Addressing the Problem: The Legislative Branches

• Author: Barry E. Hill
• Pages: 293-382

Page 293

Chapter 3

Addressing the Problem:

The Legislative Branches

3.1 Overview

Since 1990, environmental justice legislation has been introduced in Congress and in state and local gov-

ernment legislatures with increasing frequency. On the whole, state and local government legislatures have

been more successful than Congress at enacting legislation, issuing proclamations, or establishing commis-

sions and task forces to address the issue of environmental justice.

is chapter, therefore, represents Professor Ruhl’s fourth degree of relevance, which reads: “e failure

to portray an action as consistent with the norm is seen as a signi cant deciency.” A state legislature, for

example, sets the standards in the laws that are enacted for portraying an action as consistent with the

norm, and as being in compliance with the norm with respect to the issue of environmental justice. To a

great extent, obtaining a redress for environmental injustices a nd preventing such inequities from occur-

ring in the future will be set forth in the law. e state legislature plays a major role in the administrative

law process in two basic ways. First, the state legislature creates an environmental regulatory agency, denes

its authority, and funds its environmental justice activities. Second, the state legislature a lso provides an

oversight function, with the aim of ensuring that the state environmental regulatory agency exercises its

authority and spends money in a manner that is consistent with the state’s legislative policy goals regard-

ing securing environmental justice for all communities t hroughout the state, regardless of the race and/or

income of the residents of those communities.

e American Ba r Association’s (ABA’s) Environmental Justice Committee (within the ABA Section

of Individual Rig hts and Responsibilities) commissioned the Public Law Resea rch Institute of Hastings

College of Law to study the environmental justice legislation, policies, and other initiatives in the 50 states.

In Janua ry 2004, the A BA released the rst study, Environmental Justice for All: A Fifty-State Survey of

Legislation, Policies, and Initiatives?3 It found that since the ABA’s environmental justice policy resolution

was issued in August 1993, “more than 30 states have expressly addressed environmental justice, demon-

strating increased attention to the issue at a political level. e wide-range and variety of policy strategies

and approaches used by states, however, suggests that the issue will continue to mature over the coming

years.”4 e ABA’s August 1993, environmental justice policy resolution supported, among other things,

“the implementation and enforcement of existing environmental laws, regulations, and policies by federal,

state, territorial, and local governments so that a disproportionate share of the burden of environmental

harm does not fall on minority and/or low-income individuals, communities, or populations.” e ABA

environmental justice policy resolution is discussed in detail in §6.2.1.1, ABA Resolution on Environmental

Justice and the Report to the House of Delegates.

Since the ABA released the rst sur vey in Januar y 2004, there have been several editions. e ABA ,

in collaboration with the Hastings College of Law, released the fourth edition on February 15, 2010. e

measures highlighted in t he A BA surveys reect the realization by a number of state legislatures that:

(1)t he disproportionate exposure of minority and/or low-income communities to environmental harms

and risks is directly related to social, economic, and racial indicators; and (2)the inequities could be

addressed through legislation.

3. ABA Section of Individual Rights & Responsibilities, Environmental Justice Committee (2004), available at http://www.csu.edu/cerc/researchre-

ports/documents/EnvironmentalJusticeForAll2004.pdf. On February 15, 2010, the ABA, in collaboration with the Hastings College of Law,

released the fourth edition of the 50-state survey, which is available at http://gov.uchastings.edu/public-law/docs/ejreport-fourth edition.pdf

(last visited Dec. 31, 2013).

4. Id. at iii.

Page 294 Environmental Justice: Legal Theory and Practice, 4th Edition

At the local government level, there ha s been considerable activity with respect to legislation and other

initiatives across the country, according to a 2015 report issued by EPA’s Local Government Advisor y

Committee entitled, EJ Best Practices for Local Government.5 e report, which is discussed in the Local

Legislation section of this chapter (section 3.4, below), outlines some of the present challenges faced by

low-income, minority, and rural communities such as the risk of exposure to pollution, reliable infra-

structure, ha zardous runo, susta inability, and the lack of resou rces for clean air and drink ing water.

Moreover, numerous studies have shown t hat public health and well-being is a major issue in those c om-

munities because of common hea lth concerns that include increased risk of heart disease; higher obesity

rates; respiratory problems; and the greater occurrence of Type 2 diabetes. In this chapter, innovative

environmental justic e legislation in New York City, and in Californ ia to help cities plan for healthy com-

munities will be highlig hted.

On the other hand, at the federal level, little had been done legislatively since the mid-1990s, due largely

to the fact that, according to environmental justice activists, t he Republican Party had been in control of

Congress from time to time, a nd the Democratic Party has been unable to move proposed environmental

justice legislation out of committee. From the 102nd Congress (1991-1992) through the 113th Congress

(2013-2014), there were 36 environmental justice bills or community environmental equity bills intro-

duced in the House and/or the Senate. All of the environmental justice bills died in committee.

In the 114th Congress (2015-2016), the pattern continued for environmental justice bills or community

environmental equity bills to be introduced and referred to committee where the bills would die, except

for congressional resolutions. As this book went to press, Sen. Cory Booker (D-N.J.) and Rep. Raul Ruiz

(D-Cal.) introduced the Environmental Justice Act of 2017 in the 115th Congress (2017-2018). Only time

will tell its fate, but given t he current state of politics, passage is unlikely. Following are examples of envi-

ronmental justice bills or resolutions introduced in the 114th Congress.

3.1.1 H.R. 4645—Environmental Justice Act of 2016

Introduced by Representative John L ewis (D-GA-5) on February 26, 2016. Referred to the House Com-

mittee on Ways and Means.

114th Congress

2d Session

H.R. 4645

To amend the Internal Revenue Code of 1986 to provide support to environmental justice communities

and environmental justice projects.

IN THE HOUSE OF REPRESENTATIVES

February 26, 2016

Mr. Lewis introduced the followi ng bill; which was referred to the Committee on Ways and Means

A BILL

To amend the Internal Revenue Code of 1986 to provide support to environmental justice communities

and environmental justice projects.

Be it ena cted b y the Senate and H ouse o f Repre sentat ives of the U nited States of Americ a in C on-

gre ss assembl ed,

SECTION 1. SHORT TITLE.

is Act may be cited as the “Environmenta l Justice Act of 2016.”

5. U.S. EPA, EJ Best Practices for Local Government, https://www.epa.gov/sites/production/les/201510/documents/2015_best_practices_for_

local_government.pdf.

Addressing the Problem: The Legislative Branches Page 295

SEC. 2. PURPOSE.

e purpose of this Act is —

(1) to ensure that environmental justice commun ities have the opportunity to participate in devel-

oping solutions to environmental blight and health-related problems and to actively participate in

developing solutions for their community;

(2) to promote the development and maintenance of parks and green open spaces in environmental

justice communities; and

(3) to encour age not-for-prot organizations, colleges, and universities to assist i n environmental

justice projects through ta x credit incentives.

SEC. 3. CREDIT AGAINST EMPLOYMENT TAXES FOR CERTAIN EXPENSES RELATING

TO ENVIRONMENTAL JUSTICE COMMUNITIES AND ENVIRONMENTAL JUSTICE

PROJECTS.

(a) In general.—Section 3111 of the Internal Revenue Code of 1986 is amended by adding at t he end

the following:

“(g) Environmental justice.—

“(1) ALLOWANCE OF CREDIT.—ere shall be allowed as a credit aga inst the tax imposed by

subsection (a) on wages paid w ith respect to employment of all employees of the eligible orga nization

during the calendar yea r an amount equal to 40 percent of the amount of qualied expenditures of an

eligible organization.

“(2) LIMITATION.—e amount allowed as a credit for a calendar year shall not exceed $10,000.

“(3) QUALIFIED E XPENDITURES.—For purpose s of paragraph (1)—

“(A) IN GENERA L.—e term ‘qualied expenditures’ means amounts paid or incurred by an

eligible org anization to provide support to environmental justice communities or environmental

justice projects.

“(B) ENVIRONMENTAL JUSTICE COMMUNIT Y.—e term ‘environmental justice com-

munity’ means a community with signicant representat ion of racial or ethnic minorities or low-

income populations that ex periences, or is at risk of e xperiencing, a signic ant or disproportionate

burden of environmental stressors, risk s, adverse human health eects, or environmental eec ts.

“(C) ENVIRONM ENTAL JUSTICE PROJECT.—e term ‘environment al ju stice proj-

ect’ m eans —

“(i) assistance with competitive grant writi ng,

“(ii) legal aide to advocate for aected communities,

“(iii) community organizing,

“(iv) advocacy at public forums,

“(v) research and human health monitoring,

“(vi) promotion and development of green space in urban communities,

“(vii) encouraging public-private partnerships, and

“(viii) any other project or activity designated by the Secreta ry.

“(4) ELIGIBLE ORGA NIZATION.— For purp oses of t his subsection, the term ‘eligible orga-

nizat ion’ means a n organ ization described in section 501(c)(3) and ex empt from ta xation u nder

section 501(a).

“(5) REGULATIONS.—e Secretary shall prescribe such regulations or other guidance as may be

necessary to c arry out this subsection.”

(b) EFFECTIVE DATE.—e amendment made by subsection (a) shall apply to periods after Decem-

ber 31, 2015.