Bracewell’s Jason Hutt discussed with Law360 how the EPA’s revised interpretation of the Select Steel precedent and environmental justice issues has caused confusion among regulated entities.
“Congress did not enact environmental laws designed to ensure equal distribution of the burdens associated with pollution,” Hutt said. “Environmental laws were enacted to ensure that those burdens, however they are distributed, are at levels acceptable to protect the environment and public health.”
Hutt said Title VI of the Civil Rights Act asks a totally different question, about whether burdens are unequally shared or discriminatory.
“Reconciling that difference is a mix of science, politics and other societal considerations,” he said.
According to Hutt, regulated entities struggle to respond to environmental justice considerations because there is no standard to meet or not meet.
“How does a regulated entity determine what groups of people warrant additional attention, but not additional protection?” he said. “Unlike ‘command and control’ or ‘market-based’ regulation, environmental justice is without a statutory hook. As EPA ventures further into prioritizing its policy initiative, challenges are likely to arise for the judiciary to address whether the agency’s approach is arbitrary and capricious or not in accordance with law.”
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