Environmental Justice Update (October 2022)

The Biden administration continues to advance its aggressive and comprehensive environmental justice (“EJ”) program. A new Environmental Justice Action Plan released by the U.S. Environmental Protection Agency (“EPA”) lays out more than thirty projects aimed at incorporating EJ considerations into various federal programs, including Superfund and hazardous waste management, emergency response, and brownfields redevelopment grants. EPA’s new EJ permitting guidance and integrated Office of Environmental Justice and Civil Rights further demonstrate the significant role EJ is expected to play in federal environmental policy and enforcement going forward. The regulated community should closely track federal and state designation of EJ areas and evaluate potential impacts, including impacts from EJ-based monitoring and enforcement priorities and permitting decisions.

Background

In April 2021, the Biden administration initiated an effort to step up EJ inspection and enforcement, directing the EPA to pursue available statutory authorities to provide additional protection to underserved communities.  EPA and other federal agencies have since taken significant action to implement the new EJ program, as further detailed in our prior alerts. 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.”

Final Environmental Justice Acton Plan

On September 30, 2022, EPA released its final Environmental Justice Action Plan. The final Action Plan outlines the Office of Land and Emergency Management’s strategy for addressing EJ concerns across a variety of programs, including Superfund and hazardous waste management, emergency response, and brownfields redevelopment grants. 

The final Action Plan includes a list of more than thirty individual projects centered around four main goals:

1. Strengthening compliance with cornerstone environmental statutes and civil rights laws;
2. Incorporating environmental justice considerations during the regulatory development process;
3. Improving community engagement in rulemakings, permitting decisions, and policies; and
4. Implementing President Biden’s Justice40 Initiative, which focuses on making grant funds available to underserved communities.

The $3.5 billion received by EPA under the Infrastructure Investment and Jobs Act (Public Law 117-58) is expected to significantly enhance implementation of the Action Plan. EPA intends to allocate an initial $1 billion out of these funds to support the cleanup of unfunded Superfund sites where EJ goals can be achieved.

Interim EJ Guidance for Permitting

EPA also recently released its “Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions” (the “Permitting FAQs”). The Permitting FAQs are an interim measure to help federal, state and local agencies integrate EJ and civil rights into the permitting process. They explain that “it is time to use the full extent of [EPA’s] enforcement authority under federal civil rights laws, including Title VI of the Civil Rights Act of 1964” to advance EJ goals through the permitting process.

Title VI prohibits discrimination of individuals in federally assisted programs on the basis of race, color or national origin, and recipients of EPA funding have an affirmative obligation to implement effective Title VI compliance programs. Discrimination may occur under Title VI when a “permitting decision has an adverse or disproportionate impact based on race, color, or national origin.” The inquiry focuses on the consequences of the permitting decision rather than the intent of the permitting agency.

The Permitting FAQs contain a set of recommended best practices for permitting agencies to screen for EJ and civil rights concerns. These practices include the use of Geographic Information System tools such as EPA’s EJ Screen or state EJ mapping tools as an initial screen, followed by evaluation of other information including environmental data, health data, demographic information and information about other permitted facilities in the area. If the initial screen identifies potential EJ or civil rights concerns, the permitting agency should conduct an appropriately scoped EJ analysis or disparate impact analysis to evaluate disproportionate impacts and support enhanced community engagement. The Permitting FAQs also contain examples of measures permitting agencies can take to mitigate disproportionate impacts, including implementing pollution controls and compliance monitoring and enhancing public access to compliance information.

EPA intends to issue final civil rights guidance in the future and is currently accepting feedback on the Permitting FAQs.

New Office of Environmental Justice and Civil Rights

In September of 2022, EPA Administrator Michael Regan announced the creation of a new Office of Environmental Justice and External Civil Rights, which will merge EPA’s former Office of Environmental Justice, External Civil Rights Compliance Office and Conflict Prevention and Resolution Center into one office. 

The Office of Environmental Justice and External Civil Rights will oversee the distribution of $3 billion in EJ and climate grants created by the Inflation Reduction Grant. It will also be tasked with leading the agency on implementing EJ goals and enforcing Title VI of the Civil Rights Act. The merging of EPA’s formerly separate EJ and civil rights offices illustrates the Biden administration’s focus on developing a unified approach to advancing these initiatives.

The new combined office will be headed by a new assistant administrator to be nominated by President Biden. Marianne Engelman-Lado, who has been servicing as EPA’s deputy general counsel for environmental initiates, is currently serving as acting principal deputy assistant administrator.

New EJ Mapping Tool

The federal government released its new Environmental Justice Index (EJI) on August 10, 2022. The EJI, which is the first EJ mapping tool that seeks to identify cumulative impacts at a national level, was developed by the Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry (“ATSDR”), with input from the Department of Health and Human Services’ Office of Environmental Justice.

According to ATSDR, the EJI “can help public health officials, policy makers, and communities identify and respond to the varied environmental and social factors that affect a community’s health and well-being.” The tool will allow public health officials and community organizations to:

• Identify and prioritize areas in need of special attention to improve health and health equity;
• Educate and inform the public about their community;
• Analyze the unique, local factors driving cumulative impacts on health; and
• Establish goals and measure progress towards EJ and health equity.

The EJI follows on earlier efforts to create cumulative EJ assessment tools at the state level, including California’s CalEnviroScreen tool and New Jersey’s Environmental Justice Mapping, Assessment, and Project (EJMap) tool, which is currently in development.

Conclusions

In light of EPA’s stepped-up monitoring and enforcement measures, the regulated community should track federal and state designation of EJ areas and evaluate potential impacts and opportunities. The new Environmental Justice Action Plan and permitting guidance promise to incorporate EJ considerations into federal permitting and enforcement decisions and the regulatory development process. The Action Plan will also dedicate substantial federal funding to projects with environmental benefits for underserved communities, including over $1 billion to help fund the cleanup of Superfund sites where EJ goals can be achieved.

In addition to the federal updates described in this alert, several states, including California, New Jersey, and Washington, are also undertaking EJ initiatives independent of federal enforcement. This includes a current EJ rulemaking underway in New Jersey. State EJ initiatives may impose stricter requirements than those implemented at the federal level.

We will continue to update this Alert to reflect further developments, including key cases that signal the direction of EPA’s enforcement initiatives. 

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. John Rousakis, an O’Melveny partner licensed to practice law in New York, Eric Rothenberg, an O’Melveny of counsel licensed to practice law in New York and Missouri, John D. Renneisen, an O’Melveny senior counsel licensed to practice law in the District of Columbia, and Chris Bowman, an O'Melveny associate licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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