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The Environmental Justice Act of 2017: A Monumental Opportunity

Monday, November 27, 2017
Scott W. Badenoch, Jr.

Scott W. Badenoch, Jr.

Visiting Attorney

On October 24, 2017, Sen. Cory Booker (D-NJ) and Rep. Raul Ruiz, M.D. (D-CA) announced The Environmental Justice Act of 2017 (EJA), S. 1996, H.R. 4114, a bill focused on strengthening legal protections against environmental harms for communities of color, low-income communities, and indigenous communities. The EJA would be the first federal law of its kind, and follows in a 25 year legacy of legislative efforts, starting with the great Rep. John Lewis (D-GA) in the 1990s, to codify environmental justice (EJ) once and for all.

Sen. Cory Booker (D-NJ)Rep. Raul Ruiz (D-CA)

The EJA first codifies the original Executive Order 12898, signed by President Clinton in 1994, which directs all federal agencies to identify and address “disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.” The new legislation also encompasses the guidance from President Obama’s 2011 Memorandum of Understanding furthering EO 12898, and provides specific directions to the Council on Environmental Quality (CEQ), the Office of Environmental Justice (OEJ), and the Director of OEJ. The EJA also codifies environmental justice guidelines for NEPA review, record keeping and consultation guidelines for native peoples, and works to solve the environmental injustices resulting from the Sandoval and Middlesex Supreme Court holdings. In short, the EJA would be to EJ what the Clean Air Act is to Clean Air: monumental and seminal.

Yet, it would also solve decades of access to justice and regulatory issues that the Clean Air Act drafters didn’t have the foresight to solve. Summarizing from Sen. Booker’s Press Release, the EJA does the following:

  • Codifies and expands the 1994 Executive Order 12898 on Environmental Justice, protecting it from being revoked by the executive branch.
  • Focuses federal attention on environmental and human health impacts of federal actions on minority and low-income communities.
  • Expands the EO by improving the public’s access to information from federal agencies charged with implementing the bill and creates more opportunities for the public to participate in the agencies’ decision-making process.
  • Codifies the existing National Environmental Justice Advisory Council (NEJAC), ensuring its role as convener and provider of critical input on environmental justice issues to federal agencies.
  • Enshrines vital environmental justice grant programs, including Environmental Justice Small Grants and CARE grants.
  • Establishes requirements, standards, and guidelines for federal agencies to address environmental justice.
  • Requires all federal agencies to implement and update annually an EJ strategy to address negative environmental and health impacts on communities of color, indigenous communities, and low income communities.
  • Codifies CEQ (Council on Environmental Quality) guidance to assist federal agencies with their NEPA (National Environmental Policy Act) procedures so that environmental justice concerns are effectively identified and addressed.
  • Codifies existing EPA guidance to improve consultations with Native American tribes in situations where tribal treaty rights may be affected by a proposed EPA action.
  • Requires consideration of cumulative impacts and persistent violations in federal or state permitting decisions under the Clean Water Act and the Clean Air Act.
  • Requires permitting authorities to consider a facility’s history of violations when deciding to issue or renew a permit.
  • Clarifies that environmental justice communities impacted by events like the Flint water crisis will not be prevented from bringing claims for damages.
  • Reinstates a private right of action for discriminatory practices under the Civil Rights Act.
  • Overrules the Supreme Court decision in Alexander v. Sandoval (2001) in which the Court ruled that Title VI of the 1964 Civil Rights Act, which prohibits discrimination on the basis on race, color, or national origin, extends only to “intentional discrimination,” and does not create a private right of action to enforce regulations based on disparate impacts. The new text of the EJA enshrines this right to action, thereby codifying citizens’ right to challenge regulations that have discriminatory effects, rather than just intent.
  • Restores the right for individual citizens to bring actions under the Civil Rights Act against entities engaging in discriminatory practices that have a disparate impact.

The EJA is co-sponsored by U.S. Senators Tom Carper (D-DE), Richard Durbin (D-IL), Brian Schatz (D-HI), Tom Udall (D-NM), Sheldon Whitehouse (D-RI), Kirsten Gillibrand (D-NY), Ed Markey (D-MA), Jeff Merkley (D-OR), Elizabeth Warren (D-MA), Kamala Harris (D-CA), and Bernie Sanders (I-VT), as well as prominent U.S. Representatives Sheila Jackson Lee (D-TX-18), Keith Ellison, (D-MN-5), Barbara Lee (D-CA-13), Al Green (D-TX-9), Jan Schakowsky (D-IL-9), Maxine Waters (D-CA-43) and 16 others. A complete list of the EJA’s cosponsors is available here.

The EJA has been endorsed by over 40 public health and environmental justice organizations, as well as the American Bar Association’s President Hilarie Bass. 

The EJA faces an uphill battle in this current Congress, but there are signs of potential. Climate change is becoming more bi-partisan as each hurricane or natural disaster ravages another region. It is that amorphous yet growing coalition of lawmakers that could see the EJA into the record books as a monumental achievement and into the federal code books as law.

On November 28, the ABA and ELI will host a panel discussion, where Sen. Booker will discuss the various ways the EJA addresses critical issues for vulnerable communities nationwide (especially communities of color) in light of historical, ongoing challenges, as well as new ones posed by the Trump Administration. The panel will also include Mustafa Ali, Vice President of Climate, Environmental Justice & Community Revitalization, for the Hip Hop Caucus, formerly head of the EPA’s Office of Environmental Justice, and Patrice Simms, Vice President of Litigation for Earthjustice, formerly an attorney at the U.S. Environmental Protection Agency, U.S. Department of Justice - Environment and Natural Resources Division, and Natural Resources Defense Council.