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Volume XII, Number 184

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Environmental Justice Consideration in Affordable Housing

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

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

These concepts have been applied to environmental issues notably as part of the Clinton-era Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” requiring each executive department, EPA, and certain other agencies to “make achieving environmental justice part of its mission.”  Under the Order, federal executive agencies and the entities to which they extend financial support or project approval, must “identify and address, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations.”  Moreover, these entities must integrate environmental justice into their respective missions to “the greatest extent practicable and permitted by law.”  The Order has never been rescinded and it remains a governing directive.

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

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

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

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

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

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

HUD incorporates environmental justice requirements into its standards and guidance for various HUD programs.  For instance, HUD has issued its Multifamily Accelerated Processing (MAP) standards, which are designed to provide uniform national standards for lenders “to prepare, process and submit loan applications for Federal Housing Administration (FHA) multifamily mortgage insurance.”  Section 9 of HUD’s MAP Guidebook addresses the environmental review process and includes an environmental justice component:

"When a project impacts a minority or low-income population and there are unmitigated adverse environmental impacts such as a location in a floodplain or a noise impacted site, HUD will perform the necessary analysis before determining the acceptability of the project. A project that will receive a Low-Income Housing Tax Credit or a Section 8 HAP contract and has unmitigated adverse environmental impacts is an example of when environmental justice concerns should be evaluated….

HUD will request information to complete this analysis as necessary and will advise the Lender of any Environmental Justice concerns including recommendations on their resolution. In most cases the preferred resolution would be to modify the project to eliminate or at least reduce the adverse effects, when feasible…."

Similarly, state environmental review programs include similar components.  For instance, the Ohio Housing Finance Agency’s Ohio Housing Trust Fund (OHTF) environmental review standards provides that project proponents must provide an ASTM-compliant Phase I Environmental Site Assessment, but also addresses 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.  Consequently, such projects will seek to identify environmental justice concerns on the surrounding neighborhoods relating to the siting of a project.

As previously reported, the Biden Administration has placed environmental justice reforms as a top priority, including emphasis on climate-related initiatives, strengthened enforcement and greater data-collection and monitoring efforts. For instance, Executive Order 14008 issued January 27, 2021 in part created the “Justice40 Initiative,” setting a goal that at least 40% of the overall benefits from federal investments in climate and clean energy will flow to disadvantaged communities, and establishes two White House environmental justice counsels.  HUD has stated that it “strongly supports” the Justice40 initiative and reemphasized its goal to “maximize investments in low-income communities, communities of color, and other disadvantaged and historically underserved communities.”

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

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XII, Number 94
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About this Author

Gary L. Pasheilich Environmental Attorney Squire Patton Boggs Columbus, OH
Senior Attorney

Gary Pasheilich is a member of the Environmental, Safety & Health Practice Group and has diverse experience with complex civil and administrative matters involving the major federal and state air, water, and solid and hazardous waste laws.

Gary’s practice focuses on legacy environmental liabilities at industrial and commercial sites, including litigation and advocacy relating to liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Resource Conservation and Recovery Act (RCRA), as well as environmental due diligence in support of...

614-365-2730
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