Inequities in the enforcement of environmental regulations are an important problem, as a number of studies show that ethnic minorities and low-income citizens are likely to suffer disproportionately from the effects of toxic waste, and air and water pollution.  In response to this problem, President Clinton signed Executive Order 12898 in February, 1994 which required all federal agencies to consider “disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations” when writing new regulatory rules.

In our recent paper, “Political Control and Policymaking Uncertainty in Executive Orders: the Implementation of Environmental Justice Policy”, Brian Gerber and I sought to understand how U.S. federal agencies implement EO 12898 by examining the manner in which agencies cite the order when creating new regulatory rules.  A large body of literature has established that both Congress and the President exert ideological influence over government agencies and their outputs. At the same time, it is difficult to predict whether new rules can mitigate environmental disparities. Federal initiatives tend to be sweeping, uniform laws that are designed to improve the overall state of land, air and water, while environmental justice (EJ) is all about local variation in environmental conditions and enforcement. Such uncertainty in policymaking may work against top-down movements to focus more strongly on EJ.

To analyse how the bureaucracy implements EO 12898, we coded the stated impact that each rule was to potentially have on environmental inequities, for nearly 2,000 rules from 11 different federal agencies, from 1994 through 2012.  Rules were coded as either having an affirmative, positive impact, having no impact at all, or as being irrelevant to the issue. We first examined the trends in cites over time and across different presidencies, as we had hypothesized that agencies under Democratic presidents would issue more affirmative cites.  At the same time, high levels of policymaking uncertainty surrounding the issue should make cites of no impact or irrelevance more likely. We also looked at cited rules as a proportion of total rules issued during the period, as a measure of attention to the EJ issue. Finally, we estimated a multinomial (MNL) logit model which analysed the dual impacts of political control and policymaking uncertainty on the likelihood of each type of cite. We also examined how these cites vary when complaints are made about local government performance on the EJ issue.

Our analysis found that both political control and policymaking uncertainty have important effects on the implementation of EJ policy. Of the three presidencies, the Clinton Administration (the authoring administration of EO 12898) had the highest proportion of affirmative cites, while the Bush Administration utilized the no impact cite most often. This is not particularly surprising, as Bush agencies downplayed the focus on minority and low-income populations within EO 12898. Finally, the Obama Administration had a surprisingly large number of rules in which EO 12898 was deemed irrelevant. Indeed, about 74 percent of Obama era rules fell into this category, but at the same time, EO 12898 was cited more by Obama agencies than by agents of the other two presidents, illustrating a high level of attention to the EJ issue, even if EJ was then declared to be irrelevant to the rule.

The MNL model was largely supportive of these results and shed further light on policymaking uncertainty in the presence of EJ complaints against local government. There is a mode of “fire alarm oversight” built into the EJ issue, whereby affected citizens and communities can bring complaints under Title VI of the 1964 Civil Rights Act if they believe that local governments are not effectively preventing environmental disparities. Such complaints are ultimately investigated by the relevant federal agency. We found that as such complaints rose, agencies from all three presidencies were more likely to cite rules as either having no impact or as being irrelevant. What this shows is that civil servants are more likely to be risk averse and avoid statements of positive impact, especially when complaints about local agency performance rise. Uncertainty about the impact of new rules on EJ is high to begin with, but becomes more so in the face of performance complaints.

Environmental justice is a highly significant issue, especially as we consider how climate change exacerbates people’s access to clean air, water and land. Our study shows that left-wing governments pay closer attention to the issue of EJ, but even with this added attention, the problem is more often about how to establish positive links between government initiatives and the mitigation of environmental inequities. In the absence of such links, inequality in environmental regulation will continue to be a major challenge.

– Colin Provost and Brian J. Gerber.

– Provost and Gerber’s Journal of Public Policy article is available free of charge until the end of August 2018.

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