State Laws Provide New Pathways for Environmental Justice Claims

Troutman Pepper

Environmental justice moved to the forefront of sociopolitical discussions in the country in 2020, receiving increased attention from politicians, community groups, and environmental agencies. Although this concept is not new, for decades plaintiffs have struggled to find an effective means of asserting environmental justice claims. This is largely due to the lack of a stand-alone, federal environmental justice statute. Instead, plaintiffs have attempted to incorporate the environmental justice concept into claims brought under other federal environmental statutes, such as the National Environmental Policy Act (NEPA) and the Clean Air Act (CAA). But these claims have been largely unsuccessful. Plaintiffs have also attempted to rely on another, nonenvironmental federal statute—the Civil Rights Act. But given that the statute requires a showing of discriminatory intent, environmental justice claims were ineffective. A shift occurred in 2020, with plaintiffs focusing on state laws as avenues to bring environmental justice claims. This article discusses three recent cases and the changes they have created in the litigation approach for environmental justice claims.

Originally published in Natural Resources & Environment Volume 36, Number 1 - Summer 2021.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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