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New U.S. EPA Rule Change Would Inhibit Citizens From Filing Environmental Claims

Monday, August 19, 2019

Shehla Chowdhury

Research & Publications Intern

Last month, the New York Times reported that the Trump Administration began drafting a new rule that could eviscerate one of the most powerful tools available to U.S. citizens to hold the government accountable for environmental harm. The new rule, if finalized, would prevent concerned citizens from filing cases with the U.S. EPA Environmental Appeals Board (EAB), as well as inherently change EPA’s appeals process and undermine enforcement of environmental law throughout the country.

In 1992, EPA instituted the EAB in response to the growing role of adjudication as a mechanism for environmental enforcement. The board functions independently of the rest of the Agency as an impartial body, arbitrating administrative disputes such as the contestation of fees or permitting decisions. Its judges and attorneys have the power to reverse decisions made by regional EPA hearing officers, and as such, can be wielded as a robust instrument for environmental accountability. 

Since its inception, the environmental appeals process has been open to a wide variety of actors, making it a uniquely accessible process. Under the EAB’s current rules, entities from government agencies, corporations, and impacted communities are all able to initiate appeals. Anonymous sources familiar with the document report that the new rule would prevent individual citizens from pursuing arbitration, while continuing to allow corporations to participate in the process. While this proposed change is reflective of other rollbacks passed by the current Administration, it would cause serious damage to enforcement efforts and public participation.

Historically, the EAB has opened an accessible channel for citizens to act as environmental “whistleblowers” for their communities. When a community becomes aware of environmental violations by a local entity or when inspections and permitting processes are poorly conducted, concerned citizens can use the EAB processes to remedy these situations and prevent further harm. By providing a forum in which complaints could be heard and addressed, the public participation provisions have empowered individuals to protect their communities and encouraged them to hold polluting entities accountable. Communities have everything to lose from environmental harm and little to gain from ensuring adequate enforcement of environmental law. Without their diligence, it is difficult to tell how many environmental violations may have gone undetected.

As the New York Times reported, the EAB process was critical for a recent pollution permit case in Clare County, Michigan. An English teacher from the county took action when he learned that the Muskegon Development Company had received a permit from EPA to attempt to reconstitute a defunct oil well in his area by injecting large amounts of water into the well. Residents in Clare County feared that the polluted water would leak from the well into nearby local water supplies, so they took action. Led by the concerned English teacher, Clare County residents challenged Muskegon’s permit through the EAB on the grounds that the EPA regional office had not fully considered certain aspects of the project. In the end, the community’s concerns were addressed when the EAB sent the permit back to the EPA regional office for revision on the basis that the office had not appropriately evaluated environmental justice implications and public comments.

If the new rule is indeed put into place, communities like Clare County may be hard-pressed to find restitution, if at all. The establishment of a more complex process for appeals would evidently disadvantage those already marginalized. Keeping the EAB open and accessible helps to protect America’s democracy, ensure public participation, and improve environmental enforcement.

The New York Times reports that the proposal for the new rule change will be posted for public comment in the coming weeks, available at https://www.federalregister.gov/.