The Biden Administration has indicated that the U.S Environmental Protection Agency (EPA) will include environmental justice issues among its priorities. EPA defines “environmental justice” as meaning fair treatment and meaningful involvement of people regardless of their race, color, national origin, or income regarding the development, implementation, and enforcement of environmental laws. EPA’s new emphasis on environmental justice means the regulated community should be on alert to identify how their operations potentially affect environmental justice issues.

A recent Ninth Circuit decision illustrates the extent to which environmental justice issues have entered the broader regulatory conversation. In Center for Community Action v. Federal Aviation Administration (FAA), the Ninth Circuit denied a petition for review of the FAA’s finding that the construction of a new Amazon air cargo facility would have no significant environmental impact under the National Environmental Policy Act. The majority held that the petitioners failed to demonstrate that the FAA’s findings were arbitrary or capricious against a challenge by an NGO that the FAA failed to consider a broad enough set of projects as part of its review of environmental impact. Among other issues, the court considered the petitioners’ (1) failure to identify or provide quantifiable data regarding specific cumulative impacts of the proposed construction; (2) inability to show the significance of the FAA’s failure to adhere to its own desk reference in creating the environmental assessment; and (3) failure to raise a substantial question as to whether the Project may have a significant effect on the environment in reaching its decision. Finding that FAA established that it relied on appropriate data and explained its methodology, the Ninth Circuit rejected petitioners’ challenge.

None of the Ninth Circuit’s findings are particularly notable as the standard of review in administrative challenges generally permits agencies leeway in reaching decisions within their purview. What is notable is the dissent, authored by Judge Johnnie Rawlinson, which illustrates the extent to which environmental justice issues have entered the larger policy dialogue.

Judge Rawlinson’s dissent focuses on a pointed connection between the demographics of the community in which the air cargo facility is to be constructed and the concept of environmental racism. After defining environmental racism as “the creation, construction, and enforcement of environmental laws that have a disproportionate and disparate impact upon a particular race,” she describes the racial composition of the county residents who would be most affected by Amazon’s new facility: 73 percent Latinx and 13 percent African American. Significantly, she asks the reader to keep these communities in mind as she turns to her legal argument.

Judge Rawlinson finds that FAA failed to take a sufficiently “hard look” at the Amazon Project, which was substantial in scope, as was required by federal law. She argues that the Petitioners did raise a substantial question as to the environmental impact of the Project on the surrounding community, thereby requiring preparation of a more rigorous Environmental Impact Statement. In listing the deficiencies of the FAA report, she presents two findings, one from California state officials and one from EPA, which designated the project as resulting in “significant and unavoidable” environmental impact and as being in an area with already “extreme” levels of harmful particulate matter.

The FAA says it discounted these findings because the Petitioners failed to provide any specific articulation of how the Project would violate California or federal law, but Judge Rawlinson disagrees and suggests that the requisite “hard look” at the Amazon Project requires their consideration, regardless of the Petitioners’ ability to articulate specific violations of federal or state law.

Judge Rawlinson suggests that environmental racism may have been behind the FAA’s dismissal of this evidence. Would the FAA expand the size of its study area to capture more data on environmental impact, account for the findings of the State of California and EPA, or provide more accurate truck usage data if the Project was located by the home of the wealthy Amazon founder? The majority, on the other hand, focuses on the Petitioners’ failure to establish that the FAA acted arbitrarily or capriciously. If there is a significant environmental impact, the majority asked, why can’t the Petitioners prove it with specificity?

The majority and the dissent are asking radically different questions. The tension between the two may boil down to the fact that environmental racism has not been identified as a factor to be considered in any modern legal analysis. Even though environmental justice issues stand somewhat outside the current legal framework, one of the three judges on a Ninth Circuit panel is willing to examine it.

We are keeping an eye on EPA’s increased focus on environmental justice issues. Please reach out to any member of the firm’s environmental team if you would like to discuss how these issues might impact your operations.