On January 21, President Trump signed an Executive Order revoking all prior executive orders that had served as the foundations for environmental justice (EJ) initiatives by the federal government. These included President Clinton’s 1994 Executive Order 12898, which required federal agencies to identify and address “disproportionately high and adverse impacts” on “minority populations and low-income populations.” As a result of that order, federal agencies, with guidance from the Council on Environmental Quality, had developed practices for integrating EJ considerations into their decision making, especially when carrying out responsibilities under the National Environmental Policy Act (NEPA).
Also revoked, in a broad Executive Order issued January 20, was President Biden’s E.O. 14096, which established a whole-of-government approach to EJ implementation in all governmental planning, public engagement, and research activities, making each agency responsible for “achieving environmental justice [as] part of its mission.” President Trump also revoked President Johnson’s 1965 Executive Order 11246, which had required federal contractors to provide equal employment opportunity, and the January 20 Order further directed the Office of Management and Budget to terminate all “‘diversity,’ ‘equity,’ ‘equitable decision-making,’ ‘equitable deployment of financial and technical assistance,’ ‘advancing equity,’” and similar “mandates, requirements, programs, or activities, as appropriate.”
Following these directives, the Administration closed most of U.S. EPA’s Office of Environmental Justice and Civil Rights and its EJ units in all ten regions (retaining a small headquarters staff for external civil rights reviews); abolished the Department of Justice’s Environmental Justice unit within the Environment and Natural Resources Division; and cancelled and attempted to claw back federal grant funds allocated to environmental justice-oriented activities in the states, including infrastructure-related grants. EPA also took down and rendered unavailable its EJScreen, which had enabled regulators, applicants, and members of the public to analyze pollution and demographic data when making decisions. EPA’s Office of Enforcement and Compliance Assistance (OECA) issued a memorandum in March prohibiting EPA enforcement officials from using any historical data from EJScreen in “any enforcement or compliance activity.”
So, what is left of federal environmental justice?
Title VI of the 1964 Civil Rights Act remains in effect, and prohibits discrimination by recipients of federal funding. However, in 2001 the Supreme Court held in Alexander v. Sandoval that “disparate impact” cases may be brought only by the federal government itself and not by private plaintiffs. This makes much of EJ implementation entirely dependent upon the Department of Justice and federal agency plaintiffs. Some other legal authorities have been used by EPA to protect minority communities, such as cases seeking to end imminent harm; however, DOJ announced last month that it had dismissed a case against a Louisiana chemical manufacturer located in a minority neighborhood, specifically citing the Trump executive order ending environmental justice activities.
Because of the recent Executive Orders, federal agencies are for the first time in thirty years no longer explicitly tasked with advancing EJ. Indeed, such activities are now presumptively suspect, given the terms of the new Executive Orders. This is a major change. EPA had 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.” This definition is no longer referenced on federal websites, which have been scrubbed of such concepts. Nevertheless, federal agencies under their own statutes have at least some duties of nondiscrimination, and arguably some affirmative duties to any communities suffering ongoing pollutant burdens. Many of these were compiled in EPA’s 2022 Legal Tools to Advance Environmental Justice. These provisions, many of them statutory, are still in effect.
Likewise, the demise of CEQ’s EJ Guidance, and the pending elimination of the CEQ NEPA regulations by the Administration, will not remove federal agencies’ statutory responsibilities under NEPA to understand the affected environment, predict environmental impacts of a proposed action and its alternatives, and identify mitigation measures. Indeed, these requirements were reinforced by Congress’s 2023 amendments to NEPA, in the Fiscal Responsibility Act, and much NEPA case law is likely to remain persuasive even after rescission of the CEQ regulations. NEPA still governs major federal actions, including permit decisions by federal agencies. An environmental impact review lacking demographic information, or assessing new impacts without reference to pre-existing impacts on a community, would undoubtedly violate any version of NEPA analysis a federal agency might choose to advance.
It is worth noting, as well, the sometimes-overlooked policy provisions of NEPA. NEPA Section 102(1) provides that, “to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act.” Among those policies, enumerated in Section 101(b), are to “(2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings; (3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences; [and] (4) 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.”
While the Supreme Court has held that these policies cannot be enforced by a private plaintiff against an unwilling federal agency, nonetheless the obligation to take these considerations into account remains part of every agency’s mandate. A federal official could cite to these statutory provisions in lieu of any reference to the now-revoked Executive Orders.
Environmental justice is, perhaps, not entirely dead in its federal incarnations, but may be on life support. EPA’s OECA prohibits EPA enforcement officials from considering whether persons affected by potential violations or pollutant discharges are “minority or low-income populations.” But the same memo does allow enforcement officials to consider “physiological vulnerabilities” of affected “community members” as well as disparities in the levels of specific pollutants in one area relative to others.