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Recently, the US EPA has pledged to incorporate environmental justice considerations "into the fabric" of its rulemaking procedures. But finding an appropriate way to incorporate environmental justice considerations into policy-making has been a procedural challenge since President Clinton issued Executive Order 12898 over 15 years ago. In particular, environmental justice concerns tend to be overshadowed by efficiency considerations as embodied in benefit-cost analysis. Yet at the same time, both Presidents Obama and Clinton have issued orders to incorporate distributional and equity considerations into benefit-cost analysis, as well as the standard efficiency considerations.

This article argues that the environmental justice and benefit-cost policies and procedures in EPA's rule-making can both be improved by bringing them closer together. In particular, environmental justice consideration should be incorporated into Regulatory Impact Analyses (RIAs) by drawing on the much older tradition of incorporating distributional effects into benefit-cost analysis.

By providing information on the distribution of benefits and costs of its regulatory actions, EPA would further its environmental justice objectives by providing the information that all groups—including the poor, minorities, and environmental justice communities—need to understand the impacts of a regulatory action. Crucially, this information must include costs as well as benefits. The distribution of costs--including indirect costs through higher land prices and lost jobs--are equally important as benefits, as they also affect the welfare of the poor. By incorporating such information into its RIAs, EPA would integrate environmental justice considerations into its development of regulations. Finally, by actually allowing the new information to inform the design and selection of regulations so as to better protect disadvantaged groups, adding distributional impacts to RIAs would improve the distributive justice associated with EPA's actions as well as the procedural justice.


This article was originally published in the Journal of Land Use & Environmental Law. Copyright © 2011 Florida State University College of Law.