Environmental Justice: A Legislative and Regulatory Update

Environment green puzzle

Coping with the new requirements would be made easier if the federal government develops specific environmental justice criteria and “performance metrics” which are proposed, debated, and promulgated.

November 1, 2021
Anthony B. Cavender - Gravel2Gavel

Environmental Justice, as an urgent policy 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.” Executive Order 12898 supplements Executive Order 12550 (1980), whose primary legal basis 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. For example, in Alexander v. Sandoval, decided in 2001, the Court concluded that while private parties could sue to enforce Section 601 or its implementing regulations, Section 601 only prohibits intentional discrimination; which is very difficult to prove. In addition, the Court 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 for many years operated an administrative system to process environmental justice complaints (see 40 CFR Part 7). The process is complex and the results—usually whether a state agency has failed to uphold Title VI—have generally been unsatisfactory. To be successful, many proponents of environmental justice believe that a statutory foundation must be established, and significant efforts have been made to do so.

Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com


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