Welcome

Environmental Justice Bill Sharpens Civil Rights Litigation Tool

April 8, 2021, 8:45 AM

Environmental justice advocates will get powerful new tools if Congress advances an ambitious plan to arm communities that bear the brunt of pollution.

Democrats in the House and Senate last month introduced legislation that would allow legal challenges to federally funded actions—such as highway plans, emissions standards, or agriculture permits—that may disproportionately harm communities of color even when the alleged discrimination is unintentional.

The Environmental Justice For All Act would amend Title VI of the Civil Rights Act of 1964, upending U.S. Supreme Court precedent and opening up a new route to fight discrimination.

“It would be a game-changer,” University of Denver law professor Wyatt Sassman said. “It would fundamentally change the state of what tools environmental justice activists have.”

Advocates are hopeful about the bill’s prospects but acknowledge it could face obstacles. The civil rights provisions, in particular, will probably drive extensive debate, said National Wildlife Federation Vice President Mustafa Santiago Ali, a former environmental justice official at the EPA.

“It’s always difficult on the Hill to get good ideas that have real benefits for people passed,” Ali said. Previous versions of the legislation never advanced.

Still, narrow Democratic control of Congress and White House support for environmental justice initiatives give many of the bill’s provisions their first realistic chance to advance, either in their current form or split off and incorporated into other legislation.

‘Paying Attention’

Even amid the legislative uncertainty, the bill’s Title VI provisions have drawn close attention from lawyers, who are already advising clients on how to respond to increased federal attention to environmental justice issues.

“The regulated community is paying attention to determine what risk it may pose to how they operate their businesses,” Beveridge & Diamond PC attorney Julius M. Redd said.

The proposed update focuses on two provisions of the Civil Rights Act: Section 601, which prohibits federally funded entities from discriminating based on race, color, or national origin; and Section 602, which authorizes agencies to craft regulations to implement the law.

Under Supreme Court precedent in Alexander v. Sandoval in 2001, litigants can go to court only for Section 601 claims that challenge intentional discrimination, not for what’s called disparate impact discrimination: actions that appear neutral but have lopsided effects on people of color.

Disparate impact discrimination is especially relevant to environmental injustice claims, as many environmental policies and permitting decisions have historically layered on impacts in areas that are already overburdened. Sandoval closed the courthouse doors to Title VI lawsuits making those claims.

Administrative Process

Environmental justice advocates instead have been relegated to an administrative complaint process for disparate impact claims.

The Environmental Protection Agency, which fields many Title VI complaints involving environmental justice, has been plagued with inaction and backlogs. A 2020 report from the EPA’s inspector general called for improved oversight to ensure that state environmental agencies and other EPA funding recipients comply with the Civil Rights Act.

Southern Environmental Law Center senior attorney Chandra Taylor, who leads the group’s environmental justice initiative, said the process stymies her clients’ efforts. Once they submit a complaint to the EPA’s External Civil Rights Compliance Office, the agency confirms receipt and takes over from there, often leaving communities out of the loop.

“That’s not the same as going to court,” she said. “In court, there’s opportunities to actually get testimony, to take depositions. There’s much more opportunity for the complainant to explain the discriminatory impact and to be heard.”

Newly installed EPA Administrator Michael Regan has promised “a renewed focus” on implementing the Civil Rights Act.

‘Fair Fight’

But the EJ For All Act would deliver bigger changes, effectively wiping Sandoval from the books. It specifies that Section 601 of the Civil Rights Act extends to actions that aren’t intentionally discriminatory but disproportionately harm communities of color. And it would add a private right of action that ensures people can file lawsuits under Section 602, rather than going through the administrative process.

“Plaintiffs can take it from there, and they could have a fair fight in court, if that’s what they want to do and they have the evidence to prove it,” said University of New Mexico law professor Clifford Villa, who studies environmental justice.

Plaintiffs still would have to clear a high legal bar to demonstrate discrimination, but the act’s passage would likely lead to more cases attempting to do that in the environmental context, Vinson & Elkins LLP attorney Conrad Bolston said.

Sandoval may have chilled the number of 601 actions being brought, so you might see an increase in these types of cases, and litigation risks might go up,” he said.

Regulated companies, in turn, need to make sure they understand their compliance obligations and the unique characteristics of the communities in which they operate so they can mitigate increased litigation risks, Beveridge & Diamond’s Redd said.

Prospects on Capitol Hill

Congressional Democrats who also introduced the environmental justice act in the last session are in a better position to advance the legislation now that their party controls both chambers and the White House.

“With new leadership in Congress and the White House, we’re in a window of opportunity to save lives and establish environmental justice that the country can’t afford to miss,” House Natural Resources Chairman Raúl Grijalva (D-Ariz.) said in March when he reintroduced the bill (H.R. 2021) with Rep. Donald McEachin (D-Va.).

Senate sponsor Tammy Duckworth (D-Ill.), who leads the Environment and Public Works Fisheries, Water, and Wildlife Subcommittee, is committed to moving the legislation (S. 872) in the upper chamber. Still, neither bill has any Republican co-sponsors yet.

But Duckworth has high-profile advocates in the Biden administration, including Vice President Kamala Harris, who was lead sponsor of the bill last year when she served in the Senate, and Interior Secretary Deb Haaland, a former New Mexico representative, who co-sponsored the House bill in the 116th Congress.

President Joe Biden has vowed to address environmental injustice in numerous policy areas, from infrastructure to outdoor access for underserved communities. Biden in late March announced the White House Environmental Justice Advisory Council members, many of whom also participated in a working group that helped craft the EJ For All Act.

Redd said he could also see the Civil Rights Act provisions advance not in a standalone environmental justice bill, but in an infrastructure package or other future legislation.

Villa, the New Mexico professor, said he’s learned not to get his hopes too high after a nearly 30-year history of environmental justice legislation failing to advance at the federal level. That’s why advocates should continue to be resourceful and creative in their litigation, relying on environmental statutes, tort law and other tools, he said.

“If there’s any time that there will be an environmental justice act passed, it could be this year,” he said. “But if it’s not, I don’t want to bet everything on it. I want to know that there is some other way that I can get a good outcome.”

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloomberglaw.com

To contact the editor responsible for this story: Seth Stern at sstern@bloomberglaw.com

To read more articles log in.

Learn more about a Bloomberg Law subscription.