Environmental Justice: The Evolution Of A New Federal Regulatory Program

• Published date: 03 November 2022
• Subject Matter: Environment, Environmental Law, Climate Change, Clean Air / Pollution
• Law Firm: Pillsbury Winthrop Shaw Pittman
• Author: Mr Anthony B. Cavender and Anne Idsal Austin

Environmental justice, as a policy priority of the federal government, dates back to 1994 and President Clinton's issuance of Executive Order (E.O.) 12898.¹ 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."² E.O. 12898 supplemented E.O. 12250 (1980) whose primary legal basis was Title VI of the Civil Rights Act of 1964, in particular, §§ 601 and 602, which prohibit discrimination in programs and activities receiving federal financial aid and assistance.³ Now, two new E.O.s issued by President Biden have placed more emphasis on "environmental justice" and how to address its implications.

Background: Title VI and Environmental Justice

Over the years, the U.S. Supreme Court has reviewed the scope and impact of Title VI in many cases. Of special interest here, in Alexander v. Sandoval, decided in 2001, the Court concluded that, while private parties could sue to enforce § 601 or its implementing regulations, § 601 only prohibits intentional discrimination, which is very difficult to prove.⁴ In addition, the Court ruled in Sandoval that private parties cannot sue to enforce regulations implementing § 602. Consequently, the use of Title VI to achieve environmental justice has its limitations. At the same time, it should be noted that the Environmental Protection Agency (EPA) has for many years operated an administrative system to process environmental justice complaints.⁵ 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 to this end have been made.

What Is Environmental Justice?

While the term "environmental justice" has not yet been defined by Congress or by EPA in its regulations, EPA and other federal agencies have often used the following 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.⁶

It is, in short, a means to address and correct racial discrimination by environmental action. Nevertheless, the absence of a statutory or formal regulatory definition has been problematic.

Recent Legislative Initiatives

Legislation has been introduced 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, and for other purposes."⁷ The Environmental Justice for All Act (H.R. 5986), which was introduced in the 116th Congress, 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." However, H.R. 5986 did not survive the end of the 116th Congress. In the current Congress, Rep. Raul Ruiz (D-Calif.) introduced a shorter bill, H.R. 2434, titled the Environmental Justice Act of 2021, and it has received at least one hearing.⁸ Both proposals share many common features, and one of the first actions taken by President Biden was to issue E.O. 13990, which included a mandate for federal agencies to advance and prioritize environmental justice.⁹ The new EPA administrator directed all EPA offices to integrate environmental justice efforts into their plans and actions, and to embed equity into their programs and services.¹⁰ President Biden then issued E.O. 14008, which principally concerned climate change but also outlined environmental justice procedures.¹¹

The Environmental Justice Act of 2021 states that its goal is to require federal agencies to address environmental justice, especially in the agency's permitting actions and that, to the extent permissible under applicable law, each agency will make achieving environmental justice a part of its mission. Both the Clean Water Act and the Clean Air Act would be amended to authorize the consideration of "cumulative impacts" in permitting decisions.¹² H.R. 2434 provides that no existing laws will preclude the right to bring an action under 42 USC § 1983, which 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. Most notably, "environmental justice" as well as such terms as "fenceline community," "indigenous community," "low-income community," and "population of color" would be defined in law.¹³

"Environmental justice" would be defined as 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."¹⁴ This definition would be supplemental by adding that no environmental justice "community" will be deprived of adequate access to public information and meaningful public participation relating to human health and the environment, and no environmental justice community shall be exposed to negative human health and environmental impacts of pollution or other environmental hazards. In addition, the "17 Principles of Environmental Justice,"...