headlines that imply progress. But federal money can’t cure all ills and is easily squandered. The real test for Regan will be to change the culture of the EPA to one that aggressively enforces existing laws. And lobbies Congress for new ones where needed. To eliminate a check the box mentality where agency staff can do everything by the book and still not generate a positive outcome for EJ communities. So let’s give Michael Regan a clean slate to start. Let’s hope he can generate positive EJ outcomes where his predecessors came up short. Then hold him accountable to his pledge to make life better in environmental justice communities so a future president doesn’t have to announce a big EJ initiative. gw Photo: NOAA As legal cases linger and loom, lessons from the Flint water crisis remain unlearned by Michigan and federal regulators.
The long and winding legal road of the Flint water crisis may have hit a turning point last week. A federal judge ruled against the U.S. Environmental Protection Agency in a negligence suit brought by Flint citizens.The EPA had sought to bypass the district court and take its defense directly to an appellate court, but Judge Judith Levy wasn’t buying the agency’s plea. Previously, EPA asked the court to dismiss the citizen negligence case claiming it is immune from private citizen suits, but that request was also rejected. That leaves EPA 0-2 in its legal attempts to deny accountability for the Flint water crisis. Michigan settled a civil suit brought by Flint residents for $600 million and criminal cases against Michigan officials are still pending, though chances of convictions are starting to dim. While the state of Michigan was responsible for the crisis, the EPA had direct oversight authority for drinking water and knew about Flint’s issues. But It didn’t use its emergency authority to intervene until well after the crisis had hit a tipping point. That’s when Susan Hedman, the EPA regional administrator in Chicago with direct oversight responsibility, resigned under pressure. Hedman had told the Detroit News that her hands were tied when it came to bringing information to the public and action by EPA was delayed while legal counsel was consulted in order to determine the agency's authority, the News reported. In 2018 the EPA’s Inspector General released its review of the agency’s handling of Flint and said that “management weaknesses” delayed its response to the Flint crisis. The IG report called on EPA to “strengthen its oversight of state drinking water programs to improve efficiency and effectiveness of the agency’s response to drinking water contamination emergencies.” How’d that “strengthen oversight” advisory workout? Not so well in Michigan as evidenced in 2021 in Benton Harbor where citizens and activist groups had been pleading with Michigan’s Department of Environment Great Lakes and Energy (EGLE) to sound the alarm about lead levels in drinking water. Hitting a wall, the groups filed a formal petition with the EPA to intervene, which it eventually did. But it was a soft intervention that smacked of collaboration with EGLE while blaming the under-resourced city of Benton Harbor for deficiencies And, EPA in a press release basically absolved itself of responsibility saying “EPA’s involvement has been instrumental to driving recent actions to ensure people are safe and healthy.” Once again, prevention, getting in front of a potential problem, took a back seat to reaction, swooping in like a savior after an issue becomes a crisis as was the case in Flint and Benton Harbor. And one would think that after all the national attention garnered by the Flint crisis that EPA would have Michigan’s EGLE under a microscope, but no. The result? In February the EPA Inspector General announced that it launched a review of EPA’s handling of Benton Harbor’s lead issues. It’s Flint redux and lawsuits abound, again. In January I asked environmental law attorney Nick Schroeck how the state of Michigan could break the cycle of repeating lawsuits based on regulation and oversight of municipal drinking water systems. Schroeck said the lawsuits are based on regulatory failures and “the best way for the state to avoid future litigation is to have an aggressive EGLE making sure that municipalities are following the law and that people have a safe water supply.” The key word is “aggressive” and Schroeck’s advice should apply to the EPA too. The general nature of regulatory agencies like EGLE and EPA is to play it safe and stay within a narrow interpretation of their authority. Absent is any thought of using moral authority that would lead to decisions that are “right and good.” I’d rather agencies take the heat that may come from breaking a few bureaucratic rules or taking a liberal interpretation of what is allowed if it protects citizens from the harm of lead in drinking water. But that’s not the prevailing view among regulators and their overseers who think that strict adherence to regulatory protocol is necessary. Meanwhile, the lawsuits pile up and the chances of harm to citizens remains. gw Photo: NOAA |
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September 2023
Gary Wilson,
Chicago-based environmental journalist |
