Have Efforts to Lessen Disparities for Environmental Justice Communities Been Effective Within The National Environmental Policy Act

Abstract

The National Environmental Policy Act of 1969 (NEPA) was passed to address environmental and social challenges that emerged during the post-WWII building boom. However, it was not until 1994 that the Clinton administration issued an executive order on Environmental Justice (EJ) in NEPA, and 1997 that the Council on Environmental Quality issued guidance compelling agencies to determine if proposed projects would disproportionately impact low-income and minority communities (i.e. EJ communities) when preparing Environmental Impact Statements (EISs) in compliance with NEPA. Many have previously noted that EJ guidance is vague and allows agencies to develop their own definitions of EJ communities and disproportionate impacts. Here we conduct the first comprehensive assessment of compliance with EJ guidance in its 30 years of existence. Using the NEPAccess platform, we randomly selected 706 final EISs completed between 2013–2021. We found that almost three-fifths of federal projects were proposed to be built in areas within EJ communities. In one-eighth of projects, the agency found that their project had the potential to disproportionately impact these EJ communities. However, the actual number of affected communities is likely higher since in about one-fourth of cases, agencies did not include either a clear determination or any information on the potential for disproportionate impacts. Additionally, some agencies with high rates of non-compliance are well known to conduct projects with significant health impacts. This lack of compliance with EJ guidance is counter to the democratic vision of NEPA because it denies communities the opportunity to be informed and by hindering their ability to organize and act. As the U.S. commences a period of large-scale construction funded by the Infrastructure Investment and Jobs Act, the potential for disproportionate impacts to EJ communities is high. Moving forward accountability for EJ requires establishing and enforcing standardized protocols for identifying EJ communities and determining disproportionate impacts. Data indicates that the Clinton-era executive order on EJ cannot be relied upon to achieve NEPA’s vision for harmony between people and the environment, and justice and accountability for all.