A Loophole Big Enough to Drive Environmental Justice Through

By January 20, 2011Economy, Energy, Regulations

From the President’s Jan. 18 executive order, “Improving Regulation and Regulatory Review,” Section 1, General Principles of Regulation:

c)  In applying these principles, each agency is directed to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.  Where appropriate and permitted by law, each agency may consider (and discuss qualitatively) values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.

Thus, any rational cost-benefit analysis can be tossed out the window if Executive Branch agencies prefer to make their decisions on subjective political and ideological reasons. Distributive impacts? You can justify the entire  program of the “environmental justice” movement using that rationale.

The EPA is already headed down that capricious regulatory path. Glenn Lammi of the Washington Legal Foundation recently explained how the EPA could circumvent the regulatory process to push the anti-growth and redistributionist priorities of the environmental justice advocates. From “Activists Work to Inject ‘Environmental Justice’ Concept into All EPA Actions and Beyond“:

 The issue injects a touchy subject into the controversial realm of environmental law and policy.  Invoking the broad and amorphous concept of environmental justice (“EJ”) – which equates “disparate impact” (rather than intentional acts) with discrimination – affords activists a highly effective new way to demonize free enterprise and demagogue the building of new business facilities and the award of pollution emission permits….

As explained in a [July 2010] cover memo to EPA employees, the Interim Guidance on Considering Environmental Justice During the Development of an Action is a “step-by-step guide [to] help EPA staff determine whether actions raise possible environmental justice concerns,” which will allow EPA to “explicitly integrate environmental justice considerations into the fabric of EPA’s process for developing actions,” according to a  which accompanied the guidance.  Agency “actions” include, “rules, policy statements, risk assessments, guidance documents, models that may be used in future rulemakings, and strategies that are related to regulations.”  In other words, essentially everything that EPA does on a daily basis.  The document’s two sections are a thorough roadmap on how EPA bureaucrats can weave a seemingly infinite number of EJ “concerns” into their  decisions, moves which can create a great deal of discomfort for regulatory targets challenging EPA future actions.

Because, unless until the courts act, the EPA would be the ultimate authority deciding what’s fair, equitable or respectful of human dignity. And creation of private-sector jobs? Too many negative distributive impacts!

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