McIntyre, Stavitsky and Heye Discuss the Rising Tide of Environmental Justice and its Implications for Industry

Environmental attorneys Krista McIntyre and Ariel Stavitsky and summer associate Lydia Heye contributed an article to Corporate Counsel titled “The Rising Tide of Environmental Justice and Preparing for the Next Wave,” published June 23, 2021. The first in a three-part series, the article defines “environmental justice” and provides a brief history of the movement and where it is now, including its stance as a regulatory priority under the Biden-Harris Administration and a key business consideration for private industry.

The authors provide a definition of environmental justice (EJ) from the Environmental Protection Agency (EPA): “… 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.” EJ is a response to issues facing nearly every corner of society today — from pollution and climate change to food insecurity and lack of access to housing and education — and targets all the factors impacting an individual’s ability to live in a safe and healthy community and to access opportunities for betterment.

The phrase “environmental justice” was coined in the 1960s during the Civil Rights movement, but it wasn’t until the 1980s that EJ gained agency attention, and in the early 1990s EPA founded its Office of Environmental Justice and National Environmental Justice Advisory Council. In 1994, an executive order signed by President Clinton, among other directives, incorporated EJ principles into reviews under the National Environmental Policy Act (NEPA), which requires federal agencies to assess the environmental effects of their proposed actions.

Though in subsequent years various agencies have issued administrative guidance on implementing EJ, administrative guidance is not a rule and the implementation has often been muddled, resulting in EJ languishing in “administrative limbo.” However, several recent events — starting with the 2014 Flint water crisis in Michigan — have spurred the national discourse on EJ, and this and other factors have made it a regulatory priority under the Biden-Harris Administration and an important business consideration for private industry.

The authors conclude: “The tide reveals that we can expect new EJ-based regulations, policies, and initiatives to emerge soon. Next, this series will explore EJ requirements in current state and federal regulatory landscapes, how those landscapes may evolve, and what key indicators the regulated community must consider to remain proactive in addressing EJ in their decision-making processes.”