Environmental Justice: A Legislative and Regulatory Update

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Environmental Justice, as an urgent policy priority of the Federal Government, dates back to 1994, and President Clinton’s issuance of Executive Order 12898. This order directed federal agencies to identify and address, as appropriate, “the disproportionately high and adverse human health and environment effects of its many programs, policies, and procedures on minority populations and low-income populations.” Executive Order 12898 supplements Executive Order 12550 (1980), whose primary legal basis was Title VI of the Civil Rights Act of 1964, in particular, Sections 601 and 602, which prohibit discrimination in programs and activities receiving federal financial aid and assistance.

Over the years, the Supreme Court has reviewed the scope and importance of Title VI. For example, in Alexander v. Sandoval, decided in 2001, the Court concluded that while private parties could sue to enforce Section 601 or its implementing regulations, Section 601 only prohibits intentional discrimination; which is very difficult to prove. In addition, the Court ruled in Sandoval, that private parties cannot sue to enforce regulations implementing Section 602. Perhaps as an acknowledgement of these shortcomings, the Environmental Protection Agency (EPA) has for many years operated an administrative system to process environmental justice complaints (see 40 CFR Part 7). The process is complex and the results—usually whether a state agency has failed to uphold Title VI—have generally been unsatisfactory. To be successful, many proponents of environmental justice believe that a statutory foundation must be established, and significant efforts have been made to do so.

What is Environmental Justice?
While “Environmental Justice” is not a term that has been defined by Congress, nor defined by the EPA in its regulations, the agency has often used this definition in various policy statements:

“Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.”

It is, in short, a means to address and correct racial discrimination by environmental action.

Some Legislative Initiatives
In the last Congress, a group of Congressmen submitted a comprehensive bill to “restore, reaffirm, and reconcile environmental justice and civil rights, provide for the establishment of the Interagency Working Group on Environmental Justice Compliance and Enforcement.” This bill, H.R. 5986, included Congressional Findings that “communities of color, low-income communities, Tribal and indigenous communities, fossil fuel-dependent communities and other vulnerable populations are … disproportionately burdened by environmental hazards that include exposure to polluted air, waterways and landscapes.” The bill defines “environmental justice” as “the fair treatment and meaningful involvement of all people regardless of race, color, culture, national origin or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies to ensure that each person enjoys (A)the same degree of protection from environmental and health hazards, and (B) equal access to any Federal agency action on environmental justice issues in order to have a healthy environment … .” In the new 117th Congress, Representative Ruiz introduced on April 8, 2021, a much shorter bill, H.R. 2434, entitled the “Environmental Justice Act of 2021.” Both bills share many common features, and one of the first actions taken by President Biden was to issue Executive Order 13990, which contained a mandate to federal agencies to advance and prioritize environmental justice. A few months ago, the new Administrator of EPA directed all EPA offices to integrate environmental justice into their plans and actions, and to embed equity into their programs and services.

H.R. 5986, the “Environmental Justice for All” Act

Section 1 of the bill contains congressional findings which also express disappointment with EO 12898’s partial success.

Section 2 of the bill states that it is the policy of the Congress that each Federal agency will seek to achieve environmental justice as part of its mission by identifying and addressing, as appropriate, disproportionately adverse human health or environmental effects of its programs, and should provide direct guidance and technical assistance to affected communities. Moreover, two Federal agencies should recognize the right of all people to clean air, safe and affordable drinking water, protection from climate hazards and he preservation of the natural environment.

Section 3 defines 22 terms used in the bill including “community of color,” “disparate impact,” “disproportionate burden of adverse human health or environmental effects,” “environmental justice,” “fair treatment” and “low-income community.” “Fossil fuel dependent communities” is defined in Section 29, which provides for the revitalization of such communities.

Section 4 discusses “prohibited discriminations.” Section 601 of the Civil Rights Act of 1964 would be amended to prohibit discrimination based on the “disparate impact” of a federal program that, even if appearing neutral, actually has the effect of subjecting persons to discrimination because of their race, color or natural origin. This provision seems intended to undo the Sandoval ruling of the Supreme Court.

Section 5 amends Section 602 of the Civil Right Act to allow any person “aggrieved” by the failure to comply with this law to file a lawsuit in federal court against any federal agency without regard to the amount in controversy or to the citizenship of the parties.

Section 6 discusses the rights of recovery of damages. When intentional discrimination is proved, the defendant agency may be liable for compensatory and even punitive damages, attorneys and expert fees, and the cost of litigation. In the case of proof of disparate impact discrimination, attorney fees and court costs may be recovered.

Section 7 amends the Clean Water Act to permit the consideration of a cumulative impact of an NPDES permitted discharge, and to consider whether there is not “a reasonable certainty of no harm to the health of the general population or to any exposed or susceptible sub-population,” thereby requiring a denial of the permit or its renewal. This section also amends the Clean Air Act to define “cumulative impacts” and provides a new process by which major source air pollution permits may be denied.

Section 8 authorizes the President to establish the Interagency Working Group on Environmental Justice Compliance and Enforcement. Among other matters, the Working Group will develop and publish in the Federal Register guidance documents to assist Federal agencies in coping with environmental justice issues, and to develop a coordinated Federal environmental justice strategy.

Section 9 requires each member agency of the Working Group an agencywide environmental justice strategy within two years of the enactment of this act. The strategy will follow the template specified in this legislation. In addition, each agency will participate in human health and environmental research data collection and analysis, which can be used in disproportionate impact analysis, and publish fish consumption guidance. It should be noted that Section 9 also codifies and enacts into law the Council on Environmental Quality’s (CEQ) December 1997 “Environmental Justice Guidance under NEPA.”

Section 10 establishes the position of Environmental Justice Ombudsman in EPA. Each EPA regional office may be assigned an Ombudsman, and the Ombudsman will report directly to the EPA Administrator and not to the agency’s Office of Environmental Justice.

Section 11 authorizes the Secretary of the Interior to operate a program to provide grant money to eligible parties to enhance “Access to Parks, Outdoor Spaces, and Public Recreation Opportunities.” One source of funds will be revenues generated by the federal offshore oil and gas program and the Gulf of Mexico Energy Security Act of 2006.

Section 12 authorizes the Secretary of Transportation to operate the “Transit to Trails” program with funds appropriated by the Congress.

Section 14 establishes additional protections relating to Federal actions affecting environmental justice communities by mandating the creation of a community impact environmental justice report only by the relevant Federal agency. This section also provides that when a National Environmental Policy Act (NEPA) review is warranted for environmental justice concerns, the agency must consider all potential direct, indirect and cumulative impacts.

Section 15 requires mandatory environmental justice training for many Federal employees.

Section 16 establishes an Environmental Justice Grant program to be administered by EPA. Eligible recipients must be non-profit community-based organizations. $25 million would be authorized for fiscal years 2021 through 2025.

Section 17 authorizes EPA to establish an Environmental Justice Basic Training Program to enhance public participation.

Section 18 authorizes the President to establish a National Environmental Justice Advisory Council to provide independent advice and recommendations to EPA.

Section 19 authorizes EPA to create a public internet-based Environmental Justice Clearinghouse.

Section 20 mandates regularly scheduled public environmental justice meetings with the Administrator and at the Regions.

Section 21 requires the Administrator to ensure that all Supplemental Environmental Projects (SEP) that settle environmental justice complaints involve the affected community.

Section 22 addresses the issue of tribal Coastal Zone Management projects.

Sections 23 through 26 concern cosmetic labelling, safer childcare centers and related personal care issues.

Section 28 addresses the generation of revenues needed for “Just Transition Assistance,” primarily though mineral leasing administered by the Department of the Interior.

Section 29 would authorize the Secretary of the Treasury to use the funds generated by Section 28 to revitalize fossil fuel dependent communities.

Section 30 authorizes the Comptroller General of the United States to evaluate the effectiveness of this law in two years.

Many of these proposals have been incorporated into the Biden Administration’s Environmental Justice approvals.

H.R. 2434, The “Environmental Justice Act of 2021”
A more modest bill in many respects, H.R. 2434 was introduced by Rep. Ruiz with the goal of requiring federal agencies to address environmental justice, especially in the agency’s permitting actions. This legislation defines “environmental justice” in terms virtually identical to the definition in H.R. 5986. On the other hand, “Fence Line Communities” is a new definition—a population living in close proximity to a source of pollution. This new legislation states that, to the extent permissible under applicable law, each agency will make achieving environmental justice a part of its mission. As in the earlier legislation, both the Clean Water Act and the Clean Air Act would be amended to authorize the consideration of cumulative impacts in permitting decisions. H.R. 2434 provides that no existing legislation will preclude the right to bring an action under 42 USC Section 1983, a law that is often used in Civil Rights litigation. Also, the 1964 Civil Rights Act would be amended to allow private rights of action in the case of discriminatory governmental practices. Senator Booker introduced similar legislation in the United States Senate.

With a thin but aggressive progressive majority and the backing of the Administration, there will be a serious effort to enact new Environmental Justice legislation. A proposal to expand Title VI of the Civil Rights Act of 1964 and the applicability of Section 1983 to Environmental Justice issues is certain to spur some serious debates in the Congress. However, without a strong statutory framework, the predictability and effectiveness of any Environmental Justice program may well depend on the administration in power.

Lastly, within the past few weeks, the U.S. Senate has approved an “Infrastructure Bill.” This is basically a spending bill, but some of its many provisions are described as advancing environmental justice goals. Scattered throughout the bill are directives to executive departments and agencies to accelerate spending in low-income environmental justice communities. The bill currently awaits a vote in the House of Representatives.

Regulatory Initiatives
In addition to legislative efforts, the President issued Presidential Executive Order 14008, “Tackling the Climate Crisis,” a long and unusually detailed Executive Order published in the Federal Register on February 1, 2021 (see 86 FR 7619), that has generated considerable discussion and commentary. This EO describes the “climate crisis” in existential terms:

“There is little time left to avoid setting the world on a dangerous, potentially catastrophic climate trajectory.” Confronting and combating climate change will be an important component of American foreign policy and national security, and domestically, the federal government’s enormous resources will be mobilized to deploy a “govern-wide approach to the climate crisis.”

Part I of EO 14008 states that climate considerations will be an essential element of United States foreign policy and national security. The only effective response is to obtain short-term global reductions in greenhouse gas emissions and net-zero global emissions by mid-century. A Special Presidential Envoy for Climate has been established, and this office will work with the Secretary of the Treasury and the Secretary of State on a climate finance plan that, among other things, will “promote the flow of capital towards climate-aligned investments and away from high-carbon investments.” The Secretary of Homeland Security will consider the implications of climate change “along our Nation’s borders,” and the Secretary of Defense and the Chairman of the Joint Chiefs of Staff will consider the national security implications of climate change.

Part II is devoted to the implications of climate change for domestic policy. Again, the policy is being driven by a climate crisis that threatens “our ability to live on Planet Earth.” The overarching goals are to:

  • strengthen our clean air and water protections;
  • hold polluters accountable;
  • deliver environmental justice in communities all across America;
  • and drive the assessment, disclosure and mitigation of climate pollution and climate-related risks in every sector of our economy.

Consequently, it is the stated policy of the Administration to organize and deploy the full capacities for Federal agencies to combat the climate crisis to reduce climate pollution, increase resilience, deliver environmental justice and spur the increase of “well-paying union jobs.” The White House Office of Domestic Climate Policy and the National Climate Task Force have been established by this Order. The Federal Government’s Buying Power and Real Property and Asset Management functions will be used to support “robust” climate action. Renewable Energy on Public Lands and Offshore waters will be emphasized, and the Secretary of the Interior was directed to “pause,” consistent with applicable law, new oil and gas leases on public lands and in offshore waters, pending the completion of a comprehensive review of existing permitting practices, which will include an assessment of potential climate change impacts.

Each Federal agency will develop and submit to the Task Force a draft action plan regarding the steps an agency can take to increase resilience to the effects of climate change on facilities subject to its jurisdiction. The Chair of the CEQ and the Director of OMB will take steps, consistent with applicable law, to ensure that federal infrastructure investment reduces climate pollution, and will require federal permitting agencies to consider the effects of greenhouse gases and climate change. American farmers also have an important role to play by reducing their greenhouse emissions and using their properties to sequester carbon in soils, grasses and other vegetation. The Secretary of the Interior is directed to develop a strategy by which a “Civilian Climate Corps” can be created. This EO disfavors fossil fuel subsidies, and such subsidies are not to be included in future budget requests. The Secretary of the Interior will submit to the Task Force the steps that can be taken to conserve “at least 30 percent of our lands and waters by 2030,” and includes guidelines which can be used to decide whether specific waters and lands qualify for conservation. An interagency Working Group on Coal and Power Plant Communities and Economic Revitalization has been established to address the issues created by a shift to a clean energy economy.

Regarding environmental justice, the Executive Order notes the importance of “environmental and economic justice.” Agencies will make achieving environmental justice an important part of their missions. The White House Environmental Justice Interagency Council has been established, as well as an Environmental Justice Interagency Council, which will be chaired by the head of CEQ. The Council will develop “clear performance metrics” to measure the success of the new program. A White House Environmental Justice Advisory Council is established and will be housed within EPA. Both EPA and the Attorney General have specified roles in strengthening environmental enforcement in underserved communities; indeed, it is recommended that the Environmental and Natural Resources Division of the Department of Justice be renamed the Environmental Justice and Natural Resources Division.

EO 14008 also discusses the “Justice40 initiative,” the goal of which is that 40 percent of federal “overall benefits” will flow to disadvantaged communities. Finally, an Environmental Justice Scorecard will be published on an annual basis.

Early Regulatory Responses
On January 12, 1984, the EPA promulgated its current rules to address “Nondiscrimination in programs receiving federal assistance from the Environmental Protection Agency.” These rules are located at Part 7 of the EPA rules, and primarily implement Title VI of the Civil Rights Act of 1964. Since the rules are addressed to recipients of federal funding, they largely affect the actions taken by state regulatory agencies that are charged with environmental permitting. The procedures allow for complaints to be filed with the EPA, investigated and resolved. In June 2000, the EPA published in the Federal Register Draft Title VI Guidance for recipients of federal financial assistance and revised guidance for investigating complaints challenging permits. The EPA stated that this guidance “strikes a fair and reasonable balance between the EPA’s strong commitment to civil rights enforcement and the practical aspects of operating permitting programs.” The guidance was published in the Federal Register on June 27, 2000, at 65 FR 39650.

On December 10, 1997, the Council on Environmental Quality, which has oversight of the Federal government’s compliance with Executive Order 12898 and the implementation of the policies and procedures of the National Environmental Policy Act (NEPA), published official guidance on applying the principles of environmental justice to federal permitting activities and actions. The CEQ states that environmental justice issues may arise at any step of the NEPA process, and agencies should consider these issues “at each and every step of the process.” The agency cautions that the Executive Order does not change prevailing legal thresholds and existing case law. Also, this guidance does not prescribe “any specific format for examining environmental justice in a NEPA-mandated environmental impact statement of environmental assessment.

Responding to Executive Order 14008

  • On April 7, 2021, the new EPA Administrator ordered all EPA offices to strengthen the enforcement of the “cornerstone” environmental statutes, particularly with respect to communities that are “overburdened with pollution.”
  • On April 30, 2021, the EPA’s Office of Enforcement and Compliance Assistance (OECA) issued a memorandum entitled, “Strengthening Enforcement in Communities with Environmental Justice Concerns.” Accordingly, there will be more facility inspections, the use of innovative enforcement tools to resolve environmental noncompliance will be increased, and EPA engagement with local communities will be emphasized. The memorandum concludes by observing that if a “co-regulator” with the EPA (i. e., a state permitting agency) is not taking timely or appropriate actions, the EPA will not hesitate to step in.
  • On June 21, 2021, the OECA released a memorandum entitled, “Strengthening Environmental Justice Through Criminal Enforcement.” The goals are to enhance the detection of environmental crimes, improve the agency’s outreach to crime victims and enhance the remedies that can be used in environmental justice criminal matters such as restitution, probation, or supervised release of defendants.
  • On July 1, 2021, the EPA’s Enforcement Office distributed a memorandum which outlined additional actions that can be taken to advance environmental justice goals such as expediting Superfund cleanups in environmental justice communities, increasing community engagement (one of the long-time goals of the process) and utilizing the courts to obtain injunctive relief when necessary. The EPA cautioned, however, that the Superfund program is already subject to an extensive list of unique cleanup criteria found in the EPA’s National Contingency Plan.
  • On July 8, 2021, a memorandum entitled, “Clarifications Regarding Regional Haze State Implementation Plans for the Second Implementation Period” was circulated to EPA’s Regional Air Division Directors by EPA Headquarters. An entire section is devoted to Environmental Justice. It states that “EPA encourages states to consider whether there may be equity and environmental justice impacts when developing their regional haze strategies for the second planning period.” Undertaking “meaningful outreach to environmental justice communities is encouraged … and states have discretion to consider environmental justice in determining measures that are necessary to make reasonable further progress.”
  • On July 20, 2021, the Office of Management and Budget distributed a memorandum to the heads of departments and agencies addressing interim implementation guidelines for the Administration’s “Justice40 Initiative” to secure environmental justice and spurring economic opportunity for disadvantaged communities. The guidelines outline administration policy on how certain Federal investments can be made in these communities, which is described as a component of the Administration’s “whole-of-government” approach to environmental justice.
  • In mid-August 2021, the acting Assistant Secretary of the Army announced that the U.S. Army Corps of Engineers will conduct an enhanced environmental review of a proposed plastics facility to be located in Saint James Parish, Louisiana. The facility had earlier received a standard permit but local group opposed to the permit argued that a thorough environmental impact statement that addresses environmental justice issues must be prepared. The project has been suspended while the Corps conducts a new review.
  • Finally, on October 1, 2021, EPA released its draft “FY 2022-2026 EPA Strategic Plan to protect human health and the environment.” This plan reflects a new “foundational principle” for EPA: to advance justice and equity. This strategic plan will guide the agency as it tackles climate change and advances environmental justice and civil rights consistent with Executive Orders 13985 and 14008. The strategic goals (and their deadlines) identified in this strategic plan are to: tackle the climate crisis; take decisive action to advance environmental justice and civil rights; enforce environmental laws and ensure compliance; ensure clean and healthy air for all communities; ensure clean and safe water for all communities; safeguard and revitalize communities; and ensure safety of chemicals for people and the environment. In addition, the plan includes “cross-agency strategies”: ensure scientific integrity and science-based decision making in accordance with the requirements of the 2018 Evidence-Based Policy Making Act; consider the health of children at all life stages and other vulnerable populations; advance EPA’s organizational excellence and workforce equity; and strengthen tribal, state and local partnerships and enhance engagement. This is a very significant commitment that EPA has made.

The Courts and Environmental Justice
As noted above, the Civil Rights Act of 1964 contains, in Title VI, two provisions that have been the basis of environmental justice law and policy. Section 601 provides that no person shall, “on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity” covered by Title VI. Section 602 authorizes federal agencies to “effectuate the provisions of Section 601 by issuing rules, regulations or orders of general applicability.” Each federal department or agency, including the EPA, has issued its own rules to ensure that the programs they administer forbid discrimination by local governmental agencies that receive federal financial assistance. The Civil Rights Act and Title VI, have often been the subject of litigation brought to the Supreme Court for final review. In 2001, the Court decided the case of Alexander v. Sandoval, which concerned Alabama’s implementation of an “English-only” state drivers licensing program, and a Civil Rights challenge to that practice. The Court held that while private parties have a right to enforce Section 601 through litigation, that statute applies only to “intentional discrimination,” and that the Congress did not provide a private right of action to enforce Section 602. Moreover, the Court majority in Sandoval was very skeptical of the assertion that Section 602 encompassed lawsuits alleging disparate impact discrimination. This decision, the U.S. Court of Appeals for the Third Circuit held in the 2002 case of South Camden Citizens in Action v. New Jersey Department of Environmental Protection, doomed a federal lawsuit alleging that an air quality permit action of the New Jersey Department of Environmental Protection violated Title VI and created an environmental justice issue.

Other courts have come to different conclusions, based on the regulatory context in which an environmental permitting action was taken. In January 2020, in Friends of Buckingham, et al. v. State Air Pollution Control Board, the U.S. Court of Appeals for the Fourth Circuit vacated an air quality permit issued by the Virginia State Air Pollution Control Board because the agency failed to satisfactorily address state law-based environmental justice objections to the permit. According to the court, “environmental justice is not merely a box to be checked, and the Board’s failure to consider, under state law, the disproportionate impact on those closest to the Compressor Station resulted in a flawed analysis.” A late July 2021 decision of the U.S. Court of Appeals for the Fifth Circuit, Rollerson v. Brazos River Harbor Navigation District, et al., dismissed a Section 601 lawsuit challenging the federally financed land acquisition in the Port Freeport, Texas, navigation district because the complaint failed to adequately allege intentional discrimination. The companion allegation, that these actions violated Section 602, was not dismissed because the court held that an administrative challenge should be heard by the Department of Defense. However, two of the judges on the panel seemed to be dubious of any claim based on “environmental justice” that was not also based on federal statutes. A few days later in Vecinos Para Bienstar, et al. v. Federal Agency Regulatory Commission, the U.S. Court of Appeals for the District of Columbia Circuit rejected a Federal Energy Regulatory Commission (FERC) Liquefied Natural Gas (LNG) construction permit because the required NEPA environmental review conducted by the agency, inadequately addressed the parameters and scope of the impact of these facilities on local, low-income neighborhoods.

In summary, controversial projects located in environmental justice neighborhoods are subject to indirect challenges, primarily through the federal administrative processes which often come to rest in the federal courts. The imposition of environmental justice conditions in federal and state permitting actions could make the permitting process even more difficult to negotiate. However, coping with the new requirements would be made easier if the federal government develops specific environmental justice criteria and “performance metrics” which are proposed, debated, and promulgated.

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