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How Federal Agencies Are Improving Consideration of Environmental Justice in the NEPA Processes

Wednesday, October 5, 2016
James M. McElfish, Jr.

James M. McElfish, Jr.

Senior Attorney; Director, Sustainable Use of Land Program

Earlier this year, more than a dozen federal agencies produced a new resource document that pulls together methods that they use to evaluate environmental justice (EJ) concerns when preparing environmental analysis of proposed actions under the National Environmental Policy Act (NEPA).

This new document, Promising Practices for EJ Methodologies in NEPA Reviews (the Promising Practices report), was the product of more than three years of work by a NEPA Committee established by the federal Interagency Working Group on Environmental Justice.

Many federal agency actions—including federal construction projects, plans to manage federal lands and resources, funding of projects, or federal approval of grants, licenses, leases, and permits—are subject to environmental impact review under NEPA. NEPA processes include environmental assessments, environmental impact statements, and even some actions that are categorically excluded from NEPA analysis but that must be reviewed for “extraordinary circumstances” under NEPA regulations.

Because many agency actions involve potential environmental impacts on minority populations, low-income populations, and/or tribes and indigenous communities, the NEPA review process must take EJ issues into account. Executive Order No. 12898 instructseach 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.” The Presidential Memorandum accompanying Exec. Order No. 12898 states that “each Federal agency shall analyze the environmental effects, including human health, economic, and social effects, of Federal actions, including effects on minority communities and low-income communities, when such analysis is required by NEPA.”

The Promising Practices report (released in March 2016) is intended to support “a renewed and dynamic process to advance environmental justice principles through NEPA implementation.” While not formal guidance, the report provides agencies with “recommendations for conducting environmental justice analyses for NEPA reviews.” These compiled agency practices build on decades of experience and offer methods that agencies can use to advance EJ analysis in the context of NEPA environmental reviews. Promising Practices discusses agency EJ methodologies in NEPA for:

1. Meaningful Engagement
2. The Scoping Process
3. Defining the Affected Environment
4. Developing and Selecting Alternatives
5. Identifying Minority Populations
6. Identifying Low-Income Populations
7. Impacts Analysis
8. Disproportionately High and Adverse Impacts
9. Mitigation and Monitoring

For each of the nine subject categories, Promising Practices provides “Guiding Principles” and “Specific Steps” for agency consideration.

Promising Practices is the fullest treatment and compilation of EJ practices in NEPA since the Council on Environmental Quality’s 1997 Environmental Justice Guidance Under the National Environmental Policy Act, issued in response to Exec. Order No. 12898 and the Presidential Memorandum. Promising Practices is intended to promote “a more effective, efficient, and consistent consideration of environmental justice.”

The Environmental Law Institute is working on a Community Guide to help communities take advantage of Promising Practices. The Guide will examine ways communities can encourage federal agencies to use varied and targeted forms of communication with their members, to identify populations that might be otherwise overlooked, to consider the distribution of adverse and beneficial impacts, and to design community-responsive mitigation measures.

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