The legal system finds itself at a crossroads: acknowledging the significance of environmental justice and the need to properly consider it in major decisions, but without sufficient legal mechanisms or remedies. While environmental justice is increasingly in the news, in presidential pronouncements and plans, and in pleadings, plaintiffs still lack means to take direct action in the courts to further environmental justice. The predominant legal remedy for challenging environmental injustice in federal court remains a National Environmental Policy Act (NEPA) challenge to agency decisions.
Parties seeking redress of citing and permitting processes that will clearly result in disproportionate burdens on minority populations have used NEPA’s requirements as the vehicle to assert environmental justice claims, and judges have entertained such claims for years. But this has meant that “environmental justice” claims are largely procedural (i.e., did the agency do a good enough job reviewing environmental justice concerns before approving the project?) and not substantive (i.e., did the environmental justice analysis prove the facility could not be lawfully cited in this neighborhood?). As such, federal courts appear to view “environmental justice” as a process, not a result: “an agency is not required to select the course of action that best serves environmental justice, only to take a “hard look” at environmental justice issues.” Sierra Club v. Fed. Energy Comm’n, 867 F.3d 1357, 1368 (D.C. Cir. 2017) (referencing Latin Ams. For Social & Econ. Dev. V. Fed. Highway Admin., 756 F.3d 447, 475–77 (6th Cir. 2014)). 974 F. Supp. 2d 18, 41 (D. Mass. 2013).
For example, in Allen v. National Institutes of Health, the district court reviewed the siting of “BioLab,” a facility housing numerous pathogens in a largely minority neighborhood. 974 F. Supp. 2d 18, 41 (D. Mass. 2013). The court concluded that “plaintiffs’ claim fails because the [environmental justice review] considers the potential impact the BioLab may have on low-income and minority populations.” The report had not concluded that the BioLab was an environmental justice–neutral project, but that was immaterial. The court concerned itself solely with whether environmental justice considerations were part of the process, regardless of the outcome.
Another pipeline case decided in the same year went the opposite way, but again plainly spelled out the purely procedural nature of the court’s environmental justice review in the opinion’s discussion of whether an environmental impact statement (EIS) met NEPA standards: “[W]e cannot see how this EIS was deficient. It discussed the intensity, extent, and duration of the pipelines’ environmental effects, and also separately discussed the fact that those effects will disproportionately fall on environmental-justice communities. . . . NEPA requires nothing more.” Sierra Club v. FERC, 867 F.3d 1357, 1369, 1371 (D.C. Cir. 2017).
NEPA’s ”remedy” gap was made apparent in a recent Ninth Circuit dissent. The court upheld the adequacy of an environmental assessment evaluating a proposed air cargo facility in the San Bernadino Airport. The dissenting opinion began, “I do not say this lightly, but it must be said. This case reeks of environmental racism.” Ctr. for Cmty. Action & Env't Just. v. Fed. Aviation Admin., 18 F.4th 592, 614 (9th Cir. 2021). The dissent discussed several issues where the environment assessment by the Federal Aviation Administration fell short, particularly given the facility’s location in—and impact on—a disadvantaged community of color. Yet, as a concurrence by another justice claimed, no party had asserted an environmental justice issue in the underlying case—perhaps (or likely) because of the judicial system’s inability to do more than address the thoroughness of the assessment, not its outcome.
Several federal appellate courts have overturned agency decisions based on the quality of the environmental justice analysis, and in so doing have expanded what small path exists for asserting environmental-justice concerns in court. In Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, the Third Circuit took a hard look at the Corps’ environmental justice review for the controversial Dakota Access Pipeline crossing tribal territory and found it faulty, using terms like “bare bones” and “cursory,” before concluding “the Corps did not properly consider the environmental-justice implications of the project and thus failed to take a hard look at its environmental consequences.” 255 F. Supp. 3d 101, 140 (D.D.C. 2017). The case was remanded and after further proceedings, the Corps was ordered to complete an EIS for the proposed pipeline. Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 440 F. Supp. 3d 1, 11 (D.D.C. 2020), aff'd sub nom. Standing Rock Sioux Tribe v. United States Army Corps of Engineers, 985 F.3d 1032 (D.C. Cir. 2021).
In another recent example, Friends of Buckingham v. State Air Pollution Control Board, the Fourth Circuit remanded a state agency’s authorization of a natural gas pipeline in part for deficiencies in its environmental justice analysis. 947 F.3d 68 (4th Cir. 2020). The court’s analysis turned on the Virginia state agency’s failure to make findings on the demographics of the area surrounding a compressor station on the pipeline route. The state agency had relied solely on compliance with state and federal air standards to say that there could be no disproportionate impact. The Fourth Circuit was dissatisfied with this approach, stating, “Even if all pollutants within the county remain below state and national air quality standards, the Board failed to grapple with the likelihood that those living closest to the Compressor Station—an overwhelmingly minority population according to the Friends of Buckingham Survey—will be affected more than those living in other parts of the same county.” This opinion, while again largely procedural, hints at judicial recognition of the substance of environmental racism and environmental justice—a thread that perhaps future federal courts will pull on.
In short, judges increasingly recognize environmental justice as important and as an issue to be addressed by agency decision-makers, but there continue to be significant limitations to what can be substantively accomplished without any direct causes of action available.
