Legal Sidebari

Addressing Environmental Justice
Through NEPA
April 20, 2021
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.
NEPA and Executive Order 12898
NEPA requires federal agencies to identify and evaluate the impacts of “major Federal actions
significantly affecting the quality of the human environment.” The Supreme Court has explained that
NEPA requires agencies to “take a hard look at environmental consequences” of their proposed actions,
consider alternatives, consult with stakeholders, and publicly disseminate their analyses and proposals
before taking final action. While NEPA prescribes the process for environmental review, it does not
“mandate” that federal agencies alter their proposed actions because of the review.
NEPA also established the Council on Environmental Quality (CEQ), which issues regulations and
guidance detailing how federal agencies must implement NEPA. In 2020, under the Trump
Administration, CEQ finalized revisions to its 1978 NEPA regulations. In one of several legal challenges
to the 2020 NEPA regulations, the Biden Administration has asked a federal court to remand the 2020
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regulations as it reviews them, citing environmental justice as one of the issues being considered in the
review. For further information on NEPA and its regulations, see this CRS In Focus.
Executive Order 12898: Requiring Agencies to Consider Environmental Justice
Executive Order 12898 is a foundational document for environmental justice policies. On February 11,
1994, President Clinton issued the Order, directing each federal agency “[t]o the greatest extent
practicable and permitted by law” to “make achieving environmental justice part of its mission by
identifying and addressing, as appropriate, disproportionately high and adverse human health or
environmental effects of its programs, policies, and activities on minority populations and low-income
populations.” To implement this overarching direction, agencies were required to develop environmental
justice strategies that included lists of actions or policies that needed to be revised to
 promote enforcement of all health and environmental statutes in areas with minority
populations and low-income populations;
 ensure greater public participation;
 improve research and data collection relating to the health of and environment of
minority populations and low-income populations; and
 identify differential patterns of consumption of natural resources among minority
populations and low-income populations.
The Order also created an Interagency Working Group of the covered agencies to develop guidance for
and to coordinate agency actions and assessments of environmental justice issues. The Order states,
however, that it is limited to “the internal management of the executive branch and is not intended to
create” any enforceable rights to challenge “the compliance or noncompliance” of federal agencies.
Although the Order has been amended to change deadlines and, in February 2021 by the Biden
Administration, to bring the Interagency Working Group on Environmental Justice into the Executive
Office of the President, Executive Order 12898 remains in effect.
Applying Executive Order 12898 to NEPA
The executive branch has attempted to marry NEPA with environmental justice goals through a series of
guidance documents and practice guides. President Clinton’s 1994 memorandum accompanying
Executive Order 12898 directed each agency to “analyze the environmental effects, including human
health, economic and social effects, of Federal actions, including effects on minority communities and
low-income communities, when such analysis is required by” NEPA. The memorandum also instructed
agencies to “provide opportunities for community input in the NEPA process” as a way of “identifying
potential effects and mitigation measures.” In a 2011 Memorandum of Understanding, the Interagency
Working Group created the NEPA Committee and reaffirmed the covered agencies’ obligation to identify
and address environmental justice issues, including “disproportionately high and adverse human health or
environmental effects” on minority and low-income populations when, among other things, implementing
NEPA.
To assist agencies with complying with this directive, CEQ and the Interagency Working Group have
issued various guidance documents. In 1997, CEQ issued “Environmental Justice: Guidance under the
National Environmental Policy Act.” The document sets out general principles and examples for agencies
of how to incorporate environmental justice concerns during each step of the NEPA process. Although the
document is not legally binding on agencies, CEQ stated that “[a]gencies should apply, and comply with,
this guidance prospectively,” as part of CEQ’s objective was to “improve the internal management of the
Executive Branch with respect to environmental justice under NEPA.” The NEPA Committee and
Interagency Working Group released a 2016 report on Promising Practices for EJ Methodologies in NEPA

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Reviews to disseminate best practices across the federal government for engaging with and protecting
historically underrepresented groups during the NEPA process. The Working Group also released the
2019 Community Guide to Environmental Justice and NEPA Methods to aid communities in participating
in the NEPA process.
While the term “environmental justice” is not defined in federal law, federal agencies have adopted
varying definitions in response to the Executive Order. The U.S. Environmental Protection Agency (EPA),
which plays a leading role in implementing environmental justice policies, defines “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.” According to EPA, “fair treatment” means “no group of people should
bear a disproportionate share of the negative environmental consequences resulting from industrial,
governmental and commercial operations or policies.” “Meaningful involvement” has been described by
EPA as a multifactor determination that should assess various considerations including public access,
cultural expectations, and access to understandable information.
Agency NEPA processes implement environmental justice principles and directives in different ways. For
instance, some agency environmental justice strategies, such as the Department of Commerce’s strategy,
stress the need to ensure that traditionally underrepresented communities are able to participate in the
public notice and comment process required by NEPA. Some strategies, such as the Department of
Defense’s strategy, also direct the agency programs to consider disproportionate and adverse
environmental effects of proposed actions on low-income or minority populations during NEPA reviews.
Other agencies, including the Department of Transportation, seek to require these effects are taken into
account when identifying alternatives or take steps to mitigate any such effects.
Judicial Review of Environmental Justice in NEPA Cases
The courts have played a limited role in reviewing environmental justice analyses in NEPA cases. Much
of this reflects the fact that Executive Order 12898, by its own language, does not create enforceable
rights to challenge federal agency compliance with the Order in court. Six federal courts of appeals (U.S.
Courts of Appeals for the First, Fifth, Sixth, Eighth, Ninth, and D.C. Circuits) have confirmed this, and at
least one federal district court has gone further, foreclosing all judicial review of environmental justice
analyses based on its reading of Executive Order 12898.
However, because agencies have included environmental justice analyses in their NEPA documents
following the 1994 presidential memorandum, a number of courts have reviewed these analyses. These
courts have generally reasoned that, although the executive order does not itself create a right of action,
the agencies have included analysis of environmental justice considerations in their NEPA documents.
Thus, those analyses are subject to “arbitrary and capricious” review under the Administrative Procedure
Act (APA). Like most APA review, this judicial review does not enforce any particular substantive
requirements of Executive Order 12898—that is, it does not require an agency to reach any particular
outcome dictated by environmental justice concerns—but ensures that the agency take a “hard look” at
those concerns during its NEPA process. The U.S. Courts of Appeals for the Sixth Circuit and Eighth
Circuit have ruled on the merits while suggesting without expressly deciding that the APA provides a
legal basis for judicial review of environmental justice analysis in NEPA reviews.
The 2017 D.C. Circuit decision in Sierra Club v. FERC provides an example of how the courts have
reviewed environmental justice claims under the APA. In this case, plaintiffs challenged the decision to
approve a proposed pipeline project, arguing the environmental impact statement (EIS) prepared by
Federal Energy Regulatory Commission (FERC) insufficiently considered environmental justice issues.
The EIS determined that while 83.7% of the proposed pipeline would cross through “environmental
justice communities,” the alternative proposals would “affect a relatively similar percentage.” Further, the

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EIS determined that the project “would not have a ‘high and adverse’ impact on any population” and thus
“not have a ‘disproportionately high and adverse’ impact on any population.” The D.C. Circuit rejected
the plaintiffs’ argument, finding that FERC’s analysis was sufficient, as it “discussed the intensity, extent,
and duration of the pipelines’ environmental effects, and also separately discussed the fact that those
effects will disproportionately fall on environmental-justice communities.” In other words, the agency
“grappled with the disparate impacts of the various possible pipeline routes,” and its EIS was therefore
not arbitrary or capricious.
Although NEPA is considered one of the most frequently litigated statutes in the history of environmental
law, there have been relatively few challenges to environmental justice analyses in NEPA cases given the
lack of statutory mandate for agencies to consider environmental justice. Of the federal courts of appeals
that reached the merits (D.C. Circuit, 2004, 2017; Fifth Circuit; Sixth Circuit; Eighth Circuit), all have
rejected claims that the environmental justice analyses in NEPA documents were arbitrary and capricious
or that the relevant agency failed to take the requisite “hard look” in the analysis. In the federal district
courts, stakeholders have had some limited success in challenging environmental justice analyses in the
approximately 30 cases reaching the merits. Of those, three courts ruled in favor of the plaintiffs, finding
that that the agencies failed to take a “hard look” at the impacts of their proposed projects before
concluding that they do not adversely affect environmental justice populations. In 2017, an Idaho federal
district court held that the U.S. Air Force failed to consider adverse noise impacts from proposed training
missions on minority and low-income populations and lacked adequate support for its “cursory”
conclusion that such populations were not affected by the project. Similarly, in 2020, a D.C. district court
found that the U.S. Army Corps of Engineers failed to support its “bare-bones” conclusion that the
environmental justice communities would not be disproportionately affected by a potential oil spill from a
proposed oil pipeline project. Another 2020 decision from a California district court found that the Bureau
of Land Management failed to address environmental justice impacts of rescinding a rule to reduce
methane from federal oil and gas leases despite evidence in the record of such impacts.
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.

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Author Information

Nina M. Hart
Linda Tsang
Legislative Attorney
Legislative Attorney





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