“And Justice for All”: Is Environmental Justice Thwarted by the Federal Legislative Process?

Photo credit: Susan Melkisethian

*Ashli Glatfelter

I. Introduction

The idea that nature is the “great equalizer” unfortunately seems to have little merit lately.[1] Ideally, clean air, drinking water, and recreational spaces are available to all Americans without discrimination based on race or socioeconomic status.[2] In reality, unequal access to the benefits of these natural resources is another injustice facing persons of color and low-income individuals (POC/LII).[3] Both federal and state government recognize the presence of environmental injustice, as policymakers at both levels are addressing the inequitable distribution of nature to POC/LII.[4] For example, in March 2021, the U.S. House of Representatives and Senate proposed identical bills, collectively the Environmental Justice for All Acts (the “EJA Acts”), “to begin remedying the long history of environmental racism and injustice in the United States[.]”[5] However, over a year later, POC/LII have yet to experience the anticipated benefits of the EJA Acts. Seemingly, our own legislative process is the obstacle preventing environmental justice for all.

II. EJA Acts

A. The Proposal

In 2020, Representatives Raúl Grijalva (D-AZ) and Donald McEachin (D-VA) introduced the House of Representatives’ version, H.R. 5986.[6] Simultaneously, then-Senator Kamala Harris (D-CA) joined Senators Cory Booker (D-NJ) and Tammy Duckworth (D-IL) in presenting an identical bill in the Senate, S. 4401.[7] The EJA Acts were eventually reintroduced in both houses of Congress in March 2021.[8] The EJA Acts seek to strengthen current environmental laws, provide federal agencies clear and meaningful involvement in the environmental justice community, and enhance research and requirements to “address the disproportionate adverse human health or environmental effects of federal laws or programs” on POC/LII.[9]

“Environmental justice,” as defined by the Environmental Protection Agency (EPA), demands the “fair treatment and meaningful involvement of all people regardless of . . . the development, implementation and enforcement of environmental laws, regulations and policies.”[10] “Fair treatment” refers to the idea that no one should endure the disproportionate “negative environmental consequences” of policy implementation.[11] “Meaningful involvement” demands active participation in regulatory agencies’ decision-making processes by those affected by negative environmental consequences.[12] Nature deprivation, another consequence of systemic discrimination,[13] has manifested in “untenable practices in housing, land use, transportation, industrial siting, health care, and sanitation” and the related issues of deteriorating infrastructure, increased pollution, concentrated poverty, growing unemployment,[14] and the inequitable distribution of COVID-19 safety/protective measures in POC/LI communities.[15] The sponsors of the EJA Acts acknowledge that economic and social justice cannot be achieved without addressing environmental injustice.[16] Therefore, passage of the EJA Acts would better equip POC/LII and those affected by environmental injustices with the necessary legal tools to protect their rights.[17]

B. EJA Acts’ Impact

The EJA Acts would remedy the injustices faced by many vulnerable communities.[18] For example, a minority population in Missouri is subjected to the emission of toxic gasses, a predominantly Black Alabama town is suffering from the placement of a landfill town despite community opposition, residents in Louisiana live within an eighty mile span of industrial plants known as “Cancer Alley,” and “half of all New Jerseyans live within three miles of a Superfund site.”[19]

To remedy these injustices, the EJA Acts would strengthen existing environmental justice protections by: (1) codifying and enhancing former President Clinton’s Executive Order on environmental justice for POC/LII communities by increasing the public’s access to federal agency information and participation;[20] (2) codifying the National Environmental Justice Advisory Council to ensure that environmental issues are appropriately brought to regulatory agencies’ attention and that resulting environmental justice grant programs will continue to be federally implemented;[21] (3) requiring federal agencies to annually update strategies to address negative environmental impacts on POC/LII and Native American tribes by codifying existing EPA and Council on Environmental Quality measures;[22] (4) requiring application processes under the Clean Air and Water Acts to consider pollutant levels;[23] (5) permitting citizens to assert statutory and common law environmental injustice claims;[24] and (6) nullifying the United States Supreme Court’s holding in Alexander v. Sandoval to restore individuals’ rights to bring actions under the Civil Rights Act for disparate impacts of environmentally discriminatory practices without agency representation.[25] However, for these concepts to become a reality, the EJA Acts must first become law.

III. The EJA Acts’ Legislative Status

Undoubtedly, “[o]ne of the most practical safeguards of the American democratic way of life is this [bicameral] legislative process with its emphasis on the protection of the minority, allowing ample opportunity to all sides to be heard.”[26] But at what point does the extensive process of passing a bill into law become disproportionate to the interim injustices faced by the very people the bills are designed to protect?[27]

Currently, the EJA Acts are under committee review in both the House and Senate.[28] The House bill was referred to six committees and five subcommittees between March and May 2021,[29] and was addressed in a committee meeting for the first time in February 2022.[30] The Senate bill was referred to one committee and has remained there since its introduction in March 2021.[31] These realities illustrate the cost of our federal legislative system, allowing partisan opinions to be heard at the expense of the harmed POC/LII communities.

It has been over one year since the EJA Acts’ introduction; therefore, it has been one year more that vulnerable populations have suffered from inequitable access to nature. The prolonged and extensive legislative process allows the nature gap to continue to grow.[32] The longer the EJA Acts are not in effect, the longer environmental injustices may persist. There would be limited public access to information on federal agencies’ environmental justice contributions and information on how those affected can have their voices heard.[33] Moreover, there would be no assurance that environmental justice grant programs would be implemented when and where they are needed most.[34] There would also be no evolving benchmark for environmental standards as the environmental needs of POC/LII change.[35] Furthermore, “cumulative pollutant levels” would remain unaccounted for when facilities apply for permits under the Clean Air Act and Clean Water Act, so impacted communities could become even more concentrated with pollution.[36] Absent the EJA Acts’ nullification of Alexander v. Sandoval, POC/LII impacted by environmental injustices cannot seek protection under the Civil Rights Act without the intervention of the concerned government agency.[37]

IV. Conclusion

As the Biden administration repeals the previous administration’s rollbacks on environmental rules,[38] it seems that the near future of environmental justice may only occur federally within the executive branch.[39] More immediate reform has and will likely continue to come from state legislatures while Congress keeps the EJA Acts in its back pocket.[40] In fact, states have taken steps to provide POC/LII more equitable access to the benefits of our environment by “mandating state agencies to evaluate how state actions impact environmental justice [and] requiring state environmental agencies to establish a separate permitting and review process that assesses whether certain proposed facilities will cause or contribute to environmental or public health stressors in environmental justice communities.”[41] Until the EJA Acts pass on the federal level, these benefits remain empty promises for POC/LII.[42]

*Ashli Glatfelter is a second-year evening student at the University of Baltimore School of Law. She currently serves as a Staff Editor for Volume 51 and is a rising Production Editor for Volume 52 of Law Review. Ashli is a member of the Royal Graham Shannonhouse III Honor Society and OUTLaw, the law school’s LGBTQ+ group. She received her bachelor’s degree in Legal Studies from Stevenson University, along with minors in English and Management & Organizational Leadership. Ashli also works as a full-time paralegal at Alperstein & Diener, P.A., a firm in downtown Baltimore City practicing criminal defense, personal injury, and workers’ compensation law.

[1] Jenny Rowland-Shae, et al., The Nature Gap, Center for Am. Progress (July 21, 2020, 7:30 AM), https://www.americanprogress.org/issues/green/reports/2020/07/21/487787/the-nature-gap/.

[2] Id.

[3] Id.

[4] Zachary Koslap & Matthew Sullivan, Recent Developments of Environmental Justice Initiatives at the Federal, State Level, Legal Intelligencer (Sept. 9, 2021, 12:16 PM), https://www.law.com/thelegalintelligencer/2021/09/09/recent-developments-of-environmental-justice-initiatives-at-the-federal-state-level.

[5] Environmental Justice for All Act, H.R. 2021, 117th Cong. (2021); Environmental Justice for All Act, S. 872, 117th Cong. (2021); Yukyan Lam & Sara Imperiale, The Promise of the Environmental Justice for All Act, Nat. Res. Def. Council (Apr. 8, 2022), https://www.nrdc.org/experts/sara-imperiale/promise-environmental-justice-all-act.

[6] Maribel N. Nicholson-Choice, ‘Environmental Justice for All Act’ Introduced in U.S. Senate, Nat’l L. Rev. (Aug. 3, 2020), https://www.natlawreview.com/article/environmental-justice-all-act-introduced-us-senate.

[7] Id.

[8] Stephen Gottlieb: The Environmental Justice For All Act, WAMC Ne. Pub. Radio, (Aug. 10, 2021, 3:52 PM), https://www.wamc.org/commentary-opinion/2021-08-10/stephen-gottlieb-the-environmental-justice-for-all-act; Mariah Shriner, July 2021: Inside the Greenhouse, Friends Comm. on Nat’l Legis. (July 10, 2021), https://www.fcnl.org/updates/2021-07/july-2021-inside-greenhouse.

[9] Summary: H.R.2021 — 117th Congress (2021-2022), CONGRESS.GOV, https://www.congress.gov/bill/117th-congress/house-bill/2021 (last visited Oct. 27, 2021); Lam & Imperiale, supra note 5.

[10] Learn About Environmental Justice, EPA, https://www.epa.gov/environmentaljustice/learn-about-environmental-justice (last updated Sept. 22, 2021).

[11] Id.

[12] Id.

[13] Rowland-Shae, supra note 1.

[14] Equitable Development and Environmental Justice, EPA, https://www.epa.gov/environmentaljustice/equitable-development-and-environmental-justice (last updated Sept. 22, 2021).

[15] Rowland-Shae, supra note 1.

[16] Press Release, Booker Reintroduces Sweeping Environmental Justice Bill, Cory Booker (Aug. 5, 2021), https://www.booker.senate.gov/news/press/08/05/2021/booker-reintroduces-sweeping-environmental-justice-bill.

[17] Equitable Development and Environmental Justice, supra note 14.

[18] Press Release, Cory Booker, supra note 16.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.; Alexander v. Sandoval, 532 U.S. 275, 293 (2001) (holding that a private cause of action does not exist to enforce federal agency regulations, including those concerned with environmental health and justice).

[26] John V. Sullivan, How Our Laws Are Made, H.R. Doc. No. 110-49, at 6, 110th Cong. (1st Sess. 2007), https://www.govinfo.gov/content/pkg/CDOC-110hdoc49/pdf/CDOC-110hdoc49.pdf.

[27] Id.

[28] All Actions H.R.2021 — 117th Congress (2021-2022), CONGRESS.GOV, https://www.congress.gov/bill/117th-congress/house-bill/2021/all-actions (last visited May 29, 2022); All Actions S.872 — 117th Congress (2021-2022), CONGRESS.GOV, https://www.congress.gov/bill/117th-congress/senate-bill/872/all-actions (last visited May 29, 2022).

[29] All Actions H.R.2021 — 117th Congress (2021-2022), CONGRESS.GOV, https://www.congress.gov/bill/117th-congress/house-bill/2021/all-actions (last visited May 29, 2022).

[30] Id.

[31] All Actions S.872 — 117th Congress (2021-2022), CONGRESS.GOV, https://www.congress.gov/bill/117th-congress/senate-bill/872/all-actions (last visited May 29, 2022).

[32] Rowland-Shae, supra note 1.

[33] See supra text accompanying note 20.

[34] See supra text accompanying note 21.

[35] See supra text accompanying note 22.

[36] See supra text accompanying note 23.

[37] See supra text accompanying note 25.

[38] Nadja Popovich, et al., The Trump Administration Rolled Back More Than 100 Environmental Rules. Here’s the Full List., N.Y. Times (Jan. 20, 2021), https://www.nytimes.com/interactive/2020/climate/trump-environment-rollbacks-list.html.

[39] Koslap & Sullivan, supra note 4.

[40] Id.

[41] Id.

[42] Id.

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