Environmental Justice and the National Environmental Policy Act

Environmental Justice and the National Environmental Policy Act

Legal Sidebari

Environmental Justice and the
National Environmental Policy Act
July 19, 2023
In spring 2023, Congress amended the National Environmental Policy Act (NEPA) as part of the Fiscal
Responsibility Act (P.L. 118-5). Weeks earlier, President Biden issued Executive Order (E.O.) 14096.
Both actions affect how the federal government considers the impacts of federal actions, which may
include environmental justice considerations.
E.O. 14096 defines environmental justice to mean the “just treatment and meaningful involvement of all
people” in agency decision-making and actions “regardless of income, race, color, national origin, Tribal
affiliation, or disability.” NEPA and its implementing regulations provide a procedural framework by
which agencies may consider the environmental effects of their actions. Through executive orders, the
President has directed or encouraged agencies to include effects that relate to environmental justice during
their decision-making processes.
This Sidebar describes procedures for the consideration of community input and impacts under NEPA,
explains how E.O. 14096 affects agency consideration of environmental justice during the NEPA process,
discusses how the federal courts have reviewed agency evaluations of the environmental justice effects of
proposed actions, and offers considerations for Congress.
Agency Decision-Making Under NEPA
NEPA requires federal agencies to identify and evaluate the impacts of “major Federal actions
significantly affecting the quality of the human environment.” The range of agency actions subject to
NEPA varies considerably and commonly includes activities such as issuing permits and expanding
infrastructure. Prior to finalizing many decisions, NEPA requires federal agencies to assess reasonably
foreseeable environmental effects of proposed actions and consider alternatives to those actions.
NEPA also established the Council on Environmental Quality (CEQ), which issues regulations and
guidance on the implementation of NEPA. CEQ houses the Office of Environmental Justice pursuant to
E.O. 14096 and has issued Environmental Justice: Guidance under the National Environmental Policy
Act. The 2023 NEPA amendments may result in CEQ and other agencies updating their NEPA
regulations. For further information on the 2023 NEPA amendments, see this CRS In Focus.
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While NEPA and its implementing regulations prescribe the process for an environmental review, the
Supreme Court has explained that it does not “mandate” that federal agencies alter their proposed actions
based on that review. For actions that potentially result in significant environmental impacts, agencies
must “take a hard look at environmental consequences” of proposed actions, consider alternatives,
identify unavoidable adverse impacts of a proposed action, and consult with stakeholders before making
final decisions. For an action anticipated to have significant impacts, prior to an agency making a
decision, regulations require it to seek comments from other agencies and the public on the scope of the
impacts and potential alternatives, and it must prepare an environmental impact statement describing the
impacts and alternatives considered.
Because an executive order is an exercise of presidential power, its legal effect depends upon its reliance
on a valid source of presidential authority, such as the Constitution or an act of Congress. The statutory
language of NEPA does not expressly define or address environmental justice. Congress in the original
statute stated that its purpose was to provide for the “social, economic, and other requirements” of present
and future generations, allowing for “all Americans” to participate in “a wide sharing of life’s amenities.”
The text of NEPA requires federal agencies to integrate the natural and social sciences in planning and
decision-making and to make available advice and information useful in improving the quality of the
environment. Furthermore, the 2023 amendments to NEPA codified the existing agency practice of
soliciting public comments on alternatives and additional information to consider in an environmental
impact statement. Although NEPA itself does not expressly require consideration of environmental justice
per se, some individual agencies do so through their own procedures and regulations to implement NEPA.
Federal Agency Environmental Justice Requirements
Two executive orders instruct agencies on how to integrate environmental justice into decision-making:
E.O. 14096 and E.O. 12898. These orders draw from non-discrimination and environmental protection
principles. For example, E.O. 14096 refers to communities that experience “disproportionate and adverse
human health or environmental burdens,” often in tandem with “remnants of discrimination” that “persist
today.”
E.O. 12898, issued in 1994, required federal agencies to integrate environmental justice into their
missions and develop strategies in support of environmental justice, and it ordered coordination of
environmental justice assessments and agency actions across agencies. After E.O. 12898 was issued, the
executive branch (through individual agencies and inter-agency working groups) issued a variety of
reports and guidance documents outlining how agencies could incorporate or enhance practices for
incorporating environmental justice in the NEPA process. Those documents, for example, clarified agency
obligations to identify and address environmental justice issues and provided a Community Guide to
Environmental Justice and NEPA Methods.
Federal agencies have sought to implement the directives in E.O. 12898 in different ways. For example,
some do so explicitly under NEPA, and some provide for analysis in other parts of their decision-making
processes (such as a civil rights impact analysis). Dozens of federal regulations contain provisions that
expressly address environmental justice. Some agencies (such as the Air Force) direct compliance with
environmental justice executive order provisions. Other agencies (such as the Department of Commerce)
have adopted environmental justice strategies prioritizing the inclusion of underrepresented communities
in the public notice and comment process required by NEPA. Still others direct consideration of
disproportionate and adverse effects of proposed actions on low-income or minority populations to
identify alternatives and mitigate harms.
E.O. 14096 refers to several of these approaches, directing agencies to analyze and address impacts,
burdens, and historical inequalities of federal activities; provide opportunities for engagement in agency

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decision-making; and develop environmental justice strategic plans. E.O. 14096 explicitly discusses
NEPA reviews and directs agencies to:
• analyze the direct, indirect, and cumulative effects of federal actions on communities;
• consider disparate health effects and risks from pollution and other health hazards, such
as information related to race, national origin, age, sex, disability, and/or socioeconomic
status;
• provide opportunities for early and meaningful community involvement; and
• share information on planning and permitting, implementation, regulatory actions,
compliance, and enforcement actions related to human health and the environment.
E.O. 14096 also directs CEQ and its newly established Office of Environmental Justice to advance
environmental justice initiatives, including by working with state, tribal, territorial, local governments, the
White House Environmental Justice Advisory Council, and the White House Environmental Justice
Interagency Council on environmental justice matters. E.O. 14096 further directs the heads of all federal
agencies to support and cooperate with the Office of Environmental Justice.
E.O. 14096 identifies some approaches that can be incorporated into strategic environmental justice plans,
regulations, policies, and permitting. These include actions to mitigate harm and removing exemptions or
waivers that could “undermine” a full understanding of human health or environmental standards. This
could include, for example, changes in the use of categorical exclusions and other permitting decisions
that might bypass or limit analysis of impacts.
Judicial Review of Environmental Justice in NEPA Cases
Courts are playing an increasing but still limited role in reviewing environmental justice analyses in
NEPA cases. When agencies include environmental justice analyses in their NEPA documents, courts may
review these analyses like other NEPA content under the Administrative Procedure Act (APA). Decisions
from the U.S. Courts of Appeals for the First, Fifth, Sixth, Eighth, Ninth, and D.C. Circuits have
determined that an executive order on environmental justice is not itself a basis to challenge an agency’s
NEPA compliance. NEPA analysis of environmental justice considerations, however, may be reviewable
under the APA to consider whether the agency decision was arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with the law. Under the APA, a reviewing court can ensure that the agency
has followed the appropriate NEPA procedure and has taken a “hard look” at environmental impact
concerns on a case-by-case basis. Courts, however, have generally not dictated the substance of the
agency’s decision. For more information on judicial review and NEPA, see this CRS In Focus.
Although NEPA is one of the most frequently litigated statutes in environmental law, there have been a
limited number of challenges to environmental justice analyses in NEPA cases. Of the federal courts of
appeals that have squarely considered environmental justice claims under NEPA (the D.C. Circuit in
multiple decisions; the Fifth Circuit; the Sixth Circuit; and the Eighth Circuit), most have held that the
environmental justice analyses in NEPA documents were not arbitrary and capricious and that the relevant
agency had taken the requisite “hard look” in the analysis. For example, in Sierra Club v. Federal Energy
Regulatory Commission (FERC), the D.C. Circuit upheld an agency’s determination that a proposed
action would not have a disproportionate impact on low-income and predominantly minority communities
where alternative proposals would affect a similar number of communities and where in no case was there
a high number of communities affected.
In the federal district courts, several dozen cases have considered environmental justice claims under
NEPA, and most of those decisions have upheld the agencies’ analyses and methodologies in considering
environmental justice. For example, a D.C. District Court has determined that environmental justice

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analysis of impacts to the local economy does not mandate a specific substantive outcome, while a
District of Nevada Court has ruled that purely economic impacts are outside the scope of NEPA analysis.
While courts have often decided environmental justice challenges in favor of the agency, plaintiffs have
seen some success in claims alleging that agencies failed to take a “hard look” at environmental justice
impacts of proposed projects. For example, based on E.O. 12898, the D.C. District Court required the
U.S. Army Corps of Engineers to include more than a “bare-bones” environmental justice analysis in a
NEPA review, although it deferred to the agency’s preferred methodology for doing so. Courts have come
to similar conclusions in Idaho, where an agency issued a “cursory” dismissal of concerns about noise
impacts on minority and low-income populations, and in California, where an agency ignored evidence of
environmental justice impacts when rescinding a rule on oil and gas leases. At the appellate level, in 2021
the D.C. Circuit considered a case in which FERC had decided to limit its analysis of impacts to a two-
mile radius. The court remanded to FERC to reconsider its environmental justice analysis, concluding that
FERC was arbitrary and capricious to adopt a two-mile limit when the agency knew that impacts would
extend further. In another case, the Ninth Circuit directed an agency to add an environmental justice
analysis when revising its NEPA analysis to address other deficiencies.
Considerations for Congress
In the first six months of the 118th Congress, more than 100 introduced bills reference NEPA, over 40 of
which expressly include community considerations. Additionally, more than 30 bills in the 118th Congress
explicitly include environmental justice in the legislative text. Although Congress passed amendments to
NEPA in the Fiscal Responsibility Act of 2023, other permitting reform matters remain under
consideration at the committee level. H.R.1705 and S.919 would expand NEPA reviews by requiring
agencies to take specific steps to address environmental justice, including preparing community impact
reports. Other bills would restrict the scope of environmental justice considerations: H.R.3526 would
repeal E.O. 14096 in its entirety, while S.1449 would limit the ability of a plaintiff to challenge an
agency’s NEPA determination in court.
In the absence of explicit legislative direction, environmental justice consideration within NEPA analysis
is presently driven by action at the executive level. As Members of Congress consider whether or how to
address environmental justice, they may seek to define environmental justice by statute or to provide
legislative direction to federal agencies concerning the procedural or substantive dimensions of
environmental justice in a NEPA analysis.
Congress retains the prerogative to provide for judicial review of agency decision-making under NEPA.
E.O. 14096 and E.O. 12898 expressly state that they do not create enforceable rights, and the federal
courts have therefore refused to consider legal claims based on alleged violations of an executive order
alone. Instead, the courts apply the general standard of review that the APA provides for agency decisions,
and they have generally considered environmental justice claims on the facts and administrative record of
each particular case. Congress could choose to provide a more detailed standard for judicial review either
of claims under NEPA or claims based on environmental justice considerations.

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Author Information

Kristen Hite

Legislative Attorney

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