Addressing Environmental Justice in the Permitting Process
Posted: June 28th, 2013Author: All4 Staff
On February 11, 1994, Executive Order 12898 Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations was issued. Executive Order 12898 calls on each Federal agency to make achieving environmental justice part of its mission. Since that time the United States Environmental Protection Agency (U.S. EPA or Agency) has developed and issued several plans and guidance to implement Executive Order 12898 in rulemaking, permitting and other Agency action. Most recently, on May 9, 2013 U.S. EPA published a Federal Register notice of availability of regional actions to promote public participation in the permitting process and promising practices for permit applicants seeking permits (78 Fed. Reg. 27220). By this publication U.S. EPA is sharing actions it is taking, and urging permit applicants to use certain practices designed to enhance the opportunity and ability of overburdened communities to participate in the permitting process for projects that may affect the quality of life in the surrounding community.
What Is Environmental Justice?
U.S. 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.” U.S. EPA further defines the term “fair treatment” to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.” In implementing its environmental justice-related efforts, the Agency has expanded the concept of fair treatment to consider not only the distribution of burdens across all populations, but also the distribution of reductions in risk from U.S. EPA actions. For example, U.S. EPA’s own guidance encourages its staff to evaluate the distribution of burdens by paying special attention to populations that have historically borne a disproportionate share of environmental harms and risk. At the same time, it encourages staff to examine the distribution of positive environmental and health outcomes from regulatory and other Agency activities.
Others have offered definitions of environmental justice that imply elements of “rights” when it comes to a safe and healthy environment, and claims of racial discrimination and classism that, intentional or not, results from environmental policy, enforcement of regulations and the siting of industrial facilities.
What is U.S. EPA Doing?
The direction given to each federal agency by Executive Order 12898 is to “make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities.’’ In the first decade or so after Executive Order 12898 was issued, U.S. EPA’s efforts to incorporate environmental justice into its programs largely included evaluating which programs to focus on, identifying the methods for implementation, and communicating commitment. More recently U.S. EPA action has focused on strengthening its environmental justice program and supporting more participation by both regulated and affected communities.
In 2011, U.S. EPA published Plan EJ 2014, the Agency’s overarching strategy for advancing environmental justice. The Plan has three goals:
- Protect health and the environment in overburdened communities.
- Empower communities to take action to improve their health and environment.
- Establish partnerships with local, state, tribal, and federal governments and organizations to achieve healthy and sustainable communities.
One focus area of the Plan is ‘‘Considering Environmental Justice in Permitting.” Because permits often establish requirements to reduce or eliminate pollution from a source, U.S. EPA believes permits play a key role in providing effective protection of public health and the environment in communities. For this reason, Plan EJ 2014 calls upon U.S. EPA to enhance the ability of overburdened communities to participate fully in the permitting process and to take steps to meaningfully address environmental justice issues in the permitting process to the greatest extent practicable.
In the first part of the notice published on May 9, 2013, U.S. EPA issued guidelines designed to help regional offices identify which permits to prioritize for enhanced outreach to overburdened communities (Regional Actions). These guidelines identify the types of permits that could involve projects or activities with significant public health or environmental impacts. Examples given in the U.S. EPA guidelines include, but are not limited to, the following:
- Construction permits under the Clean Air Act, especially new major sources or major modifications of sources.
- Significant Underground Injection Control Program permits under the Safe Drinking Water Act.
- Industrial National Pollutant Discharge Elimination System (NPDES) permits under the Clean Water Act that are for new sources or new dischargers, or existing sources with major modifications.
- RCRA permits associated with new combustion facilities or modifications to existing RCRA permits that address new treatment processes or corrective action cleanups.
Under the guidelines U.S. EPA regional offices have the discretion to use other considerations to prioritize permits for enhanced outreach. One important consideration could be whether a community has expressed concerns over a permit application or renewal.
The guidelines are less than clear when it comes to where they should be applied. There is no definitive line given to allow regional offices to determine that a permit will, or will not, impact an overburdened community. U.S. EPA has previously defined overburdened community as “the minority, low-income, tribal and indigenous populations or communities in the United States that potentially experience disproportionate environmental harms and risks due to exposures or cumulative impacts or greater vulnerability to environmental hazards. This increased vulnerability may be attributable to an accumulation of negative and lack of positive environmental, health, economic, or social conditions within these populations or communities.” However, there has been no rigid criteria established for identifying overburdened communities, and so this too is apparently left to the discretion of the permitting agency.
U.S. EPA indicates that the guidelines are intended to supplement the standard notice-and-comment procedures that are in place and required by law, and thus there is no regulatory or legal requirement that they be followed. Even so, in the name of better health protection for communities, U.S. EPA is strongly promoting their use. From a permit applicant’s perspective, the promotion of such broad guidance and discretion surely raises concern. How can I know if my application will be prioritized for enhanced outreach? Will a permit prioritized for enhanced outreach end up with stricter limitations, or a higher probably of being denied altogether? Could the additional effort involved delay finalizing a permit in a timely manner? Will enhanced outreach and transparency make permit applications subject to even more challenges by environmentalists? U.S. EPA attempts to address some of these concerns in the second part of the notice published on May 9, 2013.
What Does U.S. EPA Suggest for Permit Applicants?
In the second part of the notice published on May 9, 2013, U.S. EPA provides its Promising Practices for Permit Applicants Seeking EPA-Issued Permits: Ways To Engage Neighboring Communities (Promising Practices). These Promising Practices are not new. They are already used by many companies and facilities that have robust community engagement policies. U.S. EPA compiled the Promising Practices by reaching out to business leaders on environmental justice issues to get their insights and experiences. The stated purpose for publishing them is to encourage those leaders to continue their efforts and to promote their use by those who are new to the ideas.
The Promising Practices are briefly summarized here as follows:
- Think Ahead
Before undertaking community outreach, evaluate the community and the project to determine what kind of community outreach is appropriate for the circumstances. The Promising Practices list a number of questions that applicants can answer to help guide this assessment.
- Engage Community Leaders
U.S. EPA learned from its own outreach that the first step in meaningful engagement is to identify and cultivate trusting relationships with community leaders. In addition to elected officials and government employees, community leaders can be found in religious organizations, academic institutions, health organizations, environmental groups and neighboring facilities that also hold permits. The Promising Practices provide suggestions on how to establish connections with community leaders.
- Engage Effectively
Positive and ongoing interactions are essential to strong relationships. Following early engagement it is important to sustain involvement. The Promising Practices include suggestions on actions designed to help a permit applicant engage effectively with community members.
- Communicate Effectively
It is important that community outreach provide for an atmosphere in which all stakeholders can participate in a dialogue. Two-way communication is essential for the exchange of concerns and ideas. This is one of the areas where community leaders are in a position to help with potential language barriers and identifying the most effective media outlets and outreach materials to use. The Promising Practices include actions designed to help a permit applicant engage effectively with community members.
- Follow Up
When a permit applicant delivers on commitments made to the community, the community can also receive a sense that the applicant displays the characteristics of responsibility, integrity and commitment, which goes a long way to building trust. The Promising Practices list ways to help design follow-up activities.
To encourage the use of its Promising Practices, and perhaps address some of those concerns mentioned above, U.S. EPA includes in the notice examples of success stories and a discussion in support of there actually being a return on investment for applicants that expend effort to engage in early outreach with neighboring communities. A less contentious permitting process no doubt reduces the time it takes for final approval. Applicants that pursue enhanced community outreach do incur costs in the in terms of time and money, but there are instances where the lack of outreach has caused misunderstandings with community members that result in the costs of delay, negative publicity impacting investor interest, and attorney’s fees associated with litigation.
Is All This Now Required?
As with any good regulatory question, the answer is that “it depends.”
The Regional Actions and Promising Practices published by U.S. EPA do not create any regulatory obligations and do not add any requirements in existing permitting regulations. And the notice issued on May 9, 2013 clearly states that the scope of the Regional Actions and Promising Practices is limited to U.S. EPA-issued permits. So applicants for permits that are issued by U.S. EPA may run into the Regional Action guidelines and may be encouraged to employ the Promising Practices. But at this time they have not been established as rules and participation remains a voluntary decision.
Most environmental permits are issued by state, local, and tribal government agencies, and not U.S. EPA. Some of these state, local and tribal agencies have already implemented environmental justice components in their permitting processes, including policies or requirements that may be similar to the Regional Actions and Promising Practices. So permit applicants in jurisdictions that have existing environmental justice permitting requirements must meet those requirements.
What Lies Ahead
Prior to publishing the Regional Actions and Promising Practices, U.S. EPA did solicit comment on them. Some commenters suggested that the scope of the initiative to address environmental justice in permitting be expanded beyond U.S. EPA-issued permits. In its response U.S. EPA expresses its belief that it is best to first undertake these activities itself, “before requiring state, local and tribal governments to do so” (emphasis added). Based on that statement it would appear there is at least some intention to promulgate these ideas as requirements in the future.
Memo from Administrator Whitman on U.S. EPA’s commitment to environmental justice, August 9, 2001.
U.S. EPA, Draft Technical Guidance for Assessing Environmental Justice in Regulatory Analysis, April 2013.
U.S. EPA, Action Development Process: Interim Guidance on Considering Environmental Justice During the Development of an Action, July 2010.