Understanding Environmental Justice - ABA YLD 101 Practice Series

By Cole Young

There are many accepted definitions for “environmental justice,” but no one definition is considered the standard. The Environmental Protection Agency (“EPA”) defines environmental justice 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. 1

This definition, however, probably does not encompass the full breadth of the history and application of environmental justice. Beyond the EPA’s definition, environmental justice includes the concept that racial and ethnic minorities are disproportionately subjected to adverse environmental impacts. As such, advocacy groups are primarily concerned with preventing the construction of pollution sources in minority communities, shutting down or controlling pollution sources in minority communities, and cleaning up closed pollution sources.

Conceptually, environmental justice is easily understood. Procedurally, however, environmental justice has become quite complex. The following is a brief summary of progression of environmental justice in the United States. 

Equal Protection Clause
The beginning of the environmental justice movement cannot be directly linked to any one event, but most advocates agree that the first major environmental justice lawsuit was Bean v. Southwestern Waste Management Corp, 2 wherein the plaintiffs utilized the Equal Protection Clause of the Fourteenth Amendment for their environmental justice claim.  In Bean, the plaintiffs sought a restraining order seeking to stop the operation of a solid waste landfill in a minority-populated section of Houston, TX. Plaintiffs asserted that the citing and permitting of a solid waste landfill was part of a pattern of racial discrimination by the Texas Department of Health ("TDH"). The plaintiffs offered several statistical studies, one of which demonstrated that 67.6% of Houston's solid waste sites were located in the eastern half of Houston, where 61.6% of the minority population lived. Unfortunately for the plaintiffs, the Court held that this, along with other statistical data showing a possible disproportionate impact on minority communities, was insufficient to show a "discriminatory purpose" under Washington v. Davis 3 .  Subsequent plaintiffs, asserting environmental justice claims under the Equal Protection Clause, have been equally unsuccessful. 4

Environmental justice plaintiffs have also tried to utilize Title VI of the Civil Rights Act of 1964, which forbids discrimination by recipients of federal funds. Like the Equal Protection Clause, however, the Supreme Court ruled in Guardians Ass’n v. Civil Service Commission 5 that a successful plaintiff under Title VI of the Civil Rights Act of 1964 must prove intentional discrimination. As with cases brought under the Equal Protection Clause, this level of proof has proved to be nearly impossible.  Thus, environmental justice advocates applied pressure to state and federal officials to create stronger avenues to advocate for environmental justice. In February of 1994, those efforts were rewarded. 

Executive Order 12898
On February 11, 1994, President Clinton signed Executive Order 12,898 ("EO 12,898"), titled "Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations," requiring all federal agencies to collect data about the agencies' environmental impact on minority communities. EO 12,898 further requires that agencies develop policies to achieve environmental justice. At the same time, President Clinton issued an accompanying memorandum which identifies certain portions of existing laws that agencies can use to achieve the goals of environmental justice. 6 The memorandum requires that (1) federal agencies ensure that their grant recipients comply with Title VI of the Civil Rights Act of 1964; (2) federal agencies address environmental impacts on minority groups and ensure minority participation when the agency evaluates environmental impacts under the National Environmental Policy Act ("NEPA"); and (3) the EPA use its authority under the Clean Air Act to require federal agencies to analyze environmental impacts on minority groups when those agencies prepare NEPA documents. Although EO 12,898 and the accompanying memorandum demonstrate the United States' first official proclamation on environmental justice, they contain no enforcement mechanism. In fact, Section 6-609 of EO 12,898 specifically states that it is not intended to create a private cause of action. Citing this section, federal courts have refused to recognize a private cause of action under EO 12,898. 7

The Role of the Environmental Protection Agency
EO 12,898 specifically orders each federal agency to make environmental justice part of its mission and to address "disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations…" To meet this requirement, agencies are required to develop an environmental justice strategy. A year after the issuance of EO 12,898, the EPA issued an "environmental justice strategy" 8 that has five primary categorical aims: (1) public participation, accountability, partnerships, outreach, and communication with stakeholders; (2) health and environmental research; (3) data collection, analysis, and stakeholder access to public information; (4) Native American and indigenous environmental protection; and (5) enforcement, compliance assurance, and regulatory reviews. The EPA Office of Environmental Justice is charged with implementing the environmental justice strategy. The EPA also formed the National Environmental Justice Advisory Council ("NEJAC"), which consists of 26 members from a variety of special interest groups. The purpose of NEJAC is to advise the EPA, through the Office of Environmental Justice, on matters related to environmental justice.

The EPA also drafted regulations pursuant to Title VI of the Civil Rights Act of 1964 prohibiting the recipients of EPA funding to discriminate on the basis of race, color, national origin or sex. 40 C.F.R. 7.35(a). Many state environmental agencies are recipients of EPA funding and therefore must comply with Title VI and 40 C.F.R. 7.35(a). Accordingly, many states have adopted statutes, policies and/or executive orders to assist their agencies in complying with the EPA regulations. In order to assist states in complying with these requirements, the EPA released a lengthy guidance document promoting three possible strategies to address Title VI concerns: (1) a comprehensive approach that improves the permitting process and incorporates activities like staff training, adverse impact and demographic analyses, effective public participation and outreach, intergovernmental involvement, and reducing and/or eliminating adverse disparate impacts; (2) an area-specific approach encouraging stakeholders to develop an agreement to eliminate disparate impacts; and (3) a case-by-case approach using general criteria to evaluate permits and following the EPA's steps in analyzing citizen complaints.

State Statutes, Regulations and Executive Orders
Each of the 50 states have addressed environmental justice in different ways, some being more active than others. Several states have formal, environmental policies and/or statutes, while others address environmental justice issues through agency regulations or executive orders. 9 In California, for example, the state legislature codified its environmental justice mandate, giving specific instructions to the Governor's Office of Planning and Research 10 as well as the California Environmental Protection Agency. 11 By contrast, in Michigan, the Governor issued Executive Directive No. 2007-23 (November 21, 2007) directing the Michigan Department of Environmental Quality ("MDEQ") to develop and implement a state environmental justice plan. In response, the MDEQ formed the Environmental Justice Working Group, comprised of state agencies, advocacy groups and professionals. For two years, the Group circulated ideas and formed subcommittees in order to develop and implement a state environmental justice plan. On December 11, 2009, the Group issued a Draft Environmental Justice Plan 12, which aims to formally address environmental justice issues in Michigan. The Draft Environmental Justice Plan was not officially implemented at the time of this writing.

The Future of Environmental Justice
Many states, like Michigan, are continuing to create and implement their own environmental justice strategies. Moreover, many state and federal legislators have focused their environmental policy efforts on climate change issues, which often indirectly address environmental justice issues. Although significant legislative changes are unlikely, environmental justice will continue to be important issue on the minds of many Americans, particularly those disproportionately impacted by adverse environmental impacts.

1 See Environmental Protection Agency, Environmental Justice, http://www.epa.gov/compliance/ej/(last visited April 14, 2010).

2 482 F. Supp. 673 (S.D. Tex. 1979), aff'd in 782 F. 2d 1038 (5th Cir. 1986).

3 Id. at 677 citing Washington v. Davis, 426 U.S. 229; 96 S.Ct. 2040 (1976).

4 See, e.g., East Bibb Twiggs Neighborhood Association v. Macon-Bibb County Planning and Zoning Commission, 706 F. Supp. 880 (M.D. Ga. 1989), aff'd in 896 F.2d 1264 (11th Cir. 1989); R.I.S.E, Inc. v. Kay, 768 F. Supp. 1144 (E.D. Va. 1991), aff'd in 977 F.2d 573 (4th Cir. 1992).

5 463 U.S. 582 (1983).

6 Presidential Memorandum Accompanying Executive Order 12,898, 30 Weekly Comp. Pres. Doc. 279, 280 (February 11, 1994).

7 See, e.g. Morongo Band of Mission Indians v Federal Aviation Administration, 161 F.3d 569, 575 (9th Cir. 1998).

8 Office of Environmental Justice, U.S. EPA, Pub. No. EPA-200-R-95-002.

9 For a detailed state-by-state analysis, see Hastings Public Law Research Institute, Environmental Justice for All: A Fifty State Survey of Legislation, Policies and Cases, 4th Ed (February 15, 2010), available at http://www.uchastings.edu/centers/public-law/ejreport-fourthedition.pdf).

10 Cal. Gov. Code §65040.12.

11 Cal. Pub. Res. Code §71110.

12 Available at http://www.michigan.gov/documents/deq/envjustplan_304917_7.pdf. (last visited April 14, 2010).


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