Environmental Justice: No longer a Nascent Concept but Hurdles Remain

We revisit a topic we addressed in this publication 21 years ago.1 The term in use frequently then was “Environmental Racism.” There were then and remain emotionally-charged debates centered on the struggle to deconstruct a policy choice or agency decision (including permitting decisions) and assess whether the decision was based on an insidious “intent to discriminate,” or whether the “effects” were sufficiently disproportionate to constitute discrimination against a protected class. Similarly charged was the debate surrounding the delineation of the degree to which a court (or jury) might infer intent from impact, similar to ongoing debates in courtrooms adjudicating issues under Sections 2 and 5 of the Voting Rights Act of 1965. This comparison perhaps has become less useful today because the U.S. Supreme Court (in the case of Section 5) has stricken or continues to water down or otherwise threaten (in the case of Section 2) these provisions.

The premise is that the burden of environmentally polluting facilities, practices, and the associated hazards often falls most heavily on minority groups and that zoning or other land-use decisions are based at least in part on the intent to discriminate. The potential circumstances in which the issue may arise are many. Inherently problematic in any analysis is that the claimant must prove the decision-making body selected or reaffirmed an environmentally racist course of action “because of” its likely adverse effects on an identifiable, protected group of people. That proof standard remains a high hurdle. Moreover, there are few legal vehicles to mount environmental racism challenges. The limited cases that have been adjudicated include challenges under Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment, Section 1983, and private and public nuisance law causes of action. None has proven to be particularly effective in surmounting preliminary motion practice.

The term now commonly used for what we were describing in 1998 is “environmental justice,” likely because it has become more evident that these burdens fall disproportionately on low-income areas, independent of considerations of race or national origin. The argument that income level and not race is the operative element in the environmental justice calculus has complicated efforts under existing statutes, including the Civil Rights Act of 1964, to raise these issues

i. clinton aDministRation initiative Remains the touchstone Then-President Bill Clinton’s Executive Order No. 12898 in 1998 helped launch the environmental racism/environmental justice discussion and is still arguably the primary policy touchstone.2 But, it was chiefly aspirational. It provided a loose policy framework but omitted the nuts and bolts of policy development and implementation. Executive Order No. 12898 directed executive branch departments to consider “environmental equity” in interpreting regulations under their consideration,3 but it did not provide an enforcement regime, a compliance metric, or a private right of action or other mechanism to assert grievances.4 Recognition of the persistence of the problem continued through the George W. Bush Administration, but with little to no correction of the above referenced insufficiencies.5

Executive Order No. 12898 established a Federal Interagency Working Group (the “Working Group”). In 2011, the Working Group issued a Memorandum of Understanding (“MOU”) on Environmental Justice, which provided more structure and deadlines for progress reports. Through the U.S. General Services Administration (“GSA”), the Cabinet secretaries committed they would do the following: • Declare the importance of identifying and addressing environmental justice considerations in agency programs, policies, and activities; • Develop an environmental justice strategy and annual implementation progress reports; • Ensure meaningful opportunities exist for the public to submit comments and recommendations relating to the strategy, implementation, and ongoing efforts associated with environmental justice; and • Serve as active members of the Interagency Working Group on environmental justice.6

But again, the directives were insufficient to establish meaningful remedies for those suffering from environmental injustice, stating as follows: “This MOU and activities under it relate only to internal procedures and management of the Federal agencies and the Interagency Working Group. They do not create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its agencies or other entities, its officers, employees or agents, or any other person.”7

In accordance with the terms of the MOU, in September 2011, the Environmental Protection Agency (“EPA”) developed Plan EJ 2014, which is a cooperative plan to protect the health and environment of overburdened communities and establish partnerships with local, state, tribal, and federal governments and organizations that affect environmental outcomes.8 The EJ: 2020 Action Agenda followed, with similarly high aspirations.9 Some federal agencies ranked the issue higher in their lists of priority criteria than others.10 As a former senior trial attorney at the Department of Justice’s Environmental Justice and Natural Resources Division remarked in recounting an exchange with his former boss regarding the Department’s Environmental Justice Committee, “I had to look around at first. I didn’t know that I was a committee. There was one person doing [Environmental Justice] at DOJ – moi. We now have ‘we.’”11

ii. miXeD Results in the couRthouse

Despite efforts to tie civil rights enforcement and to environmental justice, plaintiff groups have encountered difficulty formulating and advancing a legal theory to surmount threshold procedural rules like Federal Rule of Civil Procedure 12(b)(6), which requires that plaintiffs set forth facts that if true would satisfy the elements of an existing common law, statutory, or constitutional cause of action.12 Former U.S. District Judge Stephen Orlofsky’s clear efforts to preserve a cause of action in a string of district court and

appellate decisions and remands in South Camden Citizens in Action illustrate this difficulty.13 These decisions likely signal that a lawsuit founded solely on Section 601 or 602 of Title VI of the 1964 Civil Rights Act is unlikely to proceed under current jurisprudence.14 Likewise, the Fair Housing Act, 42 U.S.C. §§ 3604, et seq., does not appear to constitute a judicially approved vehicle for environmental justice claims. In South Camden Citizens in Action, even Judge Orlofsky rejected the plaintiffs’ claim, pled in the alternative, that the granting of an air permit for a cement grinding facility constituted “constructive eviction” of the residents of South Camden, New Jersey, noting that the state environmental regulatory agency does not provide the kind of “services” contemplated by the Fair Housing Act.15

Plaintiffs’ groups have encountered similar challenges in the consolidated Flint Water Cases, in which the plaintiffs allege disproportionate injury from lead and other contamination in the city’s water supply.16 In those cases, the courts have wrestled with whether a 42 U.S.C. § 1983 claim against city and local officials based on the substantive due process right to bodily integrity could survive qualified immunity claims. Similar court challenges have brought few successes in the lengthy and contentious zoning litigation relating to the relocation of a recycling plant in Chicago17 and civil rights actions relating to toxic coal ash in Uniontown, Alabama, and Kingston, Tennessee.18

iii. initial biDen aDministRation initiatives Given the limited statutory tools available and constitutional limitations with respect to environmental justice litigation brought by private plaintiffs, the regulatory arena will likely host the next several environmental justice battles. After Joe Biden’s election, the new administration pledged to meaningfully address environmental justice. President Biden promptly established a White House Environmental Justice Advisory Council and White House Environmental Justice Interagency Council. Commentators speculated President Biden would select a highly progressive leader of the White House Council.19 Instead, President Biden selected Brenda Mallory, who is perceived to be a moderate. President Biden did not make Environmental Justice a standalone initiative but instead included it in his climate change initiative, contained in a January 27, 2021 Executive Order that states in part, “with this executive order, environmental justice will be at the center of all we do, addressing the disproportionate health and environmental impact on communities of color, the so called ‘fence-line’ communities especially those comprised of... Blacks, Native Americans, and poor whites.”20

Going forward, courts will determine whether including “poor whites,” which is generally not a constitutionally protected class, in the category of victims will make litigating environmental justice claims under Title VI and other tools dependent on racial classifications even more problematic. If the Biden Administration adds teeth to environmental justice enforcement, they will likely be in the regulatory permitting arena if and when environmental justice considerations focusing more on economic rather than racial status of burdened groups are incorporated into permitting criteria for facilities having a detrimental environmental impact.21 Permitting criteria amendments may provide a way around statutory and constitutional mechanisms initially designed to deal with racial and other inequities directly related to environmental justice. Even then, the battle will continue as courts review administrative permitting and other government decisions involving the placement, operation, and maintenance of environmentally burdensome facilities. Thus, there is much work to be done, and this discussion is, as of now, to be continued.

Michael Wynne is co-chair of Gregor Wynne Arney, PLLC, a Houston-based litigation boutique. Wynne is a 1992 graduate of Harvard Law School, former partner with McDermott Will & Emery, LLC, and former Assistant U.S. Attorney in the Southern District of Texas. Alexis Summers is a third-year law student at South Texas College of Law Houston and the managing editor of CURRENTS: Journal of International Economic Law. She graduated with honors in political science from the University of Connecticut. She will be working as an associate at Gregor Wynne Arney in the fall.

endnotes

1. For ease of reference, the 1998 article is available on The

Houston Lawyer’s page on the Houston Bar Association’s website: www.hba.org/thehoustonlawyer. The original article may also be found on Westlaw. See Roliff Purrington & Michael Wynne, Environmental Racism: Is a Nascent Social Science Concept a Sound Basis for Legal Relief?, 35 HOUS. LAW. 34 (Mar./Apr. 1998). 2. Exec. Order No. 12,898, Federal Actions to Address

Environmental Justice in Minority Populations, 59

Fed. Reg. 7,629 (Feb. 16, 1994); see Benjamin Wilson (moderator), Barry Hill, Quentin Pair & Suzi Ruhl, The

State of Environmental Justice: An Obama Administration

Retrospective, 47 ENV’T L. REP. NEWS & ANALYSIS 10,385, 10,385 (2017) (transcript of a panel discussion of experts). 3. CONG. RESEARCH SERV., IF10529, ROLE OF THE

U.S. ENVIRONMENTAL PROTECTION AGENCY IN

ENVIRONMENTAL JUSTICE (2021), https://crsreports. congress.gov/product/pdf/IF/IF10529/8 (explaining how

“Executive Order 12898 itself does not establish federal law but is a presidential directive for the management of executive departments and agencies that instructs the implementation of existing law.”). 4. Tara R. Kebodeaux & Danielle M. Brock, Environmental

Justice: A Choice Between Social Justice and Economic Development?, 28 S.U. L. REV. 123, 131 (2001). 5. Memorandum from Christine Todd Whitman, EPA, to

Assistant Administrators et al. (Aug. 9, 2001), http://widit. knu.ac.kr/epa/ebtpages/Environmental_Management/ siteout/s6out4.pdf (discussing EPA’s “firm commitment to the issue of environmental justice”). 6. See Interagency Working Group on Environmental Justice, Memorandum of Understanding on Environmental

Justice and Executive Order 12898 (2011), https://www. epa.gov/sites/production/files/2015-02/documents/ ej-mou-2011-08.pdf (providing that the memorandum of understanding shall be implemented in compliance with, and to the extent permitted by, applicable law). 7. See id. 8. EPA, PLAN EJ 2014: EXECUTIVE SUMMARY (Sept. 2011), http://www.nmpha.org/Resources/Documents/planej-exec-sum.pdf. 9. EPA, EJ 2020 ACTION AGENDA: THE U.S. EPA’S ENVI-

RONMENTAL JUSTICE STRATEGIC PLAN FOR 20162020 (Oct. 2016), https://www.epa.gov/sites/production/ files/2016-05/documents/052216_ej_2020_strategic_ plan_final_0.pdf. 10. See Wilson, supra, note 2. 11. Id. at 10,387 (emphasis in original). 12. Daria E. Neal, Recent Developments in Federal Implementation of Executive Order 12,898 and Title VI of the Civil Rights Act of 1964, 57 HOWARD L.J. 941, 948 (2014).

13. See S. Camden Citizens in Action v. N.J.

Dep’t of Env’t Prot., 254 F. Supp. 2d 486 (D.N.J. 2003). 14. Bradford C. Mank, South Camden Citizens in Action v. New Jersey Department of Environmental Protection: Will Section 1983 Save Title VI Disparate Impact Suits, 32 ENV’T. L. REP. NEWS & ANALYSIS 10,454, 10,454 (2002). 15. See S. Camden Citizens in Action, 254 F.

Supp. 2d at 499–503; cf. Yanata v. Ind.

Dep’t of Child Servs., No. 1:19-cv-03928-

RLY, 2021 WL 799563, at *4 (S.D. Ind.

Feb. 8, 2021) (claim of environmental racism fails because that is not a claim upon which relief can be granted) (citations omitted). 16. In re Flint Water Cases, 960 F.3d 303 (6th

Cir. 2020). 17. E.g., Brett Chase, Environmental Racism

Complaint Against Chicago Referred to

U.S. Prosecutors, CHI. SUN TIMES (Jan. 29, 2021, 3:51 PM), https://chicago.suntimes.com/2021/1/29/22256841/generaliron-environmental-racism-hud-justicedepartment-lori-lightfoot; Brett Chase,

Pastors Seek Injunction to Stop General Iron

Relocation, Allege “Pay to Play,” CHI. SUN

TIMES (Oct. 21, 2020), https://chicago. suntimes.com/2020/10/21/21527434/ general-iron-lawsuit-lori-lightfoot-lincolnpark-east-side-environmental-racism. 18. Marianne Engelman-Lado et al., Environmental Injustice in Uniontown, Alabama, Decades After the Civil Rights Act of 1964: It’s Time for Action, A.B.A. HUMAN

RIGHTS MAG. (Apr. 13, 2020), https:// www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/ vol--44--no-2--housing/environmentalinjustice-in-uniontown--alabama--decades-after-the/ (“On December 22, 2008, more than a billion gallons of highly toxic coal ash burst from an impoundment and spilled into the Emory River channel in Kingston, Tennessee”; “The impacts of this spill... reach far beyond the town [of Kingston] and those involved in the cleanup efforts, affecting the lives of hundreds of people across state lines in Uniontown, Alabama, a low-income, predominantly African American community.”). 19. Jennifer A. Dhlouhy & Ari Natter, Environmental Justice Crusader Eyed for White

House Council, BLOOMBERG (Nov. 28, 2020, 6:22 p.m.), https://www.bloomberg. com/news/articles/2020-11-29/environmental-justice-crusader-eyed-for-whitehouse-council. 20. Executive Order 14,008 of Jan. 27, 2021, 86 Fed. Reg. 7619 (Feb. 2, 2021); see

AIMEE BARNES ET AL., CTR. AM.

PROGRESS, MAPPING ENVIRONMEN-

TAL JUSTICE IN THE BIDEN-HARRIS

ADMINISTRATION, https://www. americanprogres.org/issues/green/reports/2021/02/04/495397. 21. Richard J. Lazarus & Stephanie Tai, Integrating Environmental Justice Into EPA Permitting Authority, 26 ECOLOGY L.Q. 617 (1999) (foreseeing the possibility).