CRS Legislative Attorneys Nina M. Hart and Linda Tsang wrote this report (20 April 2021): 'Addressing Environmental Justice Through NEPA'.
Download CRS_Legal_Sidebar_Add_EnvJustice_NEPA_20April2021
The online and PDF versions have hot links. The few paragraphs below are devoid of these links.
Introduction
Some Members of Congress and the Biden Administration are exploring how to use the environmental review process under the National Environmental Policy Act (NEPA) to ensure that environmental laws and policies fairly treat and reflect input from all people regardless of race, color, national origin, or income. This principle is commonly referred to as “environmental justice.” Congress enacted NEPA in 1969 to require federal agencies to assess the environmental effects of proposed federal actions prior to making decisions. Currently, NEPA does not require agencies to consider environmental justice, but some agencies do consider it as part of their NEPA processes as a result of Executive Order 12898, issued in 1994.In its review of NEPA regulations, the Biden Administration plans to consider how to incorporate environmental justice analyses into the NEPA process. Some Members of Congress have also shown an interest in this topic by holding hearings or proposing legislation requiring consideration of environmental justice during agency NEPA process. This Sidebar describes (1) how environmental justice is considered during the NEPA process; (2) how the federal courts have reviewed agency evaluations of the environmental justice effects of proposed projects in their NEPA processes; and (3) considerations for Congress.
Cutting to the chase...
Considerations for Congress
Some Members of Congress have introduced legislation to clarify how environmental justice should be considered under NEPA. For example, H.R. 2434, the Environmental Justice Act of 2021, would codify existing guidance on how to incorporate environmental justice analyses into NEPA processes and require federal agencies to develop environmental justice strategies to incorporate into their NEPA implementation. Other proposals, such as H.R. 2021, the Environmental Justice for All Act, would require agencies to take specific steps in their NEPA reviews to address environmental justice. While these proposals seek to expand NEPA’s scope to address environmental justice, other bills, such as S. 717, the UNSHACKLE Act, seek to reform NEPA to streamline the review process and transparency requirements.As Members of Congress consider whether or how to address environmental justice in NEPA, they may seek to clarify the divergent approaches taken by the federal courts in response to Executive Order 12898. Executive Order 12898 indicates an intent not to create enforceable rights, and the federal courts have therefore refused to consider legal claims based on alleged violations of the Order. However, the courts have been less clear as to whether an agency’s consideration of environmental justice as a part of its NEPA review is reviewable under the APA. One potential method of addressing the divergent approaches taken by the courts is for Congress to address expressly whether environmental justice analyses must be part of the NEPA process and, if so, whether those analyses are judicially reviewable and under what legal standards.
Novel idea!
Enjoy!
"The truth is rarely pure and never simple." - Oscar Wilde
Comments