Environmental Justice Update: EPA, Illinois EPA, and Chicago Settle Civil Rights Claims with Agreement to Prioritize EJ in Permitting

One of the hottest series of disputes has been the tag-team rumble between federal, state, and local regulators, a scrap-metal processor, and several interested community groups over the relocation of a Chicago plant from the Lincoln Park neighborhood to a community in southeast Chicago. At least some parts of this dispute are closer to resolving. 

We’ve written about this dispute – and broader EJ issues affecting Chicago – repeatedly. (See here, here, and here.) 

Disputes between some of these parties appear to be closer to resolving. On February 14, the US Environmental Protection Agency (EPA) entered into an Informal Resolution Agreement (IRA) with the Illinois Environmental Protection Agency (Illinois EPA) to resolve claims that Illinois EPA had engaged in racial and national origin discrimination in its permitting process.

Dispute Background

This dispute stems from Illinois EPA’s approval of a construction permit moving a scrap metal recycling facility from Chicago’s affluent and predominately white Lincoln Park neighborhood to a low-income and predominately Latinx neighborhood. The permit issuance sparked protests and an official EPA complaint by environmental groups. The complaint alleged that Illinois EPA’s permit review and issuance process violated various state and federal laws, including Title VI of the federal Civil Rights Act.

Although Illinois EPA’s current permit review and issuance process incorporates consideration of EJ at various stages, the IRA requires Illinois EPA to bolster these considerations and implement a number of changes to its process. These changes include:

• Expanding access to public participation in the permit review process.
• Affirmatively consider a permit applicant’s prior adjudications for violations of the Illinois Environmental Protection Act (the Act).
• Affirmatively consider permit restrictions related to an applicant’s prior violations of the Act.
• Taking a more holistic approach to the permit review process. This includes considering the impact of other permitted facilities nearby, as well as proximity to schools, hospitals, daycare centers, and religious sites. Additionally, Illinois EPA will consider whether community-specific practices — such as fishing, hunting, or other cultural practices — may increase exposure or vulnerability to emissions.
• Consideration of additional community resources if Illinois EPA determines that permit issuance would disproportionately and adversely affect an EJ community. These resources may include additional compliance inspections of an applicant’s existing facilities or other nearby facilities, prioritizing grants for projects in affected communities, and working in consultation with EPA and other state and federal agencies to mitigate adverse impacts.

In addition to the changes to Illinois EPA’s permitting process, the agency has also agreed to new policies aimed at providing greater public participation in its processes. This includes updating its nondiscrimination notice, revamping its grievance process to “promptly, fairly, and appropriately” respond to complaints regarding discrimination, and enhancing its public participation plan to ensure greater and more equitable access to public hearings and meetings. Many of these changes mirror those we recently discussed being prioritized by federal regulators. 

What’s Next?

Two items are worth keeping an eye on following this settlement:

• Litigation between the City of Chicago and the owner of the scrap metal recycling facility is ongoing. In June 2023, an administrative law judge vacated the Chicago Department of Public Health’s denial of an operating permit to the recycling facility. The city’s appeal of the administrative decision continues in Illinois state court.
• Relatedly, Illinois — unlike some similar states — has not passed state EJ legislation in recent years, even though EJ legislation has been repeatedly considered by state legislators. It will be interesting to see if attention generated by the settlement causes state-level legislation to become a higher priority. 

Members of the firm’s Environmental and Energy & Cleantech groups regularly monitor state and federal EJ efforts.