United States: Environmental Justice: The Evolution Of A New Federal Regulatory Program

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:

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," developed in October 1991 by the First National People of Color Environmental Leadership Summit, will be incorporated into this statutory definition.¹⁵

While it now seems unlikely that this bill will be enacted, several provisions of this proposed law have already become part of the Executive Department's environmental justice policy

The enactment of the Infrastructure Investment and Jobs Act, P.L. 117-58, should be noted here.¹⁶ This is basically a spending bill, but some of its many provisions are described as advancing environmental justice goals. For instance, scattered throughout the bill are directives to executive departments and agencies to accelerate spending in low-income environmental justice communities.¹⁷

Regulatory Initiatives: Executive Order 14008

On Jan. 27, 2021, the president issued E.O. 14008, "Tackling the Climate Crisis," a long and unusually detailed E.O. that has generated considerable discussion and commentary.¹⁸ E.O. 14008 describes the "climate crisis" in existential terms: "There is little time left to avoid setting the world on a dangerous, potentially catastrophic, climate trajectory."¹⁹

Part I of E.O. 14008 states that climate considerations will be an essential element of U.S. 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 Treasury and the Secretary of State on a climate finance plan that, among other things, will "promot[e] the flow of capital towards climate-aligned investments and away from high-carbon investments."²⁰ 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.²¹

Part II of E.O. 14008 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.
• Drive the assessment, disclosure, and mitigation of climate pollution and climate-related risks in every sector of our economy.²²

Accordingly, it is now the stated policy of this administration to organize and deploy the full capacities for federal agencies to combat the climate crisis to reduce climate pollution, increase resilience, and achieve environmental justice. The White House Office of Domestic Climate Policy and the National Climate Task Force were created by this E.O. to further the aforementioned goals.²³ 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.²⁴

Regarding environmental justice, the E.O. notes the importance of "environmental and economic justice."²⁵ Federal agencies will make achieving environmental justice an important part of their missions. The White House Environmental Justice Interagency Council, to be chaired by the head of the Council of Environmental Quality, has been established.²⁶ The council will develop "clear performance metrics" to measure the success of the new program. A White House Environmental Justice Advisory Council has also been established and will be housed within EPA.²⁷ 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.

E.O. 14008 also discusses the "Justice40 initiative," the goal of which is to have 40 percent of federal "overall benefits" flowing to disadvantaged communities.²⁸ Finally, an Environmental Justice Scorecard will be published on an annual basis.²⁹

Federal Agency Responses to E.O. 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."³⁰ On April 30, 2021, EPA's Office of Enforcement and Compliance Assistance (OECA) issued a memorandum titled "Strengthening Enforcement in Communities with Environmental Justice Concerns."³¹ Accordingly, there will be more facility inspections, an increase in the use of "innovative" enforcement tools to resolve environmental noncompliance, and an emphasis on EPA engagement with local communities. 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, EPA will not hesitate to step in.³² On June 21, 2021, OECA released a memorandum titled "Strengthening Environmental Justice Through Criminal Enforcement."³³ 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. Then, on July 1, 2021, EPA's Enforcement Office distributed a memorandum that 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.³⁴ EPA cautioned, however, that the Superfund program is already subject to an extensive list of unique cleanup criteria found in EPA's National Contingency Plan.³⁵

Also, 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.³⁶ 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.³⁷

Then, 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, La.³⁸ The facility had earlier received a standard permit, but a 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.³⁹

On Oct. 1, 2021, EPA released its draft "FY 2022-2026 EPA Strategic Plan to Protect Human Health and the Environment."⁴⁰ This plan reflects a new "foundational principle" for EPA to advance justice and equity.⁴¹ This strategic plan will guide the agency as it tackles climate change and advances environmental justice and civil rights consistent with E.O.s 13985 and 14008. The strategic goals (and their deadlines) identified in this strategic plan are to (1) tackle the climate crisis; (2) take decisive action to advance environmental justice and civil rights; (3) enforce environmental laws and ensure compliance; (4) ensure clean and healthy air for all communities; (5) ensure clean and safe water for all communities; (6) safeguard and revitalize communities; and (7) ensure safety of chemicals for people and the environment. In addition, the plan includes "cross-agency strategies"; ensures scientific integrity and science-based decision-making in accordance with the requirements of the 2018 Evidence-Based Policy Making Act; considers the health of children at all life stages and other vulnerable populations; advances EPA's organizational excellence and workforce equity; and strengthens tribal, state, and local partnerships and enhances engagement.⁴² This is a very significant commitment the EPA has made.

In late May 2022, EPA's Office of General Counsel released a 200-page document titled, EPA's Legal Tools to Advance Environmental Justice. ⁴³ This is a very careful and valuable review of EPA's legal authorities. In nine chapters, the Office of General Counsel describes in considerable detail the provisions of the many EPA programs that could be used to advance environmental justice in the areas of Clean Air Act and Clean Water Act permitting and enforcement activities, solid waste and CERCLA regulations, civil rights issues that are a component of federally financed state administrative programs, and even the Freedom of Information Act. The lack of explicit statutory and regulatory authority is noted, as is the opportunity to advance environmental justice by rulemaking and other means.⁴⁴ This is a valuable resource.

The Department of Justice Responds Forcefully

Most executive agencies and departments have publicized their intentions to address environmental justice as core responsibility of the agency. However, perhaps the most significant regulatory initiative has been the attorney general's release of a Comprehensive Environmental Justice Enforcement Strategy on May 5, 2022.⁴⁵

This new strategy, based on the president's E.O. 14008, provides a roadmap for using the Department's of Justice's manifold civil and criminal enforcement authorities, working in conjunction with EPA and other federal agencies to advance environmental justice through timely and effective remedies for "systemic" environmental violations and "contaminations" and for injury to natural resources in "underserved communities" that have been historically marginalized and overburdened, including low-income communities, communities of color, and tribal and indigenous communities. While neither this policy nor the E.O. on which it is based defines "environmental justice," "systemic environmental violations," or "historically marginalized and overburdened communities," it appears that these goals and policies will be determined and decided on a case-by-case basis as the Department of Justice deploys its many resources to advance environmental justice remedies in appropriate communities.⁴⁶

The new policy also sets forth the principles by which this strategy will be implemented: (a) prioritizing cases that will reduce public health and environmental harms present in overburdened and underserved communities; (b) making strategic use of all available legal tools to address environmental justice concerns; (c) ensuring "meaningful" engagement with impacted communities; and (d) ensuring that environmental justice enforcement efforts are both understandable and transparent to the affected community. And it should be noted that each of the 93 U.S. attorneys' offices will have an environmental justice coordinator.⁴⁷

The Courts and Environmental Justice

Ironically, one of the first judicial determinations of the scope of environmental justice was made by a federal administrative law tribunal. In 1995, in the case of In re Chemical Waste Management, EPA's Environmental Appeals Board reviewed a number of environmental justice objections filed against a pending RCRA application to operate a solid waste landfill facility.⁴⁸ The board held that "if a permit applicant meets the requirements of RCRA and its implementing regulations, the Agency must issue the permit regardless of the racial or socio-economic composition of the surrounding community."⁴⁹ However, the board took notice of the implications of the then recently issued E.O. 12898. Accordingly, the board also held that a federal RCRA permitting authority could implement the public participation mandate of the E.O. as well as the impact of RCRA Section 3005 (3), which allows the permitting authority to add terms and conditions to the permit if the operation of the facility could have an adverse impact on the health or environment of the surrounding community.⁵⁰

The courts have placed some limits on the use of the Civil Rights Act in environmental litigation. As noted above, in 2001, the Supreme Court decided the case of Alexander v. Sandoval, which concerned Alabama's implementation of an "English-only" state driver's license program, and a civil rights challenge to that practice.⁵¹ The Court held that, while private parties have a right to enforce Section 601 through litigation, the statute applies only to "intentional discrimination," and that 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.⁵² Accordingly, in 2002, the U.S. Court of Appeals for the Third Circuit held in South Camden Citizens in Action v. New Jersey Department of Environmental Protection, that the Sandoval ruling 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.⁵³

Other courts have come to different conclusions, based on the regulatory context in which an environmental permitting action was taken. In January 2020, 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. The case is Friends of Buckingham, et al. v. State Air Pollution Control Board.⁵⁴ 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."

On the other hand, in late July 2021, the U.S. Court of Appeals for the Fifth Circuit, in Rollerson v. Brazos River Harbor Navigation District, dismissed a Section 601 lawsuit challenging the federally financed land acquisition in the Port Freeport, Tex., navigation district because the complaint failed to adequately allege intentional discrimination.⁵⁵ Interestingly, two of the judges on the panel seemed to be somewhat skeptical of any claim based on "environmental justice."

Only a few days later, in Vecinos Para Bienstar v. Federal Agency Regulatory Commission,⁵⁶ the U.S. Court of Appeals for the D.C. Circuit rejected a Federal Energy Regulatory Commission (FERC) liquified natural gas construction permit because the required National Environmental Policy Act review conducted by FERC inadequately addressed the parameters and scope of the impact of these facilities on local, low-income neighborhoods.

Where Do We Go From Here?

Obviously, the law in many ways is in a state of flux. Under these new policies, controversial projects located in environmental justice neighborhoods will be subject to indirect challenges, primarily through the federal administrative processes whose decisions are usually reviewable in the federal courts. The imposition of environmental justice conditions in federal and state permitting and cleanup actions could make the regulatory processes even more difficult to navigate. Coping with new policies would be easier for everyone, however, if the federal government were to develop specific environmental justice criteria and "performance metrics" that are proposed, debated, and promulgated as the law requires. For its part, the regulatory community must stay informed and involved.

Finally, it should be noted that the Inflation Reduction Act, Public Law 117-169, enacted on Aug. 16, 2022, amended the Clean Air Act to authorize the administrator of EPA to make "environmental and climate justice" block grants to disadvantaged communities, as defined by the administrator to reduce greenhouse gas emissions; mitigate climate and health risks; and facilitate engagement of these communities in state and federal advisory groups, workshops, rulemakings, and other public processes.⁵⁷

Footnotes

1 Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (E.O. 12898), 59 Fed. Reg. 7629 (Feb. 11, 1994).

2 Id.

3 Compare id., with Leadership and Coordination of Nondiscrimination Laws (E.O. 12,550), 45 Fed. Reg. 72,995 (Nov. 2, 1980).

4 See Alexander v. Sandoval, 532 U.S. 275 (2001).

5 See generally 40 C.F.R. pt. 7.

6 Env't Prot. Agency, Environmental Justice, https://www. epa.gov/environmentaljustice (last visited July 18, 2022).

7 See Environmental Justice for All Act, H.R. 5986, 116th Cong. (2020).

8 See Environmental Justice Act of 2021, H.R. 2434, 117th Cong. (2021).

9 Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (E.O. 13990), 86 Fed. Reg. 7037 ( Jan. 20, 2021).

10 See Env't Prot. Agency, EPA Administrator Announces Agency Actions to Advance Environmental Justice (Apr. 7, 2021), https:// www.epa.gov/newsreleases/epa-administrator-announces-agencyactions-advance-environmental-justice.

11 Tackling the Climate Crisis at Home and Abroad (E.O. 14008), 86 Fed. Reg 7619 (Feb. 1, 2021).

12 See Environmental Justice Act of 2021, supra note 8.

13 See id

14 Id.

15 Id.

16 Infrastructure Investment and Jobs Act, H.R. 3684, 117th Cong. (2021).

17 Id.

18 See Tackling the Climate Crisis at Home and Abroad (E.O. 14008), 86 Fed. Reg 7619 (Feb. 1, 2021).

19 Id.

20 Id.

21 Id.

22 Id. pt. II.

23 Id. § 202.

24 Id. pt. II.

25 Id. § 219.

26 Id. § 220.

27 Id. § 221.

28 Id. § 223.

29 Id. §§ 220(d), 223(d).

30 Env't Prot. Agency, EPA Administrator Announces Agency Actions to Advance Environmental Justice (Apr. 7, 2021), https:// www.epa.gov/newsreleases/epa-administrator-announces-agencyactions-advance-environmental-justice.

31 Env't Prot. Agency, Strengthening Enforcement in Communities with Environmental Justice Concerns (Apr. 30, 2021), https:// www.epa.gov/sites/default/files/2021-04/documents/ strengtheningenforcementincommunitieswithejconcerns.pdf.

32 Id.

33 Env't Prot. Agency, Strengthening Environmental Justice Through Criminal Enforcement ( June 21, 2021), https://www.epa.gov/system/files/documents/2021-07/ strengtheningejthroughcriminal062121.pdf.

34 Env't Prot. Agency, Strengthening Environmental Justice Through Cleanup Enforcement Actions ( July 1, 2021), https://www.epa. gov/system/files/documents/2021-07/strengtheningenvirjusticecleanupenfaction070121.pdf.

35 See 40 C.F.R. pt. 300.

36 Off. of Mgmt. and Budget, Interim Implementation Guidance for the Justice40 Initiative ( July 20, 2021), https://www.whitehouse.gov/ wp-content/uploads/2021/07/M-21-28.pdf

37 Id.

38 Janet McConnaughey, Army: Full Envirnomental Review of

$9 .4B Plastics Complex, U.S. News & World Rep. (Aug. 18, 2021, 6:26 PM), https://www.usnews.com/news/business/ articles/2021-08-18/army-full-environmental-review-of-94bplastics-complex. 39Id.

40 Env't Prot. Agency, EPA Strategic Plan, https://www.epa. gov/planandbudget/strategicplan (last visited July 18, 2022).

41 Id.

42 Id.

43 See Env't Prot. Agency, EPA Legal Tools to Advance Environmental Justice (May 2022), https://www.epa.gov/ogc/ epa-legal-tools-advance-environmental-justice.

44 Id.

45 U.S. Dep't of Just., Justice Department Launches Comprehensive Environmental Justice Strategy (May 5, 2022), https://www. justice.gov/opa/pr/justice-department-launches-comprehensiveenvironmental-justice-strategy.

46 U.S. Dep't of Just., Comprehensive Environmental Justice Enforcement Strategy (May 5, 2022), https://www.justice.gov/asg/ page/file/1499286/download.

47 Id.

48 In re Chem. Waste Mgmt., 6 E.A.D. 66 (EAB 1995)

49 Id. at 73.

50 Id. at 69-74, 76, 83.

51 Alexander v. Sandoval, 532 U.S. 275 (2001).

52 Id.

53 S. Camden Citizens in Action v. N.J. Dep't of Env't Prot., 274 F.3d 771 (3d Cir. 2001).

54 Friends of Buckingham Cnty. v. State Air Pollution Bd., 947 F.3d. 68 (4th Cir. 2020).

55 Rollerson v. Brazos River Harbor Navigation Dist., 6 F.4th 633 (5th Cir. 2021).

56 Vecinos Para El Bienstar v. Fed. Energy Regul. Comm'n, 6 F.4th 1321 (D.C. Cir. 2021).

57 See Inflation Reduction Act of 2022, Pub. L. No. 117-169, § 60201, 136 Stat. 1818, 2078-2079 (2022).

Originally Published by The Federal Lawyer

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