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Environmental Justice Legislation Update

Environmental Justice, as an urgent priority of the Federal Government, dates back to 1994, along with 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 to minority populations and low-income inhabitants. The principal legal basis for the purchase 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 aid. Through the Years, the Supreme Court has reviewed the range and significance of Title VI. In Alexander v. Sandoval, determined in 2001, the Court concluded that while private parties could sue to enforce Section 601 or its implementing regulations, as written, Section 601 simply prohibits intentional discrimination. Noting that disproportionate effect is not the only touchstone of invidious racial discrimination. Additionally, the Court also ruled in Sandoval that private parties cannot sue to enforce regulations implementing Section 602. Maybe as a acknowledgement of those openings, the Environmental Protection Agency (EPA) has established an administrative procedure to process environmental justice complaints in 40 CFR Part 7. Without strengthening the statutory base of environmental justice, the application can continue to be the topic of countless symposiums and seminars. Nevertheless, this may change shortly.
In the 116th Congress, a group of Congressmen filed a comprehensive statement to”restore, reaffirm, and reconcile environmental justice and civil rights, provide for the creation of the Interagency Working Group on Environmental Justice Compliance and Enforcement.” This bill, H.R. 5986, included esophageal Findings that”communities of colour, low-income communities, both Tribal and native communities, both fossil fuel-dependent communities and other vulnerable populations are… disproportionately burdened by environmental dangers which include exposure to polluted air, landscapes and castles.” The statement defines”environmental justice” as”the fair treatment and meaningful involvement of all individuals regardless of race, colour, culture, national origin or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies to ensure that each individual likes (A)the identical level of protection from environmental and health risks, and (B) equivalent access to any Federal agency action to environmental justice issues in order to have a healthful environment….” In the brand new 117th Congress, Representative Ruiz presented April 8, 2021 a considerably shorter bill, H.R. 2434, entitled the”Environmental Justice Act of 2021.” Both bills share many common characteristics, and one of the very initial actions taken by President Biden was to issue Executive Order 13990, which included a mandate to federal agencies to advance and enhance environmental justice. A couple of days ago, the new Administrator of EPA led all EPA offices to integrate environmental justice in their plans and actions, and also to embed equity in their programs and solutions.

Section two of the bill says that it’s the policy of the Congress that each Federal agency will want to attain environmental justice as part of its mission by identifying and addressing, as appropriate, disproportionately adverse human health or environmental effects of its programs, and should provide direct advice and technical help to affected communities. Additionally, two Federal agencies should realize the right of all people to clean air, safe and affordable drinking water, protection from climate risks and he preservation of the natural atmosphere.
Section 3 defines 22 terms utilized in the bill such as”community of colour,””disparate impact,””disproportionate lack of negative human health or environmental effects,””environmental justice,””fair treatment” and”low income community.” “Fossil fuel reliant communities” is described in Section 29 which provides for its revitalization of these communities.
Section 4 discusses how”prohibited discriminations.” Section 601 of the Civil Rights Act of 1964 could be amended to prohibit discrimination based upon the”disparate impact” of a national program which, even if appearing impartial, really has the effect of subjecting persons to discrimination because of their race, color or natural origin. This provision appears intended to reverse the Sandoval judgment of the Supreme Court.
Section 5 amends Section 602 of the Civil Right Act to allow any person”aggrieved” by the failure to abide by this law to file a lawsuit in federal court from any national agency without regard to the amount in controversy or into the citizenship of the parties. This section also seems to amend the law the Sandoval court was construing.
Section 6 discusses the rights of recovery. When intentional discrimination is proved, the defendant agency might be responsible for compensatory and even punitive damages, attorneys and expert fees, and the price of litigation. In the case of evidence of disparate impact discrimination, the attorney’s fees and court costs might be recovered.
Section 7 amends the Clean Water Act to allow the thought of a cumulative effect of a National Pollutant Discharge Elimination System (NPDES) permitted release, and also to consider if there’s no longer”a reasonable certainty of no harm to the health of the overall populace or to any vulnerable or vulnerable sub-population,” thus requiring a refusal of their permit or its renewal. This section also amends the Clean Air Act to define”cumulative impacts” and in addition gives a new process by which important source air pollution licenses could be refused.
Section 8 authorizes the President to set the Interagency Working Group on Environmental Justice Compliance and Enforcement. Among other matters, the Working Group will develop and publish in the Federal Register guidance documents to assist Federal agencies in dealing with environmental justice issues, and to develop a coordinated Federal environmental justice plan.
Section 9 requires each member agency of the Working Group an agencywide environmental justice plan over a couple of years of the enactment of this action. The plan will stick to the template specified in this legislation. Furthermore, each agency will participate in human health and ecological study data collection and analysis, which may be utilised in disproportionate effect analysis, and publish fish consumption advice.
Section 10 establishes the ranking of Environmental Justice Ombudsman in EPA. Each EPA regional office might be delegated to Ombudsman, and the Ombudsman will report directly to the EPA Administrator rather than into the agency’s Office of Environmental Justice.
Section 11 authorizes the Secretary of the Interior to operate a program to provide grant money to qualified parties to enhance”Access to Parks, Outdoor Spaces, and Public Recreation Opportunities.” 1 source of capital will be earnings created by the federal offshore oil and gas system and the Gulf of Mexico Energy Security Act of 2006.

Section 14 establishes additional protections relating to Federal actions impacting environmental justice by mandating the creation of a community influence environmental justice report solely by the applicable Federal agency. This section also provides that if a National Environmental Policy Act (NEPA) inspection is warranted for environmental justice issues, the agency must consider all possible direct, indirect and cumulative impacts.
Section 15 requires compulsory environmental justice instruction for several Federal workers.
Section 16 establishes an Environmental Justice Grant application to be handled by EPA. Eligible recipients should be non-profit organizations. $25 million will be approved for decades 2021 through 2025.

Section 18 Requires the President to establish a National Environmental Justice Advisory Council to provide independent advice and recommendations to EPA.
Section 19 Requires EPA to create a public internet-based Environmental Justice Clearinghouse.
Section 20 mandates regularly scheduled public ecological justice encounters with the Administrator and in the Regions.
Section 21 requires the Administrator to ensure that all Supplemental Environmental Projects(SEP) that repay environmental justice complaints involve the affected area.
Section 22 addresses the dilemma of tribal Coastal Zone Management projects.
Sections 23 through 26 concern cosmetic labelling, safer childcare centers and related personal care difficulties.
Section 28 addresses the creation of earnings needed to get”Just Transition Support,” primarily though mineral leasing administered by the Department of the Interior.
Section 29 will authorize the Secretary of the Treasury to utilize the funds created by Section 28 to purify fossil fuel impacted communities.
Section 30 Requires the Comptroller General of the United States to assess the efficacy of this law in a couple of years.
H.R. 2434
A modest bill in many respects, H. R. 2434 was introduced by Representative Ruiz; it’s eligible, the”Environmental Justice Act of 2021.” Its purpose is to require federal agencies to address environmental justice, particularly in the agency’s enabling activities. To this end, this legislation will require the thought of”cumulative impacts” in empowering actions. This legislation defines”environmental justice” in terms almost identical to the definition of H.R. 5986. On the flip side,”Fence line Communities” is a brand new definition–a population living in close proximity to a source of contamination. This new legislation says that, to the extent permissible under applicable law, each agency will make achieving environmental justice part of its mission. As in the earlier legislation, both the Clean Water Act and the Clean Air Act will be amended to authorize the consideration of cumulative impacts in permitting decisions. H.R. 2434 provides that no present legislation will preclude the right to bring an action under 42 U.S.C. Section 1983, that is said to be implied beneath a protected law or common law. In addition, the 1964 Civil Rights Act will be amended to allow private rights of action in the instance of discriminatory governmental practices.
Having a slim but aggressive progressive majority along with the backing of the Administration, it’s likely that there will be a severe effort to reevaluate new Environmental Justice legislation. Expanding Title IV of the Civil Rights Act of 1964 and the applicability of Section 1983 to Environmental Justice issues are certain to spur any serious debates in the Congress. However, without a strong statutory framework, the predictability and effectiveness of almost any Environmental Justice program may well rely on the government in power.

The”Climate 21 Project” Prepared for the New Administration