Minimizing Environmental Justice Risks In Permitting

Nevertheless, even accepting that the Biden administration’s EJ efforts related to permitting are still nascent, there is now sufficient data to discuss guideposts that the regulated community can use to help proactively mitigate possible EJ risks in the permitting and compliance space.

While the administration has used spending under the Inflation Reduction Act to begin to reshape the energy space,[1] proposals to alter federal environmental statutes to explicitly incorporate EJ measures have not advanced yet.

Without federal statutory reform, permitting- and compliance-focused efforts are likely to remain largely reactive or derivative of a more robust application of federal civil rights laws. There is particularly significant activity recently on the latter front.

Three examples illustrate this:

• Biden administration efforts related to a Chicago metal recycling facility relocation to an EJ area have resulted in the facility operator building a facility it cannot legally operate. Since Chicago officials pushed the relocation, Chicago’s future funding from the U.S. Department of Housing and Urban Development has been put at risk.[2]
• In Louisiana, EPA EJ officials are pushing for dramatic changes in state-level permitting.[3]
• Regarding some of the same Louisiana facilities, local organizations recently succeeded in an appeal to vacate air permits issued by the state environmental agency, on the grounds that the agency’s EJ analysis relied on selective and inconsistent data, and failed to appropriately consider air quality impacts on an already overburdened community.[4]

These examples are not outliers. Recent guidance issued by EPA EJ personnel confirms the agency’s intent to proactively audit relevant compliance programs to ensure compliance with federal civil rights laws.

Broader diligence efforts as part of operational planning can mitigate some of the risks incident to increased focus on EJ issues. While some general steps might be appropriate at all sites, other steps differ depending on whether a site is currently an operating site or a planned new operation.

Below, we outline general principles the regulatory community can follow regarding permitting and compliance.

Community Engagement

Regulated entities have long known that their neighbors can, and often do, influence regulators. For operating facilities, this means that community complaints can drive increased enforcement.

But such is often not the case with respect to complaints from EJ communities. Complaints from those communities, according to proponents of EJ efforts, often go unheeded. Underenforcement in EJ communities results in worse health outcomes for community members.

The first step in managing operational risks posed by EJ issues is understanding the communities where facilities operate. Regulated entities are often engaged in the communities where they operate.

They participate in community events. They meet with local officials. They listen and react to community concerns. All of these efforts inherently help to manage risks in all communities.

Monitoring Whether a Facility Is in an EJ Community

As EJ concerns have become more important to regulators, the regulated community needs to proactively understand whether the communities where they operate are EJ communities. The EPA is focused on addressing risks posed by cumulative impacts to EJ communities.[5]

One of the primary tools regulators are using to do this is databases like the federal EJSCREEN tool to target enforcement efforts. Keeping an eye on new data incorporated into the EJSCREEN tool is a second step that members of the regulated community can take.[6]

Preparing for Increased Regulator Scrutiny

Aside from monitoring databases, the regulated community should be aware of the presence of well-organized groups advocating for action on EJ issues. Facilities identified in relevant databases, or facing community pressure, may face increased scrutiny of their ongoing operations.

This increased scrutiny could come in various forms, including:
 

• Increased site inspections, as signaled by a recent EPA strategic plan indicating that by 2026, 55% of site inspections should occur in EJ areas;[7]
• The use of air- and land-based sensors and other technology to promote increased compliance;[8] and
• Focused resources on capacity building in EJ communities, so that community members are better able to advocate for their needs.[9]

Regulators’ deployment of these tools may not result in a tsunami of new notices of violation. However, cost-effective proactive steps can be taken in EJ communities to minimize risk.

These include having a strategy in place to monitor and address community concerns; stressing open lines of communication with community members and local government officials; and working with public health personnel to develop an understanding of health issues prevalent in communities near permitted operations.

Tracking Local Legislative and Regulatory Actions

In the absence of changes to federal environmental statutes, EJ proponents are often working to impose EJ requirements through new state laws and other avenues. Examples include:

• Charging permitting applicants more to site facilities in EJ communities;[10]
• Requiring increased monitoring for facilities located in EJ areas — for example, fenceline monitoring at Chevron facilities imposed pursuant to an EJ-focused settlement with the U.S. Department of Justice;[11] and
• Increased reporting requirements — for example, in response comments to a permit request being evaluated by Michigan officials, the EPA stressed that daily, as opposed to monthly, reporting would be better, in part to address EJ concerns.[12]

An example of increased attention focused on operating facilities is the EPA’s recent announcement that it would investigate whether Texas permitting programs for concrete batch plants violate federal Title VI civil rights laws.

The petitions — filed by the Harris County Attorney’s Office and Lone Star Legal Aid — alleges that Texas state regulators improperly amended permit standards to omit requirements that permit applicants show that permit-related particulate matter and crystalline silica emissions would not affect human health or the environment.

The EPA is specifically investigating whether the public process leading up to the permits’ amendment excluded participation by Spanish speakers. This investigation continues, and state regulators will have an opportunity to defend the process used in modifying the affected permits.

Texas appears ready to address some of the EPA’s concerns. Less than a month after the EPA’s investigation was announced, Texas regulators embraced increased community outreach in some environmentally overburdened areas, to work toward compliance with the EPA’s EJ directives.[13]

Originally published by Law360 here.

[1] See our discussion here: https://www.afslaw.com/perspectives/energy-cleantech-counsel/proposed-inflation-reduction-act-2022-would-provide.

[2] See our discussion here: https://www.afslaw.com/perspectives/environmental-law-advisor/environmental-justice-update-chicago-forcing-facility.

[3] See our discussion here: https://www.afslaw.com/perspectives/environmental-law-advisor/environmental-justice-update-epa-issues-initial-findings.

[4] This case is discussed here: https://www.reuters.com/legal/louisiana-judge-cancels-air-permits-controversial-plastics-plant-2022-09-15/.

[5] See our discussion here: https://www.afslaw.com/perspectives/environmental-law-advisor/epa-releases-environmental-justice-equity-action-plan.

[6] We discuss the latest revisions to this tool here: https://www.afslaw.com/perspectives/environmental-law-advisor/epas-environmental-justice-efforts-moving-beyond-regulatory.

[7] See here: https://www.afslaw.com/perspectives/energy-environmental-law-adviser/epa-places-environmental-justice-front-and-center.

[8] See here: https://www.afslaw.com/perspectives/energy-environmental-law-adviser/epa-administrator-michael-regan-emphasizes-the-high.

[9] See here: https://www.afslaw.com/perspectives/environmental-law-advisor/epa-releases-environmental-justice-equity-action-plan.

[10] Proposed Illinois legislation taking this approach is discussed here: https://www.ilga.gov/legislation/BillStatus.asp?DocNum=2906&GAID=16&DocTypeID=SB&LegId=136344&SessionID=110.

[11] See our discussion here: https://www.afslaw.com/perspectives/energy-environmental-law-adviser/chevron-agrees-fenceline-monitoring-three-texas.

[12] See the EPA’s letter here: https://www.epa.gov/system/files/documents/2022-03/ajax-egle-permit-comment-letter-9-16-2021.pdf.

[13] Their newly-announced Public Involvement Form is available here: https://www.tceq.texas.gov/downloads/agency/decisions/hearings/environmental-equity/pip-form-tceq-20960.pdf.