The Recent Rise (and Future Fall?) of Environmental Justice

Miller Nash LLP

Miller Nash LLP

For the past few months, the federal government has emphasized environmental justice issues in legislation and executive actions. Both the Department of Health and Human Services and the Department of Justice have established Offices of Environmental Justice. The new federal program created by Executive Order 14008, Justice40, aims to ensure that “40 percent of the overall benefits of certain Federal investments flow to disadvantaged communities that are marginalized, underserved, and overburdened by pollution.” Even individual states are getting involved. New Jersey aims to implement their environmental justice law by the end of this year, and Vermont’s governor recently signed the states’ first environmental justice policy. If successful, these federal and state initiatives could provide a healthier, cleaner, and more equitable way of life for historically underserved communities.

A recent example of the federal government’s environmental justice initiatives can be seen in Houston, Texas. On July 22, 2022, the Department of Justice (”DOJ”) launched an environmental justice investigation to determine if the City of Houston’s response to illegal dumping in Black and Latino communities is discriminatory. These types of investigations may lead to quality cleanups and continued environmental compliance and enforcement in these communities. These types of investigations by the federal and state governments, which are long overdue, would be an immediate win for these marginalized communities. However, this first step of addressing the underlying environmental conditions that have been allowed to exist, will not in and of itself protect these communities.[5] Programs to ensure that affordable housing and services are maintained in the communities are equally important. Some argue that absent these follow up programs and services, it is possible that these communities will not be able to afford to live in places that were cleaned up and improved due to their presence.

These “disadvantaged communities that [were] marginalized, underserved, and overburdened” are now in the spotlightSome believe this spotlight will not only expose the conditions that had been allowed to exist but also may inform the business community that these communities have been cleaned up and are no longer overburdened by pollution. The result of these remediated communities will bring opportunity and risk. A developer may see an opportunity and begin to redevelop these areas, promoting commercial and residential growth. New businesses will move in. Condominiums and apartment complexes will be built. Streets and sidewalks will be improved. Absent programs to protect the disadvantaged communities, this process will force out diverse and low-income residents. Once again, these residents will likely end up overburdened by pollution. And so, the process will start again.

Thinking of the future effects begs the question: whom are these environmental justice actions truly benefitting? Short term, it seems the minority and low-income communities originally targeted will be the ones benefitting. Long term, however, these communities may not reap the benefits these programs are meant to provide. The future is unknown and how these programs and initiatives ultimately benefit the communities’ targeted remains to be seen. These programs may prove to lessen the environmental burdens often placed on historically underserved communities. However, absent precautions and guardrails to protect the people meant to benefit from these programs, these communities may find themselves in an unpromising position they never asked for. It is an unfortunate scenario to think about, but also a harsh reality these communities must be prepared to deal with yet again. In essence, the recent environmental justice initiatives have the potential to make a large and lasting impact. However, this impact may prove to either serve or harm the communities environmental justice aims to protect absent additional programs and protection.

Editor's Note: Celeste Williams, a 2022 Miller Nash summer associate, contributed to this blog post.

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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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