Environmental justice is not a new concept, but it is one that promises to receive renewed and vigorous attention from the Biden administration. Biden has selected a committed advocate to head the EPA who has promised a renewed emphasis on environmental justice concerns.
Environmental justice has its underpinnings in Title VI of the Civil Rights Act of 1964, which generally prohibits discrimination by recipients of federal funds. Under Section 601, no person may be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal funds based on race, color or national origin. Section 602 authorized and directed each federal agency that extends financial assistance to issue rules and regulations for implementing the provisions of Section 601 as to any program or activity receiving those funds.
In 1994, President Clinton issued Executive Order (EO) No. 12898, which, for the first time, required all federal agencies to achieve environmental justice as part of their mission. EO 12898 specifically tasks each federal agency with developing an agency-wide environmental justice strategy that identifies and addresses the adverse human health or environmental effects of its programs, policies and activities on minority and low-income populations.
EPA has issued regulations pursuant to Section 602.40 CFR Part 7. The regulations encompass instances of intentional discrimination and those situations in which there is a disparate impact or effect. Part 7 generally prohibits the exclusion from participation in, denial of benefits of, and discrimination under any program or activity receiving EPA assistance on the basis of race, color or national origin. It also specifically prohibits a recipient from choosing a site or location for a facility that has the purpose or effect of subjecting persons to discrimination on the grounds of race, color or national origin.
EPA's regulations create a complaint process in which any person may file a complaint with EPA if that person believes that a recipient of federal funds, such as a state agency issuing environmental permits, has discriminated in carrying out the federally funded program. A complaint could involve the issuance of a single permit or multiple permits. Over the years, EPA has issued various draft or interim guidance documents generally discussing the standards it will apply in an investigation. However, in each such document, EPA affords itself a great deal of latitude to consider a variety of factors in each individual investigation. Ultimately, EPA could find that unlawful discrimination exists, in which case EPA may, among other things, terminate the federal assistance to the recipient.
Against this backdrop, Biden has picked Michael Regan to head the EPA, who served as secretary of North Carolina's Department of Environmental Quality (DEQ). During Regan's tenure, the state's DEQ infused environmental justice concerns into all aspects of the agency's agenda. Upon his nomination to head the EPA, he vowed to move with a sense of urgency on enacting environmental justice in all communities.
EPA's level of commitment to environmental justice has fluctuated over the years, mainly depending on the philosophy of the administration in power. As to this administration, President Biden and Regan have strongly signaled that environmental justice will be central to EPA's enforcement, permitting and other functions. While one may argue that such a focus is welcome or overdue, one may also hope that such a focus does not unduly hinder legitimate economic growth that can also serve to benefit disadvantaged communities.
John B. King is a partner with Breazeale, Sachse & Wilson LLP in Baton Rouge, Louisiana. His practice relates mainly to environmental regulatory permitting and compliance. Prior to joining the firm in 2003, he served as chief attorney of enforcement for the Louisiana Department of Environmental Quality.
For more information, visit www.bswenviroblog.com, or contact John B. King at jbk@bswllp.com or (225) 381-8014.
