Environmental Justice Bill Would Give Vulnerable Communities Powerful New Legal Tools

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June 18, 2021

by Brian Eckert

A bill making its way through Congress has the potential to fundamentally reshape the environmental justice movement by strengthening protections for minority communities facing disproportionate pollution burdens. Among the most significant portions of the bill are amendments to the Civil Rights Act that, if enacted, would give activists a new path to fight discrimination in court.

What the Bill Proposes

The Environmental Justice For All Act, introduced on Capitol Hill in March, proposes sweeping changes to federal law aimed at reducing disparities in environmental health along economic and racial lines. Its measures include:

  • Establishing environmental justice requirements, advisory bodies, and programs;
  • Prohibiting disparate environmental impacts on the basis of race, color, or national origin;
  • Allowing affected communities to sue over disparate impacts;
  • Directing federal agencies to follow certain requirements concerning environmental justice, such as preparing community impact reports;
  • Creating advisory bodies and positions, including the White House Environmental Justice Interagency Council, which would be required to issue an environmental justice strategy; and
  • Mandating requirements and programs related to chemicals and toxic ingredients in certain products.

The bill notes in its opening pages that, “Communities of color, low-income communities, Tribal and Indigenous communities…and other vulnerable populations…are disproportionately burdened by environmental hazards that include exposure to polluted air, waterways, and landscapes.”

Reversing these historical injustices, the bill continues, is a moral imperative requiring government action and federal policy. “It is the responsibility of the Federal Government to seek to achieve environmental justice, health equity, and climate justice for all communities,” the bill’s findings conclude.

Disparate Impact Environmental Litigation

Litigation is an important tool in the fight against environmental racism. But lawsuits based on environmental justice issues are difficult to bring in court.

A major obstacle is Supreme Court precedent established in the 2001 case Alexander v. Sandoval. The Court ruled in Sandoval that private individuals may not sue state agencies under Title VI of the Civil Rights Act over claims of so-called “disparate impact” discrimination (unintentional discrimination that occurs when actions are ostensibly neutral but in practice harm some people more than others).

As a result of Sandoval, claims based on Section 601 of the Civil Rights Act can only be brought when they challenge intentional discrimination. The ruling shut down Title VI lawsuits involving environmental justice and disparate impact, relegating them to an administrative complaint process.

The Environmental Justice For All Act would effectively undo the Sandoval precedent by amending Title VI. Specifically, the bill would update Section 601, which prohibits discrimination on the basis of race, color, or national origin in all federally-funded activities or programs, to include disparate impact language. It would also add a private right of action permitting people to file lawsuits under Section 602, instead of going through the administrative process.

“Corporate polluters have taken advantage of poor and underserved minority communities for way too long, and the legal remedies have been too inadequate and uneven to do anything about it,” said Milberg attorney Danielle Mason. “Passage of this bill would help level the playing field and allow these communities the access to justice they deserve.”

Milberg Stands With the Environmental Justice Movement

While the Environmental Justice For All Act has the potential to open up a new legal path to fight discrimination, across-the-board action is needed to undo the legacy of environmental racism and build healthy communities. Milberg stands with the environmental justice movement. The firm is committed to using litigation in pursuit of the universal right of people to clean air, safe drinking water, protection from climate hazards, and the sustainable preservation of the natural environment.