Category: Between the Lines

INTRODUCTION

It is no secret that the United States’ infrastructure is crumbling. In 2021, the American Society of Civil Engineers published a Report Card for America’s Infrastructure. The Report Card awarded America a C- based on its physical infrastructure condition and needed investments for improvement. The overall Report Card covers 18 infrastructure categories including drinking water, hazardous waste, solid waste, wastewater, stormwater, and energy. The highest score among the categories previously listed was a C+ for solid waste, demonstrating the intersectionality between infrastructure and environmental impacts.

The hands that built and continue to build America’s infrastructure have many colors. For example, many immigrants—a significant majority of them from China—were among the 20,000 individuals who built North America’s first transcontinental rail line. Enslaved people built roads connecting Alabama and Georgia—paving the way for industries like cotton and textiles. More recently, data from the Center for Migration Studies and the 2018 U.S. estimates that around 19.8 million immigrants work in “essential critical infrastructure,” as defined by the Department of Homeland Security. However, infrastructure development in the U.S. has been a tool for continuing inequality, disproportionately affecting minorities      and increasing their vulnerability to environmental hazards. As a response, proponents of environmental justice advocate      for “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.”

For months, the Infrastructure Investment and Jobs Act (the Infrastructure Act) was the center of political debate; its purpose was sequestered by political and partisan agendas. While President Biden presented the Infrastructure Act as an instrument for environmental justice, both Democrats and Republicans have publicly stated their priorities do not align with the priorities of the communities most impacted by the climate crisis. In fact, the Infrastructure Act has been promoted as opening the door to green energy policies and a step towards a cleaner environment. However, buried in the more than 2,700 pages of the Act, several sections would abandon protections affecting vulnerable communities in the United States. 

This article examines the potential impact of the Act on the National Environmental Policy Act (NEPA), and consequently, on the most vulnerable communities in the United States.

THE ENVIRONMENTAL IMPACT OF THE INFRASTRUCTURE INVESTMENT AND JOBS ACT

1. The NEPA Procedure

NEPA dictates that, before commencing an action, an agency must determine whether the action “is a major action with a significant effect.” Sierra Club v. U.S. Army Corps of Engineers, 295 F.3d 1209, 1215 (11th Cir. 2002). Federal agencies must follow a statutory environmental review process established by § 102. Accordingly, federal agencies need to complete an Environmental Assessment (EA) to reach a determination. 295 F.3d 1209, 1215 (11th Cir. 2002). “The EA should provide enough evidence and analysis to guide the agency to one of two conclusions: (1) a finding that the project will have a significant effect, or (2) a finding of no significant impact (FONSI).” Id. Once the agency determines that the proposed project will have a significant environmental impact, the agency must prepare an Environmental Impact Statement (EIS). Id. Absent such a finding, the agency must issue a FONSI, “which incorporates the EA and explains why the action will not have a significant effect on the human environment.” Id.  

The EIS requires the agency to assess (1) the environmental impact of the proposed action; (2) unavoidable adverse environmental effects; (3) alternatives to the proposed action; (4) the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity; and (5) any irreversible and irretrievable commitments of resources that would be involved in the proposed action. 42 U.S.C. 4332(2)(C). Several administrations have addressed issues with NEPA procedural requirements and have tried to streamline the EIS preparation. Judicial review of a federal agency’s compliance with NEPA is governed by Administrative Procedure Act (APA).

 

2. Resurrecting the “One Federal Decision”

Subtitle C § 11301 of the Infrastructure Act continues to loosen NEPA requirements. This section of the Infrastructure Act amends § 139 of title 23, United States Code, and codifies Executive Order 13807, known for implementing the One Federal Decision (OFD). President Biden overruled OFD during his first day in office through Executive Order 13990, which also canceled the Keystone Pipeline. The original OFD applied to infrastructure projects, including transportation projects like those included in the Infrastructure Act. The motives behind OFD are not new—it follows a trend from the Obama and Bush administrations to streamline NEPA’s permit process. 

 

The Trump administration intended OFD to promote infrastructure development by reducing a federal agency’s average time to comply with environmental reviews and authorization for major infrastructure projects to two years. As codified in the Infrastructure Act, OFD requires all federal agencies with authority to conduct environmental review or decisions over major infrastructure projects to develop one environmental document per project and sign all necessary authorizations for “major projects” within 90 days of completion of NEPA’s process. OFD also limits EISs to 200 pages. Overall, OFD directed federal agencies to expedite the NEPA process. 

To that end, the Infrastructure Act amends 23 U.S.C. § 139, shifting the burden to determine when to apply §139 procedures to projects for which an EA is prepared from the Department of Transportation (DOT) to the project sponsor. Under the Infrastructure Act’s framework, the sponsor must request application of § 139. Furthermore, the single environmental document requirement can be waived if the lead agency determines that relying on the document is contrary to the timely completion of the environmental review process, if the project sponsor requests a waiver, or if an agency cooperating with the lead agency already satisfied its NEPA requirements. Thus, OFD presents several problems, including sending a message of the federal government’s approval of agencies forgoing the environmental review required by law. 

Satisfying NEPA requirements on an expeditious basis is not congruent with NEPA’s purpose. “The object of NEPA is to require federal agencies to consider environmental values when making decisions, and the initial responsibility of the federal agency is to determine the extent of the environmental impact.” Hill v. Boy, 144 F.3d 1446, 1449-50 (11th Cir. 1998) (citation omitted). The average environmental review period lasts over two years and is measured from the date the notice of intent (NOI) is published to the date an EIS is completed. NEPA is about disclosure and accountability, and its application over environmental justice is already limited to whenever there is an interrelation between “economic or social and natural or physical environmental effects.” A two-year deadline might reduce the environmental review process’s effectiveness and could potentially lead to the judicial review of poorly planned projects, eventually delaying the infrastructure development process even more. 

 

3. The Road to Environmental Justice

President Clinton’s Executive Order 12898 directs federal agencies to, “[t]o the greatest extent practicable and permitted by law,” “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.” President Clinton’s Order also created an Interagency Working Group (IWG) to guide agencies in implementing the Order’s requirements. However, EO 12898 is limited to “the internal management of the executive branch,” and it is not a compliance tool. Title VI of the Civil Rights Act of 1964 (The Civil Rights Act) may have been the legal basis for EO 12898.

 

In 2021, DOT issued an environmental justice order seeking to improve DOT’s internal management pursuant to EO 12898, and in 2016 updated the department’s environmental justice strategy. However, in 2019, the Government Accountability Office (GAO) published “Environmental Justice: Federal Efforts Need Better Planning, Coordination, and Methods to Assess Progress,” a report finding that most federal agencies have failed to update a strategic plan to support environmental justice efforts as directed by EO 12898. Then,  President Biden issued EO 14008, amending EO 12898 by changing the name of IWG to the White House Environmental Justice Interagency Council (EJIC), assigning its oversight to the Executive Office, and creating an Environmental Justice Advisory Council (EJAC) within EPA. Both councils were tasked with improving how agencies consider environmental justice under EO 12898. But is EO 14008 enough to force the agencies to update their environmental justice analyses? Not all environmental issues are caused by major federal actions, and enacting laws and regulations at the state and local levels may be an alternative to empowering environmental justice communities.

Environmental justice is gaining traction. More than a dozen cases in the past twenty years included environmental justice issues as part of the arguments. In Vecinos para el Bienestar de la Comunidad Costera v. FERC, the D.C. Court of Appeals addressed petitioners’ environmental justice claims under NEPA, among other claims. The Federal Energy Regulatory Commission (FERC) granted the applications for the construction and operation of three liquified natural gas (LNG) export terminals and the construction and operation of pipelines to carry LNG to one of the terminals. Petitioners argued that FERC’s analysis of the impacts on climate change and environmental justice communities was deficient under NEPA and other statutes. The D.C. Court of Appeals remanded the case, concluding that FERC deficiently addressed the projects’ environmental justice impacts by examining an area limited to “communities in census block groups within a two-mile radius of the project site, but not communities farther afield.” 

The communities within those block groups were minorities and low-income. FERC determined that granting the construction of the LNG pipeline and facilities was a major federal action significantly affecting the quality of the human environment. Therefore, FERC prepared an EIS which examined “whether any of the Project impacts would disproportionately affect those communities due to factors unique to those populations like inter-related ecological, aesthetic, historical, cultural, economic, social, or health factors.” FERC concluded the projects would have an insignificant impact and would not have any “disproportionate adverse effects on minority and low-income residents in the area.” The D.C. Court of Appeals agreed with Petitioners’ argument that FERC’s decision to limit its review to a two-mile radius from the project site was arbitrary and capricious. The court recognized that apart from NEPA, EO 12898 requires agencies to conduct environmental justice analyses. The Court relied partly on each project’s EIS, which concluded that the environmental effects would go beyond the two-radius area limit.

In Vecinos, FERC completed an EIS for each project around three years after the applications were submitted. Still, FERC found the projects would not adversely affect environmental justice communities. Although the primary issue was that FERC limited the EIS study to a two-mile radius, one can reasonably conclude that restricting the timeframe of an environmental review process may adversely affect an agency’s conclusions. Consequently, erroneous findings could disregard the effects a project may have on environmental justice communities. Furthermore, the legal paths for plaintiffs in environmental justice cases continue to narrow down after the Supreme Court’s decision in Alexander v Sandoval.

 

After Alexander, efforts through NEPA can be supported under      Title VI of the Civil Rights Act only when there is a claim of intentional discrimination. Intentional discrimination—or disparate treatment—requires showing that an action is motivated by an intent to discriminate. In general, § 601 of Title VI prohibits discrimination “based on race, color, or national origin by any entity or program that receives federal funds.” Section 602 authorizes federal agencies to “effectuate the provisions of Section 601 by issuing rules, regulations or orders of general applicability.” Before Alexander, communities relied on § 602 to claim disparate impact discrimination caused by government regulations. Contrary to disparate treatment, disparate impact results in unintentional discrimination, and therefore disparate impact may be easier to prove. But the Court ruled in Alexander that § 602 did not allow private individuals to bring disparate claims to court. The Alexander decision limited environmental justice communities’ avenues for compensation under Title VI. Although the EPA has administrative processes in place to manage environmental justice complaints, communities have complained—and courts have agreed—that the EPA often fails to complete investigations in a timely fashion. 

Streamlining NEPA procedures should not disproportionately affect communities and their participation in the decision making process. Vecinos demonstrates judicial review leading to environmental justice—but relying on judicial review is a lengthy, drawn-out process. The environmental justice process will be truer to its goal when the procedures are not drawn out to such lengthy timeframes, including inefficient administrative processes. More than an executive order is necessary to force federal agencies, among other actors partaking in infrastructure projects with environmental impacts, to update their environmental justice analysis. By resorting to judicial review, environmental injustices may persist over time periods that could be immensely shortened. But legislation prioritizing speediness over a thorough environmental review process and condoning agencies forgoing the legally required process is not the right path to achieving environmental justice. That is OFD’s effect and it will negatively impact how environmental justice communities prove the discriminatory effects of the government’s projects or policies. For now, it is up to individuals and the states to demand and promote environmental justice regulations.