2021 Environmental Justice Trends – Heightened Emphasis on Environmental Justice and Civil Rights Signals Significant Changes for Permitting in the Years to Come

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[co-author: Milton Padilla]

The concept of “environmental justice” (“EJ”) is not new—the federal government has been working to define and address environmental justice and related human health and environmental effects since the Clinton administration. The reality that communities consisting of minority, low-income, and vulnerable populations have been disproportionately impacted by adverse human health or environmental effects, sometimes for decades, is also generally accepted. Likewise, Title VI of the Civil Rights Act of 1964—the federal statute prohibiting discrimination based on race, color, or national origin in federally funded activities—has been in place for decades. What is new, however, is the Biden administration’s particular and intense focus on advancing environmental justice and, more recently, civil rights in the context of environmental permitting. This Insight highlights some of the EJ developments in 2021, an issue we expect to grow in importance in the coming years.

What is Environmental Justice?

Within days of taking office, President Biden signed an Executive Order (EO 14008) stating that it is the “policy of [the] Administration to secure environmental justice and spur economic opportunity for disadvantaged communities that have been historically marginalized and overburdened by pollution and underinvestment in housing, transportation, water and wastewater infrastructure, and health care.”

EPA defines environmental justice as “the 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.” EPA is particularly concerned with protecting historically “overburdened communities,” i.e., “minority, low-income, tribal, or indigenous populations or geographic locations in the United States that potentially experience disproportionate environmental harms and risks.”

We have previously discussed how the Biden administration views EJ as a priority, and we have provided up-to-date coverage on EPA’s growing level of involvement in this area, particularly in the enforcement context.

What Role Does Title VI Play in the Environmental Context?

Title VI is a federal statute that prohibits discrimination based on race, color, or national origin in any activity receiving federal financial assistance. Effectively, the law prohibits federal agencies from providing funding to recipients with practices that have discriminatory effect. EPA provides funding to state environmental agencies for a variety of programs, and it has the responsibility under Title VI to ensure that the state and local governments making permitting and enforcement decisions do not run afoul of Title VI. In the environmental context, citizens and EJ advocacy groups typically take two routes to allege Title VI violations: (1) filing an administrative complaint with EPA, or (2) filing suit in court challenging EPA action or alleging that EPA failed to meet its obligations under Title VI.

EPA is currently in the process of overhauling and improving its Civil Rights Act Title VI program. In part, this revamp is in response to external pressure from EJ groups and 2020 internal recommendations from the EPA’s Office of Inspector General (“OIG”), which found that EPA’s External Civil Rights Compliance Office (“ECRCO”) “has not fully implemented an oversight system to provide reasonable assurance that organizations receiving EPA funding are properly implementing Title VI.”

Important 2021 Trends and Events

1. EPA has signaled that civil rights will become a larger player in the permitting context.

In its new Strategic Plan for 2022-2026, EPA states that “while the environmental justice and external civil rights programs and their authorities are distinct, they share a deep connection and ability to reinforce and leverage one another to make significant progress in addressing disproportionate adverse impacts burdening communities.1 EPA noted that its emphasis on civil rights enforcement will lead to, among other things, “more responsible and equitable siting and permitting decisions by recipients of EPA funding . . . .”2 Lastly, EPA reportedly clarified recently that “compliance with environmental laws is not compliance with Title VI,” suggesting that Title VI imposes additional obligations on recipients of federal funds beyond just complying with applicable environmental laws.

To illustrate, earlier this year ECRCO issued findings of noncompliance in response to a Title VI complaint filed on September 4, 2020, by environmental and civil rights groups. The complaint alleged that the Missouri Department of Natural Resources (“DNR”) violated Dutchtown residents’ civil rights and EPA’s nondiscrimination policies when it approved a March 10, 2020 Clean Air Act Title V operating permit for the Kinder Morgan Transmix Company in South St. Louis. On March 30, 2021, EPA issued preliminary findings that the Missouri DNR failed to engage in a public participation process that complied with Title VI of the Civil Rights Act. This marks one of the few times in history that EPA has made a finding of noncompliance in response to a Title VI complaint.

In light of this increased emphasis, the regulated community should: (1) track Title VI complaints submitted to EPA, related lawsuits, and guidance out of ECRCO, and (2) consider whether and how these developments could impact environmental permitting and approvals for projects and activities.

2. In 2021, EPA repeatedly raised EJ and civil rights concerns in the context of state permitting decisions affecting EJ populations.

In 2021, EPA repeatedly engaged in high-profile reviews of state-delegated permitting matters involving EJ communities. For example, May 7, 2021, the City of Chicago placed a Clean Air Act permit application on hold after EPA sent a letter to Mayor Lori Lightfoot highlighting EPA’s EJ and civil rights concerns with the facility’s planned location. Also on September 16, 2021, EPA raised EJ issues in response to a minor source permit proposed to be issued by the Michigan Department of Environment, Great Lakes, and Energy (“EGLE”) under the Clean Air Act. The draft permit stirred controversy, in part, because the planned site for a hot mix asphalt plant was in an EJ community in Flint, Michigan known for heavy industrialization and unclean water. EPA expressly noted that EGLE’s draft permit raised civil rights concerns: “because of the environmental conditions already facing this community, and the potential for disproportionate impacts, the siting of this facility may raise civil rights concerns, so it is important that EGLE assess its obligations under civil rights laws and policies.”

EPA has not articulated a common thread among these cases (and others). But it could be some combination of factors including: (1) EPA’s focusing on certain communities that it considers particularly overburdened based on its understanding of historic or current environmental and health effects, or (2) EPA’s focusing on matters that have the highest profile or the most advocacy efforts. EPA’s increased involvement in state permitting may represent a shift in the way EPA views its authority and responsibility to enforce civil rights laws in addition to EJ regulatory requirements.

3. EPA and CEQ are grappling with how to define and consider cumulative effects in the context of permitting and other government actions.

Permitting often takes place in industrial areas with existing and historic environmental contamination, and often with the support of local jurisdictions seeking to revitalize and develop “brownfield” sites. In some cases, surrounding communities have been affected by environmental contamination in air, land, or water for decades. As part of its commitment to protect “overburdened communities” against “disproportionate” environmental and health impacts, EPA has signaled a commitment to accounting for cumulative harm in permitting decisions. For example, EPA’s September 16, 2021, comments and letter summarizing its EJ concerns with the Michigan EGLE grant of a permit to Ajax included a request that EGLE perform a cumulative analysis of air impacts to the EJ community, an analysis that is not required for minor sources under current federal Clean Air Act practice. In response, EGLE issued a final permit and requested, among other things, additional guidance from EPA on how to perform a cumulative impacts assessment in the context of EJ. To date, EPA has not released any guidance concerning cumulative harm.

The Council on Environmental Quality (“CEQ”) could be grappling with similar issues in the coming years. On October 7, 2021, CEQ published a proposed rule announcing that it will modify portions of the National Environmental Policy Act (“NEPA”) rule promulgated under the Trump administration in 2020. On the chopping block is the rollback of the definition of “effects” in the 2020 NEPA rule that effectively eliminated the requirement to analyze cumulative effects in NEPA analyses. CEQ plans to reinstate the prior definition of “effects” to include direct, indirect, and cumulative impacts. Future CEQ rules and guidance concerning indirect and cumulative effects regarding NEPA and environmental justice bear watching as well.

4. EPA has expressed interest in mandating continuous and publicly available data as permit conditions.

EPA’s September 16, 2021, comments and letter concerning the Ajax asphalt plant permit included a suggestion that EGLE require that Ajax use continuous compliance measures to ensure performance and make relevant data publicly available on a purpose-built website. This suggestion has no basis in EPA’s regulatory authorities, which is why the comment was formed as a suggestion that “EGLE consider whether it has the authority or the discretion” to include such a requirement in the final permit. Unless EPA reforms its regulatory reporting requirements, EPA’s interest in this kind of an approach necessarily will remain aspirational.

5. CEQ is grappling with how to incorporate EJ and civil rights into the NEPA review process.

CEQ’s anticipated repeal of much of the 2020 Trump NEPA Rule opens the door for a number of potential changes concerning EJ and civil rights in the future. It is currently unclear how CEQ will do so, but political pressure has brought a few important questions to the forefront, including: (1) whether and how EJ should be further incorporated into NEPA reviews; (2) how climate change and greenhouse gas effects should be considered in the context of EJ analyses; (3) how civil rights compliance under Title VI fits into NEPA reviews; and (4) whether consideration of possible mitigation for EJ communities will be required under NEPA, and whether agencies subject to NEPA possess authority under Title VI or other authorities to mandate mitigation. CEQ’s answer to these important questions will shape permitting in the years to come.

6. CEQ’s incoming mapping tool could affect how EPA considers disproportionate harm in the future when reviewing permitting decisions.

CEQ is expected to roll out a Climate and Economic Justice Screening Tool in 2022. The tool is expected to build on EJSCREEN—EPA’s existing environmental justice mapping tool—to include additional demographic information, as well as pollution and exposure data. Such data may include, among other things, information concerning climate change impacts. It is unclear how this additional tool will factor into permitting decisions affecting EJ communities, but it bears watching because it could change the calculus on whether and how certain EJ communities are disproportionally affected by health and environmental impacts.

7. New state laws and regulations concerning EJ could represent the “front edge” of novel permitting strategies.

2020 and 2021 were important and groundbreaking years for EJ legislation in a number of states. For example, in January of 2020, the Fourth Circuit Court of Appeals enforced a Virginia environmental justice statute to overturn the granting of an air pollution permit. The Virginia Department of Environmental Quality had granted a permit to Atlantic Coast Pipeline, LLC for the construction of a natural gas compressor station in the historically black community of Union Hill, Virginia. Several groups challenged the permit on EJ grounds, arguing that the Virginia Air Pollution Control Board had violated the Commonwealth’s Energy Policy by failing to consider how the site might result in disproportionate adverse impacts on a minority community. In Friends of Buckingham v. State Air Pollution Control Board, 947 F.3d 68, 93 (4th Cir. 2020), the Fourth Circuit held that the Board failed to consider disproportionate impacts on the citizens of Union Hill as required by the EJ statute, and thus vacated the Board’s decision approving the permit.

Then, in September of 2020, New Jersey passed a landmark law mandating that, among other things, the New Jersey Department of Environmental Protection identify overburdened communities within the state and grant and/or renew permits for certain facilities only if there are no disproportionate, cumulative environmental impacts on those communities, there is a “compelling interest” in the relevant community, or the burden can be mitigated. Massachusetts also passed an environmental justice statute defining EJ and related burdens, requiring environmental impact reports for projects within 1 mile of an EJ neighborhood, and requiring the development of a cumulative impact analysis as a permitting condition for certain projects. These are only a few of several states that have passed EJ laws and regulations that are quickly changing the landscape of environmental permitting. Importantly, states that mandate cumulative risk assessments will likely be an early testing ground for the concept, which EPA will be keeping a close eye on. The Friends of Buckingham decision in the Fourth Circuit demonstrates how these state statutes, regulations, and programs can impose substantive requirements that go beyond federal environmental laws.

Looking Forward

As the Biden administration aims to implement its EJ and civil rights priorities, EPA will likely continue to keep a close watch on permitting affecting EJ communities. EPA’s involvement in the Michigan permitting process indicates that EPA may demand more of states in the ways they consider environmental impacts on overburdened communities. EPA’s response to EGLE’s request for assistance and guidance could well set the tone for the next few years of permitting actions by states with delegated authority. Likewise, new state laws and regulations that will take effect in the next few years could further change how permitting takes place when EJ communities are involved.

Regulated entities should consider a few initial and proactive steps to address the aforementioned EJ concerns:

  1. Identify relevant EJ communities early. Identifying EJ communities is becoming increasingly complex. EJSCREEN is a helpful and publicly available tool to find the environmental and demographic information necessary to identify and track potential EJ matters. EPA will be improving EJSCREEN in the future to increase data availability and data quality for regulated entities, and to add storage tank data. The CEQ will soon be releasing a Climate & Economic Justice Screening Tool that builds and expands upon EJSCREEN. Some states like California have their own EJ tools as well. Additionally, more states, including Michigan, will be rolling out mapping tools soon. Early identification of environmental justice populations is an essential aspect of planning that should not be overlooked. After all, you cannot manage what you do not measure.
  2. Have a basic understanding of the cumulative health and environmental impacts faced by relevant EJ communities. Each EJ community has a distinct history concerning historic health and environmental harms affecting it. This means that the baseline that EPA and state agencies consider concerning whether a community is overburdened or disproportionately impacted will often be unique. Consider performing EJ assessments to create a basic understanding of the baseline impacts faced by your relevant EJ community. Such assessments could be valuable to help: drive effective community engagement, create plans to measure cumulative impacts in the future, and drive mitigation efforts. Be advised, however, that underlying data developed in the context of any such assessment may not be privileged.
  3. Put measures in place to monitor your profile. Consider tracking community engagement with federal and state governments and permitting authorities more consistently. Engagement and community-profile raising regarding a particular permit could invite increased scrutiny by state permitting authorities and EPA. Expect more community involvement during the permitting process, and prepare for the effects public participation might have on permit conditions or an enforcement case.

Stay tuned for more updates on this topic and read V&E Attorneys’ previous posts about EJ on our blog.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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