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Journal of Law and Policy

Monica Mercola

Abstract

Executive Order 12898—Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations—was issued to achieve “environmental protection for all communities” by drawing federal agencies’ attention to the environmental and human health effects brought about by their actions. The National Environmental Policy Act (NEPA) sets forth a detailed process which aims to ensure that each agency will have available, and will consider, a carefully detailed compilation of information concerning significant environmental impacts resulting from federal actions before taking those actions. Realizing the Executive Order’s goal, however, is rendered problematic, in part because of the difficulty in challenging an Environmental Impact Statement (EIS) issued pursuant to NEPA and the subsequent federal action. When preparing an EIS, an agency is “not required to select the course of action that best serves environmental justice, [but is] only [required] to take a ‘hard look’ at environmental justice issues.” The hard look doctrine is a principle of administrative law whereby courts must examine the methodology and substance of agency decisions to ensure that they have adequate factual support. However, it is currently unclear how much data is enough for a NEPA analysis; when an agency should collect more current, or arguably more representative, information; or how an agency should choose and apply appropriate methods and models for evaluating environmental effects. This Note proposes that, to ensure environmental justice, a disparate impact analysis must be used by the courts instead of a hard look test when either creating or evaluating an EIS to clarify four key factors: (1) the data sufficiency; (2) data gaps; (3) stale data; and (4) the scientific integrity of models and methodologies.

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