By Donna Kohut, CDRW PA State Lead & Campaign Manager – Delaware River Basin, PennFuture
In November, PennFuture, the Coalition for the Delaware River Watershed and the Choose Clean Water Coalition, who works primarily in the Chesapeake, collaborated to draft and submit a joint coalition sign on letter commenting on updates to the PA Department of Environmental Protection's ( PA DEP) interim final Environmental Justice Policy The formal public comment period closed on November 30, 2023, and now DEP is working on a comment-response document for comments received during this period.
Our two Coalitions focused comments on three issues with the current policy:
The Department's inability to enforce the Environmental Justice Policy and the subsequent need for its codification.
The need for the Department to actively protect Environmental Justice (EJ) communities and not just inform (or be informed by) them.
The need for the Department to more effectively address cumulative impacts - the accumulation of environmental degradation caused by multiple projects or sources of pollution.
We appreciate the efforts made in the Environmental Justice Policy to broaden DEP’s criteria for identifying EJ areas, encompassing crucial factors like toxic water emissions, impaired lakes and streams, and flood risk. However, we observed a critical shortfall in the Policy’s enforceability because of its nature as a guidance document rather than a regulation. This lack of enforcement capability puts environmental justice communities at risk, leaving them vulnerable without adequate protections. Therefore, we urged the Department to pursue rulemaking that grants the authority needed to implement and enforce the policy effectively.
While the DEP, in collaboration with the Office of Environmental Justice (OEJ), offers input opportunities from residents in EJ communities regarding impactful projects, community or public involvement cannot be considered “meaningful” unless it has the potential to change the outcome of the Department’s decision making. However, the ability to speak at a hearing, while a critical part of robust civic engagement, is not “meaningful involvement” if the decision maker will not act on the speaker’s words. “Fair treatment” requires communities to be free from disproportionate environmental risk, not just to be informed of the risks they face. This contrasts with the current Policy, which doesn’t mandate the Department to deny permits that might disproportionately harm environmental justice communities. Ultimately, if public comments do not affect the Department’s actions, then the Policy does not, and cannot, further environmental justice.
The Delaware and Chesapeake Coalitions witness the cumulative impacts of poor water quality across our two river basins, which are home to over nine million people in Pennsylvania. It is crucial for the OEJ to acknowledge and tackle the combined effects faced by many Environmental Justice communities downstream and on the frontlines. It seems contradictory for the Department to acknowledge the various social, health, and environmental impacts affecting a community, particularly an EJ community, yet fail to assess how a proposed project might worsen existing environmental injustice and pollution burdens within that EJ community.
To achieve its goal of “fair treatment” of “all people regardless of race, color, national origin, or income” the Department must prevent, and reverse, the buildup of cumulative and disparate harms on Black and brown communities, immigrant communities, and low-income communities, even if each application it receives appears to comply with other regulatory requirements. Unless the Department accepts its ability within the existing law to influence the concrete results of the permitting process, any environmental justice policy won’t truly ensure that all Pennsylvanians are fairly treated or have meaningful involvement. The Policy must direct the Department to deny permits based on public opposition, cumulative impacts, and disproportionate harms to environmental justice communities. Similarly, the Policy must direct the Department to prevent disparate outcomes, which signify the conditions of environmental injustice.
Together, the Choose Clean Water Coalition and the Coalition for the Delaware River Watershed continue to advocate for the codification of the Office of Environmental Justice and the strengthening of its policies because the communities and watersheds that we serve will only benefit from a robust approach to Environmental Justice.