Environmental Justice Emerges as EPA and Virginia Priority

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Recent guidance issued by the U.S. Environmental Protection Agency (“EPA”) evidences EPA’s intention to better incorporate Environmental Justice (“EJ”) considerations into program administration and enforcement.  Specifically, EPA issued two memoranda that signal a revitalized focus on EJ enforcement.

On June 21, 2021, EPA issued a memorandum titled Strengthening Environmental Justice Through Criminal Enforcement, which sets out specific steps to advance EJ goals through criminal enforcement, including more robust investigative focus in communities with EJ concerns, enhancing enforcement remedies to benefit overburdened communities, and improving outreach to environmental crime victims living in communities with EJ concerns.  Following this memorandum, EPA issued a memorandum titled Strengthening Environmental Justice Through Cleanup Enforcement Actions on July 1, 2021, in which EPA sets out steps to advance EJ goals during clean up actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA) in communities that have been disproportionately impacted by releases of hazardous substances or wastes.

EPA EJ efforts had been deemphasized in recent years, but these policies signal a revitalization of EPA’s EJ program.   These memoranda are internal to EPA, and therefore may not directly affect state programs.  With this said, state regulators with delegated environmental programs will be sensitive to EPA’s positions regarding EJ.  Moreover, EPA’s policies are aligned with Virginia’s efforts to better incorporate EJ into the Commonwealth’s environmental regulatory programs.  For example, in 2020 Governor Northam signed the Environmental Justice Act which created the Interagency Environmental Justice Working Group.   The statute required the Working Group to assess processes and resources required for state agencies to develop agency-specific EJ policies.  To satisfy the statute’s requirements, the Working Group assessed state programs and conducted extensive community outreach.  The Group prepared its report documenting this effort, along with its recommendations, in November of 2020 and can be found here.  The report signals an increased focus on EJ by Virginia regulatory agencies.

EPA’s and Virginia’s renewed emphasis on EJ means regulated entities need to appreciate the EJ concerns in their local communities.  Businesses can access EPA’s EJSCREEN mapping tool to help identify potential EJ considerations in their local communities, including an appreciation of the local community’s history, and its demographic and economic character.  EJSCREEN will also assist businesses seeking to start new projects in understanding community considerations during site selection.

Additionally, outreach within the community can help you better understand the specific needs and concerns of the area your business may be impacting and help build a positive, long-term relationship.  The first interaction with a community should not be addressing complaints over your activities or a proposed project.

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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