Environmental Justice: EPA Should Devote More Attention to
Environmental Justice When Developing Clean Air Rules (25-JUL-05,
GAO-05-289).
Executive Order 12898 made achieving "environmental justice" part
of the mission of the Environmental Protection Agency (EPA) and
other federal agencies. According to EPA, environmental justice
involves fair treatment of people of all races, cultures, and
incomes. EPA developed guidance for considering environmental
justice during the development of rules under the Clean Air Act
and other activities. GAO was asked to examine how EPA considered
environmental justice during two phases of developing clean air
rules: (1) drafting the rule, including activities of the
workgroup that considered regulatory options, the economic review
of the rule's costs, and making the proposed rule available for
public comment, and (2) finalizing the rule, including addressing
public comments and revising the economic review. GAO reviewed
the three clean air rules described in the next column.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-05-289
ACCNO: A30777
TITLE: Environmental Justice: EPA Should Devote More Attention
to Environmental Justice When Developing Clean Air Rules
DATE: 07/25/2005
SUBJECT: Environmental law
Environmental monitoring
Environmental policies
Federal regulations
Minorities
Policy evaluation
Pollution monitoring
Regulatory agencies
Air pollution
Air pollution control
Health hazards
Environmental protection
Policies and procedures
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GAO-05-289
United States Government Accountability Office
GAO Report to the Ranking Member, Subcommittee on Environment and Hazardous
Materials, Committee on Energy and Commerce, House of Representatives
July 2005
ENVIRONMENTAL JUSTICE
EPA Should Devote More Attention to Environmental Justice When Developing Clean
Air Rules
a
GAO-05-289
[IMG]
July 2005
ENVIRONMENTAL JUSTICE
EPA Should Devote More Attention to Environmental Justice When Developing Clean
Air Rules
What GAO Found
When drafting the three clean air rules, EPA generally devoted little
attention to environmental justice. While EPA guidance on rulemaking
states that workgroups should consider environmental justice early in this
process, GAO found that a lack of guidance and training for workgroup
members on identifying environmental justice issues may have limited their
ability to identify such issues. In addition, while EPA officials stated
that economic reviews of proposed rules consider potential environmental
justice impacts, the gasoline and diesel rules did not provide decision
makers with environmental justice analyses, and EPA has not identified all
the types of data necessary to analyze such impacts. Finally, in all three
rules, EPA mentioned environmental justice when they were published in
proposed form, but the discussion in the ozone implementation rule was
contradictory.
In finalizing the three clean air rules, EPA considered environmental
justice to varying degrees. Public commenters stated that all three rules,
as proposed, raised environmental justice issues. In responding to such
comments on the gasoline rule, EPA published its belief that the rule
would not create such issues, but did not publish the data and assumptions
supporting its belief. Specifically, EPA did not publish (1) its estimate
that potentially harmful air emissions would increase in 26 of the 86
counties with refineries affected by the rule or (2) its assumption that
this estimate overstated the eventual increases in refinery emissions. For
the diesel rule, in response to refiners' concerns that their permits
could be delayed if environmental justice issues were raised by citizens,
EPA stated that the permits would not be delayed by such issues. Moreover,
after reviewing the comments, EPA did not change its final economic
reviews to discuss the gasoline and diesel rules' potential environmental
justice impacts. Finally, the portions of the ozone implementation rule
that prompted the comments about environmental justice were not included
in the final rule. Overall, EPA officials said that these rules, as
published in final form, did not create an environmental justice issue.
Three Clean Air Rules United States Government Accountability Office
Contents
Letter
Results in Brief Background EPA Generally Devoted Little Attention to
Environmental Justice in
Drafting Three Rules EPA Considered Environmental Justice to Varying
Degrees in
Finalizing Three Rules Conclusions Recommendations for Executive Action
Agency Comments and Our Evaluation
1 3 7
10
16 23 24 24
Appendixes
Appendix I: Appendix II:
Appendix III: Appendix IV:
Appendix V: Information about the Three Final Clean Air Rules That We
Examined
EPA's Consideration of Environmental Justice in the Drafting of Three
Proposed Clean Air Rules
Workgroups Devoted Little Attention to Environmental Justice Little
Attention Was Devoted to Environmental Justice in the Economic Reviews
Proposed Rules Did Not Discuss Environmental Justice
Scope and Methodology
Comments from the Environmental Protection Agency
GAO Comments
GAO Contact and Staff Acknowledgments
29
30 32
33 33
34
35 49
52
Tables Table 1: Changes in Estimated Emissions of National Air
Pollutants, 1995-2004 8
Table 2: EPA Guidance for Discussion of Executive Orders in
Proposed Rules 15
Table 3: Estimated Potential Changes in Selected Emissions in
2007
Resulting from the Gasoline Rule in Counties with
Refineries 18
Table 4: Information about Three Proposed Clean Air Rules 31
Contents
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A
United States Government Accountability Office Washington, D.C. 20548
July 22, 2005
The Honorable Hilda L. Solis
Ranking Member
Subcommittee on Environment and Hazardous Materials Committee on Energy
and Commerce House of Representatives
Dear Ms. Solis:
Low-income and minority populations are disproportionately exposed to air
pollution and other environmental risks, according to Environmental
Protection Agency (EPA) studies. For example, a 1991 study cited by EPA
found that African Americans and Hispanics were more likely to be exposed
to ground-level ozone and several other air pollutants known to cause
health problems. In 1992, EPA established an office to address
environmental pollution affecting racial minorities and low-income
communities. Efforts to identify and address disproportionately high and
adverse impacts on specific populations and communities are commonly
referred to under the term "environmental justice."
In 1994, President Clinton issued Executive Order 12898, which stated that
EPA and other federal agencies, to the greatest extent practicable and
permitted by law, shall make achieving environmental justice part of their
missions by identifying and addressing, as appropriate, the
disproportionately high and adverse human health or environmental effects
of their programs, policies, and activities on minority populations and
lowincome populations in the United States. To implement the executive
order, EPA developed guidance for incorporating environmental justice into
specific program areas. One such program area is EPA's implementation and
enforcement of the Clean Air Act, a comprehensive law intended, in part,
to control emissions that have been found to harm human health. To
implement the act, EPA-among other things-develops, implements, and
enforces rules on the amount of various pollutants that may be emitted by
mobile sources (such as cars, trucks, and other vehicles) and stationary
sources (such as power plants and refineries).
According to EPA guidance, environmental justice and other specific
factors are to be considered at various points during the development of a
rule. For example, to draft a proposed rule, EPA establishes a workgroup,
comprised of officials from relevant offices within the agency, to
consider
various options and typically recommend one option to managers. EPA
guidance, issued in 1994 and 2004, reinforced Executive Order 12898 by
suggesting that environmental justice be considered early in the
rulemaking process.1 Also, the Clean Air Act, other statutes, and
executive orders require EPA to prepare an economic review of the proposed
rule's costs and other impacts. EPA guidance specifies that this review
will consider the rule's potential total costs to society (which could
include adverse health effects due to exposure to pollutants), including
the distribution of those costs among various social and economic groups.
Finally, after the approval of all relevant offices within EPA, the
proposed rule is published in the Federal Register, and a public comment
period is opened to solicit formal public comment on the proposed rule.
Further, the Clean Air Act requires EPA to allow the submission of public
comments, and the final rule must be accompanied by a response to each of
the significant comments. Significant public comments that raise
environmental justice issues would be addressed along with any other
significant public comments on the proposed rule. After considering formal
public comments and sometimes changing the economic review and the rule as
a result, EPA publishes the final rule in the Federal Register and on the
Internet. After a specified time period, the rule goes into effect.
In this context, you asked us to determine how EPA considered
environmental justice in both drafting and finalizing significant clean
air rules between fiscal years 2000 and 2004. Drafting the rule included
initial reports flagging potential issues for senior management,
activities of the workgroups that considered regulatory options, the
economic review of the proposed rule's costs, and making the proposed rule
available for public comment. Finalizing the rule included addressing
public comments, revising the economic review, and publication of the
final review in the
Federal Register.
To address these objectives, we analyzed EPA documents and held
discussions with EPA officials in Washington, D.C.; Anne Arbor, Michigan;
and Research Triangle Park, North Carolina, relating to three final clean
air rules that were considered significant by EPA and the Office of
Management and Budget (OMB) and were finalized between October 1, 1999,
and September 30, 2004. In order to identify the rules we would review in
detail, we initially analyzed a database of clean air rules finalized
1EPA, Action Development Process (June 30, 2004); Memorandum, Initiation
of EPA's New Regulatory and Policy Development Process (July 1994).
between fiscal years 2000 and 2004. We then selected rules for review (1)
that involved the EPA Administrator's office or extensive cross-agency
involvement and (2) that were sent to OMB for review. Rules are sent to
OMB for review if their expected annual costs or benefits exceed $100
million, if they raise novel legal or policy issues, or if they may
interfere with actions undertaken by another federal agency or a state,
local, or tribal government. We examined two mobile source rules: one rule
addressed, among other things, the sulfur content of gasoline used in cars
and similar vehicles (the gasoline rule, promulgated in 2000), and a
second rule addressed, among other things, the sulfur content of diesel
fuel used in trucks and similar vehicles (the diesel rule, promulgated in
2001). We also examined the rule for implementing the 8-hour ozone
national ambient air quality standard (the ozone implementation rule,
promulgated in 2004). A more detailed description of these rules can be
found in appendix I. We also selected these rules because, of the 19 clean
air rules finalized during this period that met our criteria, they are the
only 3 that included the terms "environmental justice" or "Executive Order
12898" in the final rule. We believed that compared with the other 16
rules, these 3 were more likely to include an in-depth consideration of
environmental justice by EPA. Therefore, these 3 rules are not likely to
be representative of all 19 rules.
In addition, we are including information in this report on how EPA
considered environmental justice in drafting three proposed rules of
substantial congressional interest, detailed in appendix II. We did not
review how EPA considered environmental justice when finalizing these
rules because they had not been finalized when we completed our initial
fieldwork. Additional details about our scope and methodology are provided
in appendix III. We conducted our work between July 2004 and May 2005 in
accordance with generally accepted government auditing standards.
Results in Brief We found that in four phases of drafting three
significant clean air rules between fiscal years 2000 and 2004, EPA
generally devoted little attention to environmental justice. First,
initial reports used to flag potential issues for senior management did
not address environmental justice. Second, although EPA guidance suggests
that workgroups should consider ways to build in environmental justice
provisions early in the rulemaking process, there is reason to question
whether this occurred for the three rules we examined. Specifically, the
chairs of two workgroups said they did not consider environmental justice,
although other workgroup members said that it was considered. Members of
the third workgroup said they did
consider environmental justice, but they could not provide us with details
on how they did so. Regardless of the extent of discussions, we identified
several factors that could have limited the workgroups' ability to
identify potential environmental justice issues. For example, workgroup
members received no guidance on how to identify potential environmental
justice problems in the drafting of a rule and received little, if any,
training about environmental justice.
Third, although EPA officials told us that for the proposed rules, their
economic reviews-which are intended to inform decision makers of the
social consequences of the rules-considered environmental justice, we
found that the reviews for the proposed gasoline and diesel rules did not
include environmental justice analyses. Moreover, EPA has not identified
all of the types of data necessary to perform such an analysis. Finally,
in publishing the proposed rules (an opportunity for EPA to explain how it
considered environmental justice), EPA mentioned environmental justice in
all three cases, but the discussion was contradictory in one case.
Specifically, the proposed ozone implementation rule stated in one section
that it would not raise any environmental justice issues. However, in
another section, the rule specifically invited comments on an option to
concentrate commercial and residential growth, which it recognized might
raise environmental justice concerns. The proposed gasoline rule stated
that environmental justice is an important economic dimension to consider,
but it did not describe whether or how it was considered. In a section on
environmental justice, the proposed diesel rule noted that it would
improve air quality across the country and could be expected to mitigate
environmental justice concerns about diesel emissions in urban areas.
We found that, in three phases of finalizing the three clean air rules
between fiscal years 2000 and 2004, EPA considered environmental justice
to varying degrees. First, public commenters raised concerns about
environmental justice in connection with all three rules as proposed, and
EPA generally responded to these comments, although not always thoroughly.
For example, EPA received comments that refinery emissions would increase
under the gasoline rule, and that such an increase would create
environmental justice issues. EPA responded that an increase in refinery
emissions was possible but-because of projected reductions in vehicle
emissions-overall emissions near refineries were unlikely to increase.
However, EPA did not explain the basis for this response. Specifically,
EPA did not publish its estimate that potentially harmful emissions would
increase in 26 of the 86 counties with refineries affected
by the rule, nor did it publish its assumption that this estimate
overstated the eventual increases in refinery emissions. For the diesel
rule, where similar concerns were raised that refinery emissions would
increase, EPA conducted no additional analyses. In response to refiners'
concerns that their permits could be delayed if environmental justice
issues were raised by citizens, EPA stated that it did not believe the
permits would be delayed by such issues. For the ozone implementation
rule, EPA received comments on environmental justice, but these comments
did not relate to the provisions included in the final rule. Second, after
reviewing public comments, EPA made no changes to how potential
environmental justice impacts were addressed in the final economic
reviews, and thus the final economic reviews generally did not provide
decision makers with an environmental justice analysis. Finally, in
publishing the three rules in final form, which was another opportunity
for EPA to explain how it considered environmental justice, EPA stated
explicitly that one rule would not create an environmental justice issue.
However, EPA did not explicitly state whether the other two rules would
create an environmental justice issue, although the preambles to both
rules discussed the mitigation of potential environmental justice effects.
EPA officials told us that they believed that none of the rules did create
environmental justice issues.
We recommend in this report that the EPA Administrator, among other
things, improve the workgroups' ability to identify environmental justice
concerns-for example, by providing better guidance and training-and
enhance the ability of its economic reviews to analyze potential
environmental justice impacts.
We received comments from EPA in a letter dated June 10, 2005 (see app.
IV). First, EPA expressed the view that its rules have resulted in better
air quality nationally. Second, EPA stated that in examining the agency's
process for considering environmental justice, we asked the wrong question
and that we should have focused on the outcome of the rulemaking
process-the rules themselves. Finally, EPA stated that our evidence of how
it considered environmental justice during the development of the three
final rules did not support our conclusions and recommendations, and it
provided detailed information about the efforts it took relating to
environmental justice for the three final rules.
We question the relevance of the information provided on air quality
nationally and disagree with EPA's other two points. First, EPA's
statements that clean air rules have resulted in better air quality
nationally at some level misses the point. Executive Order 12898 calls on
agencies to identify
and address the disproportionately high and adverse effects of its
programs, policies, and activities on specific groups. For example, such
groups could include those who live near refineries and may be exposed to
increased emissions as a result of the two mobile source rules, but EPA
provided no information on such groups. Second, EPA suggested that it
would have been more appropriate for us to look at the outcomes of its
efforts than at the process that produced the outcomes. We agree with EPA
that outcomes are important, but it is not yet clear whether the rules we
examined will address environmental justice issues effectively because the
rules are being implemented over the next several years. It is also
important to examine the process that led to the rules-as we did. The
various process steps are intended to help ensure that EPA's activities
during the many phases of drafting and finalizing all rules are
efficiently and effectively focused on achieving the desired outcomes.
Third, although EPA stated that our evidence did not support our
conclusions and recommendations, it did not challenge the accuracy of the
information we provided on how it considered environmental justice during
the many phases of developing the three final rules discussed in the body
of our report and the three proposed rules discussed in appendix II. While
EPA provided detailed information on certain activities and the rationale
for undertaking them, our report already discussed nearly all of these
activities. For example, EPA noted at length its efforts, after drafting
the gasoline rule, to hold discussions with environmental justice and
other groups on issues relating to permits that refiners would need if
they increased their emissions to comply with the rule. We already
acknowledged these efforts in our report. However, EPA's efforts at this
stage do not mitigate the fact that it devoted little attention to
environmental justice up to that point, or the fact that discussions with
affected groups while beneficial, do not offset the effects of possible
increases in refinery emissions on these groups. EPA is essentially
relying on state and local governments to deal with environmental justice
concerns as they implement the gasoline and diesel rules at the refinery
level, even though the executive order does not apply to state or local
governments, and absent specific state or local law, they have no
obligation to consider environmental justice when issuing permits. In
addition, the three final rules were selected in part because they
mentioned environmental justice and therefore should have showcased EPA's
efforts to consider environmental justice. Thus, we continue to believe
that the evidence we provided supports our conclusions and
recommendations.
Background Even before Executive Order 12898 was issued in 1994, EPA took
steps to address environmental justice. For example, in 1992, it
established the Office of Environmental Equity, which is now known as the
Office of Environmental Justice, to focus on environmental pollution
affecting racial minorities and low-income communities, but this office
has no specific role in rulemaking. In 1993, EPA created the National
Environmental Justice Advisory Committee to provide independent advice and
recommendations to the Administrator on environmental justice matters.
The 1994 executive order stated that EPA and other federal agencies, to
the extent practicable and permitted by law, shall make achieving
environmental justice part of their missions by identifying and
addressing, as appropriate, the disproportionately high and adverse human
health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States. The executive order does not create a right to sue the
government or seek any judicial remedy for an agency's failure to comply
with the order.
After the issuance of the executive order, EPA took additional steps to
identify and address environmental justice. Among other things, in 1994,
the Administrator issued guidance for the rulemaking process suggesting
that environmental justice be considered early in the rulemaking process.
In 1995, EPA issued an Environmental Justice Strategy that included, among
other things, (1) ensuring that environmental justice is incorporated into
the agency's regulatory process, (2) continuing to develop human exposure
data through model development, and (3) enhancing public participation in
agency decision making. In 2001, the Administrator issued a memorandum
defining environmental justice more broadly to mean "the fair treatment of
people of all races, cultures, and incomes, with respect to the
development, implementation, and enforcement of environmental laws and
policies, and their meaningful involvement in the decision making
processes of the government." In 2004, EPA developed new guidance for
rulemaking that, like its earlier 1994 guidance, suggested that
environmental justice be considered early in the rulemaking process.
Under the Clean Air Act, EPA, along with state and local government units
and other entities, regulates air emissions of various substances that
harm human health. According to EPA data, from 1995 though 2004, emissions
of certain air pollutants have declined from 15 percent to as much 31
percent, as shown in table 1.
Table 1: Changes in Estimated Emissions of National Air Pollutants, 1995-2004
Air emission amount (millions of tons per year)
Percentage
Type of air pollutant emission 1995 2004a change
Carbon monoxide 120.0 87.2 (27)
Nitrogen oxides 24.7 18.8 (24)
Sulfur dioxide 18.6 15.2 (18)
Particulate matterb 3.1 2.5 (19)
Volatile organic compounds 21.6 15.0 (31)
Lead 0.0039 0.0033 (15)
Source: GAO analysis of EPA data.
aData for 2004 are preliminary.
bPaticulate matter measuring 10 microns or less.
In addition, EPA sets primary national ambient air quality standards for
six principal pollutants that harm human health and the environment. These
standards are to be set at a level that protects human health with an
adequate margin of safety, which, according to EPA, includes protecting
sensitive populations, such as the elderly and people with respiratory or
circulatory problems. These six pollutants include the five types of
emissions listed in table 1, along with ozone, which is not emitted
directly but is formed when nitrogen oxides and volatile organic compounds
react in the presence of sunlight. According to EPA, in 2003, about 161
million people (about 56 percent of the population) lived in areas where
the concentration of ozone met the standard; about 120 million people (41
percent) lived in areas where the concentration of particulate matter met
EPA's standard; and about 168 million people (58 percent) lived in areas
where the concentrations of the other four pollutants met the standards.
EPA has a multistage process for developing clean air and other rules that
it considers high priority (the top two of three priority levels) because
of the expected involvement of the Administrator, among other factors.
Initially, a workgroup chair is chosen from the lead program office, such
as the Office of Air and Radiation (Air Office) in the case of clean air
rulemaking. The workgroup chair assigns the rule one of the three priority
levels, and EPA's top management makes a final determination of the rule's
priority. The priority level assigned depends on such factors as the level
of the Administrator's involvement and whether more than one office in the
agency is involved. The gasoline, diesel, and ozone implementation rules
were classified as high-priority rules on the basis of these factors. In
addition, these rules were considered significant because they had an
effect of $100 million or more a year on the economy, or they raised novel
legal or policy issues and, therefore, were required under Executive Order
12866 to be sent to OMB.2 Among other things, an OMB review is conducted
to ensure that the rule is consistent with federal laws and the
President's priorities, including executive orders.
EPA guidance identifies environmental justice as one of many factors to be
considered early in the rulemaking process. In 1994, the EPA Administrator
established guidance for rulemaking and identified 11 characteristics for
"quality actions" in rulemaking. Among these characteristics were (1)
consistency with legal requirements and national policies, which would
include Executive Order 12898, and (2) adherence to the Administrator's
seven priorities, which included environmental justice. According to the
guidance, managers must consider all 11 areas early on and be explicit
about any trade-offs made among them.
For high-priority rules, the workgroup chair is responsible for, among
other things, ensuring that work gets done and the process is documented.
Other workgroup members are assigned from the lead program office and, in
the case of the two highest priority rules, from other offices. The
workgroup may conduct such activities as (1) collaborating to prepare a
plan for developing the rule, (2) seeking early input from senior
management, (3) consulting with stakeholders, (4) collecting data and
analyzing issues, (5) considering various options, and (6) recommending
usually one option to managers. In addition, an economist (who typically
participates in the workgroup) prepares an economic review of the proposed
rule's costs to society. According to EPA, the "ultimate purpose" of an
economic review is to inform decision makers of the social welfare
consequences of the rule. Finally, after the approval of all relevant
offices within EPA, the proposed rule is published in the Federal
Register, the public is invited to comment on it, and EPA considers the
comments. Comments may address any aspect of the proposed rule, including
whether environmental justice issues are raised and appropriately
addressed in the proposed rule. Sometimes, prior to the publication of the
proposed rule, EPA publishes an Advanced Notice of Proposed Rulemaking in
the Federal Register. The notice provides an opportunity for interested
stakeholders to provide input to EPA early in the
2President Clinton issued Executive Order 12866 on September 30, 1993, to
begin a program to reform the regulatory process and make it more
efficient.
process, and the agency takes such comments into account to an appropriate
extent, according to EPA.
In finalizing a rule, EPA is required to provide a response to all
significant public comments, including those on environmental justice, and
to prepare a final economic review. After these tasks are completed, the
rule, if it is significant, is sent to OMB for approval. Once OMB approves
the final rule and the Administrator signs it, it is published in the
Federal Register. After a specified time period, the rule goes into
effect.
Within EPA, the Air Office is primarily responsible for implementing the
Clean Air Act, as amended. Within that office, the Office of Air Quality
Planning and Standards is primarily responsible for developing the
majority of new rules for stationary sources resulting from the act. Also
within the Air Office, the Office of Transportation and Air Quality has
primary responsibility for developing rules and other programs to control
mobile source emissions. The Office of Environmental Justice, located
within EPA's Office of Enforcement and Compliance Assurance, provides a
central point for the agency to address environmental and human health
concerns in minority communities and/or low-income communities-a segment
of the population that has been disproportionately exposed to
environmental harms and risks, according to the office's Web site. The
office works with EPA's program and regional offices to ensure that the
agency considers environmental justice.
EPA Generally Devoted Little Attention to Environmental Justice in
Drafting Three Rules
Although EPA guidance calls for environmental justice to be considered
early in the rulemaking process, we found that EPA generally devoted
little attention to environmental justice during the drafting of the three
rules as proposed. First, environmental justice was not mentioned in an
initial form used to flag potential issues for senior management. Second,
it is unclear how much the workgroups discussed environmental justice
because EPA officials had differing recollections on the matter. Even when
the workgroups did discuss environmental justice, their ability to
identify potential problems may have been limited by a lack of training
and guidance, among other factors. Third, the economic reviews of two of
the three proposed rules did not discuss environmental justice. Finally,
when the proposed rules were published in the Federal Register and made
available for public comment, all three mentioned environmental justice,
but the discussion was contradictory in one case.
Initial Form Prepared for Senior Management Did Not Address Environmental
Justice
Although EPA guidance suggested that environmental justice was one of the
factors that should be considered early in rulemaking, it did not include
information on environmental justice in a key form prepared for management
at the beginning of the process. After being designated, the workgroup
chair is to complete a "tiering form" to help establish the level of
senior management involvement needed in drafting the rule. For example,
the highest priority rules would involve the Administrator and more than
one office in the agency. The forms for the gasoline, diesel, and ozone
implementation rules stated that these rules were of the highest priority.
In addition, the form asks a series of questions, the answers to which are
to be used to alert senior managers to potential issues related to
compliance with statutes, executive orders, and other matters. This form
specifically asks about, among other things, the rules' potential to pose
disproportionate environmental health risks to children and to have
potential Endangered Species Act implications. However, the form does not
include a question regarding the rules' potential to create environmental
justice concerns. Moreover, on the forms that were completed for the three
rules we reviewed, we found no mention of environmental justice.
Lack of Guidance and Training May Have Limited Workgroups' Ability to
Identify Potential Environmental Justice Concerns
EPA officials had differing recollections about the extent to which the
three workgroups considered environmental justice. The chairs of the
workgroups for the two mobile source rules told us that they did not
recall any specific time when they considered environmental justice during
the rules' drafting, but other EPA officials said environmental justice
was considered. The chair of the ozone workgroup told us that his group
did consider environmental justice, but that he could not provide any
specifics about this.
Because 3 to 7 years have passed since these workgroups were formed and
the workgroup members may not have remembered discussions of environmental
justice during the rules' drafting, we asked them to provide us with any
documentation that may have indicated that environmental justice was
considered. Members of the two mobile source workgroups told us that they
did not have any such documents. The chair of the ozone workgroup provided
us with a copy of a document, prepared by the
workgroup, which identified issues needing analysis.3 The document stated
that information would be developed for an economic review related to the
proposed rule, and that such information would be used in part to support
compliance with executive orders, including one related to low-income and
minority populations.
Even when the workgroups stated that they had considered environmental
justice, we identified three factors that may have limited their ability
to identify potential environmental justice concerns. First, all three
workgroup chairs told us that they received no guidance in how to analyze
environmental justice concerns in rulemaking. Second, workgroup members
had received little, if any, training on environmental justice.
Specifically, all three workgroup chairs told us they received no training
in environmental justice. Two chairs did not know whether other members of
the workgroups had received any training, and a third chair said at least
one member had. Some EPA officials involved in developing these three
rules told us that it would have been useful to have a better
understanding of the definition of environmental justice and how to
consider environmental justice issues in rulemaking. Finally, the Air
Office's environmental justice coordinators, whose full-time
responsibility is promoting environmental justice, were not involved in
drafting any of the three rules. Neither of the two coordinators we spoke
with (the overall coordinator for the Air Office and the coordinator for
the unit within the Air Office that prepared the rules) could recall being
involved in drafting any of the three rules. Further, the Air Office's
environmental justice coordinators said they rarely served as part of a
workgroup for air rulemaking or received questions from a workgroup during
the development of any rule under the Clean Air Act.
3The document, called an "analytic blueprint," is to be developed for
high-priority rules, according to the 1994 EPA guidance on rulemaking, to
provide an opportunity for early identification of issues and for the
workgroup to reach agreement on how issues will be resolved. According to
the guidance, senior management approval provides managers with the
opportunity to engage in a dialogue with the workgroup on the analyses
that will support the rule.
Economic Reviews Did Not Always Provide Decision Makers with an
Environmental Justice Analysis
EPA is required under the Clean Air Act, other statutes, and executive
orders to prepare an economic review for proposed rules, and the type of
economic review to be prepared depends on the rule's impact on the
economy. Specifically, rules that are expected to have an effect of $100
million or more a year-like the two mobile source rules-require a more
detailed "economic analysis." Other rules-like the ozone implementation
rule-still must conduct a less detailed "economic impact assessment."
According to EPA, the "ultimate purpose" of these reviews is to inform
decision makers of the social consequences of the rules. According to EPA
guidance, both types of review are to discuss the rule's cost and the
distribution of those costs across society. According to EPA officials,
both types of review consider environmental justice. The more detailed
reviews, or economic analyses, also are to discuss the rule's benefits and
equity effects, which include environmental justice.
For all three rules, an economic review of their economic costs and
certain other features was prepared for decision makers before the
proposed rules were published. However, the economic analyses of the two
mobile source rules did not include an analysis of environmental justice.
The supervisor of the economists who prepared the analyses said that
environmental justice was not discussed in the analyses due to an
oversight. However, he also said (and a senior policy advisor in the Air
Office concurred) that EPA has not agreed upon the complete list of data
that would be needed to perform an environmental justice analysis.
Further, he said that EPA does not have a model with the ability to
distinguish localized adverse impacts for a specific community or
population.
Although the economic impact assessment of the ozone implementation rule
did discuss environmental justice, it inconsistently portrayed some
information relevant to the rule's potential environmental justice
impacts. Specifically, the assessment stated that EPA determined the rule
would not create environmental justice issues, based on its analysis of
the 1997 rule that established the 8-hour ozone national ambient air
quality standard. However, the earlier rule referred to its economic
review, which stated it was not possible to rigorously consider the
potential environmental justice effects of the rule because the states
were responsible for its implementation. The inability of EPA to
rigorously consider environmental justice in the 1997 rule does not seem
to support EPA's statement that there were no environmental justice issues
raised by the ozone implementation rule. Also, the economic impact
assessment did not address the potential environmental justice effects of
a certain provision, which EPA stated 2 months later, in the proposed
rule, might raise environmental justice
issues. The provision would attempt to reduce vehicle use generally
throughout a large metropolitan area by encouraging mixed-use growth-a
combination of industrial, retail, and residential development-in portions
of that metropolitan area, so transportation would be concentrated there.
According to EPA, concentrating vehicle emissions and stationary emissions
might create environmental justice concerns for low-income residents.
All Three Proposed Rules Mentioned Environmental Justice, but the
Discussion Appeared Contradictory in One Case
According to EPA's director of regulatory management, the agency did not
have any guidance on whether environmental justice should be included in
the preamble of a rule at the time the gasoline and diesel rules were
developed. By the time the ozone implementation rule was proposed, EPA had
developed guidance, which is still in place today. While this guidance
indicates that environmental justice and seven other executive orders
should be considered when a new rule is developed, it does not state that
officials must include a discussion of environmental justice in the
proposed rule. Specifically, the guidance provides that five orders should
be discussed in all rules, and that three other orders-including the order
relating to environmental justice-may be discussed if necessary and
appropriate. (Table 2 contains a list of these executive orders.) EPA
officials told us that a discussion of environmental justice was made
optional under the guidance because it is infrequently identified by EPA
as an issue.
Table 2: EPA Guidance for Discussion of Executive Orders in Proposed Rules
Executive order
Guidance Number Title
Executive orders that E.O. 12866 Regulatory Planning and Review
should be discussed Protection of Children from
E.O. 13045 Environmental
Health and Safety Risks
E.O. 13175 Consultation and Coordination
with Indian
Tribal Governments
E.O. 13211 Actions That Affect Energy
Supply,
Distribution, or Use
E.O. 13132 Federalism
Executive orders that E.O. 12630 Governmental Actions and
may Interference
be discussed with Constitutionally Protected
Property
Rights (Takings)
E.O. 12898 Environmental Justice
E.O. 12988 Civil Justice Reform
Source: EPA.
The publication of a proposed rule gives EPA an opportunity to explain how
it considered environmental justice in the rule's development. Although
all three rules mentioned environmental justice when they were published
in the Federal Register, they differed in the extent to which they
discussed this issue and, in one case, the discussion appeared
contradictory. In the proposed gasoline rule, EPA stated that
environmental justice is an important economic dimension to consider, but
it did not describe whether it was considered or whether the proposed rule
raised any environmental justice issues. In the proposed diesel rule, in a
section on environmental justice, EPA stated that the rule would improve
air quality across the country and could be expected to mitigate
environmental justice concerns about concentrations of diesel emissions.
More particularly, EPA stated that health benefits could be expected for
populations near bus terminals and commercial distribution centers, where
diesel truck traffic would be concentrated, because pollutants in diesel
emissions would be reduced. The treatment of environmental justice in the
proposed ozone implementation rule was unclear because two sections of the
rule appeared to contradict each other. In one section, EPA stated that it
did not believe the rule would raise any environmental justice issues, but
in another section, it specifically invited comments on an option to
concentrate commercial, industrial, and residential growth, which it said
"may raise environmental justice concerns."4
EPA Considered In all three cases, EPA received and generally responded to
public
comments on environmental justice, although in one case it did not
explainEnvironmental Justice the basis for its response. In addition, in
all three cases, it completed a final to Varying Degrees in economic
review, but these reviews generally did not provide decision Finalizing
Three Rules makers with an environmental justice analysis. EPA published
all three
final rules, and EPA officials told us that they believed that these rules
did
not create an environmental justice issue.
EPA Generally Responded to Public Comments Pertaining toEnvironmental
Justice
The Gasoline Rule
In Clean Air Act rulemaking, EPA is required to allow the submission of
public comments, and the final rule must be accompanied by a response to
each significant comment. These comments are generally submitted during
the official public comment period after a rule is proposed, but they may
be submitted while EPA is drafting a proposed rule. The act also requires
EPA to place written comments in a public docket.5 In addition, according
to EPA's public involvement policy, agency officials should explain, in
their response to comments, how they considered the comments, including
any change in the rule or the reason the agency did not make any changes.6
Commenters from the petroleum industry, environmental groups, and
elsewhere stated that the proposed gasoline rule raised environmental
justice concerns. For example, one commenter representing environmental
justice groups stated that the proposed rule was "completely devoid of
environmental justice analysis," and that the national benefits of the
rule were derived from transferring broadly distributed emissions into
areas
4In commenting on our report, EPA explained its "seemingly contradictory
statements" about the proposed ozone implementation rule. It said that it
sought comments on the proposal, which it said "might raise environmental
justice concerns," to alert stakeholders and facilitate discussions, and
that the proposal was not definitive enough to proceed to final
rulemaking.
5A public docket serves as the repository for the collection of documents
or information related to a particular agency action or activity. It
generally consists of documents specifically referenced in the Federal
Register, any public comments received, and other information used by
decision makers or otherwise related to the agency action or activity.
6EPA, Public Involvement Policy of the U.S. Environmental Protection
Agency, EPA 233-B-03-2002, May 2003, which updated a 1981 policy.
around refineries. Also, a representative of a petroleum company stated
that EPA needed to address environmental justice issues. EPA responded by
taking two actions. It (1) analyzed the rule's potential impact on
communities around refineries and (2) sought stakeholders' views on
environmental justice and other issues relating to refinery emissions.
First, EPA estimated how two types of refinery and vehicle emissions would
change, as a result of the rule, in 86 U.S. counties7 that contained a
refinery. The two types of emissions-nitrogen oxides and volatile organic
compounds-contribute to the formation of ground-level ozone, which is
regulated under the Clean Air Act because it is harmful to human health.
EPA estimated that the increase in refinery emissions could be greater
than the decrease in vehicle emissions, resulting in a net increase in
emissions of one or both substances, in 26 counties (about 30 percent of
the total), as shown in table 3. Specifically, it estimated that emissions
of both substances could increase in 10 counties, with a population of
about 13 million people, and that emissions of only one substance would
increase in another 16 counties. On the other hand, EPA estimated that
emissions of both substances could decrease in 60 counties. For example,
EPA estimated that in Plaquemines Parish, Louisiana, net emissions of
nitrogen oxides could increase 298 tons as a result of the rule,
reflecting an increase in refinery emissions of 356 tons and a decrease in
vehicle emissions of 58 tons. Conversely, it estimated that in Calcasieu
Parish, emissions of volatile organic compounds could decrease by 61 tons,
reflecting an increase in refinery emissions of 84 tons and a decrease in
vehicle emissions of 145 tons.
7EPA's analysis covered counties and parishes.
Table 3: Estimated Potential Changes in Selected Emissions in 2007
Resulting from the Gasoline Rule in Counties with Refineries
Estimated potential changes Number of counties
Increased emissions of one or both emissions
Increased emissions of both emissions
Increased emissions of only one emission
Subtotal
Decreased emissions of both emissions
Total
Source: GAO analysis of EPA data.
The results of EPA's analysis appear to support those commenters who
asserted that the rule might create environmental justice issues in some
localities. They also appear to conflict with EPA's statements, in its
summary of and response to comments document, that "it would be
unacceptable to trade the health of refining communities in exchange for
generalized air pollution benefits. However we do not believe the Tier
2/gasoline sulfur control rule will cause such an exchange." EPA also
stated that, for the "vast majority" of areas near refineries, the
benefits of reduced emissions from vehicles would "far outweigh" any
increase in refinery emissions.8
When asked whether this analysis appeared to confirm concerns about the
rule's potential environmental justice impacts, EPA officials told us that
the analysis was limited and overstated the net increase in refinery
emissions in two ways. First, according to EPA officials, the analysis did
not consider the actions that refiners would likely take to offset
increases in emissions because of the new rule; EPA assumed that they
would seek to reduce emissions in other ways to avoid additional
regulation at the state level. EPA said it believed these actions would
limit the expected increases in refining emissions. Second, EPA analyzed
the effect of the rule only for 2007. EPA officials said they believed
that the benefits of the rule would increase after that year, as new (and
cleaner) vehicles increasingly replaced older (and less clean) vehicles.
8EPA, Tier 2 Motor Vehicle Emissions Standards and Gasoline Sulfur Control
Requirements: Response to Comments, EPA 420-R-99-024, December 1999.
We note two other ways in which the analysis was limited in estimating the
potential effects on communities near refineries. First, EPA did not ask
refiners about the rule's impact on their output of these two emissions,
nor did EPA perform an analysis to determine how the rule would impact
individual refiners' emissions of these two substances. Instead, EPA
assumed that emissions would increase by the same proportion at each
refinery-nitrogen oxides, by 4.5 percent, and volatile organic compounds,
by 3.32 percent-although individual refineries increases could be lesser
or greater than these percentages. Secondly, EPA did not estimate the
rules' impact on other pollutants, such as particulate matter and sulfur
dioxide, which might also increase as a result of the increase in refining
activity needed to comply with the rule.
EPA did not make the results of its analysis available to the public,
either in the economic review of the final rule or elsewhere in the
docket, because EPA officials told us they considered the results of the
analysis too uncertain to release to the public. However, EPA officials
told us that the analysis-along with their assumption that refineries were
likely to emit less emissions than the analysis indicated-supported their
belief that the rule would be unlikely to cause environmental justice
impacts. In addition, these officials said they believed that, if the rule
did create environmental justice issues, they could be best addressed by
the state or local governments. This is because any refiners needing to
increase their emissions to comply with the gasoline rule would have to
submit specific plans to such governments during the permitting process.
Second, EPA believed that environmental justice issues would be best
addressed during the permitting process, and EPA hired a contractor to
solicit stakeholders' potential concerns about this issue. In September
1999, the contractor interviewed individuals from EPA, environmental
organizations, the oil refining industry, and state agencies responsible
for regulating refinery emissions to ascertain their views. In December
1999, the contractor again sought stakeholders' views, focusing largely on
local environmental groups, because few of them were interviewed in
September. In December, local environmental groups stated that they did
not trust the state environmental agencies, and that they perceived that
EPA had "talked exclusively with industry representatives prior to
developing the proposed rule, but not to the local environmental
organizations." In addition, these groups said that they did not want "any
added emissions to their air, even if there will be a net benefit to the
nation's environment."
In response to the stakeholders' concerns, the contractor recommended that
EPA develop permitting teams, provide information about the rule, and
enhance community involvement. The contractor said that these
recommendations would improve the permitting process for all stakeholders
by addressing issues specific to each permit, potentially including
environmental justice. EPA said that it would implement the contractor's
recommendations for improving the permitting process to deal with
environmental justice issues.
EPA stated that it believed that environmental justice issues could be
dealt with during the permitting process at the state or local level, and
officials told us that EPA has limited direct authority over permitting
because most permitting occurs at the state level. Several groups
commented that the states, not EPA, "act as the permitting authorities"
over refineries. EPA said it agreed that states generally have primary
authority over permitting. Further, Executive Order 12898 does not apply
to state or local permitting authorities, and absent specific state or
local law, state and local governments have no obligation to consider
environmental justice when issuing permits.
The Diesel Rule In response to an Advanced Notice of Proposed Rulemaking,
several commenters expressed concern that the diesel rule would lead to
increased refinery emissions of regulated pollutants. They specifically
stated that EPA should address the potential for increased emissions in
its economic analysis of the rule. EPA did not respond to these comments9
and did not factor the potential increase in regulated pollutants into its
final economic analysis. In commenting on the proposed rule, several
petroleum companies stated that changes they would need to make to comply
with the rule might increase emissions and, therefore, lead citizens to
raise environmental justice issues. EPA responded that it did not believe
that complaints would delay the refineries' permitting applications.
However, EPA did not analyze the rule for environmental justice impacts,
such as increases in air emissions in communities surrounding refineries.
EPA officials told us that they did not perform such an analysis because
they
9In commenting on our draft report, EPA noted that the agency was not
obligated to respond to these comments because they were filed on an
Advanced Notice of Proposed Rulemaking, which provides an opportunity for
interested stakeholders to provide input to EPA early in the process, and
the agency takes such comments into account to an appropriate extent.
Furthermore, EPA said commenters did not repeat these concerns when the
proposal was issued about a year later, and EPA assumed this was because
they were satisfied.
believed that they had sufficiently analyzed these issues in the context
of the gasoline rule.
The Ozone Implementation Rule In the proposed rule on implementing the
ozone standard, EPA asked for public comments on potential environmental
justice issues stemming from a specific provision that would have
encouraged concentrated growth in urban areas to reduce the number of
commuter vehicles contributing to ozone emissions. Seven public commenters
stated that the provision could have potential environmental justice
impacts. However, these comments on environmental justice did not relate
to the provisions of the ozone implementation rule that have, thus far,
been finalized, and therefore it was not necessary for EPA to respond to
these comments. According to an EPA official, EPA is still considering the
provision, and the public comments on it, for a second phase of the rule
implementing a new ground-level ozone standard that EPA intends to
finalize this year.
Final Economic Reviews Generally Did Not Provide Decision Makers with an
Environmental Justice Analysis
After taking into consideration public comments, the agency prepares a
final economic review. EPA guidance indicates that this final economic
review, like the proposed economic review, should identify the
distribution of the rule's social costs across society. After considering
public comments, EPA did prepare a final economic review for all three
rules, but, for two of the three rules, environmental justice was not
discussed.
Even after the public expressed concerns about environmental justice, the
final economic analysis of the gasoline rule, like the analysis of the
proposed rule, did not discuss environmental justice. According to the
supervisory economist, not discussing environmental justice in the final
analysis was an oversight.
Similarly, the final economic analysis of the diesel rule, like the
analysis of the proposed rule, did not discuss environmental justice.
Again, according to the supervisory economist, not discussing
environmental justice in the final analysis was an oversight. As a result,
EPA did not incorporate the public's suggestions that EPA include the cost
of increased refinery emissions in its economic analysis.
For the ozone implementation rule, EPA did not prepare a new economic
impact assessment for its final version. Instead, it issued an addendum to
the proposed assessment and stated that it considered the addendum and the
proposed assessment to constitute a final economic impact assessment. In
addition, because EPA decided to finalize the ozone
implementation rule in two phases, the addendum addressed only the part of
the rule that was finalized, not the entire proposed rule. Thus, the
assessment of the final rule did not change the conclusion of the
assessment of the proposed rule, namely that the ozone implementation rule
did not create any environmental justice issues.
EPA Officials Believed That the Three Final Rules Did Not Create
Environmental Justice Issues
The publication of a final rule gives EPA another opportunity to explain
how it considered environmental justice in the rule's development. For all
three rules, EPA discussed environmental justice.10 The preamble to one
rule stated explicitly that it would not create an environmental justice
issue.11 The other two rules did not explicitly state whether they would
create an environmental justice issue, although the preambles to both
rules discussed the mitigation of potential environmental justice effects.
EPA officials told us that they believed that these rules did not create
an environmental justice issue.
In the preamble to the final ozone implementation rule, as in the proposed
rule, EPA stated that the rule did not raise any environmental justice
issues. The agency supported its statement by explaining that the rule was
implementing a standard, developed in 1997, that had already taken
environmental justice into account.
In the preamble to the final gasoline rule in 2000, EPA stated that areas
around the refineries would receive an environmental benefit from the
rule, and that emissions at some refineries might increase even after
installing equipment to comply with emissions controls in the Clean Air
Act. It concluded that the increases in refinery emissions would be very
small in proportion to the decreases in vehicle emissions in the areas
around refineries. Moreover, EPA discussed its previous actions to
consider environmental justice concerns, as previously discussed, and
stated that it was committed to resolve environmental justice issues if
they arose, through additional outreach efforts to local communities and
similar means. Although the final rule did not state explicitly whether it
would or would not ultimately create an environmental justice issue, EPA
officials
10Of the 19 clean air rules that EPA finalized during the time period we
reviewed and that met our criteria, the 3 rules we reviewed were the only
ones that mentioned environmental justice in the final rule.
11The preamble to a rule contains additional text that explains the
rationale behind a proposed or final rule.
told us in late 2004 that, in their opinion, the rule did not create such
an issue.
Lastly, in the preamble to the final diesel rule in 2001, EPA stated that
the rule could mitigate some of the environmental justice concerns
pertaining to the heavy-duty diesel engines that often power city buses.
The final rule does not discuss any potential environmental justice issues
pertaining to impacts from increased refinery emissions on nearby
communities, even though EPA officials told us that they recognized
increased refinery emissions could have such impacts. Nevertheless, EPA
officials told us in late 2004 that they believed the rule did not create
environmental justice issues.
Conclusions We found some evidence that EPA officials considered
environmental justice when drafting or finalizing the three clean air
rules we examined. During the drafting of the three rules, even when the
workgroups discussed environmental justice, their capability to identify
potential concerns may have been limited by a lack of guidance, training,
and involvement of EPA's environmental justice coordinators. It is
important that EPA thoroughly consider environmental justice because the
states and other entities, which generally have the primary permitting
authority, are not subject to Executive Order 12898.
EPA's capability to identify environmental justice concerns through
economic reviews also appears to be limited. More than 10 years have
elapsed since the executive order directed federal agencies, to the extent
practicable and permitted by law, to identify and address the
disproportionately high and adverse human health or environmental effects
of their programs, policies, and activities. However, EPA apparently does
not have sufficient data and modeling techniques to be able to distinguish
localized adverse impacts for a specific community. For example, EPA has
not agreed upon the complete list of data that would be needed to perform
an environmental justice analysis. This suggests that, although EPA has
developed general guidance for considering environmental justice, it has
not established specific modeling techniques for assessing the potential
environmental justice implications of any clean air rules. In addition, by
not including a discussion of environmental justice in all of the economic
reviews, EPA decision makers may not have been fully informed about the
environmental justice impacts of all the rules.
Finally, even though members of the public commented about two rules'
potential to increase refinery emissions-potential environmental justice
issues, (1) in one case, EPA did not provide a response and (2) in the
other case, it did not explain the basis for its response, such as the
rationale for its beliefs and the data on which it based its beliefs.
While these may not have been significant comments requiring a response,
EPA's public involvement policy calls for EPA to provide responses when
feasible, and this policy does not appear to distinguish comments on
Advanced Notices of Proposed Rulemaking from comments on proposed rules.
Recommendations for Executive Action
In order to ensure that environmental justice issues are adequately
identified and considered when clean air rules are being drafted and
finalized, we recommend that the EPA Administrator take the following four
actions:
o ensure that the workgroups devote attention to environmental justice
while drafting and finalizing clean air rules;
o enhance the workgroups' ability to identify potential environmental
justice issues through such steps as (1) providing workgroup members with
guidance and training to help them identify potential environmental
justice problems and (2) involving environmental justice coordinators in
the workgroups when appropriate;
o improve assessments of potential environmental justice impacts in
economic reviews by identifying the data and developing the modeling
techniques that are needed to assess such impacts; and
o direct cognizant officials to respond fully, when feasible, to public
comments on environmental justice, for example, by better explaining the
rationale for EPA's beliefs and by providing its supporting data.
Agency Comments and EPA's Assistant Administrator for Air and Radiation
provided comments on a draft of this report in a letter dated June 10,
2005 (see app. IV). InOur Evaluation addition, he provided technical
comments that we incorporated where appropriate.
First, EPA expressed the view that its rules have resulted in better air
quality nationally. EPA said it was "disappointed" that we did not
accurately reflect its progress in achieving environmental justice with
respect to air pollution. It noted that the three rules are part of a
larger program that is making significant progress in providing cleaner
air nationwide. Second, EPA stated that in examining the agency's process
for considering environmental justice, we asked the wrong question, and
that we should have focused on the outcome of the rulemaking process-the
rules themselves. Finally, it stated that our evidence of how it
considered environmental justice during the development of the three final
rules did not support our conclusions and recommendations, and it provided
detailed information about the efforts it took relating to environmental
justice for the three final rules.
We question the relevance of the information provided on air quality
nationally and disagree with EPA's other two points. First, in addition to
the data we had already presented on the decrease in emissions of certain
air pollutants, EPA provided data on overall improvements in air quality,
specifically the decrease in the number of areas throughout the nation
that did not meet certain ambient air quality standards. However, because
these data provide no detail on the conditions facing specific groups-for
example, residents of areas near refineries, who might be negatively
affected by the two mobile source rules-these data are not necessarily
germane to environmental justice. Although Executive Order 12898 calls on
agencies to identify and address the disproportionately high and adverse
effects of its programs, policies, and activities on specific groups, EPA
provided no information about such groups. Also, we believe that EPA's
statement about the effect of clean air rules on national air quality at
some level misses the point. Second, EPA suggested that it would have been
more appropriate for us to look at the outcomes of its efforts than at the
process that produced the outcomes. We agree with EPA that outcomes are
important, but it is not yet clear whether the rules we examined will
address environmental justice issues effectively because the rules are
being implemented over the next several years. It is also important to
examine the process that led to the rules-as we did. The various process
steps are intended to help ensure that EPA's activities during the many
phases of drafting and finalizing all rules are efficiently and
effectively focused on achieving the desired outcomes.
Third, although EPA stated that our evidence did not support our
conclusions and recommendations, it did not challenge the accuracy of the
information we provided on how it considered environmental justice during
the many phases of developing the three final rules discussed in the body
of our report and the three proposed rules discussed in appendix II.
While it provided detailed information on certain activities and the
rationale for undertaking them, our report already discussed nearly all of
these activities. For example, EPA noted at length its efforts, after
drafting the gasoline rule, to hold discussions with environmental justice
and other groups on issues relating to permits that refiners would need if
they increased their emissions to comply with the rule. We already
acknowledged these efforts in our report. However, EPA's efforts at this
stage do not mitigate the fact that it devoted little attention to
environmental justice up to that point, nor the fact that discussions with
affected groups, while beneficial, do not offset the effects of possible
increases in refinery emissions on these groups. EPA is essentially
relying on state and local governments to deal with environmental justice
concerns as they implement the gasoline and diesel rules at the refinery
level, even though the executive order does not apply to state or local
governments, and, absent specific state or local law, they have no
obligation to consider environmental justice when issuing permits. In
addition, the three final rules were selected in part because they
mentioned environmental justice and should have showcased EPA's efforts to
consider environmental justice. Thus, we continue to believe that the
evidence we provided supports our conclusions and recommendations.
Finally, aside from its general statement that the evidence we presented
does not support our conclusions and recommendations, EPA generally did
not respond to our four recommendations. We continue to believe that all
of them are still warranted. With respect to our recommendation that
workgroups devote attention to environmental justice while developing
clean air rules, EPA stated that it "devoted appropriate attention to
environmental justice issues" in the three final rules. EPA's guidance
suggests that environmental justice be considered both at the beginning of
process (when the rules are drafted) and at the end of the process (when
they are finalized). However, nearly all of the attention EPA described
came at the end of the process-after receiving public comments.
EPA responded in part to our recommendation on the need to provide
guidance and training to workgroup members and the need to involve
environmental justice coordinators. EPA did not provide any information
that would refute the finding on the lack of guidance and training, for
example, by bringing to our attention any guidance or training that it
provides to workgroup members. However, EPA noted that an environmental
justice coordinator "was heavily involved" in one of the three final rules
and became an "ad hoc member" of the workgroup for the gasoline rule
"around the time the rule was proposed." From EPA's
comment, it is clear that the coordinator became involved only at the end
of the process of drafting this rule (i.e., "around the time the rule was
proposed"). Further, EPA did not mention whether a coordinator was
involved at all in the other two final rules, nor in the three proposed
rules.
EPA did not comment specifically on our recommendation on the need to
improve assessments of potential environmental justice impacts in economic
reviews or provide any information that would refute the finding that led
to it. EPA responded in part to our recommendation on the need to respond
fully, when feasible, to public comments on environmental justice.
Specifically, it noted that it did not respond to comments on the Advanced
Notice of Proposed Rulemaking on the diesel rule, and that it is has no
legal or policy obligation to respond to comments on an Advanced Notice of
Proposed Rulemaking. Although we understood that EPA's public involvement
policy calls for the agency to include a response to all comments when
feasible, we revised our report to reflect EPA's comment that it had no
obligation in such instances.
As arranged with your office, we plan no further distribution of this
report until 15 days after the date of this letter, unless you publicly
announce its contents earlier. At that time, we will send copies of this
report to interested congressional committees and the EPA Administrator.
We will make copies available to others upon request. This report will
also be available at no cost on GAO's Web site at http://www.gao.gov.
If you or your staff have any questions about this report, please contact
me at (202) 512-3841 or [email protected]. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on the
last page of this report. GAO staff that made major contributions to this
report are listed in appendix V.
Sincerely yours,
John B. Stephenson Director, Natural Resources and Environment
Appendix I
Information about the Three Final Clean Air Rules That We Examined
Short title used in
this report Gasoline rule Diesel rule Ozone implementation rule
Full title Control of Air Pollution from Control of Air Pollution from New
Final Rule to Implement the 8-Hour New Motor Vehicles: Tier 2 Motor
Vehicles: Heavy-Duty Engine Ozone National Ambient Air Quality Motor
Vehicle Emissions and Vehicle Standards and Highway Standard-Phase 1
Standards and Gasoline Sulfur Diesel Fuel Sulfur Control Control
Requirements Requirements
EPA summary of the rule
This rule is designed to This rule reduces particulate matter To provide
certainty to states and tribes
significantly reduce the and nitrogen oxides emissions from regarding
classifications for the 8-hour
emissions from new passenger heavy-duty engines by 90 percent national
ambient air quality standards
cars and light trucks, including and 95 percent below current (NAAQS) and
their continued obligations
pickup trucks, vans, minivans, standard levels, respectively, to with
respect to existing requirements.
and sport-utility vehicles, to decrease health impacts caused by
provide for cleaner air and diesel emissions. This rule addresses the
following topics:
greater public health classifications for the 8-hour NAAQS;
protection. Under this rule, a heavy-duty revocation of the 1-hour NAAQS;
how
vehicle and its fuel are regulated as antibacksliding principles will
ensure
This rule treats vehicles and a single system, combining continued
progress toward attainment of
fuels as a system, combining requirements for new heavy-duty the 8-hour
ozone NAAQS; attainment
requirements for cleaner engines to meet more stringent dates; and the
timing of emissions
vehicles with requirements for emission standards and reductions
reductions needed for attainment.
lower levels of sulfur in in the level of sulfur allowable in
gasoline. highway diesel fuel.
Final rule in the 65 Fed. Reg. 6698 66 Fed. Reg. 5002 69 Fed. Reg.
23951
Federal Register 02/10/2000 01/18/2001 04/30/2004
Response to 12/20/1999 12/21/2000 04/15/2004
comment date
Final economic 12/1999 12/2000 04/2004
review date
Proposed rule in 68 Fed. Reg.
the 64 Fed. Reg. 26004 65 Fed. Reg. 35430 32802
Federal Register 05/13/1999 06/02/2000 06/02/2003
Date of economic 04/1999 05/2000 04/2003
review for
proposed
rule
Workgroup
initiated 08/19/1998 09/01/1999 08/21/2001
date
Source: The Federal Register and EPA.
Appendix II
EPA's Consideration of Environmental Justice in the Drafting of Three
Proposed Clean Air Rules
Because of substantial congressional interest, we are including
information about how the Environmental Protection Agency (EPA) considered
environmental justice during the drafting of three additional proposed
clean air rules, up through their publication in the Federal Register. The
three proposed rules we reviewed were as follows:
o The December 2002 New Source Review proposed rule, which proposed a
change in the category of activities that would be considered routine
maintenance, repair, and replacement under the New Source Review Program.1
o The January 2004 mercury proposed rule, which proposed two methods for
regulating mercury emissions from certain power plants.2
o The January 2004 proposed Clean Air Interstate Rule (interstate rule),
which, among other things, proposed a requirement that 29 states and the
District of Columbia revise their state plans to include control measures
limiting emissions of sulfur dioxide and nitrogen oxides.3
When we completed our initial fieldwork, these rules had not been
finalized. Since then, the mercury and interstate rules have been
finalized and a portion of the New Source Review rule has been finalized.
Additional detail on these rules is provided in table 4.
167 Fed. Reg. 80290 (2002). EPA issued a final rule on the equipment
replacement portion of the New Source Review rule in October 2003. 68 Fed.
Reg. 61248. EPA has not finalized the remainder of the rule.
269 Fed. Reg. 4652 (2004). EPA issued a final mercury rule in March 2005.
70 Fed. Reg. 28606.
369 Fed. Reg. 4566 (2004). EPA issued a final rule on the interstate rule
in March 2005. 70 Fed. Reg. 25162.
Appendix II
EPA's Consideration of Environmental
Justice in the Drafting of Three Proposed
Clean Air Rules
Table 4: Information about Three Proposed Clean Air Rules
New Source Review routine Clean Air Interstate Rule Short title Mercury
rulea maintenance (interstate rule)
Full title Proposed National Emission Prevention of Significant Rule to
Reduce Interstate Transport Standards for Hazardous Air Deterioration
(PSD) and Non-of Fine Particulate Matter and Ozone Pollutants; and, in the
Alternative, attainment New Source Review (Interstate Air Quality Rule)
Proposed Standards of Performance (NSR): Routine Maintenance, Repair for
New and Existing Stationary and Replacement Sources: Electric Utility
Steam Generating Units
EPA summary of the rule
This rule would set national emission standards or standards of
performance for mercury emissions from new and existing coal-fired power
plants.
One approach would require coalfired power plants to meet emission
standards reflecting the application of currently available pollution
controls known as "maximum achievable control technologies" (MACT). The
second approach would set a cap on the total mercury emissions allowed
from coal-burning power plants nationwide and would allow emissions
trading.
The rule would provide a future category of activities that would be
considered "routine maintenance, repair and replacement" for the New
Source Review Program, as well as an annual allowance for such activities.
Two categories would be considered routine maintenance, repair, and
replacement: (1) certain activities as long as the facility's annual
maintenance, repair, and replacement allowance is not exceeded and (2)
replacement of certain components that meet EPA's equipment replacement
provision criteria.
The rule would require 29 states and the District of Columbia to revise
their state implementation plans to include control measures to reduce
emissions of sulfur dioxide and/or nitrogen oxides.
Based on EPA's finding that the 29 states and the District of Columbia
contribute significantly to nonattainment of the national ambient air
quality standards for fine particles and/or 8-hour ozone in downwind
states, EPA would require statewide sulfur dioxide and nitrogen oxide
reductions. Besides requiring reductions on controls for power plants, the
proposed rule discusses a model multistate cap and trade program that
states could choose to adopt. The model trading program would be proposed
in a supplemental action.
Proposed rule in 69 Fed. Reg. 4652 67 Fed. Reg. 80290 69 Fed. Reg. 4566
the Federal 01/30/2004 12/31/2002 01/30/04 Register
Date of economic The assessment consisted of (1) an 11/2002 01/2004
review for EPA memorandum to the docket on
proposed rule Economic and Energy Impact Analysis for the MACT rulemaking
on 01/28/2004; (2) a memorandum to the docket called the regulatory
flexibility analysis on 12/15/2003; and (3) a MACT benefit analysis of
01/2004.
Workgroup 04/06/2001 02/11/2002 Prior to 08/30/2003 initiated date
Source: The Federal Register.
Appendix II
EPA's Consideration of Environmental
Justice in the Drafting of Three Proposed
Clean Air Rules
aThe proposed rule also addressed nickel emissions. A supplemental notice
of proposed rulemaking was published in March 2004.
EPA officials told us that they did not consider environmental justice
while drafting two of these three proposed rules. Moreover, in our
analysis of these rules' economic reviews, we found no discussion of
environmental justice for two of the three rules. Finally, when published
in the Federal Register, none of the proposed rules discussed
environmental justice.
Workgroups Devoted Little Attention to Environmental Justice
The three workgroup chairs provided initial reports to senior management
in tiering forms to help establish the level of senior management
involvement needed in developing the rule. In these initial reports, all
three proposed rules were classified as top priority. The forms were to be
used to alert senior managers to potential issues related to compliance
with statutes, executive orders, and other matters. Environmental justice
was not a specific element on the form at the time, and the reports for
the three rules did not discuss environmental justice.
The chair of the New Source Review workgroup said his group did not
consider and address environmental justice early in the development
process because the rule was to be applied nationally and was prospective
in nature. The chair of the interstate rule workgroup said his group
conducted no environmental justice analysis. Finally, the chair for the
mercury workgroup said his group considered environmental justice in
drafting the proposed rule, but he provided no details about how it was
considered.
Workgroup members' ability to identify potential environmental justice
concerns may have been limited by a lack of guidance, training, and
involvement by environmental justice coordinators. Specifically, all three
chairs said that their workgroups did not receive guidance for how to
consider environmental justice when analyzing the rules. Furthermore,
while the mercury workgroup chair said that he had received training on
environmental justice, the other two chairs said they had received no such
training. All three chairs said they did not know whether other members in
their workgroups had received environmental justice training. Also, all
three chairs said that environmental justice coordinators did not assist
their workgroup.
Appendix II
EPA's Consideration of Environmental
Justice in the Drafting of Three Proposed
Clean Air Rules
Little Attention Was Devoted to Environmental Justice in the Economic
Reviews
EPA prepared an economic analysis for all three rules. Among these
economic analyses, only the review for the New Source Review rule stated
that environmental justice was unlikely to be a problem because the
potential for disproportionate effects generally occurs as a result of
decisions on siting new facilities, and EPA noted that this rule dealt
exclusively with existing facilities. The analysis for the mercury rule
did not discuss environmental justice. The analysis stated that-due to
technical, time, and other resource limitations-EPA was unable to model
the changes in mercury emissions that might result from the rule. However,
EPA stated that to the extent mercury emissions do have adverse health
effects, the proposed rule would reduce emissions and subsequent exposures
of people living near power plants.4 The analysis for the interstate rule
did not discuss environmental justice. It was not discussed, according to
the supervisor for economists in the Office of Air and Radiation, because
the rule was expected to provide nationwide benefits and because EPA
lacked the data and modeling capability to predict how regulated entities
will react to the requirements of the rule.
Proposed Rules Did Not Discuss Environmental Justice
We found no discussion of environmental justice in any of the three rules,
as they were published in the Federal Register. Neither Executive Order
12898 nor EPA guidance requires a discussion of environmental justice in
proposed rules. According to EPA officials, such a discussion was not
necessary for these three rules because they did not believe the rules
would have any environmental justice impacts.
4See EPA, Benefit Analysis for the Section 112 Utility Rule, which is
EPA's analysis of a technology-based approach to reducing mercury
emissions from a current level of 48 tons per year to a projected 34 tons
per year by 2008. EPA did not finalize this approach; instead, it
finalized an alternative approach to reducing mercury emissions to 38 tons
per year in 2010 and 15 tons annually by 2018.
Appendix III
Scope and Methodology
To determine how EPA considered environmental justice when developing
significant rules under the Clean Air Act, as amended, we reviewed an EPA
database of clean air rules finalized during fiscal years 2000 through
2004. We assured ourselves that the database was reliable for our
purposes. Rules are considered significant and sent to the Office of
Management and Budget for review if their expected annual costs or
benefits exceed $100 million; they raise novel legal or policy issues; or
they may interfere with actions undertaken by another federal agency or
state, local, or tribal governments. In addition, rules that involve the
Administrator or an interoffice review are considered high priority within
EPA. We identified 19 clean air rules EPA finalized in our time period
that were considered significant and a high priority. We then reviewed the
19 rules in the Federal Register to identify those rules that mentioned
the terms "environmental justice" or "Executive Order 12898" and found 3
rules that mentioned one or both terms. The 16 rules that did not mention
environmental justice included rules relating both to mobile sources, such
as a rule to control the emissions of air pollution from nonroad diesel
engines and fuels, and rules relating to stationary sources, such as a
final rule to establish a national emission standard for hazardous air
pollutants at iron and steel foundries. We focused on the three rules that
mentioned environmental justice because we believed they were more likely
to demonstrate how EPA considered this issue in clean air rulemaking.
To determine how EPA considered environmental justice as it drafted and
finalized clean air rules, we reviewed EPA documents and interviewed EPA
officials, including workgroup leaders. To characterize how or whether
EPA's economic reviews for the rules considered environmental justice, we
analyzed both the preliminary and final economic reviews for each rule and
interviewed the supervisor of the economists who developed the reviews. To
determine whether the public raised environmental justice concerns in
commenting on proposed rules and how EPA addressed those comments, we
reviewed EPA documents, such as the agency's summaries of comments and
responses, and the final rules as published in the Federal Register.
We conducted our work between July 2004 and May 2005 in accordance with
generally accepted government auditing standards.
Appendix IV
Comments from the Environmental Protection Agency
Note: GAO comments supplementing those in the report text appear at the
end of this appendix.
Appendix IV
Comments from the Environmental
Protection Agency
See comment 1.
Appendix IV
Comments from the Environmental
Protection Agency
See comment 2.
Appendix IV
Comments from the Environmental
Protection Agency
See comment 3.
Appendix IV
Comments from the Environmental
Protection Agency
See comment 4.
Appendix IV
Comments from the Environmental
Protection Agency
See comment 5.
See comment 6.
Appendix IV
Comments from the Environmental
Protection Agency
See comment 7.
See comment 8.
Appendix IV
Comments from the Environmental
Protection Agency
Appendix IV
Comments from the Environmental
Protection Agency
See comment 9.
Appendix IV
Comments from the Environmental
Protection Agency
See comment 10.
Appendix IV
Comments from the Environmental
Protection Agency
See comment 11.
Appendix IV
Comments from the Environmental
Protection Agency
Appendix IV
Comments from the Environmental
Protection Agency
Appendix IV
Comments from the Environmental
Protection Agency
Appendix IV
Comments from the Environmental
Protection Agency
The following are our comments on the Environmental Protection Agency's
letter dated June 10, 2005.
GAO Comments 1.
2.
3.
4.
5.
6.
We disagree with EPA's assertion that the Air Office paid appropriate
attention to environmental justice issues. We found that EPA devoted
little attention to environmental justice in four phases of drafting the
rules and considered environmental justice to varying degrees in the three
phases of finalizing them. EPA provided virtually no new information on
its activities during these phases.
EPA was referring to our report entitled Clean Air Act: EPA Has Completed
Most of the Actions Required by the 1990 Amendments, but Many Were
Completed Late, GAO-05-613 (Washington, D.C.: May 27, 2005).
As we stated, several public commenters said that the ozone implementation
rule, as proposed in June 2003, could have potential environmental justice
impacts. As we also stated, in April 2004, EPA finalized a portion of the
ozone implementation rule, which it then called Phase I; but it did not
include the provision that drew the public comments on environmental
justice. EPA officials are still considering this provision for a second
phase of the rule implementing a new ground-level ozone standard, called
Phase II. It is true, as EPA stated, that we did not identify any
environmental justice issues in the Phase I rule. However, our objective
was not to identify such issues with the rules, but to review how EPA
considered environmental justice in developing the rules.
On the basis of EPA's letter, we added clarification about the "seemingly
contradictory statements" in our discussion of the ozone implementation
rule.
As we stated, public commenters did raise such issues about all three
rules as they were proposed. As we also stated, EPA did not finalize the
portion of the ozone implementation rule that it, and others, said could
raise environmental justice issues.
While EPA stated that our report is misleading and needs further
explanation of context, it is not clear from EPA's comments how the agency
would want us to frame this issue differently. First, EPA comments that
EPA staff believed that, as a factual matter, as the rule
Appendix IV
Comments from the Environmental
Protection Agency
was implemented, it was unlikely to pose environmental justice issues.
Similarly, we state in the report that EPA officials believed that the
final rules did not create environmental justice issues. Second, EPA
stated that we should note the steps that the agency took to address
potential environmental justice concerns. We did so, noting EPA's
discussion of these steps in the final rule. Moreover, in its letter, EPA
stated that it agreed with us that the gasoline rule (finalized in
February 2000) would create "potential environmental justice issues." It
was public commenters, not we, who raised concerns about potential
environmental justice issues.
7. We clarified in the Highlights page and other portions of the report to
note that EPA officials told us, after the rules were finalized, that none
of the rules created an environmental justice issue.
8. We clarified the source of EPA's statements. The preamble of the final
rule is discussed in our report.
9. According to EPA, we stated that the Air Office's environmental justice
coordinators were not involved in the gasoline rulemaking. In fact, we
stated only that the coordinators were not involved in developing the
rule, as opposed to public outreach efforts, where they were involved.
EPA's description of how and when a coordinator was involved buttressed
our point. According to EPA's letter, the environmental justice
coordinator was involved only in resolving "permitting process issues" and
became involved only "around the time the rule was proposed." Similarly,
according to EPA's letter, the Office of Environmental Justice
representative was involved only in discussions of "permitting issues" and
only "after the proposed [gasoline] rule was published." Thus, it appears
that in neither case were they substantively involved in drafting this
rule. We added language in the report clarifying the discussion of the
process.
10. As EPA noted, it devoted resources to seeking public involvement while
finalizing the gasoline rule. Accordingly, we changed our characterization
of EPA's efforts in finalizing the three rules.
11. EPA's public involvement policy provides that it will, to the fullest
extent possible, respond to public comments. We did not see a distinction
in the policy between comments on Advanced Notices of Proposed Rulemaking
and comments on proposed rulemakings. However, EPA interprets its policy
as requiring a response to comments
Appendix IV
Comments from the Environmental
Protection Agency
on the latter but not the former, and we have revised our report
accordingly.
Appendix V
GAO Contact and Staff Acknowledgments
GAO Contact John B. Stephenson (202) 512-3841
Staff In addition to the individual named above, the key contributors to
this report were John Delicath, Michael A. Kaufman, David Marwick, Thomas
Acknowledgments Melito, and Daniel J. Semick. Tim Guinane, Anne
Rhodes-Kline, and Amy Webbink also made important contributions.
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