Expansion of Environmental Justice and Title VI Scrutiny Raises New Questions for Heavy Industry Projects in Texas

Many may have heard the term “environmental justice” or “EJ,” which was formally recognized in an Executive Order (EO) signed by President Clinton in 1994. On April 21, President Biden significantly expanded the scope of federal EJ policy in a new EO. Current federal policy now includes a raft of new obligations on federal agencies that will require them to develop programs to embed EJ analysis into decision-making, increase access for EJ communities to participate in federal processes, centralize oversight of EJ policy implementation and track agency progress on implementation goals.

Complementing the new EJ policy is a longstanding, but now enhanced, legal requirement created by Title VI of the Civil Rights Act of 1964, which prohibits any state agency from engaging in discrimination on the basis of race, color or national origin in any program or activity that receives federal funds or other federal financial assistance. In the environmental context, this may manifest in Title VI violations for federal actions (such as project permits) which are associated with disparate environmental and health impacts in minority communities.