New guidance from the U.S. Environmental Protection Agency (“EPA”) sheds light on how the agency intends to incorporate environmental justice (“EJ”)¹ into air permitting programs across the country. The direct effect of the guidance is limited by the fact that (1) it does not itself create new legal requirements and (2) a great majority of air permitting programs are run by the states, which are not bound to follow EPA expectations. Even so, it portends increased EPA and public scrutiny for projects that may disproportionately impact the wellbeing of low-income or minority communities. It also signals that EPA will be more likely going forward to seek to impose additional permit requirements for projects affecting EJ communities, directly in the case of the few permits it issues directly, and indirectly through comments and political pressure for state‑issued permits.

The Eight Principles

This guidance, accompanied by a memorandum from EPA headquarters to all regional offices, sets forth eight principles that regional air permitting staff should “immediately” apply:

1. Identify communities with potential EJ concerns using tools such as EJScreen or other mapping tools.
2. Engage early in the permitting process to promote meaningful participation and fair treatment to provide opportunities for meaningful participation and fair treatment throughout the permitting process.
3. Enhance public involvement throughout the permitting process, which may include trainings on how to make effective comments on permits, making permit documents easily available, holding public hearings, and other actions that may address barriers to meaningful participation.
4. Conduct a “fit for purpose” environmental justice analysis when a permitting action may result in disproportionately high and adverse human health or environmental effects on a community. If screening-level EJ analysis indicates that the permitting action will have a disproportionate effect on the basis of race, color, or national origin, then analysis of disparate impacts under federal non-discrimination laws, including Title VI, may be necessary.
5. Minimize and mitigate disproportionately high and adverse effects associated with the permit action to promote fair treatment by “fully examining all relevant statutory and regulatory authorities, including discretionary authorities, to develop permit terms and conditions to address or mitigate identified air quality impacts to the extent feasible.”
6. Provide federal support throughout the air permitting process to state or tribal permitting authorities to address adverse environmental effects on communities, including cumulative effects.
7. Enhance transparency throughout the air permitting process by, for example, publishing the administrative record for the permitting action in an easily accessible manner and clearly documenting community concerns.
8. Build capacity to enhance the consideration of environmental justice in the air permitting process, which may include building on existing tools and supporting peer-to-peer learning between permitting authorities, the regulated community, and affected communities.

Likely Effect of These Principles

Application of these principles will depend on the type of air permitting action and whether the permitting authority is EPA or the state. When EPA is the permitting authority, it will determine — guided by these principles — both the content of the permit and the permit review process. These capabilities give EPA opportunities to advance EJ in several ways, including by applying its discretion, within the bounds of its legal authority, to impose certain terms and conditions on the permit that mitigate disproportionately high and adverse effects on disadvantaged communities.

These principles are likely to have the most significant effect on New Source Review (“NSR”) preconstruction permitting by EPA and a lesser effect on Title V permitting, which does not authorize the direct imposition of substantive emission control requirements. In the Legal Tools to Advance Environmental Justice guidance EPA cross-references, released last year, EPA states that Section 165(a)(2) of the Clean Air Act can be interpreted to provide EPA discretion to incorporate environmental justice considerations when issuing NSR permits.² However, EPA acknowledges that it has never explicitly based an NSR permit condition solely on such discretion, and the “full contours of such discretion have not yet been defined.” Nevertheless, EPA goes on to identify case law and past NSR and Title V permitting actions that it asserts support its authority to at least impose additional monitoring requirements based on EJ concerns.

Limitations of These Principles

Where states and tribes administer their own air permitting programs, EPA will play more of a supporting role in advancing EJ. In these situations, EPA can comment on individual permits during the public comment period and emphasize EJ concerns. But state permitting authorities are not required, under federal regulations, to independently consider EJ in their permitting decisions. However, some states such as New Jersey and Virginia have state EJ laws. Moreover, EPA states in its Legal Tools to Advance Environmental Justice: Cumulative Impacts Addendum, also released this month, that EPA may independently evaluate cumulative impacts on EJ communities to “help prioritize and decide which among the thousands of Title V operating permits the Agency will scrutinize to ensure that they are consistent with the requirements of” the Clean Air Act.

Takeaways

The publication of this new EJ guidance will amplify consideration of EJ in air permitting programs, which should not be much of a surprise to the regulated community given the Biden administration’s elevation of EJ at EPA. It promises a more systematic approach by EPA to incorporating EJ in air permitting decisions.

¹ 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.”

² Section 165(a)(2) of the CAA provides that a PSD permit may be issued only after “a public hearing has been held with opportunity for interested persons including representatives of the Administrator to appear and submit written or oral presentations on the air quality impact of [the proposed] source, alternatives thereto, control technology requirements, and other appropriate considerations” (emphasis added).