Environmental Justice, as an urgent 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. The primary legal basis for this order 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. In Alexander v. Sandoval, decided in 2001, the Court concluded that while private parties could sue to enforce Section 601 or its implementing regulations, as written, Section 601 only prohibits intentional discrimination. Noting that disproportionate impact is not the sole touchstone of invidious racial discrimination. Moreover, the Court also 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 established an administrative system to process environmental justice complaints at 40 CFR Part 7. Without strengthening the statutory base of environmental justice, the program may continue to be the subject of countless symposiums and seminars. However, this may change soon.
In the 116th Congress, a group of Congressmen submitted an extensive 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 days 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 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. This section also appears to amend the law the Sandoval court was construing.
Section 6 discusses the rights of recovery. 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’s fees and court costs may be recovered.
Section 7 amends the Clean Water Act to permit the consideration of a cumulative impact of a National Pollutant Discharge Elimination System (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 also 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 13 repeals a provision of the John Dingell Conservation Management and Recreation Act.
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.
A more modest bill in many respects, H. R. 2434 has been introduced by Representative Ruiz; it is entitled, the “Environmental Justice Act of 2021.” Its goal is to require federal agencies to address environmental justice, especially in the agency’s permitting actions. To that end, this legislation would require the consideration of “cumulative impacts” in 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 U.S.C. Section 1983, which is said to be implied under a covered law or common law. Also, the 1964 Civil Rights Act would be amended to allow private rights of action in the case of discriminatory governmental practices.
With a thin but aggressive progressive majority and the backing of the Administration, it is likely that there will be a serious effort to enact new Environmental Justice legislation. Expanding Title IV of the Civil Rights Act of 1964 and the applicability of Section 1983 to Environmental Justice issues are 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.