Nondiscrimination in Environmental Regulation: A Legal Analysis

Congressional research reportFeb 6, 2013

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Nondiscrimination in

Environmental Regulation: A Legal Analysis

Cynthia Brougher

Legislative Attorney

February 6, 2013

Congressional Research Service

7-....

www.crs.gov

R42952

CRS Report for Congress

Prepared for Members and Committees of Congress

Nondiscrimination in Environmental Regulation: A Legal Analysis

Summary

The enactment of various conservation and environmental protection statutes in the 1960s and

1970s created a new awareness of environmental harms. At the same time, the civil rights

initiatives also secured nondiscrimination in a number of legal rights, including education,

employment, housing, voting, etc. Over the following decades, the development of these

movements eventually converged, raising concerns that minority groups face disproportionate

exposure to environmental risks and harms.

Individuals and communities claiming to be disproportionately and adversely affected by how an

agency implements environmental regulations may seek legal relief under a variety of federal

laws, including equal protection under the U.S. Constitution and nondiscrimination requirements

under Title VI of the Civil Rights Act of 1964. However, in many cases, these laws require proof

of discriminatory intent, which can make success under these claims difficult because individuals

and communities generally allege that they are subject to disproportionate adverse environmental

effects as a consequence of how an agency implements environmental regulations, but not that

the regulation itself is discriminatory. Alternatively, relief may be available in some

circumstances under the National Environmental Policy Act (NEPA) or statutory authorities for

specific agencies’ actions related to the environment.

Congress has never enacted generally applicable legislation on the subject, but concerns

regarding disproportionate impacts arising from environmental regulation have been addressed

administratively over the past two decades. Federal agencies are required by Executive Order

12898 to incorporate environmental justice into their mission and operations, and a number of

agencies have reiterated their commitment to these goals in recent years.

This report will examine the relevant legal authorities that may be asserted to address

disproportionate impacts that result from how an agency implements environmental regulations,

including the Equal Protection Clause of the U.S. Constitution, Title VI of the Civil Rights Act of

1964, and various environmental and conservation statutes. It will discuss administrative efforts

to address “environmental justice,” a term used by some advocates to refer to the distribution of

environmental quality across various demographic groups, including the Environmental

Protection Agency’s (EPA’s) Plan EJ 2014. It will also analyze the use of these authorities to

prevent such impacts and the likelihood of success for future challenges under each legal theory.

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Nondiscrimination in Environmental Regulation: A Legal Analysis

Contents

Background ...................................................................................................................................... 1

Legal Authority to Prevent Disproportionate Environmental Harm ................................................ 2

Equal Protection Under the U.S. Constitution ........................................................................... 2

Nondiscrimination in Federal Programs Under Title VI of the Civil Rights Act of

1964 ........................................................................................................................................ 4

National Environmental Policy Act (NEPA) ............................................................................. 7

Agency Discretionary Authority and Citizen Suits in Environmental Laws ............................. 8

Administrative Actions to Support Environmental Justice .............................................................. 9

Executive Order 12898 ............................................................................................................ 10

Plan EJ 2014 ............................................................................................................................ 11

Contacts

Author Contact Information........................................................................................................... 12

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Nondiscrimination in Environmental Regulation: A Legal Analysis

he enactment of various conservation and environmental protection statutes in the 1960s

and 1970s created a new awareness of environmental harms.1 At the same time, the civil

rights initiatives also secured nondiscrimination in a number of legal rights, including

education, employment, housing, voting, etc.2 Over the following decades, the development of

these movements eventually converged, raising concerns that minority groups face

disproportionate exposure to environmental risks and harms. Although Congress has not enacted

generally applicable legislation on the issue, concerns regarding disproportionate adverse

environmental impacts that result from how an agency implements environmental regulations

have been litigated under a number of legal theories and have been addressed administratively for

several decades.

This report will examine the relevant legal authorities that may be asserted to address

disproportionate environmental impacts that result from how an agency implements

environmental regulations, including the Equal Protection Clause of the U.S. Constitution,3 Title

VI of the Civil Rights Act of 1964,4 and selected environmental and conservation statutes. It also

will analyze the use of these authorities to prevent such impacts and the likelihood of success for

future challenges under each legal theory. The report also will discuss administrative efforts to

address “environmental justice,” a term used by some advocates to refer to the distribution of

environmental quality across various demographic groups, including the Environmental

Protection Agency’s (EPA’s) Plan EJ 2014.

Background

Many commentators have used the term environmental justice to describe concerns that racial,

ethnic, or low-income minority groups are affected disproportionately by environmental harm.5

EPA has defined environmental justice as “the fair treatment and meaningful involvement of all

people regardless of race, color, national origin, or income with respect to the development,

implementation, and enforcement of environmental laws, regulations, and policies.”6 In

environmental protection debates, the question of siting potential environmental hazards often

leads to disputes over whose proverbial backyard will be affected. Many communities often resist

the placement of various industrial facilities and waste disposal sites within their boundaries.

Several studies that first drew awareness to the potential correlation between environmental

hazards and minority communities are cited regularly in debates about environmental justice.7 A

See, e.g., Clean Air Act, 42 U.S.C. §7401 et seq.; Clean Water Act, 33 U.S.C. §1251 et seq.; Resource Conservation

and Recovery Act, 42 U.S.C. §6901 et seq.; Wild and Scenic Rivers Act, 16 U.S.C. §1271 et seq.

See, e.g., Civil Rights Act of 1964, P.L. 88-352, 78 Stat. 241; Voting Rights Act of 1965, 42 U.S.C. §1973 et seq.

U.S. Const. amend. XIV.

42 U.S.C. §2000d et seq.

See, e.g., Gerald Torres, The Future Environmental Regulation: Environmental Justice: The Legal Meaning of Social

Movement, 15 J.L. & Com. 597 (1996).

Environmental Justice, U.S. Environmental Protection Agency, available at

http://www.epa.gov/environmentaljustice/.

See U.S. General Accounting Office (now the U.S. Government Accountability Office), Siting of Hazardous Waste

Landfills and Their Correlation with Racial and Economic Status of Surrounding Communities (June 1, 1983)

(GAO/RCED-83-166); Commission for Racial Justice, UCC, Toxic Wastes and Race in the United States: A National

Report on the Racial and Socio-Economic Characteristics of Communities with Hazardous Waste Sites (Public Data

Access, Inc. 1987), cited in Barry E. Hill, Environmental Justice: Legal Theory and Practice, Environmental Law

(continued...)

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Nondiscrimination in Environmental Regulation: A Legal Analysis

number of factors may explain why these communities might be affected more often than others.

Aside from the possibility that the harms are directed purposely at certain communities, factors

such as costs, community involvement, political clout, economic status, and education—which

may or may not be related to racial or ethnic status—may contribute to any correlation. For

example, because property values may be lower in minority communities, siting authorities may

choose inexpensive land near these communities.8 These communities also may lack the

educational background or civic involvement that other communities may use to counteract

proposals that would result in disproportionate environmental harm.9 If a siting decision that

caused environmental hazards to the community depended solely on economic benefits and costefficiency, it may be difficult to justify an environmental justice claim. On the other hand, if the

decision factored in the unlikely opposition of a minority community, the decision might be

alleged to be discriminatory against that community.

Legal Authority to Prevent

Disproportionate Environmental Harm

Individuals and communities seeking legal protection against perceived or alleged

disproportionate environmental harms have relied on a number of legal theories. Although basing

such claims on equal protection provisions in the U.S. Constitution appears reasonable, litigants

have had little success with this approach, which requires proof that the government intended to

discriminate. For the same reason, Title VI of the Civil Rights Act of 1964, which prohibits

discrimination in federally funded programs, has proven troublesome for litigants to enforce in

courts. Those who wish to challenge the effect of environmental harms also may seek relief under

the National Environmental Policy Act (NEPA) or the discretionary authority of agencies under

their statutory mandates.

Equal Protection Under the U.S. Constitution

Alleged disproportionate impacts resulting from environmental regulation by government

agencies inevitably raise questions regarding whether constitutional protections may apply to

protect affected communities. Legal claims of discrimination by government agencies generally

are governed by principles of equal protection. The Equal Protection Clause of the Fourteenth

Amendment prevents states from denying any person under their jurisdiction “the equal

protection of the laws.”10 This constitutional requirement is made applicable to the federal

government through the Due Process Clause of the Fifth Amendment.11 When a government

entity treats similarly situated individuals or communities differently, those people may have been

(...continued)

Institute (Washington, DC 2009).

Paul Mohai and Bunyan Bryant, Environmental Injustice: Weighing Race and Class Factors in the Distribution of

Environmental Hazards, 63 U. Colo. L. Rev. 921, 923 (1992).

Regina Austin and Michael Schill, Black, Brown, Poor, and Poisoned: Minority Grassroots Environmentalism and

the Quest for Eco-Justice, 1 Kan. J.L. & Pub. Pol’y 69, 70 (Summer 1991).

U.S. Const. amend. XIV.

U.S. Const. amend. V (“No person shall ... be deprived of life, liberty, or property, without due process of law ...”).

See Bolling v. Sharpe, 347 U.S. 497 (1954); Washington v. Davis, 426 U.S. 229 (1976).

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denied equal protection.12 However, to succeed in a legal challenge, litigants must show that the

government intended to discriminate, not merely that litigants experienced discriminatory

impacts.13

A court’s review of equal protection claims depends on the nature of the discriminatory treatment.

As a general rule, statutory classifications—those which distinguish between groups of people or

between types of conduct—are permissible under the U.S. Constitution if there is a rational basis

for the government establishing that distinction.14 If, however, the classification targets a “suspect

class,” courts will apply a heightened review known as strict scrutiny that requires the

government to have a compelling reason to justify such treatment. Suspect classifications

generally may arise with laws targeting race, religion, or national origin, as well as laws affecting

fundamental rights like speech, or voting.15

If a governmental action explicitly identifies a suspect classification, the requirement of

discriminatory intent is satisfied. However, it is more likely that environmental justice claims

result from laws or actions that appear to be neutral but disproportionately affect a particular

community that qualifies for heightened constitutional protection. The Supreme Court has

explained that a disproportionate effect on such a community does not mean that the community’s

constitutional right to equal protection has been denied.16 When reviewing whether there was an

intent to discriminate, courts may consider a variety of factors, including whether there is a

significant disparate impact; evidence of departure from normal procedures; legislative history; or

administrative history (e.g., actions or statements during the decision-making process).17 Such

intent also may be evidenced through discriminatory enforcement.18

The following examples illustrate that, as a general rule, litigants asserting disproportionate

environmental harms have not been successful when claiming denial of equal protection. In one

of the first cases to consider such claims, a federal district court recognized that a state health

agency’s permit allowing placement of a solid waste facility in a community “will affect the

entire nature of the community [sic] its land values, its tax base, its aesthetics, the health and

safety of its inhabitants ...”19 Foreshadowing the difficulties of future environmental justice

claims, the court held that there was insufficient evidence of an intent to discriminate based on

race, despite extensive statistical data.20 The court noted that the site being challenged was located

in a community with roughly 60% minority population, but that about half of all of the sites in the

area were located in communities with less than 25% minority population.21 It also rejected

assertions based on the concentration of solid waste sites in particular areas, explaining that it was

reasonable to “expect solid waste sites to be placed near each other and away from concentrated

See Plyler v. Doe, 457 U.S. 202, 216 (1982).

See Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979).

See, e.g., Railway Express Agency v. New York, 336 U.S. 106 (1949).

See United States v. Carolene Products, 304 U.S. 144, n. 4 (1938).

See Washington v. Davis, 426 U.S. 229 (1976) (a notable disparity in test performance by individuals based on race

was insufficient to sustain an equal protection claim). As discussed later in this report, Congress may provide that

nondiscrimination statutes require only disparate impact analysis, not discriminatory intent.

Village of Arlington Heights v. Metropolitan Housing Development Co., 429 U.S. 252, 266-68 (1977).

See Yick Wo v. Hopkins, 118 U.S. 356 (1886).

Bean v. Southwestern Waste Management Corp., 482 F.Supp. 673, 677 (S.D. Tex. 1979).

Id.

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population areas.”22 The court also recognized that the sites were concentrated in areas where

industry was located, not necessarily because minority populations were located nearby. Noting

that it did not find the siting decision wise, the court explained that though the permit was

“unfortunate and insensitive,” there was insufficient proof to demonstrate “purposeful racial

discrimination.”23

Other courts have treated the issue similarly, finding that a history of disproportionate impacts

does not translate to discriminatory intent.24 One court noted that although there may be an

alleged history of “locating undesirable land uses in black neighborhoods,” the challenged siting

must be compared to other decisions by the agency, which had placed the only other site in a

mostly white neighborhood.25 The court recognized that the siting agency did not “actively

solicit” any landfill applications and showed no improper discriminatory motivations.26

Although equal protection claims in these cases generally have not been successful, some litigants

may pursue constitutional claims. In one example, a court denied summary judgment for the city

in a case brought by residents of a neighborhood with a 99% minority population.27 After

reviewing evidence of discriminatory treatment related to flood protection, zoning, nuisances,

landfills, and funding, the court recognized that there were questions as to whether the city had

discriminated against the residents based on their race in some instances and permitted the case to

go to trial, though it was settled before a final decision was rendered.28

Nondiscrimination in Federal Programs Under Title VI of the

Civil Rights Act of 1964

Title VI of the Civil Rights Act of 1964 generally prohibits discrimination in federally funded

programs or activities.29 Section 601 states that “[n]o person in the United States shall, on the

ground of race, color, or national origin, be excluded from participation in, be denied the benefits

of, or be subjected to discrimination under any program or activity receiving Federal financial

assistance.”30 Section 602 directs federal agencies that administer federally funded programs to

implement the nondiscrimination provision through the promulgation of regulations and related

enforcement proceedings.31 Agencies have issued regulations under Section 602 that prohibit

actions with a discriminatory intent as well as actions with a discriminatory effect (also referred

to as disparate impact).32

Id. at 678.

Id. at 680.

See also R.I.S.E. v. Kay, 768 F. Supp. 1144 (E.D. Va 1991).

East Bibb Twiggs Neighborhood Association v. Macon-Bibb County Planning and Zoning Commission, 706 F.Supp.

880, 885 (M.D. Ga. 1989).

Id.

Miller v. Dallas, 2002 U.S. Dist. LEXIS 2341 (N.D. Tex. 2002).

See id. at 29-30.

42 U.S.C. §2000d et seq.

42 U.S.C. §2000d.

42 U.S.C. §2000d-1. See also 28 C.F.R. §42.104.

See, e.g., 28 C.F.R. §42.104(b)(2) (prohibiting recipients of federal funds from using “criteria or methods of

administration which have the effect of subjecting individuals to discrimination”); 40 C.F.R. §7.35 (prohibiting

discriminatory practices in programs or activities receiving EPA funding). See also Guardians Association v. Civil

(continued...)

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Individuals who believe they are victims of discrimination under Title VI may file a complaint

with the federal agency that provides the funding, or, in some cases, they may file a lawsuit in

federal court. State and local environmental agencies generally receive funding from EPA, which

subjects those agencies to Title VI, and some individuals and communities have relied on that

basis when claiming they have been disproportionately affected by environmental regulation.

However, following several Supreme Court decisions, litigants have had limited success when

challenging certain types of discrimination under Title VI in federal courts.

On one hand, the Court has recognized a private right of action under Section 601, meaning that

individuals or communities may file a lawsuit claiming discrimination in violation of Title VI.33

To have a private right of action, however, the claimants must show that there was a

discriminatory intent behind the challenged action.34 As discussed in the previous section,

discriminatory intent is required in equal protection claims as well, and has proven to be a

challenge for many litigants seeking relief for disproportionate environmental harms. On the

other hand, despite recognizing agencies’ authority to issue Section 602 regulations to prevent

disparate impact discrimination, the Court held that there was no private right of action under

these regulations.35 Thus, since 2001, legal claims of discriminatory effect have been limited to

the administrative complaint process.

With the difficult standards required under Section 601 and without a private right of action under

Section 602, it is generally the agency’s responsibility to enforce its regulations in response to

administrative complaints. Consequently, if an agency does not pursue or resolve complaints,

there is little recourse for those claiming disproportionate harm. Commentators have noted that

there has been a significant backlog of complaints at EPA, tracing the issue to an early study

which found that EPA had concerns that enforcing antidiscrimination provisions would conflict

with its primary goal of environmental improvement.36 Because of these delays, groups with

administrative complaints have sought court orders compelling agency action. For example, a

community organization claiming that city officials were not addressing environmental problems

in vulnerable communities filed multiple complaints with EPA under its Title VI regulations.37

EPA’s Office of Civil Rights (OCR) did not accept or reject the complaints within the regulatory

deadlines and still had not made any response two years later, leading the organization to file a

lawsuit in federal court. Within weeks, the agency accepted the complaints, and the lawsuit was

dismissed.38 After an additional two years passed without any additional response, the

organization filed a second lawsuit. The U.S. Court of Appeals for the Ninth Circuit noted that the

group’s “experience before the EPA appears, sadly and unfortunately, typical of those who appeal

(...continued)

Service Commission, 463 U.S. 582, 619 (1983) (Marshall, J., dissenting) (observing that “every Cabinet Department

and about 40 federal agencies adopted standards interpreting Title VI to bar programs with a discriminatory impact”).

Guardians Association, 463 U.S. 582.

Id. at 597.

Alexander v. Sandoval, 532 U.S. 275, 287-89 (2001). See also CRS Report RL31077, Private Actions to Sue for

Civil Rights Violations in Federally Assisted Programs After Alexander v. Sandoval.

See James H. Colopy, The Road Less Traveled: Pursuing Environmental Justice Through Title VI of the Civil Rights

Act of 1964, 13 Stan. Envtl. L.J. 125, 180-85 (1994) (citing U.S. Comm’n on Civil Rights, The Federal Civil Rights

Enforcement Effort—1974, Vol. VI (1975)).

Rosemere Neighborhood Association v. U.S. Environmental Protection Agency, 581 F.3d 1169 (9th Cir. 2009).

Id.

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to OCR to remedy civil rights violations.”39 Citing “a consistent pattern of delay” by EPA, which

responded to complaints only after lawsuits were filed, the court held the organization could seek

a court order forcing EPA to process the organization’s complaints.40

The Court’s 2001 decision prohibiting a private right of action under Title VI for disparate impact

claims raised questions regarding whether affected individuals or communities may assert similar

claims under a different civil rights provision, commonly referred to as Section 1983.41 Section

1983 allows individuals to sue government officials—or others acting pursuant to law—for

“deprivation of any rights, privileges, or immunities” provided under U.S. law.42 Thus,

individuals who are precluded from enforcing Section 602 regulations arguably could claim that

the rights afforded under those regulations have been infringed in violation of Section 1983.43

However, courts have appeared to limit the applicability of Section 1983 in later decisions.44 In

one example, residents of a largely minority neighborhood sought to enforce disparate impact

regulations after a state environmental agency approved the construction of an industrial facility

in the neighborhood which already included a number of the city’s other contaminated sites.45

Initially, the federal district court held in favor of the residents and ordered the state to review

their Title VI complaint, but the court’s reasoning was no longer valid after the Supreme Court’s

decision finding no private right of action under Section 602.46 The residents amended their

lawsuit, seeking enforcement of their Section 602 claim under Section 1983, and the court again

held in their favor.47 Ultimately, however, the U.S. Court of Appeals for the Third Circuit

overturned the decision, holding that “an administrative regulation cannot create an interest

enforceable under section 1983 unless the interest already is implicit in the statute authorizing the

regulation.”48 Because Title VI does not create a right of action for disparate impact claims, the

court held that the residents could not pursue such a claim under Section 1983 either. It is notable

that other federal appellate courts have disagreed on the scope of Section 1983, leaving open the

possibility that litigants in other courts may pursue such claims.49

Id. at 1175 (stating that “EPA failed to process a single complaint from 2006 or 2007 in accordance with its

regulatory deadlines” (emphasis in original)).

Id.

See Sandoval, 532 U.S. at 299-300 (Stevens, J., dissenting).

42 U.S.C. §1983.

Section 1983 requires that a state actor commit the violation, meaning that it arguably could be invoked for state and

local entities receiving funds, but not private entities.

After holding that Section 602 did not provide a private right of action in 2001, the Supreme Court held that statutory

provisions that do not create a private right of action cannot be enforced under Section 1983. Gonzaga University v.

Doe, 536 U.S. 273, 283-84 (2002) (“it is rights, not the broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced

under the authority of [Section 1983]”). The Court did not address the scope of Section 1983 in the context of

regulations, though.

South Camden Citizens in Action v. N.J. Department of Environmental Protection, 145 F.Supp.2d 446 (D.N.J. 2001).

Id.

South Camden Citizens in Action v. N.J. Department of Environmental Protection, 145 F.Supp.2d 505 (D.N.J. 2001).

South Camden Citizens in Action v. N.J. Department of Environmental Protection, 374 F.3d 771, 774 (3rd Cir. 2001).

Compare Samuels v. District of Columbia, 770 F.2d 184 (D.C. Cir. 1985) (allowing tenants to seek enforcement of

housing regulations by asserting a Section 1983 claim) with Save Our Valley v. Sound Transit, 335 F.3d 932 (9th Cir.

2003) (holding that litigants could not sustain a Section 1983 claim because regulations did not create a right

enforceable under Section 1983).

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National Environmental Policy Act (NEPA)

The National Environmental Policy Act of 1969 (NEPA) establishes national environmental

policies, including encouraging “harmony between man and his environment” and promoting

efforts to “prevent or eliminate damage to the environment and biosphere and stimulate the health

and welfare of man.”50 Congress enacted NEPA in recognition “that each person should enjoy a

healthful environment and that each person has a responsibility to contribute to the preservation

and enhancement of the environment.”51

To achieve these policies, NEPA established a federal responsibility “to use all practicable means

... to improve and coordinate Federal plans, functions, programs, and resources” in order to reach

a number of goals.52 Many of these goals reflect principles of preventing disproportionate

environmental harm, including assuring “for all Americans safe, healthful, productive, and

esthetically and culturally pleasing surroundings” and attaining “the widest range of beneficial

uses of the environment without degradation, risk to health or safety, or other undesirable or

unintended consequences.”53

NEPA requires federal agencies to follow a particular process to ensure that the statutory goals

inform their decisions, but it does not dictate the outcome of the agencies’ considerations of a

particular action.54 The process requires federal agencies to provide detailed statements of the

environmental impacts of agency actions (e.g., permitting, operations, etc.) that “significantly

[affect] the quality of the human environment.”55 The statements must identify any adverse

environmental effects and available alternatives.56 NEPA reviews serve both to inform the agency

in its deliberative process and to inform the public of the agency’s actions and considerations.57

Individuals affected by an agency’s action may challenge the agency’s NEPA review under the

Administrative Procedure Act, which provides a private right of action for judicial review of

agency actions or inaction.58 Claims of insufficient review of environmental impacts have been

asserted in both administrative and judicial courts, and indeed is one of the most prolific genres of

environmental litigation. Both forums have emphasized that NEPA does not require agencies to

eliminate or minimize the environmental effects of a particular action.59 Instead, the agency is

required to adequately identify and evaluate the adverse effects before making its decision.60 In

one example, an administrative board of appeals ruled that the U.S. Bureau of Land Management

(BLM) had failed to meet its obligations under NEPA regarding the effects of constructing a new

42 U.S.C. §4321.

42 U.S.C. §4331(c).

42 U.S.C. §4331(b).

Id.

For a discussion of the procedures required under NEPA, see CRS Report RS20621, Overview of National

Environmental Policy Act (NEPA) Requirements.

42 U.S.C. §4332(2)(C).

Id.

See 40 C.F.R. §1506.6(b).

5 U.S.C. §500 et seq. See CRS Report R41546, A Brief Overview of Rulemaking and Judicial Review.

See, e.g., In the Matter of Louisiana Energy Services, 47 N.R.C. 77 (1998) (citing Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 350 (1989)).

Id.

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visitor center on federal lands.61 American Indian communities had raised concerns about the

increased visitation to the area that would result and potentially harm cultural resources. Noting

that BLM “expressly decided not to address [this] possibility,” the board explained that it could

affirm the agency’s finding of no significant impact only if the agency could show that it “took a

‘hard look’ at the environmental impacts.”62

Although litigants cannot use NEPA to achieve a desired outcome in light of their concerns about

the disparate impact of an agency’s decision, requiring agencies to consider various options and

alternatives, including the cumulative effect that a proposed action may have on vulnerable

communities, may be helpful to those communities nonetheless.63 The outcome of such a lawsuit

may delay the implementation of a decision with an adverse environmental effect on a particular

community, or it may cause the agency to reconsider its decision in light of any additional

findings after further review.

Agency Discretionary Authority and Citizen Suits in

Environmental Laws

In addition to these constitutional and statutory provisions that may be invoked to prevent

disproportionate exposure to environmental harms, agencies may act under general discretionary

authority. Congress often authorizes agencies to undertake actions related to their missions, but

allows the agencies discretion in choosing how to implement those authorities. If Congress has

not given the agency explicit instruction, courts generally defer to the agency’s interpretation,

assuming it is reasonable.64 Under Executive Order 12898 (discussed in detail below), federal

agencies are required to identify and address “disproportionately high and adverse human health

or environmental effects of [their] programs, policies, and activities on minority populations and

low-income populations.”65 To do so, they must act under these existing discretionary authorities

because Congress has not enacted general legislation toward this purpose.66

Many agencies have broad authority to promulgate regulations that they consider necessary to

exercise the functions authorized by Congress.67 Congress also may direct the agency to exercise

its authority “to protect human health and the environment.”68 The agency may do so through

setting pollution standards, issuing permits, or implementing enforcement mechanisms. For

example, the Clean Water Act authorizes EPA to establish guidelines specifying factors that the

agency considers when deciding pollution control limitations.69 EPA may consider such “factors

as the Administrator deems appropriate”70 and “any more stringent limitation ... established

Southern Utah Wilderness Alliance, 150 I.B.L.A. 158 (1999).

Id. at 167.

See also Morongo Band of Mission Indians v. Federal Aviation Administration, 161 F.3d 569, 580-81(9th Cir. 1998).

Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984).

Exec. Order No. 12898 (February 11, 1994), available at http://www.archives.gov/federal-register/executive-orders/

pdf/12898.pdf.

Although Congress has not enacted legislation, a number of bills have been proposed in previous Congresses. See,

e.g., H.R. 5326 (102nd Cong.); S. 2806 (102nd Cong.); H.R. 1103 (110th Cong.); S. 642 (110th Cong.).

See, e.g., 42 U.S.C. §6912(a)(1).

See, e.g., 42 U.S.C. §§6922-24.

33 U.S.C. §1314.

33 U.S.C. §1314(b).

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pursuant to ... any other Federal law or regulation.”71 Additionally, EPA may have discretion

under the enforcement authority provided by an array of environmental laws to consider the

environmental impact of a particular action. The penalty provisions of these statutes often permit

the agency or courts to consider “such other matters as justice may require” in addition to factors

such as the nature of the violation, the history of similar violations, etc.72 These broadly worded

provisions allow agencies flexibility in their exercise of delegated authority, such that they may

be able to incorporate nondiscrimination principles or considerations in decision making and

other agency actions.

Although these environmental statutes allow agencies to consider the impacts of environmental

harms, the discretionary nature of these authorities generally means that individuals and

communities alleging disproportionate impacts likely cannot succeed in a legal claim based solely

on these authorities. Communities claiming to be affected by a particular environmental harm

may seek to avail themselves of the citizen suit provisions included in various environmental

statutes, which essentially allow individuals to file lawsuits to enforce the respective laws.73

However, statutory authorizations for citizen suits do not apply to claims related to an agency’s

discretionary duties, and enforcement decisions generally are regarded as discretionary.74

Administrative Actions to Support

Environmental Justice

Following the heightened study of the effects of environmental hazards on minority communities

in the 1980s, EPA assembled a working group to study the issue in 1990, under the direction of

President George H. W. Bush.75 The focus on environmental justice expanded under President

Bill Clinton, who directed federal agencies to incorporate environmental justice into their mission

and operations.76 This directive has been reiterated by various federal agencies in recent years

under President Barack Obama.77 These actions have not provided an independent legal basis for

enforcing nondiscrimination principles related to environmental harms. However, they remain

pertinent because they require agencies to apply relevant existing authorities that may achieve the

same goal.

33 U.S.C. §1311(b)(1)(C).

See 33 U.S.C. §1319(d). See also 15 U.S.C. §2615(a); 42 U.S.C. §9609(a).

See, e.g., 33 U.S.C. §1365; 42 U.S.C. §9659.

See 33 U.S.C. §1365(a)(2). See also A Citizen’s Guide to Using Federal Environmental Laws to Secure

Environmental Justice, Environmental Law Institute (Washington, DC 2002).

See U.S. Environmental Protection Agency, Environmental Equity: Reducing Risk for All Communities (1992),

available at http://www.epa.gov/environmentaljustice/resources/reports/annual-project-reports/

reducing_risk_com_vol1.pdf.

Exec. Order No. 12898.

Memorandum of Understanding on Environmental Justice and Executive Order 12898, available at

http://www.epa.gov/environmentaljustice/resources/publications/interagency/ej-mou-2011-08.pdf.

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Nondiscrimination in Environmental Regulation: A Legal Analysis

Executive Order 12898

In 1994, President Clinton issued Executive Order 12898 (E.O. 12898) to expand the goals of

environmental justice beyond EPA.78 E.O. 12898 required each federal agency to “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 ...”79 Individually,

agencies were directed to develop an agency-wide strategy that would identify programs, policies,

processes, and enforcement in need of revision to ensure equitable enforcement of health and

environmental statutes; to improve public participation; and to improve access to information

identifying environmental effects among minority and low-income populations.80

E.O. 12898 also called for a coordinated approach to addressing the goal of environmental justice

and established an interagency working group.81 The group was directed to provide guidance to

and coordinate consistency among the individual agencies and offices as they developed their

respective environmental justice strategies.82

Under E.O. 12898, federal agencies are responsible to undertake a number of measures to

promote environmental justice. For example, agencies must

conduct [their] 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.83

It also directs agencies “whenever practicable and appropriate” to gather and analyze data on

environmental and health impacts across a range of demographic groups in order to identify

potential disparities among populations.84

E.O. 12898 directs agencies to encourage public participation and awareness on issues considered

by the agencies and the interagency working group.85 However, it creates no specific obligations

for disclosure or other action by the agency. As such, E.O. 12898 may be thought of as an internal

Exec. Order No. 12898.

Id. at §1-101.

Id. at §1-103(a).

The group included representatives from various federal agencies and offices, including the Department of Defense;

Department of Health and Human Services; Department of Housing and Urban Development; Department of Labor;

Department of Agriculture; Department of Transportation; Department of Justice; Department of the Interior;

Department of Commerce; Department of Energy; Environmental Protection Agency; Office of Management and

Budget; Office of Science and Technology Policy; Office of the Deputy Assistant to the President for Environmental

Policy; Office of the Assistant to the President for Domestic Policy; National Economic Council; and the Council of

Economic Advisors. Id. at §1-102(a).

Id. at §1-102(b).

Id. at §2-2.

Id. at §3-3. E.O. 12898 also provides specific direction to gather and analyze information related to the subsistence

consumption of fish and wildlife across populations. Id. at §4-4.

Id. at §5-5.

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Nondiscrimination in Environmental Regulation: A Legal Analysis

guidance document for the executive branch. It is binding on executive agencies and offices, but

does not create or implement generally applicable rules or obligations that could be enforced

against the government, its officials, or other individuals.86 In other words, E.O. 12898 may not

be used as an enforcement mechanism for environmental justice claims.

In 2011, the agencies originally included in the interagency working group established by E.O.

12898 agreed to a Memorandum of Understanding on Environmental Justice and Executive Order

12898 (EJ MOU) that reiterated the agencies’ commitment to the goals of E.O. 12898.87 EJ MOU

also expanded the opportunity for participation by other federal agencies, noting that E.O. 12898

“applies to covered agencies, [but] does not preclude other agencies from agreeing to undertake

the commitments in the Order.”88 It also imposed requirements on public reporting by

participating agencies of their environmental justice strategies and progress.89

Plan EJ 2014

In 2011, EPA introduced a strategic plan known as Plan EJ 2014 to help integrate environmental

justice into its programs, policies, and activities.90 The plan marks 20 years since the issuance of

E.O. 12898 and manifests EPA’s intent to set a standard for other agencies to address

environmental justice.91 Plan EJ 2014 outlines several methods through which EPA can promote

environmental justice, including rulemaking, permitting, compliance and enforcement,

community-based action programs, and interagency support programs.92 EPA intends to report its

progress toward achieving goals set in the plan in 2014.93

EPA has issued guidance with specific instructions on recommended procedures to incorporate

environmental justice into its rule-writing process, providing suggestions on when to consider

environmental justice and questions to ask in order to successfully address the relevant issues that

arise.94 Under the guidance, EPA analysts are instructed to “[incorporate] environmental justice

into the development of risk assessment, economic analysis, and other scientific input and policy

choices during the development of a rule.”95 With respect to its initiative to incorporate

Id. at §6-609 (“This order is intended only to improve the internal management of the executive branch and is not

intended to, nor does it create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law or

equity by a party against the United States, its agencies, its officers, or any person. This order shall not be construed to

create any right to judicial review involving the compliance or non-compliance of the United States, its agencies, its

officers, or any other person with this order.”). See also CRS Report RS20846, Executive Orders: Issuance,

Modification, and Revocation.

Memorandum of Understanding on Environmental Justice and Executive Order 12898, available at

http://www.epa.gov/environmentaljustice/resources/publications/interagency/ej-mou-2011-08.pdf.

Id. at 2. Six additional agencies and offices agreed to participate, including the Department of Education; Department

of Veterans Affairs; Department of Homeland Security; Council on Environmental Quality; General Services

Administration; and Small Business Administration.

Id. at 3.

U.S. Environmental Protection Agency, Plan EJ 2014 (Washington, DC 2011) (hereinafter Plan EJ 2014), available

at http://www.epa.gov/environmentaljustice/resources/policy/plan-ej-2014/plan-ej-2011-09.pdf.

Id.

Id. at 8.

Id. at vi.

Id. at 34-35.

Id. at 35.

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Nondiscrimination in Environmental Regulation: A Legal Analysis

environmental justice into the permitting process, EPA has endeavored “to develop and

implement tools to better enable overburdened communities to have full and meaningful access to

the permitting process.”96

To advance environmental justice through its compliance and enforcement actions, EJ Plan 2014

provides for the enhanced use of enforcement and compliance tools “to address the needs of

overburdened communities.”97 In other words, as EPA determines where to pursue enforcement

actions, it will give priority to cases that affect communities which may be particularly

vulnerable.98 EPA also intends to improve its communications with communities that may be at

risk of environmental harms.99

Similarly, EJ Plan 2014 continues EPA’s community programs to “support community

empowerment and provide community benefits at all levels.”100 It provides for improvement of

these programs, with particular emphasis on minority and low-income communities (including

tribal and indigenous communities) that have been identified as lacking “capacity to affect

environmental conditions.”101 In particular, the agency’s efforts focus on expanding partnerships

with communities, building capacity within communities to organize community-based efforts,

and coordinating with other agencies and entities that affect the community.102

Author Contact Information

Cynthia Brougher

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Id. at 46.

Id. at 59.

See id. at 61.

Id. at 59.

100

Id. at 79.

101

Id.

102

Id. at 79-86.

Congressional Research Service

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