Environmental Justice: Origins, Background, and Site Selection Considerations – Part II: The Executive Order and EPA’s Regulations

Environmental justice is not a new concept, but it is one that promises to receive renewed and vigorous attention in the Biden Administration. On his first day in office, Mr. Biden issued an Executive Order requiring the federal government to advance and prioritize environmental justice. Mr. Biden has selected a committed advocate as the head of EPA who has promised a pronounced emphasis on environmental justice concerns.

As a result, it is a good time to understand the legal underpinnings of environmental justice claims, the current EPA approach to investigating complaints regarding environmental justice, and steps that may be taken during site selection to minimize or eliminate serious claims regarding environmental justice.

The article contains five parts:

Part I: The Statute

Part II: The Executive Order and EPA’s Regulations

Part III: EPA Guidance – The 2000 Draft Revised Investigative Guidance

Part IV: EPA Guidance – The Toolkit

Part V: Considerations in Site Selection

Part II: The Executive Order and EPA’s Regulations

Although there were several executive orders issued over the years which generally directed federal agencies to implement Title VI, President Clinton’s issuance of Executive Order No. 12898 (EO 12898) in February 1994 ushered in the modern era of environmental justice considerations. 59 Fed. Reg. 7629 (February 16, 1994). For the first time, federal agencies were mandated to focus on the environmental effects of federal programs on minority and low-income populations.

EO 12898 mandates that “each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.” Federal agencies were directed to develop an “agency-wide environmental justice strategy” that identified and addressed “disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.” Among other things, the strategy should promote enforcement of all health and environmental statutes in areas with minority and low-income populations and ensure greater public participation.

EO 12898 specifically tasks each federal agency with a responsibility: “Each Federal agency shall conduct its programs, policies, and activities that substantially affect human health or the environment, in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination under, such programs, policies, and activities, because of their race, color, or national origin.” Thus, while EO 12898 does not define environmental justice, presumably environmental justice is achieved when a federal program does not exclude persons from participation, does not deny persons the benefits of the federal program, and does not subject persons to discrimination under the federal program because of their race, color, or national origin.

While EO 12898 is broad and issues sweeping directives for federal agencies, there are limitations to its scope set forth in the order. First, the order is to be implemented “consistent with, and to the extent permitted by, existing law.” Thus, it clearly did not attempt to impose on federal agencies greater requirements or duties than those imposed by Title VI itself. Indeed, federal agencies were required to act “consistent with” Title VI.

Further, EO 12898 was not intended to create any right or benefit “enforceable at law or equity by a party against the United States, its agencies, its officers, or any person.” Further, it did not create any “right to judicial review involving the compliance or noncompliance” with the order. Courts have generally found that the order does not allow a person to sue to enforce its requirements. See e.g., Coliseum Square Association, Inc. v. Jackson, 465 F.3d 215, 232 (5th Cir. 2006): “The Order does not, however, create a private right of action”; see also, Hausrath v. US Department of the Air Force, — F.Supp. 3d —, 2020 WL 5848094, p. 14 (D. Id. 2020): “There is thus no cause of action created by Executive Order 12898.”

Finally, President Clinton issued a Memorandum along with EO 12898. In discussing the responsibilities of federal agencies noted above, the Memorandum states that each federal agency “shall analyze the environmental effects … of Federal actions, including effects on minority communities and low-income communities, when such analysis is required by the National Environmental Policy Act of 1969 (NEPA).” Thus, when EO 12898 and the Memorandum are read together, they could be read to limit the scope of the environmental justice analysis required under EO 12898 to those federal efforts requiring “analysis” under NEPA, such as major Federal actions significantly affecting the quality of the human environment. 42 U.S.C. §4332(2)(C); 42 CFR §1502.3.

In accordance with Section 602, EPA has long had regulations implementing Title VI. 40 CFR Part 7. The regulations apply “to all applicants for, and recipients of, EPA assistance in the operation of programs or activities receiving such assistance.” 40 CFR §7.15. The definition of “program or activity” in Part 7 is similar to the definition in Title VI.

Part 7 contains general and specific prohibitions. It 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. 40 CFR §7.30.

It also contains specific prohibitions relating to recipients of EPA assistance. 40 CFR §7.35. A recipient shall not use criteria or methods of administering its program or activity which have the effect of subjecting individuals to discrimination. 40 CFR 7.35(b). Further, a recipient “shall not choose a site or location of a facility that has the purpose or effect of … subjecting [persons] to discrimination under any program or activity to which this part applies on the grounds of race, color, or national origin.” 40 CFR §7.35(c).

Although these prohibitions apply, relief for violations by a recipient is somewhat limited. The Supreme Court has found that “Title VI [does not] display an intent to create a freestanding private right of action to enforce regulations promulgated under § 602. We therefore hold that no such right of action exists.” Alexander v. Sandoval, 532 U.S. 275, 293, 121 S. Ct. 1511, 1523, 149 L. Ed 2d 517 (2001).

Instead of a private right of action, Part 7 establishes a complaint process. Any person “who believes that he or she or a specific class of persons has been discriminated against” may file a complaint. 40 CFR §7.120(a). The complaint “must be filed within 180 calendar days of the alleged discriminatory acts,” unless EPA waives the “time limit for good cause.” 40 CFR §7.120(b)(2). EPA must “promptly” investigate all such complaints. 40 CFR §7.120.

Once a complaint is filed, EPA will “immediately initiate [its] complaint processing procedures” and conduct a “preliminary investigation” to determine if it will accept, reject, or refer the complaint to the appropriate agency. 40 CFR §7.120(d). If EPA accepts the complaint, it will notify the recipient of the allegations and allow the recipient to submit a response to the complaint. If EPA decides that there is “no violation,” it will dismiss the complaint. 40 CFR §7.120(g).

Once accepted, EPA will attempt to resolve the complaint informally. 40 CFR §7.120(d)(2). If the complaint cannot be resolved informally, EPA may issue a preliminary finding of noncompliance, which the recipient can agree with or contest. Ultimately, based on the investigation and information submitted by the recipient, EPA will make a final determination of either compliance or noncompliance.

The finding of noncompliance should include the actions EPA proposes to undertake. 40 CFR §7.130(b). EPA “may terminate or refuse to award or to continue assistance” and “may also use any other means authorized by law to get compliance.” 40 CFR §7.130(a). Such a finding allows the recipient to request a hearing to contest EPA’s determination. Ultimately, the decision “shall be limited to the particular applicant or recipient who was found to have discriminated, and shall be limited in its effect to the particular program or activity or the part of it in which the discrimination was found.” 40 CFR §7.130(b)(4).

Interestingly, the remedies available to EPA for non-compliance with Part 7 (that is, terminate or refuse to award or continue assistance) are similar to, if not identical with, those set forth in Section 602. The statute allows compliance to be “effected” by “the termination of or refusal to grant or to continue assistance under such program or activity” and “any other means authorized by law.” 42 USCA §2000d-1. This similarity would seem to be in keeping with the provisions of EO 12898 requiring that agencies implement the order “consistent with” existing law. Thus, it seems there is no authority under Section 602 or Part 7 to address, overturn, or revise the terms and conditions of an individual permit issued by an agency that is the subject of a complaint or EPA investigation. [1] Indeed, EPA has stated that “the filing or acceptance of a Title VI complaint does not suspend an issued permit. Title VI complaints concern the programs being implemented … and any EPA investigation … primarily concerns the actions of recipients rather than permittees.” 65 Fed. Reg. 39651 (June 27, 2000).

Section 602 regulations generally encompass both intentional discrimination and discrimination based on disparate impacts. As set forth in Sandoval, Section 601 “prohibits only intentional discrimination.” Sandoval, 532 U.S. at p. 280. Section 602 authorizes agencies to promulgate regulations “to effectuate the provisions of” Section 601. 42 USCA §2000d-1. Based on that, questions have been raised over the years as to whether regulations promulgated pursuant to Section 602 may address disparate impact.

In Sandoval, the Supreme Court assumed, for the purposes of that decision, “that regulations promulgated under §602 of Title VI may validly proscribe activities that have a disparate impact on racial groups, even though such activities are permissible under §601.” Sandoval, 532 U.S. at p. 281. Justice Scalia noted that “no opinion of this Court has held that” and that discussions in prior cases “are in considerable tension with the rule of Bakke and Guardians that §601 forbids only intentional discrimination.” Sandoval, 532 U.S. at pp. 281-282, mentioning Guardians Association v. Civil Service. Commission of New York City, 463 U.S. 582 (1983) and Alexander v. Choate, 469 U.S. 287 (1985) as the cases creating that tension. As Justice O’Connor noted in her concurring opinion in Guardians: “If … the purpose of Title VI is to proscribe only purposeful discrimination …, regulations that would proscribe conduct by the recipient having only a discriminatory effect … do not simply ‘further’ the purpose of Title VI; they go well beyond that purpose.” Guardians, 463 U.S. at p. 613.

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