Environmental justice has a natural connection to affordable housing programs. It remains a broad and somewhat elusive term, however. There is no formal definition of environmental justice in US federal law. However, relevant agencies have developed job descriptions for the term. The US EPA generally defines it as “fair treatment and meaningful involvement of all people, regardless of race, color, national origin, or income, in the development, implementation, and ‘enforcement of environmental laws, regulations and policies’, while the United States Department of Housing and Urban Development (HUD) describes the term as ‘providing equal protection against environmental and health risks and providing equal and meaningful opportunities to participate in the decision-making process to achieve a healthy environment”.

The underlying concepts of fairness and equal protection espoused by these agencies have their origins in a number of subsequent civil rights statutes and legal mechanisms. In particular, Title VI of the Civil Rights Act of 1964 established a federal benchmark for non-discrimination and prohibited recipients of federal funding from discriminating on the basis of race, color, or national origin. in any program or activity. A few years later, the Civil Rights Act of 1968 expanded this mandate. The Fair Housing Act (Title VIII and IX of the 1968 Act) prohibits discrimination in the sale, rental and financing of housing based on race, religion, national origin and sex.

These concepts have been applied to environmental issues, particularly in the context of the Clinton era. Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” requiring each executive department, the EPA, and certain other agencies “to make achieving environmental justice part of its mission.” Under the order, federal executive agencies and entities to which they provide financial support or project approval must “identify and address, as appropriate, disproportionate and adverse effects on human health or the environment of their programs, policies and activities on minority populations. In addition, these entities must integrate environmental justice into their respective missions “to the fullest extent possible and permitted by law”. The Order has never been repealed and remains an effective directive.

In the context of affordable housing, HUD states that “[e]Environmental justice is an integral part of HUD’s mission” and outlined the following ambitious concepts:

  • Prevention of adverse environmental and health effects to minority and low-income populations through HUD actions;

  • Engagement of minority, low-income, and Indigenous populations in communities where HUD action is proposed;

  • Recognition of areas of local and cultural significance where HUD action is proposed; and

  • Integration of environmental justice practices and concepts (such as sustainability and equal opportunity) into project planning.

HUD (sometimes in partnership with the US EPA) has created or participated in a number of issue-specific initiatives to address environmental justice, including the creation of empowerment zones/business communities; brownfield redevelopment; lead poisoning in children; protection against radon; “green” renovations of low-income housing; tribal consultation; and efforts related to climate change.

HUD incorporates environmental justice requirements into its standards and guidelines for various HUD programs. For example, HUD released its Multifamily Accelerated Processing (MAP) Standards, which are designed to provide uniform national standards for lenders “to prepare, process, and submit loan applications for the Federal Housing Administration’s Multifamily Mortgage Insurance ( FHA)”. Section 9 of the HUD MAP guide discusses the environmental review process and includes an environmental justice component:

“Where a project impacts a minority or low-income population and there are unmitigated negative environmental impacts, such as a location in a floodplain or a noise-impacted site, HUD will perform the analysis necessary before determining the acceptability of the project A project that receives a low-income housing tax credit or a Section 8 HAP contract and has unmitigated adverse environmental impacts is an example of where environmental justice concerns must be assessed….

HUD will request information to supplement this analysis if necessary and will notify the lender of any environmental justice concerns, including recommendations for their resolution. In most cases, the preferred solution would be to modify the project to eliminate or at least reduce adverse effects, where possible….”

Similarly, state environmental review programs include similar elements. For example, the Ohio Housing Finance Agency’s Ohio Housing Trust Fund (OHTF) environmental review standards call for project developers to provide an ASTM-compliant Phase I environmental site assessment, but also address a a number of additional considerations, including environmental justice. In this regard, OHFA requires that a “printable standard report” be prepared for the site and a one-mile buffer zone. Therefore, such projects will seek to identify environmental justice concerns on surrounding neighborhoods regarding the siting of a project.

As previously reported, the Biden administration has made environmental justice reforms a top priority, including emphasizing climate-related initiatives, strengthening law enforcement and stepping up collection efforts. and data monitoring. For example, Executive Order 14008 issued on January 27, 2021 partly created the “Justice40 Initiativesetting a goal that at least 40% of overall benefits from federal climate and clean energy investments will flow to disadvantaged communities, and establishing two environmental justice advisers in the White House. HUD said it “strongly supports” the Justice40 initiative and reaffirmed its goal of “maximizing investments in low-income communities, communities of color, and other disadvantaged and historically underserved communities.”

As environmental justice continues to assume greater prominence in setting agency policy, standards and expectations will continue to develop.

© Copyright 2022 Squire Patton Boggs (USA) LLPNational Law Review, Volume XII, Number 94