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Thursday, February 14, 2013

Nondiscrimination in Environmental Regulation: A Legal Analysis

Cynthia Brougher
Legislative Attorney

The enactment of various conservation and environmental protection statutes in the 1960s and 1970s created a new awareness of environmental harms. At the same time, the civil rights initiatives also secured nondiscrimination in a number of legal rights, including education, employment, housing, voting, etc. Over the following decades, the development of these movements eventually converged, raising concerns that minority groups face disproportionate exposure to environmental risks and harms.

Individuals and communities claiming to be disproportionately and adversely affected by how an agency implements environmental regulations may seek legal relief under a variety of federal laws, including equal protection under the U.S. Constitution and nondiscrimination requirements under Title VI of the Civil Rights Act of 1964. However, in many cases, these laws require proof of discriminatory intent, which can make success under these claims difficult because individuals and communities generally allege that they are subject to disproportionate adverse environmental effects as a consequence of how an agency implements environmental regulations, but not that the regulation itself is discriminatory. Alternatively, relief may be available in some circumstances under the National Environmental Policy Act (NEPA) or statutory authorities for specific agencies’ actions related to the environment.

Congress has never enacted generally applicable legislation on the subject, but concerns regarding disproportionate impacts arising from environmental regulation have been addressed administratively over the past two decades. Federal agencies are required by Executive Order 12898 to incorporate environmental justice into their mission and operations, and a number of agencies have reiterated their commitment to these goals in recent years.

This report will examine the relevant legal authorities that may be asserted to address disproportionate impacts that result from how an agency implements environmental regulations, including the Equal Protection Clause of the U.S. Constitution, Title VI of the Civil Rights Act of 1964, and various environmental and conservation statutes. It will discuss administrative efforts to address “environmental justice,” a term used by some advocates to refer to the distribution of environmental quality across various demographic groups, including the Environmental Protection Agency’s (EPA’s) Plan EJ 2014. It will also analyze the use of these authorities to prevent such impacts and the likelihood of success for future challenges under each legal theory.

Date of Report: February 6, 2013
Number of Pages: 15
Order Number: R42952
Price: $29.95

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