The Pennsylvania Department of Environmental Protection (DEP or the Department) has issued a new environmental justice (EJ) policy (Interim Final EJ Policy)—published as an interim final policy effective on 16 September 2023—that will materially impact how and when major environmental permits are issued in Pennsylvania and also impact enforcement of environmental laws in EJ areas. The Interim Final EJ Policy published in the Pennsylvania Bulletin on 16 September1 ushers in a new era regarding how the Department will process and evaluate environmental permits covered by this policy. Covered permits will be analyzed for impacts to EJ areas and will be required to engage in additional outreach to local communities. Perhaps most interestingly, the Interim Final EJ Policy allows for enhanced civil penalties for violations that occur in EJ areas covered by the policy. DEP will be using a mapping and screening tool known as “PennEnviroScreen” that identifies EJ communities using 32 environmental, health, and socioeconomic indicators. Stakeholders will have a final chance to comment on this important policy through a formal comment period that ends on 29 October 2023.
The Interim Final EJ Policy is a significant modification and expansion of the Department’s prior EJ policy, effective since 2004,2 with respect to (1) the indicators considered in determining whether a permit application will trigger review under the policy, and (2) in the amount of discretion provided to the Department during the permitting process and, separately, during an enforcement action brought by DEP involving an EJ area. This alert focuses on three significant changes under the Interim Final EJ Policy.
First, the new EJ screening tool, PennEnviroScreen,3 is a more sophisticated mapping tool than its predecessor, and it is supported by a detailed guidance document. PennEnviroScreen allows a stakeholder to drill down into a map to see the areas adjacent to the proposed permit sites. The Department has issued a guidance document entitled “Pennsylvania Environmental Justice Mapping and Screening Tool (PennEnviroScreen) Methodology Documentation 2023.”4 It is critical to understand how the screening tool works, and what impacts the new screening tool may have on whether the permit area will trigger review under the Interim Final EJ Policy, before an urgent permitting matter arises. Stakeholders may also wish to examine the 32 environmental, health, and socioeconomic indicators and determine whether or not to comment on those indicators during the formal comment period that ends on 29 October.
Second, the Interim Final EJ Policy makes meaningful changes to its treatment of “trigger” and “opt-in” projects. Under both the old and new EJ policy, the Department identified certain trigger permits that will automatically trigger the EJ policy if the project is located in an EJ area. Both the old and new EJ policies also allow the Department to “opt-in” additional projects that DEP determines warrant special consideration on a case-by-case basis. However, under the new Interim Final EJ Policy, the Department has identified in Appendix C a new list of permits that “warrant heightened consideration of Opt-In Project status, due to the fact that they could, in certain instances and project sizes, cause increased community concern[.]” Further, the Department has created an “Opt-In Project Request Form” that community members may utilize to request that DEP designate a proposed project for enhanced public participation. These changes may have the effect of increasing the number of projects that DEP “opts-in” to the Final Interim EJ policy. It will be important to consider in the pre-application due diligence process whether the project to be permitted is likely to raise concerns in the local community. The new Interim Final EJ Policy will almost certainly add additional time to the permitting process, and that time should be accounted for in the project development timeline.
Third, and perhaps most interestingly from a legal perspective, the Department’s Interim Final EJ Policy says that DEP “may exercise its discretion to prioritize taking enforcement actions in an EJ Area,” and will consider impacts to the environment, public health, and safety when assessing civil penalties for environmental violations that occur with an EJ area. Under the Interim Final EJ Policy, “DEP interprets impacts to the environment or the public health and safety at an EJ area to be a relevant factor in the calculation of a penalty amount for a violation and may include a dollar figure in the penalty amount for such a violation provided there is adequate evidence to support a factual finding that the violation caused the harm and the penalty amount fits within the statutory limit.”5 DEP is a creature of statute and receives its enforcement powers from the various environmental statutes passed by the Pennsylvania Legislature, including the Clean Streams Law, Air Pollution Control Act, Solid Waste Management Act, Storage Tank and Spill Prevention Act, and a number of others. None of those statutes bestow explicit authority upon the Department to consider EJ as a criteria for an enhanced civil penalty. The Department’s legal authority to use an “EJ enhancement” in issuing civil penalties under the Interim Final EJ Policy may be the subject of legal challenges in the future.
1 53 Pa. Bull. 5854 (Sept. 16, 2023).
2 DEP Doc. ID 012-0501-002, Environmental Justice Public Participation Policy (Apr. 24, 2004).
3 Pa. Dep’t of Env’t Prot., PennEnviroScreen, https://gis.dep.pa.gov/PennEnviroScreen/.
4 DEP Doc. ID 015-0501-003 (Sept. 16, 2023).
5 See Final Interim EJ Policy Section VI.B.2.