Proposed NEPA Rule Goes All-In on Environmental Justice

Monday, August 28, 2023

The Council on Environmental Quality (CEQ) published its proposed Phase II National Environmental Policy Act (NEPA) rule on July 31, 2023. The proposed rule makes good on Biden Administration promises to undo some of the NEPA rule changes adopted in 2020 by the Trump CEQ, implements statutory amendments to NEPA enacted June 3, 2023, in the Fiscal Responsibility Act, and proposes new and revised environmental impact assessment practices in the name of NEPA modernization.

Among the latter set of changes are provisions that will integrate “environmental justice” (EJ) into numerous aspects of federal decisionmaking subject to NEPA.

Federal agency EJ practice has been grounded for decades on E.O. No. 12898, issued by President Clinton in 1994. That Executive Order, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, led to CEQ EJ Guidance based on NEPA in 1997. Earlier this year, President Biden issued E.O. No. 14096, Revitalizing Our Nation’s Commitment to Environmental Justice for All, affirming a governmentwide commitment to EJ in federal decisionmaking.

For the first time, however, the federal government is now proposing to embody EJ practice in the NEPA regulations. The following sections of the proposed regulations, if finalized, will integrate EJ explicitly into the NEPA review and decisionmaking process.

EJ Definition. Proposed 1508.1(k) would define, for the first time, “environmental justice” as “the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, Tribal affiliation, or disability, in agency decision making and other Federal activities that affect human health and the environment so that people:

(1) Are fully protected from disproportionate and adverse human health and environmental effects (including risks) and hazards, including those related to climate change, the cumulative impacts of environmental and other burdens, and the legacy of racism or other structural or systemic barriers; and

(2) Have equitable access to a healthy, sustainable, and resilient environment in which to live, play, work, learn, grow, worship, and engage in cultural and subsistence practices.”

This definition builds upon both the long-standing EPA procedural definition of EJ (fair treatment and meaningful involvement) as well as terminology used in the recent Biden Executive Order. The equitable access portion of the definition echoes NEPA §101(b) policies to assure for all Americans “safe, healthful, productive, and esthetically and culturally pleasing surroundings,” preserve “important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice,” and achieve outcomes “which will permit high standards of living and a wide sharing of life’s amenities.” For the first time, moreover, the CEQ regulations would expressly call out the goals that NEPA 101(b) identifies. “In §1500.1(a)(1), CEQ proposes to retain the sentence summarizing section 101(a) of NEPA and add a second sentence summarizing section 101(b) to clarify that agencies also should accomplish the purposes described in section 101(b) through NEPA reviews.” 88 Fed. Reg. at 49930.

The new definition’s use of the term “disproportionate and adverse human health and environmental effects” reflects a shift that was made in the Biden EJ Executive Order in April of this year—substituting a concern for “disproportionate and adverse effects” presumably for any communities, in place of the long-standing “disproportionality high and adverse impacts (DHAI)” terminology used in the 1994 Clinton Executive Order that was explicitly focused on defined minority and low-income communities. The shift may be an attempt to recognize that disproportionate and adverse effects may come in many forms while avoiding (at least for NEPA analysis) a determination in the regulations themselves of what may be disproportionately “high” or not in comparison to some other community.

Policy. The proposed regulations include some important amendments to the proposal to restore the policy section of the NEPA regulations (which had been entirely deleted by the 2020 rule). CEQ, in proposing to restore the 1978 language, has proposed additions to the policies on “public engagement” and “reasonable alternatives” to ensure that EJ is integral to agency NEPA practice. See proposed §1500.2 [Added language is italicized]:

“Federal agencies shall to the fullest extent possible. . . . (d) Encourage and facilitate public engagement in decisions that affect the quality of the human environment, including meaningful engagement with communities with environmental justice concerns, which often include communities of color, low-income communities, indigenous communities, and Tribal communities. (e) Use the NEPA process to identify and assess the reasonable alternatives to proposed actions that will avoid or minimize adverse effects of these actions upon the quality of the human environment, such as alternatives that will reduce climate change-related effects or address adverse health and environmental effects that disproportionately affect communities with environmental justice concerns.”

Public and Governmental Engagement. Proposed §1501.9 is a reimagined section prescribing approaches for meaningful engagement and outreach. Among its provisions are (c)(3), directing lead agencies to “[c]onsider what methods of outreach and notification are necessary and appropriate based on the likely affected entities; the scope, scale, and complexity of the proposed action and alternatives; the degree of public interest; and other relevant factors. When selecting appropriate methods for providing public notification, agencies shall consider the ability of affected persons and agencies to access electronic media and the primary language of affected persons.” Proposed subsection (e) on public meetings and hearings provides: “When determining the format for a public hearing or public meeting, agencies should consider the needs of affected communities. . . .”

Determination of Significance. CEQ proposes to restore “context” and “intensity” as factors in the determination of significance of the effects of a major federal action. Proposed §1501.3(d)(2) includes as new “intensity” factors: “(ix) The degree to which the action may have disproportionate and adverse effects on communities with environmental justice concerns” and “(x) The degree to which the action may adversely affect rights of Tribal Nations that have been reserved through treaties, statutes, or Executive Orders.” Concurrently, the proposed definition of “effects” (proposed §1508.1(g)(4)) encompasses “disproportionate and adverse effects on communities with environmental justice concerns, whether direct, indirect, or cumulative.”

Environmental Impact Statement. Proposed §1502.16(a) provides that the environmental consequences section of an EIS shall include identification of “(14) The potential for disproportionate and adverse human health and environmental effects on communities with environmental justice concerns.” And proposed §1502.14(f) provides that the alternatives analysis shall identify the environmentally preferable alternative or alternatives that maximize “environmental benefits, such as addressing climate change-related effects or adverse health and environmental effects disproportionately affecting communities with environmental justice concerns.”

Categorical Exclusions. The regulations have long provided for circumstances in which a categorical exclusion from NEPA analysis cannot be applied to an action that would ordinarily fall within the terms of the exclusion. The proposed regulations (1508.1(m)) list “potential substantial effects on sensitive environmental resources, potential disproportionate and adverse effects on communities with environmental justice concerns, potential substantial effects associated with climate change, and potential adverse effects on historic properties or cultural resources” as examples of such “extraordinary circumstances.”

Mitigation Measures. Proposed §1505.3(b) provides that “The lead or cooperating agency should, where relevant and appropriate, incorporate mitigation measures that address or ameliorate significant adverse human health and environmental effects of proposed Federal actions that disproportionately and adversely affect communities with environmental justice concerns.”

Innovative Approaches. “Disproportionate and adverse effects on communities with environmental justice concerns” are included in newly proposed §1506.12 as an example of “extreme environmental challenges” that may warrant development of innovative alternatives to standard NEPA processes. CEQ explains: “Examples of innovative approaches that could be the basis for a request include new ways to use information technology; cooperative agreements or work with local communities; methods more fully incorporating, while protecting, Indigenous Knowledge; new ways to work with project proponents and communities to advance proposals; and innovative tools for engaging the public and providing public comment opportunities, which could enhance participation from communities with environmental justice concerns.” 88 Fed. Reg. 49958.

Environmental justice has been a federal goal for nearly 30 years, but its integration into regulations has been ad hoc and rudimentary, while its legal foundation has been chiefly executive orders and general recognition that NEPA directs that “the policies, regulations, and public laws of the United States shall be interpreted in accordance with the policies set forth in this Act.” (NEPA §102(1)). The current proposal by CEQ would place EJ on a firmer legal and procedural foundation in the administrative context. Comments are due September 29, 2023.