Remarks for AAG Ignacia S. Moreno
Colloquium on Environmental Justice, Access
To Information and Public Participation
July 5, 2012, 2:00 p.m.
Good afternoon. It is my pleasure to be here today to take part in this important and timely discussion of environmental justice, access to information, and public participation.
I thank the World Bank for inviting me to speak today, and I extend a special thank you to my friend Charles DiLeva. I’m proud to say that Charles is an alumnus of the Environment and Natural Resources Division of the United States Department of Justice.
Today, we honor Professor Svitlana Kravchenko, who sadly passed away earlier this year.
But, her scholarly work on environmental governance lives on. In her writings, she recognized “three pillars” of environmental democracy and procedural environmental rights: access to information, public participation, and access to justice.
It is, therefore, fitting that we recognize Dr. Kravchenko by discussing environmental justice, access to information, and public participation in the context of the work of the Environment and Natural Resources Division at the United States Department of Justice.
As a starting point, let me introduce you to the work of the Environment and Natural Resources Division.
The Environment Division serves as the Nation’s environmental lawyer. We enforce and defend the environmental, wildlife, and natural resources laws enacted by Congress.
We represent the United States in civil and criminal environmental, wildlife, and natural resources cases that arise under more than 150 statutes, and we represent virtually every federal agency in courts all over the United States and its territories and possessions.
The Environment Division’s core mission includes:
• Strong enforcement of civil and criminal environmental laws to ensure clean land, clean air, and clean water for the protection of human health and the environment for all Americans;
• Vigorous defense of environmental, wildlife, and natural resources laws and agency actions;
• Effective representation of the United States in matters concerning the stewardship of our public lands and natural resources; and
• Vigilant protection of tribal sovereignty, tribal lands and resources, and tribal treaty rights.
As the head of the Environment Division, I am fully committed to achieving the Division’s core mission for the benefit of all Americans.
So, what does this mean?
It means that in the Environment Division, we are committed to working to protect all communities from environmental harms, including low-income, minority and Native American communities who too frequently live in areas overburdened by pollution.
I have traveled throughout the United States to inner cities, Indian reservations, the Gulf States, the Border States, Appalachia, and rural America.
I can tell you first-hand that there are many communities who still do not enjoy the benefits of clean air, clean land and clean water.
In this land of plenty, children living in poverty are more likely to breathe polluted air and suffer from asthma, or live near toxic waste sites or landfills, or lack a safe source of drinking water.
In the Environment Division, we have not forgotten communities who lack wealth, power or political influence.
Through our enforcement of the Nation’s environmental laws, we continue to pursue the goals of environmental justice by working to ensure that all communities enjoy the benefit of a fair and even-handed application of the law; and have a meaningful opportunity for input in the consideration of appropriate remedies for violations of the law.
Achieving environmental justice has long been a goal of the federal government.
On February 11, 1994, President Bill Clinton issued Executive Order 12898 on environmental justice and directed that “each Federal Agency shall make achieving Environmental Justice part of its mission.”
As a result, the Department of Justice issued guidance and a strategy to achieve the goals of environmental justice in the 1990s.
Years later, when I became Assistant Attorney General, I was pleased to see that the guidance and strategy remained in place.
Under the leadership of President Barack Obama, the federal government has reaffirmed its strong commitment to the principles of environmental justice and has taken concrete steps to make environmental justice a reality. Agencies across the federal government are dedicated to this endeavor.
At the Justice Department, Attorney General Holder has made it clear that:
“Our environmental laws and protections must extend to all people, regardless of race, ethnicity, or socioeconomic status which is why the Department of Justice is committed to addressing environmental justice concerns through aggressive enforcement of federal environmental laws in every community.”
As the Assistant Attorney General of the Environment Division, I could not be more committed to this goal.
I am very proud to say that the Environment Division has taken a leadership role in advancing the goals of environmental justice.
And, we are working towards making environmental justice a routine and fully integrated part of the work of the Division.
Let me share some examples of recent cases and, importantly, the steps that we have taken to include the views of environmental justice communities in shaping significant remedies for the protection of human health and the environment.
It is our priority, with EPA, to ensure that municipal wastewater and stormwater collection systems throughout the country comply with the requirements of the Clean Water Act.
Illegal discharges of untreated sewage from aging collection systems into local waterways and the back-up of raw sewage into people’s homes is a pressing public health challenge. Illegal discharges of untreated sewage particularly affect urban areas with large concentrations of minority and low-income residents.
Let me assure you, we are pursuing enforcement actions against a number of non-compliant municipalities to ensure clean water for these communities.
For example, in August 2011, we entered into a settlement with the Metropolitan St. Louis Sewer District in which it committed to make extensive improvements to its sewer system at an estimated cost of $4.7 billion over 23 years. The Environment Division included the Missouri Coalition for the Environment, a local environmental group that intervened in the lawsuit, in the settlement negotiations with the sewer district.
As a result of consultation with community groups, environmental groups, and others, we achieved a settlement that includes a number of provisions that directly benefit the community.
Because many of the areas that have sanitary sewer overflows and backups of sewage into buildings are in minority and low-income neighborhoods, the settlement requires the sewer district to spend $30 million over the next two years on construction projects to alleviate these problems.
The settlement also requires the sewer district to assist low-income residents, who are currently connected to private septic tanks by connecting their homes to the sewer system.
We also required under the settlement that the sewer district provide copies of all post-settlement technical reports, progress reports, and other submissions to the Missouri Coalition for the Environment and that it post these submissions on a public website so that the affected communities can be kept apprised of progress in implementation of the remedy.
We reached another significant settlement under the Clean Water Act with the City of Kansas City, Missouri. Under the terms of the settlement, Kansas City agreed to make $2.5 billion worth of improvements over 25 years to its outdated and dilapidated sewer system.
The city and EPA met with community groups to better understand local concerns.
Based on these discussions, we tailored the settlement to address the impacts of the violations on overburdened environmental justice communities by prioritizing sewer rehabilitation projects and requiring early action to reduce overflows of untreated sewage in the urban core.
We have obtained similarly tailored remedies working with community groups in settling Clean Water Act cases with other cities and counties throughout the country, including in Cleveland, Ohio; Jersey City, New Jersey; DeKalb County, Georgia; and Memphis, Tennessee.
Another settlement, with the Orval Kent Food Company, in January 2011, illustrates our outreach to a Native American Tribe and others affected by millions of gallons of industrial wastewater that overwhelmed a local sewage treatment plant, discharging pollutants into the Spring River in Kansas and Oklahoma.
Because the Spring River flows through the lands of the Shawnee Tribe of Eastern Oklahoma, we consulted with the Tribe and required the company to fund a project to re-stock fish in the Spring River watershed as part of the Clean Water Act settlement. Members of the Tribe and other downstream residents who use the river for fishing and recreation will benefit directly from this settlement.
In addition to Clean Water Act cases, we also are incorporating environmental justice considerations into our handling of Clean Air Act enforcement cases.
One such action is a September 2010 settlement we negotiated with Murphy Oil USA covering two large petroleum refineries in Wisconsin and Louisiana. Murphy Oil agreed to install equipment at both of its refineries (at a cost of approximately $142 million) to resolve Clean Air Act violations, which will reduce emissions of sulfur dioxide and nitrogen oxides by nearly 1,400 tons each year as well as reduce emissions of other pollutants.
The company also agreed to pay a $1.25 million civil penalty and to spend $1.5 million on a supplemental environmental project that will control noxious odors emanating from the company’s Louisiana facility.
A local citizens group in Meraux, Louisiana also filed a lawsuit against Murphy Oil. Attorneys from the Environment Division and EPA coordinated efforts with counsel for the citizens group, met with members of the group, listened to their concerns, and considered their input on potential remedies to include in the settlement.
As a result of these outreach efforts, the settlement contains a number of requirements responsive to community concerns:
First, Murphy Oil will have to meet stringent pollution control requirements if it expands certain operations.
Second, the settlement requires Murphy Oil to construct and maintain an air monitor between its refinery and the local neighborhood and to continuously monitor levels of sulfur dioxide, particulate matter, and volatile organic compounds.
Third, Murphy Oil must post the air monitoring data on a public website. This is the first refinery settlement to require this kind of monitoring and the disclosure of data on a public website.
Another Clean Air Act settlement reached in May of this year with BP North America also demonstrates how we worked with communities and others to shape the relief that we obtained in a settlement.
Under the settlement, BP will pay an $8 million penalty and invest more than $400 million to install state-of-the-art pollution controls and cut emissions from its petroleum refinery in Whiting, Indiana.
The United States was joined in this settlement by the State of Indiana as well as by several environmental organizations and citizens who had asserted claims against BP.
In order to achieve a comprehensive settlement, the United States spearheaded comprehensive negotiations that included all parties. The environmental groups and citizen intervenors were with us at the negotiating table and helped to shape the terms of the final settlement.
As a result of the direct participation of environmental groups and citizens in the settlement negotiations and input provided by the local community, BP agreed to perform a supplemental environmental project or SEP. The SEP requires BP to install, maintain, and operate a $2 million fence line emission monitoring system at the refinery and to make the data available to the public, in real time, on a public website. This information will allow the local community to monitor future emissions from the facility.
The environmental groups and citizens also sought reductions in greenhouse gas emissions to which BP agreed. As a result, under the settlement agreement, BP is required to spend an additional $9.5 million at the refinery on projects to reduce the emissions of greenhouse gases.
On the criminal side of environmental enforcement, the Division and U.S. Attorneys’ Offices have prosecuted defendants in many cases where the underlying violations impacted environmental justice communities.
In addition, our prosecutors have been considering how the traditional tools of criminal enforcement might be more effectively deployed to address impacts on communities, guided by the principles of environmental justice.
The Division also applies principles of environmental justice in other kinds of cases, including cases in which we defend federal agencies when they are sued in court.
For example, an association of Latino residents in the City of Laredo, Texas, Barrio de Colores challenged the United States Customs and Border Protection’s use of an herbicide for removal and control of Carrizo cane. They claimed that the Customs and Border Protection failed to notify the public in both Spanish and English of the public comment process and environmental review supporting the use of the herbicide.
In the settlement, Customs and Border Protection agreed to stop aerial spraying of the herbicide and to take other actions. It agreed to provide public notice in local newspapers in both English and Spanish.
The Agency also made additional commitments to hold a 45-day comment period on future environmental analyses; to prepare a Spanish version of the executive summary of the analyses; and to convene a bilingual meeting with Barrio de Colores to provide information about the project.
We also reached a settlement in a case filed against the Department of Energy challenging its use of a facility near Antonito, Colorado, to transfer environmental waste from flat-bed trucks to rail cars for shipment to Utah.
This facility is located near a Latino farming and ranching community with a median household income that is less than half of the national average.
Under the settlement, the Department of Energy agreed not to use the facility until it completed an environmental analysis and further agreed to provide the public with notice and a meaningful opportunity to comment on the analysis.
As these examples illustrate, communities, the government, and businesses all benefit from including the views of those affected by pollution in the shaping of environmental remedies.
While the Division represents the interests of the United States in litigation, we will continue to look for appropriate opportunities to involve communities and others in the process of resolving our cases and matters.
There should be no question that by pursuing the goals of environmental justice, we obtain better results in the cases that we handle.
As Dr. Kravchenko acknowledged in 2009 in a Tulane Environmental Law Journal article:
“The right to participate in decisions affecting the environment and life, health, and subsistence of the poor, if properly organized, can cause public authorities to take into account their opinion and can help public authorities make better decisions for the poor and for the environment.”
So, how can we ensure that the strides that we have made in the Environment Division and elsewhere in the federal government are enduring?
How can we ensure that we continue to move forward in making environmental justice a reality?
We are taking a number of key steps.
We are training Division lawyers and staff, as well as others in the Department on how to incorporate environmental justice principles into the work that we do.
In appropriate cases, Division attorneys are participating in community meetings to provide information to citizens about our cases and to get the community’s views on relief that should be sought in our settlements.
We also work closely with EPA, many of the 93 U.S. Attorneys’ Offices, and other federal, state, and tribal law enforcement partners to set priorities and address the most egregious violations of the law, including those affecting low-income, minority and Native American communities.
Government-wide, representatives from 16 federal agencies and the Council on Environmental Quality in the Executive Office of the President meet regularly as part of the Interagency Work Group on Environmental Justice to set strategic goals and share best practices.
In addition to our work in specific cases, the Environment Division has participated in many listening sessions across the country with environmental justice communities and tribal leaders to hear directly about their concerns and to understand their priorities.
I have personally heard communities express concerns about a wide range of issues, including industrial pollution, the impacts of mining operations, climate change, and access to subsistence hunting and fishing, and the lack of safe drinking water, among many other things. And, we are working with other federal agencies to address some of these concerns.
We also have met with members of the business community. They play a key role in responding to the needs of communities in which they do business.
I have emphasized to the business community what many businesses already know – that environmental compliance makes good business sense and is an important part of being a good neighbor to local communities.
I also have explained the importance of our environmental enforcement work. Through strong enforcement of environmental laws, we ensure that all Americans enjoy the benefits of a safe and healthy environment and that we provide a level playing field for responsible, law-abiding companies across industries.
These are just some examples of our ongoing efforts. The Department’s annual environmental justice report provides more detail and can be found on the Department’s website.
Consideration of environmental justice principles is becoming a routine part of our work in the Environment and Natural Resources Division.
We intend to assess our efforts and apply lessons learned as we move forward with these efforts.
In conclusion, environmental justice is an important part of the work that we do in the Environment and Natural Resources Division.
And, as a result, we are achieving better outcomes for impacted communities, for the environment, and for the American people.
Access to information and meaningful public participation are at the heart of the goals of environmental justice.
This approach is not only a long-standing policy of the federal government, but also a long-recognized goal of the global community.
For example, at the 1992 United Nations Conference, also known as the “Earth Summit,” representatives of the member states issued the Rio Declaration on Environment and Development.
Principle 10 of the Rio Declaration, which was recently reaffirmed at the 2012 Rio Conference, states:
“Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to engage in decision-making processes.”
As part of the Division’s core mission, I am fully committed to achieving the goals of environmental justice for the benefit of all Americans.
Thank you very much. It has been my pleasure to participate in this conference.