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General Memorandum 14-060

General Memorandum 14-060
EPA Adopts Policy on Environmental Justice for Working with Federally Recognized Tribes and Indigenous Peoples

On July 24, 2014, the Environmental Protection Agency (EPA) released its Policy on Environmental Justice for Working with Federally Recognized Tribes and Indigenous Peoples (Policy) available at www.epa.gov/environmentaljustice. The Policy "is designed to better clarify and integrate environmental justice principles in a consistent matter in the Agency's work with federally recognized tribes and indigenous peoples." The Policy includes seventeen principles, which are set out under four headings:

• EPA Direct Implementation of Programs, Policies, and Activities
• Tribal Environmental Programs
• EPA's Engagement with Indigenous Peoples
• Intergovernmental Coordination and Collaboration

While this Policy is new, EPA has considered environmental justice to be part of its mission for two decades, since the issuance of Executive Order 12898 by President Clinton in 1994. The Policy states that it is based on this Executive Order and on two other documents: (1) EPA's Plan EJ 2014; and (2) The EPA Policy for the Administration of Environmental Programs on Indian Reservations (adopted in 1984).

As defined by EPA, "environmental justice" means "the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies." Two of the key concepts included within this definition are also defined by EPA: "fair treatment," which means that "no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies," and "meaningful involvement," which means that members of an affected community have genuine opportunities to participate in and influence the regulatory agency's decision. Although EPA has for some time said that Executive Order 12898 and the EPA environmental justice policies apply to Indian tribes and other indigenous peoples, this Policy now explicitly expresses EPA's commitment to provide federally recognized Indian tribes and other indigenous peoples fair treatment and meaningful involvement in EPA decisions that may affect their health or environment.

The concept of environmental justice is not just a policy adopted by the federal government. Rather, it began as a social movement driven mainly by low-income communities and communities of color, and the lack of fair treatment and lack of meaningful opportunities to participate in governmental decisions were major factors in the emergence of this social movement. Low-income communities and communities of color protested regulatory decisions that allowed toxic waste sites and other environmentally undesirable facilities to be located near their neighborhoods. The adoption of environmental justice as policy by the federal government was in response to the social movement.

The application of environmental justice principles to Indian Country has been somewhat problematic because of the fundamental way in which tribal communities are different from other minority and low-income communities in America – tribes have the right of self-government and, at least in principle, can decide for themselves what kinds of environmental impacts are acceptable as the costs of economic development. In other minority and low-income communities, challenging a governmental decision on environmental justice grounds sometimes means advocating that EPA, or another federal agency, influence or overrule a decision by a state or local government agency. As such, when applied to Indian Country, framing an issue in environmental justice terms may be seen, in some cases, as at odds with federal support for tribal self-government.

In the new Policy, this tension is addressed under the heading Promoting Environmental Justice in Tribal Environmental Protection Programs. The Policy reaffirms that EPA acknowledges tribes as "the appropriate non-federal partners for making decisions and carrying out program responsibilities affecting their environments and the health and welfare of the populace." (The quoted language is taken from EPA's 1984 Indian policy.) Under this heading, principle 9 states:
The EPA provides advice and recommendations to federally recognized tribes supporting the integration of environmental justice principles and programs into tribal government programs, policies, and activities, including procedures designed to ensure fair treatment and meaningful involvement of both tribal members and others living in areas affected by the tribal program.

We note that the Policy employs a definition of "indigenous peoples" which is at odds with the commonly accepted usage of this term. As defined and used in the Policy, this term describes entities other than federally recognized tribes, including state-recognized tribes and tribal community-based organizations, as well as individual members of federally recognized tribes, individual members of state-recognized tribes, Native Hawaiians, Native Pacific Islanders, and other individual Native Americans. As the term "indigenous peoples" is used in international human rights law, such as the United Nations Declaration on the Rights of Indigenous Peoples (which is endorsed in the Policy), and as it is commonly used, it does include federally recognized tribes. In fact, in the United States, the vast majority of the entities that are "indigenous peoples" are federally recognized tribes. EPA has apparently defined the term as it has in order to draw a distinction between federally recognized tribes and other groups that may legitimately be considered to be indigenous peoples. The definition in the Policy may also result in confusion because of the inclusion of individuals. As the term is used in international law, a people is a collective entity – an individual cannot be a "people."

Please let us know if we may provide additional information regarding the EPA Policy.

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Inquiries may be directed to:
Dean Suagee (dsuagee@hobbsstraus.com)
Rich McAllister (rmcallister@hobbsstraus.com)

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