Information justice offers stronger clean air protections to fenceline communities

“Data drives policy, and the lack of data drives policy,” according to former Environmental Protection Agency (EPA) environmental justice official Mustafa Santiago Ali. This crucial insight succinctly encapsulates one of the fundamental disconnects between the Clean Air Act and environmental justice.

A bill pending in Congress called the Public Health Air Quality Act aims to bridge that divide by significantly enhancing our nation’s air pollution monitoring infrastructure and improving community access to monitoring data.

Lying at the core of the legislation is a concept called “information justice.” Information justice starts from the recognition that policy-relevant uncertainty is an inescapable feature of environmental decision-making. Agencies like the EPA simply will never have perfect information when deciding whether and how to address a particular pollution risk.

Critically, such uncertainty entails certain costs in the form of suboptimal regulatory policies. While the EPA cannot fully eliminate those costs, it can determine how they are distributed by how it chooses to act in the face of such uncertainty. Information justice seeks to ensure that these costs are distributed as fairly as possible. In practice, that means adopting a default rule that shifts these costs to corporate polluters — both because they benefit from harmful actions (in the form of profits) and they are in a better position to reduce uncertainty by obtaining new information about the potential harms of their pollution.

The essential problem that information justice seeks to address is that, as currently designed and implemented, many of our regulatory institutions are oriented against the fair distribution of uncertainty-related costs. And this, in turn, incentivizes polluters and their political allies to obstruct efforts to do things like obtain new information about a particular air pollutant’s exposure routes and health impacts.

Chief among these problematic regulatory institutions is cost-benefit analysis and the manner in which it dominates how regulatory decisions are made. Cost-benefit analysis purports to evaluate regulations by directly comparing the monetary value of their costs against the monetary value of their benefits. But, while the compliance costs of new rules (for example, pollution control equipment) are relatively easy to calculate, the benefits (for example, preventing rare cancers or preserving the integrity of ecosystems) are not — particularly when scientific uncertainty limits our understanding of those benefits.

Cost-benefit analysis “punishes” this uncertainty by assigning those benefits a monetary value of $0, thereby eliminating them from the analyses’ final results. Polluters have every incentive to exploit this dynamic, both by exaggerating existing uncertainties — and by thwarting any scientific research or monitoring actions that might enable the EPA’s analysts to assign a big dollar figure to regulatory benefits.

The Public Health Air Quality Act has the potential to break through this destructive dynamic. The bill requires several different comprehensive air pollution monitoring programs, both for hazardous air pollutants (for example, cancer-causing benzene) and more conventional “criteria” pollutants (for example, fine particulate matter that can cause lung and cardiovascular harms). Crucially, the bill lays out detailed instructions on where monitors should be located so they accurately reflect the exposures experienced by overburdened communities. To ensure that the monitoring data are as useful as possible to the public, the bill requires they be publicized in a timely manner and are easily accessible.

The most direct effect of this bill would be to reduce policy uncertainty regarding common types of air pollution so they might be better controlled to protect the public and the environment. Ideally, the legislation could even trigger a virtuous cycle upward, as corporate polluters will face strong incentives to learn more about the health effects of their emissions in the hopes of finding evidence that they are not as harmful as potentially feared.

Of course, information alone will not protect fenceline communities that border the largest polluting facilities in the country. So, as part of its program on community hazardous air pollutant monitoring, the bill would establish an emissions threshold for harmful pollutants called a “corrective action level.” When fenceline monitors detect emissions above this threshold, the bill would require the facility to take “full remedial action” to “protect the most exposed or most vulnerable individuals.”

To be sure, the EPA lacks sufficient scientific information to set the thresholds for most pollutants of concern at levels that will be protective of human health. Significantly, the bill would overcome this challenge by directing the EPA to follow the “precautionary principle” when establishing specific corrective actions levels. The precautionary principle is another key building block to achieving information justice in practice. Unlike cost-benefit analysis, it holds that uncertainty should not be used as an excuse for inaction, and instead calls for public-interest agencies like the EPA to institute reasonable protections in the face of likely harm.

After more than 50 years, the Clean Air Act is due for an upgrade to account for changing circumstances. We can now recognize how the law is insufficiently attentive to the realities of structural racism and systemic disparities in environmental protections. Polluters have exacerbated these problems by weaponizing uncertainty to oppose stronger protections for those who need them most.

In speaking to both challenges, the Public Health Air Quality Act would help ensure that the Clean Air Act is well positioned to continue serving the American people for the next 50 years.

James Goodwin is a senior policy analyst at the Center for Progressive Reform and a widely known expert in regulatory reform.