evaluating environmental justice under the national environmental policy act

SOCIAL IMPACT ASSESSMENT

EVALUATING ENVIRONMENTALJUSTICE UNDER THE NATIONALENVIRONMENTAL POLICY ACT

Ronald BassJones & Stokes Associates

‘‘Environmental justice’’ refers to the fair treatment and meaningful involve-ment of all people regardless of race, color, national origin, or income withrespect to the development, implementation, and enforcement of environmentallaws. Fair treatment means that minority and low-income groups should notbear a disproportionate share of the negative environmental impacts of govern-ment actions. Recent studies have shown that, in the United States, some govern-ment decisions have adversely affected low-income and minority communitiesdisproportionately to the rest of society. To avoid such inequities in futurefederal activities, President Clinton issued Executive Order (EO) 12898, whichrequires federal agencies to consider environmental justice in carrying out theirmissions. Guidance issued by the Executive Office of the President requiresevery federal agency to consider environmental justice in conducting impactevaluations under the National Environmental Policy Act (NEPA). Thus, an‘‘environmental justice analysis’’ is a highly focused form of social impactassessment that must be conducted within the framework of NEPA. The specificpurpose of such an analysis is to determine whether a proposed federal activitywould impact low-income and minority populations to a greater extent than itwould impact a community’s general population. This article explains thedevelopment and implementation of EO 12898 and explores what federalagencies are doing to incorporate environmental justice into their NEPA proce-dures. It also includes recommendations for other authorities to consider whenincorporating environmental justice into their environmental impact assess-ments (EIAs). 1998 Elsevier Science Inc.

Address requests for reprints to: R. Bass, JD, MA, Jones & Stokes, 2600 V Street, Sacramento, CA95818, USA.

ENVIRON IMPACT ASSES REV 1998;18:83–92 1998 Elsevier Science Inc. All rights reserved. 0195-9255/98/$19.00655 Avenue of the Americas, New York, NY 10010 PII S0195-9255(97)00065-6

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Introduction: What Is Environmental Justice?

‘‘Environmental justice,’’ a component of the broader field of social impactassessment (SIA), is a relatively new concept that must be addressed underthe National Environmental Policy Act (NEPA). Environmental justicerefers to the fair treatment and meaningful involvement of all people regard-less of race, color, national origin, or income with respect to the develop-ment, implementation, and enforcement of environmental laws. Fair treat-ment means that minority and low-income groups should not bear adisproportionate share of the negative environmental impacts of govern-ment actions. Although SEA has always included concerns about racialand economic equity, environmental justice did not come into its ownuntil the late 1980s and early 1990s. It arose out of various academic andgovernment studies conducted during those years, which revealed thatcertain types of government and corporate environmental decisions haveadversely affected low-income and minority populations to a greater extentthan the general population. This finding was especially evident for locallyunpopular land uses such as toxic waste sites and landfills. For example, astudy conducted in the greater Los Angeles area demonstrated that adisproportionally high number of toxic waste sites were situated in low-income and minority neighborhoods (Szasz et al., 1993). Similar findingshave been confirmed by dozens of studies throughout the nation (Bullard1994; Hofrichter 1993; Schwab 1995).

The interest in environmental justice reached a peak in 1991 at thelandmark ‘‘People of Color Environmental Summit’’ held in California.That conference, which brought together hundreds of people representingminority groups throughout the United States, resulted in a public policyagenda to address environmental injustices. Among the conference propos-als were strong recommendations that Congress and the President addressenvironmental justice through legislation, executive orders, and other gov-ernment actions.

Executive Order 12898

In view of the rising interest in avoiding environmental injustices in futurefederal activites, in February, 1994, President Clinton issued ExecutiveOrder (EO) 12898, entitled Federal Actions to Address Environmental Jus-tice in Minority Populations and Low-Income Populations. The fundamentalobjective of the executive order is summed up in the first section, whichstates:

To the greatest extent practicable and permitted by law . . . each federalagency shall make achieving environmental justice a part of its missionby identifying and addressing . . . disproportionately high adverse humanhealth or environmental effects of its programs, policies, and activitieson minority and low-income populations in the United States.

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In addition to this general mandate to federal agencies, EO 12898 estab-lishes the Interagency Working Group on Environmental Justice. Thisentity is responsible for providing guidance to federal agencies in imple-menting the order, collecting and examining data related to the order, andconducting public meetings. Further, EO 12898 requires each federal agencyto develop an agency-wide environmental justice strategy listing all pro-grams, policies, planning, and public participation practices, enforcement,and rule-makings related to human health and environment that should berevised to accomplish the following:

• promote enforcement of all health and safety laws in minority andlow-income areas;

• ensure greater public participation;• improve research and data collection relating to the health and environ-

ment of minority and low-income persons; and• identify patterns of consumption of natural resources among minority

and low-income populations.

EO 12898 provided a 12-month timetable, from the date of the order,by which each federal agency was supposed to have developed an environ-mental justice strategy. Although few federal agencies met this initial dead-line, as of this writing, many have adopted environment justice programs.

Presidential Memorandum Accompanying the Executive Order

To accompany the EO, the President issued a memorandum to the headsof all executive departments and agencies, directing them to incorporateenvironmental justice concerns into their NEPA processes and practices.Specifically, the President directed federal agencies to:

• analyze the environmental effects (health, economic, and social) offederal actions, including such effects on minority and low-incomecommunities, when such analysis is required by NEPA;

• address the significant adverse effects of any mitigation measures out-lined or analyzed in an environmental assessment (EA), environmentalimpact statement (EIS), or record of decision (ROD) on minority andlow-income communities; and

• provide opportunities for community input in the NEPA process, in-cluding identifying potential effects and mitigation measures in consul-tation with affected communities, improving the accessibility of meet-ings, and providing access to crucial documents and notices.

Additionally, the Presidential memorandum required that:

• the Environmental Protection Agency (EPA), when reviewing NEPAdocuments, shall ensure that the involved agency has fully analyzed

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environmental effects (human health, social, and economic) on minor-ity and low-income communities; and

• each federal agency shall ensure that the public, including minority andlow-income communities, has adequate access to public informationrelating to human health or environmental planning, regulations, andenforcement when required under the Freedom of Information Act,the Sunshine Act, and the Emergency Planning and Community Right-to-Know Act.

The Presidential memorandum, while requiring additional evaluationunder the NEPA process, specifically states that ‘‘the executive order isonly intended to improve the internal management of the Executive Branchand is not intended to create any right, benefit, or trust responsibility,substantive or procedural, enforceable by law or equity by a party againstthe United States, its agencies, its officers or any person.’’ This provisionwas clearly included to indicate that the EO did not create new opportunitiesfor legal challenges against federal agencies for violations of the order.

Council on Environmental Quality Guidance for AddressingEnvironmental Justice under NEPA

In May, 1996, the Council on Environmental Quality (CEQ) issued draftguidance to assist federal agencies to incorporate environmental justiceconcerns into their respective NEPA procedures (CEQ 1996). The long-awaited guidance contains several general recommendations for consider-ing environmental justice through the NEPA process. According to CEQ,federal agencies should more actively examine the following issues:

• the composition of the affected community or population to determinewhether minority or low-income communities are present;

• relevant public health data or projects concerning the potential forcumulative exposure to health or environmental hazards;

• cultural, social, occupational, or economic factors that may amplify theeffects of agency action;

• public participation strategies; and• community or, when applicable, tribal representation in the process.

In addition to these general principles, the CEQ guidance elaborates onhow agencies should consider environmental justice in specific phases ofthe NEPA process. Table 1 highlights some of these recommendations.

Agency Programs to Implement EO 12898

To implement the EO, each federal agency must develop its own approachto evaluating environmental justice under NEPA. Even before CEQ issuedits draft guidance, many federal agencies began developing and implement-


TABLE 1. CEQ’s Recommendations for ConsideringEnvironmental Justice

Stage of NEPA Process CEQ’s Recommendations for Considering Environmental Justice

Scoping Seek input from low-income and minority groups.Develop a proactive outreach strategy that relies on individuals,

community organizations, and nonmainstream media.Ensure effective communications with diverse groups through co-

operative working relations and educational efforts.Public participation Use innovative approaches to overcome linguistic, institutional,

cultural, economic, and historic barriers to effective participa-tion, including the following:• direct coordination with affected individuals and organi-

zations• translations of important documents• providing opportunities for translation of comments• personal interviews or recordings to capture nonwritten com-

ments• newsletters or summaries• innovative meeting formats that encourage participation• holding meetings in convenient locations• providing assistance for hearing- or sight-impaired persons.

Determining affected Use Bureau of Census or other demographic data to identifyenvironment the composition of potentially affected populations by race,

ethnicity, and income.Evaluating impacts Identify, quantitatively and spatially, whether the effects on minor-

ity or low-income populations would be disproportionally highand adverse.

Include a specific, written statement as to the nature and extentof such impacts.

Comparing alternatives Encourage the potentially affected persons to recommend alterna-tives.

Consider low-income and minority impacts in identifying the envi-ronmentally preferable alternative.

Record of decision Specifically identify how any disproportionally high and adverseimpacts on a low-income minority population were consideredin the decision-making process.

Disseminate the ROD to the affected community, using translationand plain-English summaries if necessary.

Mitigation Seek community input on ways to mitigate any disproportionallyhigh or adverse impacts to minority or low-income populations.

Consider the needs and preferences of such people in developingor adopting mitigation measures.

ing their own guidance for integrating environmental justice considerationsinto their NEPA processes.

One of the more detailed set of environmental justice procedures wasadopted by the EPA for use in its own programs (EPA 1996). It is notsurprising that the EPA should take the lead in environmental justice

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evaluations, because the Office of Environmental Justice is a unit of theEPA. As with the CEQ guidance, EPA describes how environmental justiceshould be incorporated into NEPA at every stage of the environmentalreview process. However, the EPA guidance contains far more detailedprocedures than in CEQ’s guidance. Because of EPA’s prominent role inNEPA implementation, its guidance provides a good reference for otheragencies to follow.

Some agencies’ environmental justice programs place a very strong em-phasis on public involvement of the target populations, particularly at thescoping and public notice phases of NEPA. For example, the Departmentof Interior’s program encourages agencies to be creative about involvingtarget groups (U.S. Department of Interior 1995). In addition to the usualagency practice of notifying the public of a proposed action, the Departmentof Interior’s program suggests that agency officials work with local individu-als and institutions via the following channels:

• ethnic radio stations;• churches;• local newspapers (especially weekly and ethnic-oriented papers);• civic associations (such as NAACP county chapters);• minority business associations;• environmental groups;• homeowner and neighborhood watch groups;• federal, state, and local tribal governments;• rural cooperatives;• senior citizen associations; and• health agencies.

According to the the Department of Interior’s program, the participationof diverse groups, such as those listed above, is the key to successfullyimplementing the executive order.

Environmental Injustice Can Result in Project Denial: The Case ofLousiana Energy Services Corporation

Perhaps the most significant example of how environmental justice concernscan influence the outcome of a project occurred in the case of the LouisianaEnergy Services Corporation’s proposed Claibourne Nuclear EnrichmentCenter. The Louisiana Energy Services Corporation applied to the U.S.Nuclear Regulatory Commission for a license to construct and operate anuclear fuel enrichment facility near the small rural community of Homer,Louisiana. The proposed site was located near two unincorporated commu-nities populated primarily by low-income, minority families that were de-scendants of freed slaves. Among other social and economic impacts, thefacility would have eliminated a road connecting the two communities,


causing residents to experience greatly increased travel times to work,school, and other activities.

The Nuclear Regulatory Commission prepared an EIS for the projectwhich evaluated all of the impacts of the project, including the environmen-tal justice concerns. The EIS highlighted the severe social and economicimpacts that the facility would cause in the affected communities. It clearlydemonstrated that low-income and minority populations would be affectedto a far greater degree than the general population. After preparing theEIS, the Nuclear Regulatory Commission received extensive public com-ments and opposition, much of it focused on the environmental justiceissues. Among the testimony presented during its decision-making processwere various presentations by nationally known environmental justiceexperts.

In a precedent-setting decision, the Commission denied the license appli-cation, holding that racial and economic discrimination played an unaccept-able role in the project’s planning. In reaching its decision, the Commissionalso concluded that a new EIS and a detailed mitigation plan would berequired prior to reconsidering the license for the facilty (U.S. NuclearRegulatory Commission 1997). According to the Office of EnvironmentalJustice within EPA, this is the only example, to date, where environmentaljustice concerns have resulted in the federal government’s denial of a licensefor a major facility (Totten 1997).

A More Typical Case Study: The Arden-Garden ConnectorTransportation Project, Sacramento, California

A recent example of a less controversial project that evaluated environmen-tal justice was the Arden-Garden Connector Transportation Project Envi-ronmental Impact Statement/Environmental Impact Report (EIS/EIR) forthe City of Sacramento, California (City of Sacramento 1995). This jointfederal/state project is a proposed urban roadway traversing two ethinicallydiverse, low-income neighborhoods just north of downtown Sacramento.

The EIS/EIR relied on the Federal Highway Administration’s InterimGuidance for Projects in the NEPA Process (Federal Highway Administra-tion 1995), which contains procedures similar to those in the CEQ guidance.In applying these procedures to the Arden-Garden project EIS/EIR, theFederal Highway Administration, the federal lead agency, included ananalysis of the social and economic characteristics of the project corridor.This included ethnic and income data for the three affected census tractsand blocks in comparison to the citywide and countrywide characteristics.

The Arden-Garden EIS/EIR environmental review process included atargeted public participation effort in which trained community relationsconsultants were used to organize a project steering committee of minorityand low-income residents. This program included specific efforts to inform

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and involve residents who would not normally have participated in theenvironmental review process. It also involved translation of key issuesinto Spanish for the local Hispanic population.

Interestingly, the analysis concluded that the project corridor had aboutthe same concentration of minorities and low-income persons as were foundthroughout Sacramento. The EIS/EIR also concluded that all of the alterna-tives would have approximately the same impact on the target populationsas would the proposed project.

Although environmental justice did not become a controversial issue inthe Arden-Garden project, the EIS/EIR represents a good example of howthe issue should be addressed in a typical NEPA document. However, theArden-Garden EIS/EIR was prepared before CEQ issued its guidance onenvironmental justice. Thus, in future environmental studies under NEPA,the analysis would probably be even more detailed.

Conclusion and Recommendations

Each federal agency has, or will have, its own specific guidance, to effectivelyevaluate environmental justice in the NEPA context. However, the leadagency preparing the NEPA document must, at a minimum, be able toanswer the following questions related to the demographic characteristicsof the affected project area:

• What are the population characteristics of the project area brokendown by race, ethnicity, age, and other demographic factors?

• What are the income levels of affected residents?• What is the housing stock by type, age, and price in the project area?• How do these factors compare to communitywide, citywide, and coun-

trywide factors?• To what extent will the project affect low-income and minority popu-

lations?• Are there alternatives or alternative locations that would not adversely

affect minority or low-income persons?• Are there mitigation measures that would reduce or minimize the

effects of the project on minority or low-income persons?• Have the target populations of the EO been effectively involved in

the entire NEPA process?

In developing answers to these questions, the federal agency must keepin mind the fundamental question posed by EO 12898: Will the proposedfederal action have a significant, adverse effect on minorities and low-incomepersons to a greater extent than on the general population of an area? If theanswer is “yes,” then the agency should make every effort to modify itsproposal to achieve a more socially equitable solution to its problem.

In devising approaches to evaluating environmental justice, federal agen-cies will have to rely on well-established analysis tools from the socialsciences. Census data and other statistical information will be instrumental


in conducting NEPA environmental justice evaluations. In addition, severalEPA regional offices are developing geographic information applicationsrelative to specific environmental justice issues within their regions(Schwab 1995).

Additionally, the Guidelines and Principles for Social Impact Assessment,developed by the Interorganizational Committee on Guidelines and Princi-ples for Social Impact Assessment, contains a recommended methodologyfor social impact assessment that would work very well in achieving theenvironmental justice requirements of NEPA (Interorganizational Com-mittee 1995). The Guidelines include a standardized approach to evaluatingsocial impacts that might occur throughout the 4-phase life cycle of a typicalindustrial or hazardous facility, including: (1) planning/policy development,(2) construction implementation, (3) operation/maintenence, and (4) de-commissioning/abandonment. Although the Guidelines address the entirerange of social impact assessment issues, determining the effects on low-income and minority populations is an important element of the recom-mended methodology.

Because of NEPA’s focus on physical impacts, social impacts have alwaysbeen the stepchild of environmental impact assessment. Hopefully, therequirement to evaluate environmental justice will bring the entire field ofSIA into a more prominent position under NEPA.

Applicability beyond NEPA

Although environmental inequity is a problem throughout the world, atthe current time, the author knows of no counterparts to EO 12898 in anyof the states with environmental impact assessment laws or in other nations.Despite this lack of formal guidance, state and local officials, as well asenvironmental authorities in other nations, should consider following theNEPA model for evaluating environmental justice issues when a projectis likely to affect low-income or minority populations. Most environmentalimpact assessment laws give agencies considerable latitude to include socio-economic issues in environmental documents. Thus, there is no reason whyenvironmental justice concerns should be overlooked merely because theyare not required to be considered. Environmental justice is a universal,equitable concept that should be included in all environmental impactassessments when the interests of low-income or minority populations areat risk.

References

Bullard, R.D. (ed). 1994. Unequal Protection: Environmental Justice and Communi-ties of Color. New York: Random House, Inc.

City of Sacramento. 1995. Arden-Garden Connector Transportation Project EIS/EIR. Sacramento, CA.

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Council on Environmental Quality. 1996. Draft Guidance for Addressing Environ-mental Justice under the National Environmental Policy Act. Washington, DC:Executive Office of the President.

Econet. 1995. Environmental Racism and Environmental Justice, (online). Availableat http://www.igc.apc.org/envirjustice.

Environmental Protection Agency. 1996. Guidance for Incorporating EnvironmentalJustice Concerns in EPA’s NEPA Compliance Analysis. Washington, DC: U.S.Environmental Protection Agency, Office of Federal Activities.

Federal Highway Administration. 1995. Executive Order 12898: Federal Actions toAddress Environmental Justice in Minority and Low-Income Populations: InterimGuidance for Project in the NEPA Process. San Francisco, CA: Region 9, FederalHighway Administration.

Hofrichter, R. (ed). 1993. Toxic Struggles: The Theory and Practice of Environmen-tal Justice. Philadelphia, PA: New Society Publishers.

Interorganizational Committee on Guidelines and Principles for Social Impact Anal-ysis. 1995. Guidelines and Principles for Social Impact Assessment. EnvironmentalImpact Assessment Review, 15-11-43. New York: Elsevier Science, Inc.

Meuser, M. 1995. Environmental Justice Bibliography, (online). Available atgopher:/gopher.igc.apc.org:70/0/environment/envjustice/resources/biblio.

Schwab, J. 1994. Deeper Shades of Green: The Rise of Blue-Collar and MinorityEnvironmentalism in America. San Francisco, CA: Sierra Club Books.

Schwab, J. 1995. Land Use and Environmental Justice. Chicago, IL: Environment &Development, July 1995, American Planning Association.

Shanklin, Carita. 1997. Pathfinder: Environmental Justice. Ecology Law Quar-terly 24(2).

Szasz, A. et al. 1993. The Demographics of Proximity to Toxic Releases: The Case ofLos Angeles County. Santa Cruz, CA: Sociology Board, University of California.

Totten, A. Office of Environmental Justice, U.S. Environmental Protection Agency.E-mail communication. March 20, 1997.

U.S. Department of Interior. 1995. Environmental Compliance Memorandum No.ECM95-3: National Environmental Policy Act Responsibilities under the Depart-mental Environmental Justice Policy. Washington, DC: Office of the Secretary.

U.S. Nuclear Regulatory Commission. 1997. Atomic Safety and Licensing BoardDecision in the Matter of Louisiana Energy Services, L.P (Claiborne EnrichmentCenter). Washington, DC: Docket No. 70—3070-ML. May 1, 1997.

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