DEPARTMENT OF JUSTICE
GUIDANCE
CONCERNING ENVIRONMENTAL JUSTICE
Authority: Executive Order No. 12898
(59 Fed. Reg. 7629 (Feb. 16, 1994))
Contents:
I. BACKGROUND
As a result of the public's concern regarding the quality of the physical environment,
the Federal and state governments have enacted legislation to safeguard the
environment and protect the health and safety of the public. Through governmental
enforcement of those laws, the people of the United States have made considerable
progress toward the goal of a clean, safe, and healthful environment for all Americans.
However, in recent years, there has been an increasing awareness that the burdens
of a polluted environment are borne disproportionately by members of minority and
low-income communities. In the wake of these studies, a growing number of
citizens have begun to examine the causes and effects of this distribution of
environmental burdens and to advocate policies that will either cease or reduce such
environmental hazards, if possible, or distribute such burdens fairly. That movement
has come to be identified by the term "environmental justice."
In the course of the public debate regarding the cause or causes of this
disproportionate burden, it has become clear that there is a perception in affected
communities that Federal agencies may have contributed to prolonging the disparities
by underenforcing laws in some communities, or by failing to take other remedial
steps. The Department of Justice is committed to addressing these concerns.
II. EXECUTIVE ORDER NO. 12898
President Clinton signed Executive Order No. 12898, Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income Populations, on
February 11, 1994. 59 Fed. Reg. 7629 (Feb. 16, 1994). The Executive Order is
attached as Appendix A.
Executive Order No. 12898 does not create a new legal remedy. As an internal
management tool of the Executive Branch, the Order directs Federal agencies to put
in place procedures and take actions to make achieving environmental justice part of
their basic mission. President Clinton explained that Federal agencies have the
responsibility to promote "nondiscrimination in Federal programs substantially affecting
human health and the environment." Accordingly, agencies must implement actions
to identify and address disproportionately high and adverse human health or
environmental effects of their programs, policies, and activities on minority and low-
income populations and federally-recognized Indian tribes.
In a Memorandum issued contemporaneously with the Order, the President
"underscore[d] certain provisions of existing law that can help ensure that all
communities and persons across this Nation live in a safe and healthful environment."
The Memorandum does not create or impose environmental analysis obligations on
agencies beyond those contained in existing law. Rather, it directs agencies to take
"appropriate and necessary steps to ensure" that existing laws are implemented
"immediately" to redress disproportionate environmental harms.
Consistent with the Executive Order, the Department of Justice is analyzing how
important provisions of existing environmental, civil rights, civil, and criminal laws may
be used to help reduce environmental contamination in all communities and to provide
a more equitable distribution of unavoidable environmental burdens. The Department's
mission continues to be guided by a commitment to provide equal protection of the
laws to all citizens.
The Executive Order directs the Department of Justice, as well as all other designated
agencies, to develop an agency-wide Strategy to achieve these goals. As part of its
Strategy, the Department has issued this Guidance on environmental justice. The
Guidance includes provisions for identifying, tracking, and addressing environmental
justice matters.
III. DEPARTMENT GOALS
The Department is committed to the following goals for achieving environmental
justice:
A. Protect environmental quality and human health in all communities;
B. Use environmental, civil rights, criminal, and civil laws to achieve fair
environmental protection;
C. Promote and protect community members' rights to participate
meaningfully in environmental decisionmaking that may affect them;
D. Analyze data that will assist the Department in law enforcement,
mediation, and counseling efforts involving environmental justice matters;
and,
E. Promote full and fair enforcement of the laws, increase opportunity for
access to environmental benefits, and minimize activities that result in a
disproportionate distribution of environmental burdens.
IV. IMPLEMENTATION
A. COORDINATION
Coordination among and within the relevant components is a fundamental
aspect of successfully implementing the Executive Order. Coordination allows
for an exchange of legal expertise and knowledge of varied methods of problem
solving and provides an internal forum for consultation. The Office of the
Associate Attorney General will be responsible for coordinating the
Department's handling of environmental justice matters.
The following Divisions, Bureaus, and Offices have designated persons
responsible for coordinating environmental justice litigation within their
respective Components: the Executive Office of United States Attorneys; the
Environment and Natural Resources, Civil Rights, and Civil Divisions; the Federal
Bureau of Investigation; the Bureau of Prisons; and the Community Relations
Service. All designated coordinators will:
1. Consult and assist Department attorneys and other personnel in
identifying environmental justice matters;
2. Monitor the docket to ensure full compliance with the Executive
Order;
3. Brief principals and ensure that they are informed of all matters
and approve of all policy documents distributed within the
Department on environmental justice;
4. Coordinate with other Department of Justice components where
appropriate to ensure that the Department maintains consistent
positions, including litigation positions, whether the Department is
enforcing or defending laws or federal actions; and,
5. Attend periodic coordination meetings chaired by the Director of
Environmental Justice in the Office of the Associate Attorney
General.
The Department, through the Office of the Associate Attorney General, also will
respond to internal inquiries from Department personnel concerning environmental
justice, Executive Order No. 12898, and this Guidance. Any Department of
Justice employee who wishes to consult with Department coordinators on these
topics should transmit a query via e-mail to the following address on the Eagle
System: SMO02(ENVJUST).
Inquiries also may be submitted by mail to the following address:
Office of the Associate Attorney General
Department of Justice, Room 5214
Attention: Director of Environmental Justice
10th & Constitution, N.W.
Washington DC 20530
B. IDENTIFICATION OF ENVIRONMENTAL JUSTICE MATTERS
For purposes of the Justice Department, an "environmental justice" matter is any
civil or criminal matter where the conduct or action at issue may involve a
disproportionate and adverse environmental or human health effect on an
identifiable low-income or minority community or federally-recognized tribe.
The ultimate determination whether a particular situation raises an environmental
justice issue will depend on an evaluation of the totality of the circumstances.
However, there are a number of factors that should be considered in determining
whether any individual situation does raise such an issue:
1. FACTORS TO BE CONSIDERED
a. Whether individuals, certain neighborhoods, or federally
recognized tribes suffer disproportionately adverse health or
environmental effects from pollution or other environmental
hazards;
b. Whether individuals, certain neighborhoods, or federally
recognized tribes suffer disproportionate risks or exposure to
environmental hazards, or suffer disproportionately from the
effects of past underenforcement of state or federal health or
environmental laws;
c. Whether individuals, certain neighborhoods, or federally
recognized tribes have been denied an equal opportunity for
meaningful involvement, as provided by law, in governmental
decision making relating to the distribution of environmental
benefits or burdens. Such decision making might involve
permit processing and compliance activities.
While it is important to avoid overly narrow conceptions of possible environmental
justice situations, the mere presence of environmental hazards in a particular
community does not in and of itself mean that an environmental justice problem
is addressable in litigation. Additional factors must be considered, such as the
accumulation of a number of environmental hazards in an affected area because
of the lack public participation by the community, lack of adequate protection
under the laws designed to protect health and the environment, or unusual
vulnerability of the community to such hazards.
Thus, each environmental justice matter must be assessed on a case-by-case
basis. Listed below are examples of fact situations that have presented
environmental justice issues:
2. EXAMPLES OF ENVIRONMENTAL JUSTICE MATTERS
a. Environment and Natural Resources Division
1) Contaminated drinking water. Plaintiffs from a
predominantly low-income trailer community in
Wyoming were supplied drinking water through a
public water system that failed to meet minimum
standards under the Safe Drinking Water Act. The
district court found the risk to the aquifer posed by
improper sewage disposal sufficient to support the
United States' request for a preliminary injunction, and
the court entered a judgment against defendants in the
amount of $1.089 million for endangering the public
health and welfare.
2) Discrimination and participation. Plaintiffs from a
predominantly minority community in West Oakland,
California, filed suit against the Department of
Transportation alleging both Title VI and NEPA
violations. The government's activities involved the
development of an Environmental Impact Statement
for placement of a highway through a low-income,
minority community. This suit settled.
3) Protection of tribal lands. The Department
successfully prosecuted a federal trespass action
against irrigation districts that had wrongfully
discharged their wastewaters onto tribal trust lands.
4) Polluted air. Violations of the Clean Air Act by an
operator of a municipal waste incinerator in a
distressed community may develop into an
environmental justice matter.
5) Natural resource damages. A complaint alleging that
an oil spill harmed fish that form part of the
subsistence diet of Native Americans should be
examined further to determine whether it is a potential
environmental justice matter.
b. Civil Rights Division
1) Storm and sewage disposal systems. Residents in
a predominantly African American section of a city
alleged that the city's storm sewer system did not
provide adequate protection from flooding compared
to storm and sewer drainage systems in predominantly
white parts of the city, in possible violations of the Fair
Housing Act.
2) Siting of a landfill. A minority community in New
York State filed a complaint with the Environmental
Protection Agency, alleging that when the New York
Department of Environmental Conservation, a recipient
of federal funds, decided to site a landfill adjacent to
their community, such action violated Title VI of the
Civil Rights Act of 1964. EPA is investigating the
allegations.
c. Civil Division
1) Radiation exposure. The Civil Division administers
the Radiation Compensation Program, a program
which compensates on-site participants, residents
living downwind of radiation sources, and uranium
mine employees and/or their descendants for the
burdens they have borne for the nation as a result of
nuclear tests and uranium mining. Many of the
recipients of compensation are members of federally
recognized tribes.
d. Community Relations Service "CRS"
1) Clean-up of Superfund Site. CRS has been involved
in mediating disputes between the EPA, city
managers, and residents of a minority community over
the clean-up of a Superfund site.
C. RESPONSE TO ENVIRONMENTAL JUSTICE MATTERS
1. PROCEDURES FOR ATTORNEYS
Assistant United States Attorneys and line attorneys in the
Environment and Natural Resources, Civil Rights, and Civil Divisions
will take the following steps in order to identify and address
environmental justice matters:
a. Be alert to factors indicating a possible environmental justice
matter as a case develops, and consider requesting
additional information from the referral agency as needed
when the agency referral or complaint does not, on its face,
label the case as one involving an environmental justice
matter;
b. Notify the designated Division environmental justice
coordinator or AUSA for further consultation on remedial or
other action when environmental justice claims have been
identified;
c. Report environmental justice matters on your docket sheets
when identified, whether when opening the case, during the
pendency of the case, or when closing the case;
d. Consult with the referral agency and/or with your
environmental justice coordinator if you have any questions
or need more information concerning remedial or other
action;
e. Consider using available data bases to obtain relevant
demographic data;
f. Consider alternatives to litigation. Where resolution of an
enforcement action might be achieved without litigation,
attorneys should consider alternative dispute resolution or
remedial solutions intended to directly benefit affected
communities.
In this regard, note that the Department of Justice's
Community Relations Service plays an important role in
resolving conflicts arising from perceived environmental
discrimination. CRS is the only Department of Justice
component specifically tasked to prevent and resolve
community conflicts arising from actions, policies, and
practices perceived to be discriminatory on the basis of race,
color, or national origin. Attorneys may contact CRS to
inquire about its services in resolving conflicts;
g. Advise and counsel client agencies, states, and local
governments. Department of Justice attorneys who work with
agency clients during investigations or litigation, or in their
capacity as legal advisers, may counsel agencies on
environmental justice issues relevant to their respective
agency programs and policies. The Department should also
look for ways to assist state and local governments in their
efforts to achieve environmental justice; and,
h. Attend educational and training programs provided by the
Department on environmental justice. All Department of
Justice employees are encouraged to take steps to ensure
that the Department satisfies the directives contained in
Executive Order No. 12898 and this Guidance. To facilitate
this process, the Department will conduct training programs
and provide materials to Department attorneys on the subject
of environmental justice.
2. ADDITIONAL DEPARTMENT RESPONSES
a. Legislative review
Department attorneys who review legislative initiatives should
evaluate such initiatives for their consistency with, and
efficacy in enhancing, environmental justice.
b. Title VI Program Evaluation
Title VI of the Civil Rights Act of 1964 prohibits discrimination
on the basis of race, color, or national origin in all federally
assisted programs. 42 U.S.C. . 2000d et seq. Most
agencies that provide federal assistance subject to Title VI
have regulations implementing Title VI. These regulations
apply not only to intentional discrimination but also to policies
and practices that have a discriminatory effect.
As part of the review mandated by the Executive Order,
attorneys reviewing agency efforts to comply with Title VI
should evaluate the programs to eliminate policies and
practices that may be neutral on their face but discriminatory
in their effect. A more detailed review of the Title VI
enforcement obligations of the Department of Justice is
provided in a "Memorandum for Heads of Departments and
Agencies that Provide Federal Financial Assistance" and is
attached as Appendix B.
c. Amicus
In order to support the policy and goals of the Executive
Order, the Department also may file amicus curiae briefs in
cases that raise environmental justice issues. Where
appropriate, attorneys should advise client agencies that the
Department will consider recommendations to file amicus
curiae briefs.
d. Protection for Federally Recognized Tribes
The federal government has special responsibilities involving
federally recognized Indian tribes. Department attorneys
litigating environmental justice cases affecting such tribes will
confront additional issues involving the relationship between
the Department of Justice, the Department of the Interior, and
tribal nations.
Environmental justice matters involving American Indian
issues should be referred to the appropriate section in the
Environment and Natural Resources Division and to the
Division's environmental justice coordinator so that these
matters can be properly coordinated within the Department
and with the Department of the Interior.
V. JUDICIAL REVIEW AND ENFORCEMENT
This Guidance is intended only to improve the internal management of the Department
of Justice. It shall not be deemed to create any right, benefit, or trust obligation, either
substantive or procedural, enforceable by any person or entity in any court against the
United States, its agencies, its officers, or any other person. Consequently, neither this
Guidance nor the deliberative processes or products resulting from implementation of the
Guidance shall be treated as establishing standards or criteria that constitute any basis
for review of the actions of the Department of Justice or any other agency. The
Department's compliance with this Guidance shall not be justiciable in any proceeding
for judicial review of agency action.
DATE: January 9, 1995 SIGNED: JANET RENO, ATTORNEY GENERAL