[*PG353]THE FEDERAL ENERGY REGULATORY COMMISSION AND ENVIRONMENTAL JUSTICE: DO THE NATIONAL ENVIRONMENTAL POLICY ACT AND THE CLEAN AIR ACT OFFER A BETTER WAY?

Jason Pinney*

Abstract:The Federal Energy Regulatory Commission (FERC) has failed to incorporate environmental justice principles into its decisionmaking process. Accordingly, in light of FERC’s questionable environmental record and seeming immunity from traditional environmental justice challenges, the potential for abuse arises when FERC decides on matters impacting poor and minority communities. Why hasn’t FERC established a comprehensive strategy to prevent environmental injustice? There is no ready answer to this question. But one thing is clear: FERC should not be permitted to act with impunity when deciding on issues affecting poor and minority communities. To ensure this result, agencies and activists should consider provisions of the National Environmental Policy Act and the Clean Air Act as a means of promoting FERC’s compliance with environmental justice principles.

Introduction

In Mount Vernon, New York, neighborhood activists, local politicians, and one influential senator have banded together in opposition to the Millennium Project—a gas pipeline slated to run directly through the heart of the city.1 The demand is for environmental jus[*PG354]tice.2 At the heart of this controversy is whether the Federal Energy Regulatory Commission (FERC or Commission), an independent regulatory agency with the responsibility of licensing the project,3 is obligated to take environmental justice concerns into account when making decisions affecting poor and minority communities.

This Note suggests that the answer is yes. Part I begins with an overview of the environmental justice movement, from its origins twenty years ago to the present day. In Part II, the discussion shifts to the creation of FERC, its status as an independent agency, and its questionable environmental record. Part III examines how traditional environmental justice arguments might fare against FERC’s actions. Finally, Part IV questions the Commission’s reluctance to take environmental justice into account, examines the advantages that environmental statutes may provide, and concludes by suggesting that specific provisions of the National Environmental Policy Act (NEPA) and the Clean Air Act (CAA) may present the best options for ensuring that environmental justice becomes a factor in FERC’s decisionmaking process.

I.  History of Environmental Justice

The concept of environmental justice is not a judicial construct.4 It did not originate on the floors of the House of Representatives or [*PG355]the Senate.5 Nor did the media invent it.6 Rather, environmental justice began with the public.7 Once citizens began to examine the relationships between race, class, political power, and exposure to environmental hazards, they began to see a pattern emerge: poor people of color were bearing the brunt of the burden.8 In response, grassroots activists from Maine to Alaska began to organize and demonstrate against disproportionate environmental impacts on minority communities.9 These efforts culminated into a movement that has, over time, given a voice to those who have traditionally been underrepresented in the environmental arena.10

A.  Origins of the Movement

The environmental justice movement began with a collection of concerned citizens united in the general belief that the burdens of environmental pollution should not fall disproportionately on poor and minority communities.11 Exactly where and when the movement first formed is the subject of mild debate.12 Commentators commonly [*PG356]refer to one key event, however, when discussing the rise of the environmental justice movement: the Warren County protests.13

In 1982, the Governor of North Carolina selected Warren County to be the dumping grounds for more than 6000 truckloads of soil contaminated with polychlorinated biphenyls (PCBs).14 PCBs are extremely toxic industrial by-products, which have been linked with liver, blood, nerve, and reproductive disorders.15 The Warren County site was officially chosen because it presented a secure landfill,16 but later studies revealed that the site was not suitable because of its proximity to the water table.17

Suspicions arose that North Carolina had not secured the safest place to store the waste, but rather, had chosen the path of least political resistance.18 At the time of the decision, Warren was the poorest county in the state, and the population was over 65% black.19 Before long, these suspicions developed into feelings of victimization, and, in response, residents began to form a movement in opposition to the landfill.20 This movement attracted the attention of national civil rights and environmental leaders who joined with the residents in an effort to block the selection of the site.21

Massive protests ensued, resulting in over 500 arrests.22 Although the demonstrations did not stop the state from siting the landfill in Warren County, protestors were successful in forcing national media and activist groups to focus on the problem of what came to be known [*PG357]as “environmental justice.”23 In this sense, the Warren County protests brought these issues to the forefront, and can be remembered as the spark that ignited the movement.24

B.  Evolution of the Movement

Congressman Walter E. Fauntroy, Chairman of the Congressional Black Caucus in Washington, D.C., participated in the Warren County protests.25 In fact, he was among the 500 arrested.26 Following this experience, Congressman Fauntroy requested that the General Accounting Office (GAO)27 conduct a study to determine whether a relationship existed between the location of hazardous waste landfills and the demographics of the communities that surround them.28 The GAO obliged, releasing a report the following year29 concluding that three out of four off-site landfills30 examined in eight southeastern states, were located in predominantly minority communities.31 Furthermore, the study found that the percentage of people living below the poverty line in these areas ranged between 42 and 26%.32 Although it did not conclusively establish a link between race, income, and hazardous waste,33 the report stimulated debate and spurred further academic inquiry into the topic.34

[*PG358] The United Church of Christ (UCC), another Warren County participant, undertook the next major inquiry into the relationships between race, income, and environmental hazards.35 Unlike previous efforts, the UCC’s examination was national in scope.36 It released a report in 1987, revealing that race was the single most significant factor associated with the location of licensed and abandoned hazardous waste facilities—over other variables such as income, home ownership rates, and property values.37 The study identified a national pattern of race-based siting of toxic waste facilities, and suggested that affected communities may have been intentionally targeted because of their minority status.38

Almost a decade after the Warren County protests, and following additional academic inquiries into the incidence of race and environmental pollution,39 the environmental justice movement united.40 The First National People of Color Environmental Leadership Summit (Summit), held in Washington, D.C., during the Fall of 1991, brought together minority leaders from every state to discuss the issue of environmental justice.41 The Summit resulted in a seventeen-point statement entitled Principles of Environmental Justice, wherein minority leaders pledged to build a national environmental justice movement to address the ecological threats facing minority and disadvantaged communities.42 The Summit is remembered as a watershed moment in the history of the environmental justice movement.43 Providing structure, organization, and solidarity, the Summit helped turn disjointed grassroots efforts into a collective assembly of activists, all sharing common objectives.44

[*PG359] As interest in the environmental justice movement increased, additional evidence of discrimination emerged.45 In 1992, the National Law Journal (NLJ) released a landmark study uncovering glaring inequities in the way the government enforces environmental laws.46 The NLJ study examined the Environmental Protection Agency’s (EPA) performance record at 1117 Superfund toxic waste sites47 and concluded:

[P]enalties against pollution law violators in minority areas are lower than those imposed for violations in largely white areas. In an analysis of every residential toxic waste site in the 12-year-old Superfund program, the NLJ also discovered the government takes longer to address hazards in minority communities, and it accepts solutions less stringent than those recommended by the scientific community.48

In addition to a broad scope, the study also had a unique approach.49 Instead of focusing on the minority population’s proximity to environmental hazards, the NLJ study focused on the government’s enforcement of environmental laws in minority communities, finding that laws were not enforced equally in minority communities as compared to predominantly white communities.50 As a result, the environmental justice movement expanded its focus from inequitable distribution of environmental burdens to include concerns about the unequal enforcement of environmental laws.51

C.  The Modern Environmental Justice Movement

The modern environmental justice movement was ushered in by a group of scholars and environmental activists who gathered at the University of Michigan School of Natural Resources to share ideas and [*PG360]to search for solutions to the problem of environmental injustice.52 Known as the Michigan Coalition, this group of twelve activist-scholars used both the GAO and the NLJ studies (among others)53 to pressure EPA and other governmental agencies to explore the environmental problems facing poor and minority communities.54

The Michigan Coalition was successful.55 In response to its efforts, EPA formed a working group to study whether EPA was insensitive to socio-economic concerns affecting both minority and low-income neighborhoods.56 Based on the results of a later study finding in the affirmative,57 EPA formed the Office of Environmental Equity (later titled the Office of Environmental Justice) in order to develop and implement environmental justice initiatives.58

Legislators also began to take note. In the period between 1992 and 1994, several environmental justice bills were introduced in the House of Representatives.59 All failed to be enacted, but they succeeded in drawing attention to environmental justice issues and placing the topic squarely on the national political agenda.60

Prodding from academics and activists, actions taken on the part of EPA, and studies completed by social scientists culminated in President Clinton issuing Executive Order No. 12,89861 on February 11, 1994.62 Entitled Federal Actions to Address Environmental Justice in [*PG361]Minority Populations and Low-Income Populations, the Order held that “each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations in the United States.”63 It went on to declare:

Each Federal agency shall conduct its programs, policies, and activities that substantially affect human health or the environment, in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination under, such programs, policies, and activities, because of their race, color, or national origin.64

This Order provided the environmental justice movement with the structure and support it needed to begin solving the ecological problems facing low-income and minority communities, instead of just identifying them.65 Commentators praised the Order for giving the issue the treatment that it deserved.66 More specifically, as mandated by the Order, many federal agencies developed and implemented environmental justice principles into their decisionmaking processes.67

In the years following Executive Order No. 12,898, EPA took on a more expansive role in championing environmental justice issues.68 The Order itself called upon EPA to create a working group to provide guidance to other federal agencies on environmental justice is[*PG362]sues.69 But EPA went beyond the requirements of the Executive Order by creating the National Environmental Justice Advisory Council (NEJAC),70 the Office of Environmental Justice,71 the Environmental Justice Steering Committee,72 and, the Office of Civil Rights.73 The efforts of EPA and these sub-agencies were instrumental in weaving the movement’s ideology into federal agency procedure.74

Environmental justice made further strides under the Clinton Administration. The movement’s goals tended to coincide with those of the Administration. For instance, President Clinton assigned two of [*PG363]the movement’s leaders, Robert Bullard75 and Benjamin Chavis,76 to his transition team.77 In addition, Vice President Al Gore, a strong supporter of the environment and environmental justice, sponsored the Environmental Justice Act of 1992 while he was still in the Senate.78 Finally, EPA Administrator Carol Browner, a Clinton appointee, quickly made environmental justice a top priority within EPA.79

D.  Environmental Justice Today

It is too early to tell how environmental justice will fare under the George W. Bush Administration. However, there are some indications that it will remain a priority.80 In fact, the new EPA Administrator Christine Todd Whitman reaffirmed the agency’s commitment to environmental justice stating, “Integration of environmental justice into the programs, policies, and activities [of EPA] . . . is an Agency priority.”81

It has been suggested that the future success of the environmental justice movement depends on its ability to expand and connect with other movements, thereby bolstering resources, power, and support in the political arena.82 Indeed, there are some indications that the environmental justice movement is headed in this direction already, as exemplified by the Environmental Justice and Climate [*PG364]Change Coalition, which is comprised of environmental justice leaders and climate change activists.83 Academics think that such unions will increase the support for environmental justice concerns, broaden the political debate over such issues, and will eventually result in a progressive coalition of diverse leaders striving toward the same goal.84 Additionally, environmental justice may be able to seep into new areas of the political arena where no one would have thought it belonged.

E.  Growth of a Movement

Two authors have suggested a particularly apt metaphor for capturing the history of the environmental justice movement: a river, fed over time by many tributaries.85 “No one tributary made the river the force that it is today; indeed, it is difficult to point to the headwaters, since so many tributaries have nourished the movement.”86 In this sense, the movement is the product of a diverse combination of efforts and strategies. Because of this diversity, the movement is never the same for very long.87 It grows as new streams add to the flow, it shifts in response to bumps in the topography, and it deepens as new strategies for advancement emerge.88

II.  The Creation of the Federal Energy Resource Commission

Shortly before the rise of the environmental justice movement, Congress established the Federal Energy Resource Commission (FERC).89 The following section covers the creation of FERC, its independence, and its record on environmental matters.

A.  History of FERC

FERC was created within the Department of Energy (DOE)90 in response to a congressional finding that the “United States faces an [*PG365]increasing shortage of nonrenewable energy sources,”91 and the belief that “this energy shortage and . . . increasing dependence on foreign energy supplies presents a serious threat to the national security of the United States and the health, safety and welfare of its citizens.”92 Legislators hoped that FERC and DOE would be able to effectively manage the energy concerns of the government, develop a coordinated energy policy, and implement that policy effectively with an eye towards the future.93

FERC is the successor to the Federal Power Commission (FPC), an agency established under the Federal Water Power Act of 1920.94 FPC was charged with general authority over the development and control of waterpower.95 It was created, in part, out of fear that the United States’ involvement in World War I had depleted coal and oil reserves to dangerously low levels, and that waterpower provided an effective alternate energy source.96 Jurisdictional authority for FPC derived from Congress’s power to regulate commerce over the nation’s navigable waters.97

In 1977, Congress transferred the powers of FPC to FERC.98 Over the next twenty-five years, Congress allocated additional responsibilities to FERC through subsequent legislation, including the Natural Gas Act,99 the Natural Gas Policy Act,100 the Public Utility Regulatory Policies Act of 1978,101 and the Office of Federal Procurement Policy [*PG366]Act.102 As a result, FERC maintains broad regulatory authority over the “development of waterpower and resources . . . electric utility companies engaged in interstate commerce, and . . . the transportation and sale of natural gas” across state lines.103

B.  FERC as an Independent Agency

While DOE was designated as an executive agency under the control of the President,104 FERC was created as an independent regulatory commission.105 The difference between the two is essentially one of political control:

The President’s power over the heads of independent agencies, whom he can remove only “for cause,” is . . . considered to be substantially weaker than is his power over the heads of “executive branch” agencies, who can be removed for any reason or no reason at all. From this, the inference is drawn that the regulatory commissions are “independent” of presidential power.106

The justification offered “for making agencies independent is that since they exercise adjudicatory powers requiring impartial expertise, political interference is undesirable.”107 FERC’s independence stems from its ability to regulate sensitive topics, namely power trading.108 Some courts have questioned the constitutionality of such [*PG367]agencies, finding that they become, in effect, a “headless fourth branch” of government under a constitution that calls for only three.109 The concern is that as these agencies are not accountable to the executive branch, are renegade in nature, and present the possibility of bureaucratic abuse.110 In short, independent agencies lack political accountability. Judges, however, have historically rejected these arguments,111 settling the constitutionality of independent agencies.112

FERC, then, stands as an agency “independent of executive authority . . . and is thus free to exercise its judgment without the leave or hindrance of any other official.”113 Such independence leaves the Commission isolated and impacts its consideration of environmental justice principles.

C.  FERC and the Environment

Throughout its tenure, FERC has repeatedly come under fire for failing to adequately respond to environmental concerns, especially those relating to the preservation of natural resources, in particular, fish habitats and spawning grounds.114 Traditionally, these criticisms have stemmed from FERC’s role in the development and operation of [*PG368]hydropower, but recent charges have focused on FERC’s role in the continued burning of fossil fuels to accommodate our nation’s energy requirements.115 These critiques are important for understanding how FERC operates in the environmental arena, and specifically, how FERC has responded to environmental justice concerns.

1.  FERC and Hydropower

Through the provisions of the FPA, FERC is vested with the responsibility of overseeing the life cycle of all dams under its jurisdiction, from preliminary licensing to abandonment.116 This authority places the Commission in a unique position. On one hand, FERC was created, in part, to help solve energy problems by decreasing the nation’s dependence on foreign energy.117 The promotion of hydropower is particularly suited to this goal because dams provide inexpensive, easily-stored power.118 On the other hand, the continued operation of hydroelectric dams, which often threatens fish, wildlife, and water quality, can lead to disastrous consequences for the environment.119 These competing interests often boil down to a choice between economics and the environment, pitting industry against activist.120 In the context of hydropower, critics contend that on too many occasions FERC has sided with industry at the expense of the [*PG369]environment, creating an underlying tension between activists and the Commission.121

Much of the early concern over FERC’s hydropower regulation stemmed from the “sweeping authority” granted to FERC’s predecessor, the FPC, under the FPA.122 Although slowly eroding over the years, FERC still maintains “a broad and paramount federal regulatory role” over hydropower,123 leaving opponents of FERC decisions with few options for challenging the Commission’s reasoning. As a result, FERC decisions are, to a degree, insulated from environmental challenges.124

2.  Statutory Inroads

The situation is beginning to change. In the years following FERC’s creation, a deluge of lawsuits have been filed against the Commission, generally charging that FERC failed to adequately take the public interest into account in its decisions.125 Subsequently, in 1986, Congress amended the Federal Power Act by enacting the Electric Consumers Protection Act of 1986 (ECPA).126 This legislation required FERC to give “equal consideration to the purposes of energy conservation, the protection, mitigation of damage to, and enhancement of fish and wildlife, the protection of recreational opportunities, and the preservation of other aspects of environmental quality.”127 The aim of Congress was to ensure that FERC’s licensing decisions would now incorporate both developmental and non-developmental values, thus balancing both energy and environmental concerns.128 In 1992, Congress built on this foundation by passing the Energy Policy [*PG370]Act (EPACT).129 Although intended primarily to develop competition among electric utilities, EPACT also included measures protecting fish.130 Together, ECPA and EPACT have had the effect of limiting FERC’s ability to override competing interests and to unilaterally impose its own licensing conditions.131

3.  Judicial Inroads

Similarly, courts have also made inroads against FERC’s broad regulatory authority.132 In PUD No. 1 v. Washington Department of Ecology, the U.S. Supreme Court refused to limit the State of Washington’s authority to impose its own water quality standards, rejecting the theory that such standards interfered with FERC’s authority to license hydroelectric projects.133 Thus, state authorities could “condition [hydropower] certification upon any limitations necessary to ensure compliance with state water quality standards or any other ‘appropriate requirement of State law.’”134 More recently, the Ninth Circuit extended this reasoning by allowing federal fishery agencies to require that FERC licensing decisions integrate recommendations regarding the protection of fish.135 These two decisions demonstrate that the courts also support the consideration of non-developmental values in the FERC decisionmaking process. 136

The upshot of these developments is that FERC no longer has the final word on how its decisions affect the environment.137

The decrease of the Commission’s autonomy favors a more representative and inclusive scheme of environmental decisionmaking.138 It remains to be seen whether this trend will impact FERC’s environmental justice views.

[*PG371]III.  Environmental Justice as Applied to FERC’s Decisionmaking: The Traditional Methods

The Department of Energy (DOE), FERC’s parent agency, has pledged to be a world leader in environmental justice.139 In 1995, DOE released its Environmental Justice Strategy proclaiming:

[L]eadership in science and technology, coupled with the incorporation of environmental justice options into our management infrastructure, will establish us as a world leader in environmental technology development and application. This will enhance the Department’s role as a key contributor in the Nation’s effort to develop and apply sustainable, clean, and economically competitive energy technologies in order to improve the quality of life for all and facilitate environmental justice for our communities, both nationwide and globally.140

DOE explicitly views environmental justice as an instrumental part of its quest to become a “world leader” in environmental technology development.141

In glaring contrast, FERC does not have an environmental justice strategy.142 As a result, challengers must resort to outside authorities when attacking a FERC decision on environmental justice grounds.143

Petitioners have traditionally relied upon three authorities in framing legal challenges to perceived environmental injustices: [*PG372](1) Executive Order No. 12,898; (2) Title VI of the Civil Rights Act; and (3) the Equal Protection Clause of the U.S. Constitution.144 The following discussion examines this tripartite strategy, and concludes that it offers little chance of success against FERC.

A.  Executive Order No. 12,898

Executive Order No. 12,898 requires “each federal agency” to incorporate environmental justice into its decisionmaking process.145 Since its inception in 1994, the Order has had a profound effect.146 Many federal agencies have responded by implementing environmental justice strategies into their respective administrative judgments.147 For reasons explored below, however, FERC is not among them.

1.  Scope of the Order

On its face, Executive Order No. 12,898 applies to “each federal agency.”148 However, a closer examination reveals that the Order is limited in scope. Section 6–604 states that “for purposes of this order, Federal agency means any agency on the working group, and such other agencies as may be designated by the President, that conducts any Federal program or activity that substantially affects human health or the environment.”149 The working group150 is made up of [*PG373]seventeen agencies, including FERC’s parent agency, the DOE.151 FERC, however, is not included on the list.152

Section 6–604 goes on to state that “[i]ndependent agencies are requested to comply with the provisions of this order.”153 As previously discussed, FERC was created as an independent agency.154 Although some courts have questioned the distinction between independent and executive agencies in the modern era,155 the language of the Order is clear; Executive No. Order 12,898 does not explicitly bind FERC.156

2.  Judicial Review

There are other weaknesses in the seemingly strong language of the Executive Order. The Order is qualified in large part by section 6–609, which reads:

This order is intended only to improve the internal management of the executive branch and is not intended to, nor does it create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies, its officers, or any person. This order shall not be construed to create any right to judicial review involving the compliance or noncompliance [*PG374]of the United States, its agencies, its officers, or any other person with this order.157

Thus, by foreclosing any rights against federal agencies for non-compliance, and by precluding the possibility of judicial review, section 6–609 reduces the Order’s bold pronouncements into a “paper tiger” of sorts.158 FERC has cited this final clause as a reason for dismissing environmental justice claims brought against it in administrative proceedings.159

B.  Title VI of the 1964 Civil Rights Act

Title VI of the 1964 Civil Rights Act prohibits discrimination in the administration of programs receiving federal financial assistance.160 Many commentators have praised Title VI as a valuable legal tool for presenting environmental justice challenges.161 Title VI provides two vehicles that minority groups162 may employ to seek relief from environmental injustice: section 601 and section 602.163 However, due to the procedural difficulties involved in bringing a Title VI claim, advocates of environmental justice will likely be unsuccessful in using it to challenge a FERC decision.164

[*PG375]1.  Generally

Section 601 declares that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”165 This means that recipients of federal funding may not discriminate on the basis of race, color, or national origin.166 To prevail under section 601, the courts have long required that petitioners demonstrate proof of discriminatory intent.167 This requirement poses a formidable burden for environmental justice plaintiffs and, as a result, many turned to section 602 for relief.168

In short, section 602 instructs agencies that distribute federal funds to abide by section 601’s anti-discrimination requirements.169 Unlike section 601, however, section 602 has been interpreted as requiring only a showing of disparate impact, not discriminatory intent.170 Under this interpretation, private plaintiffs did not have the difficult job of proving that an agency was motivated by discrimination in arriving at a decision; rather, plaintiffs proceeded by showing that the agency’s decision disproportionately affected minority populations.171

As a result of this interpretation, early cases brought under section 602 showed great promise for environmental justice proponents.172 Recently, however, the Supreme Court, in Alexander v. Sandoval, retreated from this position, declaring that private parties do not [*PG376]have standing to sue under section 602.173 Because there is now no private enforcement right under section 602, private plaintiffs must turn back to section 601 for relief, requiring proof of discriminatory intent.174 Thus, “[i]f plaintiffs cannot prove intentional discrimination, they cannot sue under Title VI or its regulations, even if they can prove that the challenged action has a discriminatory impact for which no justification can be shown.”175 As a result, Title VI’s ability to alleviate environmental injustice may be muted.176

2.  As Applied to FERC

Even if a party could provide evidence of discriminatory intent in a FERC regulatory decision, it appears that Title VI does not apply directly to federal agencies. As noted, Title VI applies to “any program or activity receiving Federal financial assistance.”177 The terms “program” or “activity” are defined as: (1) “a department, agency, special purpose district, or other instrumentality of a State or of a local government;”178 (2) “a college, university, or other postsecondary institution, or a public system of higher education;”179 or (3) “an entire corporation, partnership, or other private organization, or an entire sole proprietorship.”180 Thus, Title VI covers “only those situations where federal funding is given to a non-federal entity which, in turn, provides financial assistance to the ultimate beneficiary.”181 Therefore, Title VI does not apply to discrimination by federal agencies them[*PG377]selves.182 Accordingly, FERC appears to be immune from Title VI claims.183

C.  Equal Protection Clause

The Equal Protection Clause has become one of the most disfavored theories for environmental justice advocates to employ in challenging discriminatory actions.184 In fact, some critics have opined that equal protection claims should only be included in an environmental justice complaint for political value.185 Perhaps this is because not a single environmental justice proponent has ever prevailed on equal protection grounds in federal court.186 This is not for a lack of trying.187

1.  Generally

The Fifth Amendment of the Constitution declares that “[n]o person shall be . . . deprived of life, liberty, or property without the due process of law.”188 In addition, the Fourteenth Amendment decrees that a state may not “deny to any person within its jurisdiction the equal protection of the laws.”189 Together, these two clauses have [*PG378]been interpreted to mean that neither the federal nor the state governments may deny citizens equal protection under the law.190 Whether bringing action against the federal or the state government for race-based discrimination, the applicable judicial standards are essentially the same.191

Two landmark decisions have defined the rough contours of the equal protection doctrine as applied to environmental discrimination. In Washington v. Davis, the Supreme Court held that in order to find an equal protection violation, minority plaintiffs must establish more than discriminatory impact on their communities as a result of the law.192 The Court requires proof of invidious discrimination—discriminatory intent.193 The following year, the Court reaffirmed the need to prove intentional discrimination in race-based equal protection cases in Village of Arlington Heights v. Metropolitan Housing Development Corp.194 Generally, such proof may be based on circumstantial or direct evidence of an intent to discriminate.195 Cases citing disproportionate impacts among minorities will only surpass this heightened standard when such impacts are “unexplainable on grounds other than race.”196 These instances are rare.197 The combined effect of the Washington and Arlington Heights rulings is that equal protection plaintiffs must prove discriminatory intent—the elusive smoking gun—or be denied a remedy under the doctrine.198 This is a formidable challenge because only overt acts of discrimination will suffice.

2.  Equal Protection and Environmental Justice

Three major environmental justice cases have been tried since the decisions in Washington and Arlington Heights, and all three plaintiffs lost because they failed to overcome the high “discriminatory in[*PG379]tent” hurdle established by the Court.199 The first, Bean v. Southwestern Waste Management Corp., concerned the siting of a solid waste landfill on the outskirts of Houston, Texas.200 There, plaintiffs offered statistical evidence that the majority of such landfills were sited in areas with predominantly minority populations.201 The court rejected this argument, however, concluding that the landfills were placed in these areas because that is “where Houston’s industry is, not because that is where Houston’s minority population is,” and because the data could be interpreted differently to reveal almost no disparity in siting choices.202 Therefore, the court held that the plaintiffs’ showing did not satisfy the Washington and Arlington Heights standards.203

The next decision, East Bibb Twiggs v. Macon Planning & Zoning Commission, dealt with a similar situation in which plaintiffs brought equal protection claims seeking to enjoin the development of a landfill in a largely minority community.204 However, the only other landfill in the area was in a predominantly white neighborhood.205 This fact worked against plaintiffs’ disparate impact argument, and ultimately the court held that the standards imposed by Washington and Arlington Heights were not satisfied.206

In R.I.S.E., Inc. v. Kay, the court once again decided in favor of the defendants on an environmental justice equal protection claim brought to prevent a private landfill from being sited in a minority area.207 Plaintiffs proffered evidence that the residents in the area surrounding the planned facility were 64% black, and that past facilities had been sited in areas with populations ranging from 95 to 100% black.208 However, the court rejected these arguments, finding that “the Equal Protection Clause does not impose an affirmative duty to equalize the impact of official decisions on different racial groups. Rather, it merely prohibits government officials from intentionally discriminating on the basis of race.”209

[*PG380]3.  As Applied to FERC

The cases above exemplify the difficulty in proceeding under the Equal Protection Clause. Because plaintiffs must demonstrate that the government intentionally discriminated against them on the basis of race, they will not be able to prevail unless there is overt discrimination.210 Mere evidence of discriminatory impact will not suffice.211

This poses a problem for potential victims of environmental injustice who seek redress from a federal agency such as FERC. For example, suppose that FERC is deciding on whether to approve the location of a proposed oil pipeline, and has concluded that a route traveling through rural, predominantly minority neighborhoods presents the best option. In order to prevail using the Equal Protection Clause, residents would have to provide evidence that FERC’s commissioners intentionally supported the proposition because the residents of those communities were minorities.212 Unless the only possible explanation was that the decision was based upon race, it wouldn’t matter that the path of the pipeline wove around white neighborhoods and passed straight through minority neighborhoods so long as an intent to discriminate could not be shown.

As several authors have pointed out, the burden of showing intentional discrimination is nearly impossible to overcome, particularly in the siting context where FERC’s motivations could easily be masked.213 Thus, the Equal Protection Clause seems to afford little protection for those would-be challengers of a FERC decision that results in a disparate impact on low-income and minority communi[*PG381]ties.214 For all intents and purposes, unless the Commission evinces discrimination in its decisionmaking process, the Equal Protection Clause offers little hope for environmental justice proponents.

IV.  FERC and Environmental Justice: Do Environmental Statutes Provide a Better Way?

The inescapable conclusion to be drawn from the foregoing discussion is that FERC is somewhat insulated from environmental justice challenges, raising the potential for abuse when the Commission decides on important matters impacting low-income and minority communities. The remainder of this Note will question why FERC is not obligated to consider environmental justice, and then explore how environmental statutes may offer petitioners the best opportunity to advance environmental justice arguments against the Commission.

A.FERC and Environmental Justice

FERC has only dealt directly with environmental justice on a handful of occasions.215 Interestingly, upon initial consideration of the issue, FERC seemed willing to abide by the Executive Order on environmental justice. In ruling on a 1997 pipeline proposal, the Commission determined that it “complied . . . with the directives of Executive Order No. 12,898, and considered whether [the pipeline] would have a disproportionately high and adverse effect on low[-]income or minority populations.”216 Subsequent decisions, however, were not as accommodating; finding that Executive Order No. 12,898 “does not apply to independent agencies, such as the Commission.”217 This discrepancy suggests that FERC made an active decision not to take environmental justice into account.

Occasionally, however, after determining that it is not bound to consider environmental justice principles, FERC will still take the time to respond to environmental justice concerns.218 The problem is that [*PG382]such concerns are often summarily dismissed with little discussion of how a FERC decision might disproportionately impact low-income and minority populations.219 Often no reference is made to census figures for the affected areas, or whether these communities are already subject to significant environmental burdens.220 The implication is that FERC is reluctant to explore the issue in any degree of detail. Several factors, however, suggest that FERC should pay closer attention to these claims.

1.  Independence as a Shield

As noted above, FERC commonly cites its independent status as a reason for not considering Executive Order No. 12,898 in its decisionmaking process.221 But FERC was granted independence because of its involvement in power trading, not because of its role in hydropower licensing and pipeline construction—two areas where environmental justice considerations come into play.222 Therefore, FERC should not be allowed to hide behind its independence when addressing the effects of its actions on minority and low-income communities.

Furthermore, the line between independent and federal agencies has faded over time. As one court commented, it is questionable whether “the decisions of such agencies so clearly involve scientific judgment rather than political choice that it is even theoretically desirable to insulate them from the democratic process.”223 Moreover, legal scholars, the Justice Department, and the Supreme Court alike have echoed these concerns.224 Such questioning casts further doubt on FERC’s practice of relying on its independence as a basis for disregarding environmental justice.225

[*PG383]2.  Comparison with Other Agencies

There are sixteen independent agencies, such as FERC, currently operating within the federal government.226 How have these other agencies responded in the wake of the environmental justice movement and Executive Order No. 12,898? Few of them would have cause for considering environmental justice principles, as their regulatory agendas revolve around finance or labor issues. But at least one agency, the Nuclear Regulatory Commission (NRC), has considered the issue.227 The difference between FERC’s and NRC’s responses to environmental justice concerns is striking.

NRC has taken a completely different tack on environmental justice.228 Just one month after President Clinton issued the Executive Order on environmental justice, NRC declared its intention to enforce the Order internally.229 Later, NRC voluntarily joined the Interagency Working Group created by the Order, and drafted its own comprehensive environmental justice strategy.230 In light of these efforts, three judges for the Atomic Safety and Licensing Board held that NRC was in fact obligated to enforce the Executive Order, notwithstanding its independence from the Executive Branch.231

Despite the fact that compliance with the Order was voluntary, NRC wholeheartedly adopted environmental justice principles into its decisionmaking processes.232 Presumably, NRC recognized the impact that its decisions might have on poor and minority communities, and took immediate action to protect against potential unfairness.233 While NRC’s support of Executive Order No. 12,898 suggests that there are no tangible impediments to FERC embracing environmental justice, FERC decided against it, choosing instead to preserve [*PG384]its autonomy. More importantly, NRC’s contrasting position calls into question FERC’s motive in refusing to adopt a policy based on social equality and fairness.

Another contrast can be seen in comparing FERC’s stance on environmental justice to its parent agency, the Department of Energy (DOE). As previously noted, DOE has pledged to incorporate environmental justice into its decisionmaking process in an effort to become a world leader in environmental technology development and application.234 Shouldn’t DOE, as an agency with such a firm commitment to environmental justice, begin its enforcement efforts by first ensuring that all agencies under its wing are, at a minimum, actively monitoring their decisions for environmental justice issues? Shouldn’t FERC seek to further reasonable policy goals of its parent agency? The fact that FERC does not even have an environmental justice policy, while its parent agency has pledged to be a leader in the area, calls into question the reasons for FERC’s unwillingness to examine the effect of its decisions on poor and minority communities.

3.  The Effect of FERC’s Failure: Mount Vernon

The people of Mount Vernon, New York have been severely affected by FERC’s refusal to actively consider environmental justice in its decisionmaking process.235 There, residents and community leaders, including Senator Hillary Clinton, have banded together to protest against a FERC siting decision on environmental justice grounds.236 The challenge concerns a 424-mile pipeline slated to run from Canada to Mount Vernon.237 Millennium Pipeline Company, a partnership composed of four energy conglomerates, proposed the project in December of 1997 to supply energy to the expanding New York City market.238 Amidst strong opposition,239 FERC approved the project in December of 2001.240

[*PG385] Mount Vernon is a community composed of over 70% minority residents.241 In the areas closest to construction, however, this number jumps to more than 85%.242 Opponents of the pipeline have charged that Mount Vernon’s more affluent neighbors received better treatment when dealing with FERC,243 that the pipeline need not go through Mount Vernon at all,244 and that the proposed site runs too close to local schools, churches, hospitals, and playgrounds.245 Additionally, the project has raised health concerns, including the risk of explosion,246 and the threat that construction will unearth dioxin, a carcinogenic chemical used legally in the area during the 1960s and 1970s.247

Currently, the City of Mount Vernon is protesting FERC’s decision.248 In addition to other factors, the City points out that although only 3.1 miles of the 424-mile pipeline require street construction, 61% of this construction goes through Mount Vernon.249 As Michael Zarin, counsel for the City, questioned, would this be acceptable in a wealthy neighboring community like Scarsdale?250

In light of the face-off in Mount Vernon, the question necessarily moves from whether FERC should be taking environmental justice into account to the larger question of whether it must. The remainder of this Note examines how environmental statutes may be employed by people, in Mount Vernon and elsewhere, to compel FERC to consider environmental justice in its decisionmaking process.

B.  Environmental Justice Under Statutory Authority

Partly in response to the difficulties encountered when challenging an agency’s decision under Executive Order No. 12,898, Title VI of the Civil Rights Act, and the Equal Protection Clause, several com[*PG386]mentators began emphasizing the importance of general environmental statutes in pursuing environmental justice claims.251 These statutes can be a powerful tool for advocates252 and agencies253 alike in challenging disparate environmental impacts on those often least equipped—politically or financially—to respond to environmental threats.

1.  The Traditionalist Approach

Perhaps the most basic reason for seeking redress under a statutory scheme can be seen in the “traditionalist” approach. The traditionalist seeks to remedy environmental injustices through conventional environmental law.254 This approach begins with the premise that environmental statutes were created to protect all people. Therefore, environmental justice advocates can avoid the complexities inherent in framing their argument around civil rights law, and instead look to basic environmental law.255 In short, environmental justice without the justice: using an environmental statute to correct environmental justice problems without reference to race or class.256

[*PG387] Under this traditionalist approach, activists also enjoy the benefit of familiarity. Judges, agencies, and other decisionmakers generally have a fair understanding of environmental statutes, and may have less difficulty basing their decision on a statutory discrepancy rather than an amorphous concept of equal protection.257

2.  Public Participation

Another reason for increasing reliance on environmental statutes is that many of these statutes provide opportunities for the public to participate in agency decisionmaking.258 This is accomplished through public participation provisions mandating that agencies communicate with those affected by their decisions.259 These provisions allow environmental justice advocates to provide feedback to an agency before it issues its final decision on a matter, enabling their concerns to be addressed at the front-end of agency decisionmaking.260

Although public participation requirements are procedural in nature, they do have the potential to produce a substantive effect.261 Recently, environmental justice advocates in Louisiana were successful in petitioning EPA, under the Clean Air Act, to deny a permit for a large chemical facility.262 In addition, if an agency fails to abide by the participation requirements in reaching a decision, courts may invalidate the decision.263 Because of these and other benefits, some environmental justice scholars have suggested that activists take a closer look at participation requirements when defending against environmental injustice.264

[*PG388]3.  Bridging the Gap Between Environmental Law and Environmental Justice

It is doubtful, however, that basic environmental statutes alone could correct the disparity that exists between race, class, and the incidence of environmental hazards.265 Environmental laws themselves are sterile and fail to account for institutional and overt racism in agency decisionmaking.266 Specifically, something is needed to bridge the gap between environmental law and environmental justice.

For now, that bridge is found in the specific powers conferred to federal agencies via environmental statutes. In 1994, President Clinton issued a separate memorandum in conjunction with Executive Order No. 12,898, calling for increased reliance on environmental statutes in an effort to promote environmental justice.267 The memorandum stated:

The purpose of this separate memorandum is to underscore certain provision[s] of existing law that can help ensure that all communities and persons across this Nation live in a safe and healthful environment. Environmental . . . statutes provide many opportunities to address environmental hazards in minority communities and low-income communities. Application of these existing statutory provisions is an important part of this Administration’s efforts to prevent those minority communities and low-income communities from being subject to disproportionately high and adverse environmental effects.268

Further, the memorandum identified specific provisions within the National Environmental Policy Act (NEPA) and the Clean Air Act (CAA) that would enable a more detailed environmental justice review to take place.269 As a result, administrators and activists alike were [*PG389]given a statutory roadmap to follow in pursuit of environmental justice. The following discussion will analyze the specific statutory provisions that administrators and activists may advance in order to compel FERC to implement environmental justice into its decisionmaking process.

C.  Do NEPA and CAA Provide Environmental Justice Claimants With a Remedy?

For those battling FERC in Mount Vernon and elsewhere, the statutory provisions of NEPA and CAA highlighted in President Clinton’s memorandum on environmental justice may contain means for compelling the Commission to incorporate environmental justice into its decisionmaking process. Several of NEPA’s provisions support environmental justice principles, and may be used to pressure FERC to consider the effects of its decisions on minority and low-income communities.270 Additionally, the CAA may be employed to inject environmental justice issues directly into FERC’s evaluation process.271

1.  The National Environmental Policy Act (NEPA)

In 1970, NEPA was enacted “[t]o declare a national policy which will encourage productive and enjoyable harmony between man and his environment.”272 Over the years, this broad and wistful language has been used to induce agencies to “stop-and-think” before launching projects that may harm the environment,273 and to compel agencies to disclose information to the public before embarking on a specific course of action.274 The vehicle used to accomplish these twin aims is the Environmental Impact Statement (EIS).275 An EIS must be completed for every major federal action significantly affecting the quality of the human environment.276 The EIS requires an agency to consider, among other things, “the environmental impact of the proposed action,”277 and “alternatives to the proposed action.”278 Once completed, NEPA’s administrating agency, the Council on Environ[*PG390]mental Quality (CEQ), requires that an EIS be available to the public and any other federal agency with particular expertise regarding the proposal.279

Despite its vibrant prose, the statute creates no substantive duties for agencies to follow.280 Instead, NEPA is merely a procedural mechanism for agencies to follow when considering proposals that would have significant environmental effects.281 Agencies are only required to take a “hard look” at the environmental consequences that follow from their approval of major projects.282 Although there is no citizen suit provision found within NEPA, courts have upheld lawsuits for violations of the Act’s procedural obligations.283

There is some question as to whether NEPA’s requirements apply to independent agencies such as FERC. Under the guidelines established by CEQ, NEPA applies to “all Federal agencies.”284 CEQ defines federal agencies as “all agencies of the Federal Government,”285 but the language does not explicitly refer to independent agencies.286 The Supreme Court has not specifically addressed this question,287 but lower courts have held that CEQ regulations do apply to independent agencies.288 More importantly, because FERC has promised to comply with both NEPA and CEQ’s regulations, the issue may be settled.289

[*PG391]2.  Environmental Justice Analysis Under NEPA

In regards to NEPA, President Clinton’s memorandum declares:

Each Federal agency shall analyze the environmental effects, including human health, economic and social effects, of Federal actions, including effects on minority communities and low-income communities, when such analysis is required by [NEPA]. Mitigation measures outlined or analyzed in an environmental assessment, environmental impact statement, or record of decision, whenever feasible, should address significant and adverse environmental effects of proposed Federal actions on minority communities and low-income communities.

Each Federal agency shall provide opportunities for community input in the NEPA process, including identifying potential effects and mitigation measures in consultation with affected communities and improving the accessibility of meetings, crucial documents, and notices.290

Thus, the memorandum advocates utilizing NEPA in furtherance of two main objectives: (1) analyzing the effect of environmental decisions on minority and low-income communities and (2) increasing the opportunities for these communities to participate in the decisionmaking process.291

In light of these goals, CEQ issued its own guidance “to further assist Federal agencies with their NEPA procedures so that environmental justice concerns are effectively identified and addressed.”292 Although noting that there is no “standard formula for how environmental justice issues should be identified and addressed,”293 the guidance points to several principles that may assist agencies in evaluating environmental justice claims.294

[*PG392] Specifically, an agency submitting an EIS must consider the “aesthetic, historic, cultural, economic, social, or health”295 effects of its action, “whether direct, indirect, or cumulative.”296 As the CEQ report notes, environmental justice concerns fall squarely within the ambit of this language.297 Furthermore, the “cumulative” effects language has been interpreted to mean that the preparing agency must consider the “additional effects contributed by actions unrelated to the proposed action . . . .”298 Thus, agencies must be aware of environmental harms accumulating on already overburdened communities.

Because FERC has pledged to comply with NEPA and CEQ’s regulations implementing the statute, activists and others may argue that any failure by the Commission to consider a proposal’s impact on minority and low-income communities constitutes a violation of NEPA’s requirement that agencies examine the cultural, economic, and social effects of major federal projects. Courts have found similar violations in the past, and have issued preliminary injunctions for failure to conform to NEPA’s guidelines.299 In addition, administrative tribunals have found NEPA violations for failure to consider socio-economic concerns.300 Thus, environmental justice activists able to establish that FERC did not consider the effect of an agency decision on a minority or low-income community may be able to argue that this failure has resulted in a violation of NEPA, and thereby secure an injunction until such impacts are adequately addressed.

3.  The Clean Air Act

The CAA, which was enacted in 1963301 and incorporated a technology-forcing strategy after it was extensively amended in 1970,302 [*PG393]1977,303 and 1990,304 was established to combat the dangers posed by air pollution from urbanization, industrialization, and motor vehicles.305 Its purpose was, in part, “to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.”306 The CAA established National Ambient Air Quality Standards for both mobile and stationary sources of pollution as the primary vehicle for achieving this goal.307 Through these standards the government sought to reduce the harm inflicted by air pollution, and to encourage technological advances capable of reducing or eliminating emissions altogether.308

4.  Environmental Justice Analysis Under CAA

CAA was also singled out in President Clinton’s memorandum on environmental justice.309 The President proclaimed:

The Environmental Protection Agency, when reviewing environmental effects of proposed action of other Federal agencies under section 309 of the Clean Air Act, 42 U.S.C. section 7609, shall ensure that the involved agency has fully analyzed environmental effects on minority communities and low-income communities, including human health, social, and economic effects.310

Thus, EPA is entrusted, by statute, with the responsibility of reviewing the environmental effects of other agency proposals. This power of review stands as an additional means to inject environmental justice into FERC decisions.

Specifically, section 309 of CAA requires EPA to review and comment, in writing, on the environmental impacts of “newly authorized [*PG394]Federal projects for construction and any major Federal agency action” to which 42 U.S.C.  4332(2)(C) applies.311 Section 4332(2)(C) is the provision of NEPA that mandates an EIS be created for all major federal projects.312 Consequently, this language requires EPA “to comment in writing upon the environmental impacts associated with certain proposed actions of other federal agencies, including actions subject to NEPA’s EIS requirement.”313 Although somewhat counter intuitive, this means EPA—under the authority of an air pollution statute—has a say in major projects not necessarily involving air pollution.

In addition, section 309 of CAA provides that if the EPA Administrator finds any proposal to be “unsatisfactory from the standpoint of public health or welfare or environmental quality, he shall publish his determination and the matter shall be referred to the [CEQ].”314 This referral power, however, should only be invoked after EPA has attempted to resolve its concerns with the offending agency.315

Therefore, EPA has the ability, through CAA, to inject its pro-environmental justice perspective into projects pursued by other federal agencies. This ability involves two components: (1) the power to review; and (2) the power to refer to CEQ.316 Together, these powers provide a great opportunity to advance environmental justice issues.317 EPA has promulgated its own guidance for consideration of environmental justice issues under section 309 of CAA:318

EPA is responsible for developing informed comments and recommendations that notify the public and action agency of potential oversights in the identification and evaluation of potential impacts. EPA determines whether the action agency analyzed data on the potential impacts of the proposed action on the environment and human health and [*PG395]whether a reasonable effort was made to inform and involve the public in the EIS development process.319

More specifically, the guidance states, “All EISs filed with EPA should be reviewed for adequate environmental justice content.”320 Therefore, EPA is obligated to inject environmental justice principles into every major federal action requiring an EIS under NEPA.

EPA developed a ratings system to assist in this endeavor.321 Under this system, EPA employs an eight-step process that outlines how to identify potential negative environmental impacts on minority and low-income populations.322 It also establishes procedures for public involvement where there are disproportionately high and adverse impacts on the affected community.323 This system is employed when minority and low-income communities are present in an area affected by a proposal and disproportionate impacts may result.324 Similarly, when considering the adequacy of a proposal, EPA should consider whether a sufficient amount of information was supplied in the EIS, and whether the statement adequately addresses any resulting impacts.325

The result of this system is that EPA has the power to review every FERC decision requiring an EIS for proper observance of environmental justice principles. Should EPA find FERC’s environmental justice review to be substandard, it could then publish its own findings and attempt to correct any deficiencies through direct negotiations with the Commission.326 Should these efforts fail, EPA has the power to refer the matter to CEQ for final determination.327

Once a decision has been referred to CEQ, the waters get considerably murkier. The question becomes whether CEQ can overturn FERC approval of a project for failure to adequately address environmental justice concerns? FERC would say, “No.” In an order entitled Promoting Wholesale Competition Through Open Access Non-discriminatory Transmission Services by Public Utilities, FERC declined to “participate” in an EPA section 309 referral on the grounds that there was not a [*PG396]significant factual basis to justify the action, and that, as an independent agency, the Commission is not bound by CEQ determinations.328 FERC did agree, however, to address EPA concerns independently of any obligations to do so.329

FERC argued that it was required “by law” to make its decisions independent of executive authority, and that it was obligated to ensure the overall independence of its decisionmaking process.330 Its opinion went on to declare that the CEQ process was “wholly unsuitable” for resolving disputes with an independent agency, and that it “cannot” be bound by such a process.331 Interestingly, the opinion failed to explain FERC’s reasoning.

More importantly, the opinion failed to address the fact that FERC had explicitly agreed to abide by CEQ’s regulations,332 including CEQ’s section 309 referral power,333 “except where those regulations are inconsistent with the statutory requirements of the Commission.”334 Because CEQ’s referral power is itself a statutory requirement,335 this qualification would seem not to pose a problem. Thus, it does not appear that FERC can reasonably remove itself from the section 309 referral process.

After receiving a referral, CEQ is authorized to do a number of things. For instance, CEQ can require additional meetings to be held or force agencies to engage in extended negotiations.336 CEQ may also submit the matter to the President for “action.”337 These powers appear to afford CEQ the leverage necessary to require enhanced environmental justice review of a FERC decision. In light of FERC’s refusal to participate in the referral process, it may fall upon the courts to enforce CEQ statutory authority. Although there has been almost [*PG397]no judicial review on this issue,338 what case law there is suggests that CEQ’s authority under section 309 is considerable.339

In Sylvester v. United States Army Corps of Engineers, the court considered a project that EPA had referred to CEQ pursuant to section 309.340 The court found that section 309 referrals place CEQ in the position of “arbitrator in disputes between federal agencies on environmental issues.”341 Furthermore, the court stated that “[t]his is not done as an idle exercise. It is to provide guidance to all who may be concerned, including courts.”342 Although CEQ had actually granted its approval of the project in Sylvester, it did so only after the defendant had complied with several modifications suggested by CEQ.343 Further, the court held that CEQ’s approval of the defendant’s actions was entitled to judicial deference.344

Although not directly on point, Sylvester supports the assertion that CEQ’s approval under section 309 is significant,345 and provides judicial deference to CEQ’s decisions.346 The court’s decision suggests that if CEQ had failed to approve of the project, the defendants might not have faired as well.347

Similarly, in National Wildlife Federation v. Goldschmidt, EPA rejected the Federal Highway Administration’s approval of a highway project based on a NEPA violation and referred the matter to CEQ under section 309.348 Like EPA, CEQ found the project unacceptable on the same grounds,349 and work on the project was halted.350 As in Sylvester, this sequence of events supports the contention that CEQ has substantial authority under section 309.

In summary, it appears that EPA does have power under section 309 to reject federal projects and refer the matter to CEQ for further inquiry. If problems are not corrected, CEQ’s determination may [*PG398]well be entitled to judicial deference. As a result, if EPA rejects a FERC proposal for failure to adequately consider environmental justice, it may refer the case to CEQ, which may also reject FERC’s decision and withhold approval. A court may uphold this determination.

Because both EPA and CEQ have professed to be staunch supporters of environmental justice,351 the threat of a section 309 referral may provide environmental justice advocates with the leverage necessary to overturn or significantly improve a FERC decision affecting poor and minority communities.

Conclusion

Since its creation twenty-five years ago, FERC has been hesitant to incorporate environmental justice principles into its decisionmaking process. When challenged, it has clung to its independent agency status as a means of warding off those who seek to invoke the mandate of Executive Order No. 12,898. Because it is unlikely that the Commission can be held accountable under Title VI of the Civil Rights Act or the Equal Protection Clause of the Constitution, an agency like FERC has been effectively insulated from environmental justice challenges.

But why has FERC not taken it upon itself to establish a comprehensive strategy to address these issues? Is it not concerned that its decisions may disproportionately impact poor and minority neighborhoods? If it is concerned, should it not seek to align itself with agencies like NRC and DOE, strong supporters of environmental justice that bear close relation to FERC? What is FERC’s motive in sidestepping the issue?

There are no ready answers to these questions. But one thing is clear: FERC should not be permitted to act with impunity when deciding matters affecting poor and minority communities. To ensure that FERC incorporates environmental justice concerns into its decisionmaking process, agencies and activists should consider using the provisions in NEPA and CAA as a means of redress for environmental injustices attendant to any FERC decision.

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