Environmental Justice: Looking Ahead to 2023

If 2021 was the year of planning discussions and a lot of talk related to environmental justice (EJ), 2022 was the year where those plans began to be put into action. In 2022, we saw documents on how to enforce EJ principles using existing rules, a vast expansion of enforcement activities and investigations under Title VI of the 1964 Civil Rights Act, and billions of dollars allocated to increasing public awareness, enabling public participation, funding new monitors, and making all sorts of environmental data more accessible to the public. At the state level, progress has been slow and steady as several states, both on their own initiative and under pressure from the United States Environmental Protection Agency (U.S. EPA), have issued their EJ policies and begun to incorporate EJ related considerations into their permitting process on a case-by-case basis. Additionally, some of these states have begun rulemaking to formalize EJ review as part of their permitting programs. So, what will 2023 bring? We fully expect EJ to have even more of a direct impact on permitting activity using existing rules, more enforcement, and the continued development of the various EJ tools that are already available. Additionally, the long-awaited cumulative impacts framework, the federal administration’s first guidance document on how to jointly assess both the environmental and socio-economic stresses on a community, is expected to finally be released.

ALL4 Can Help!

Before we get into it, ALL4 can help with a variety of EJ related tasks:

• Understanding your EJ footprint: What do the various EJ Tools say and what are the triggers that identify potential EJ communities around you?
• What are the concerns of your neighboring communities, and how might you engage them early in the permitting process, or before the process begins?
• Identifying what the environmental challenges are in your area that might trigger concern?
• What is the regulatory environment? What is your state doing related to EJ? How have they incorporated it into their permitting program? Is the U.S. EPA pressuring them to do more?
• What EJ related activity has occurred nearby? Who were the interest groups, and how did the agency and industry react?

Environmental Justice Activities in 2022

2022 was a very busy year in EJ, between EJ tool releases, guidance published by various federal agencies, and actions. Let’s take a quick look at each:

EJ Tools: 2022 saw the release and update of several tools designed to support EJ budgetary decisions and tracking, and to help identify communities that are potentially overburdened. Additionally, late in the year we saw a trend towards updates supporting cumulative impact analyses. The two most important of these are:

EJSCREEN:  Two new versions of EJSCREEN were released in 2022, versions 2.0 and 2.1. These versions made the underlying data easier to get to, and version 2.1 brought in threshold maps that allow the user to search on selected groupings of EJ indexes.

Climate and Economic Justice Screening Tool (CEJST):  The Council on Environmental Quality (CEQ) released the first official version in November, following up on the initial Beta release from February. This tool is designed to identify communities eligible for funding as part of the Justice40 initiative.

For more information on these tools, refer to our blog from earlier this year.

Federal Guidance: Instead of new rules and regulations related to EJ, several agencies issued planning documents, guidance, and FAQs on EJ, especially related to permit actions. The most important of these were The Equity Action Plan, EPA Tools to Advance Environmental Justice, the Inflation Reduction Act (IRA), and the Interim Environmental Justice and Civil Rights in Permitting FAQ. These documents created specific EJ action plans, provided billions of dollars in funding to address EJ issues, and described how existing rules and regulations could be used to address EJ issues in lieu of any new federal rulemaking related to EJ.

State EJ Developments: While the federal administration was busy issuing EJ tools and guidance, the states were active as well. New Jersey continued to lead the way, issuing draft rules to support its new EJ law passed in 2020, many other states issued policy statements and began requiring some level of EJ review, either formally or on a case-by-case basis as part of their permitting process.

EJ Actions: 2022 also saw a rapid increase in litigation and other actions related to EJ. While there were many, the most significant of these were U.S. EPA’s initiation of investigations into whether the permitting programs of Michigan, Texas, and Louisiana are in violation of Title VI of the Civil Rights Act, and a Louisiana court’s decision to reject 14 Clean Air Act (CAA) permits issued by the Louisiana Department of Environmental Quality (LDEQ), partially on EJ grounds, which I discussed in detail in my October 13^th blog.

Finally, in November 2022 U.S. EPA announced the creation of a new Office of Environmental Justice & External Civil Rights. Bolstered by billions of dollars of IRA funding, the office is to be held at the same level as the other media (air, water, waste) agencies at U.S. EPA.

What will 2023 Bring for Environmental Justice?

As was the case for 2022, EJ will remain one of the two main areas of focus for the Biden administration along with climate change. With more than $40 billion dollars from the IRA targeted at EJ issues and the new dedicated Office of Environmental Justice & Civil Rights, the administration’s EJ agenda is likely to move forward even faster and in a more coordinated manner. With the Democrats now holding a majority in the Senate, it is likely that they will move quickly to name an assistant administrator for the new Office. Other things to look for in 2023 include:

Cumulative Impacts Framework: This guidance was in fact previewed as something to look forward to in our 2022 lookahead, but this time, we mean it! For one, the Equity Action Plan commits to having the framework fully implemented by September 2023, meaning there is no time to lose. The framework is expected to make recommendations as to how to consider all stressors on an affected community as part of the permitting process, both the environmental impacts of a project over all media (air emissions, wastewater, etc.) and the socioeconomic stressors that could affect a community’s ability to absorb additional burden. These include things like poverty, shorter life expectancy, access to adequate health services, etc. The delays around this framework have largely been around how to score these socioeconomic stressors against the environmental ones: As Environmental Health and Safety professionals, we’re used to quantifying air and water-borne emissions and assessing their potential health impacts but weighing them against more subjective social indicators is more difficult and subject to potential legal challenge. Over the course of 2022 we first heard that the release of the draft framework was imminent, but shortly thereafter the Science Advisory Board (SAB) was asking for comments on what they should be researching to support the framework, suggesting further delay. Additionally, U.S. EPA, in a Letter of Concern to LDEQ related to their Title VI investigation, recommended that LDEQ perform a cumulative impact analysis of the Formosa project and one other as part of their EJ analyses of the two projects. From the outside, it appeared to me that they were looking for someone to complete one of these assessments on their own to give U.S. EPA an example to point to as how to do it. It remains to be seen if LDEQ has any interest in investing the time and resources necessary to comply with U.S. EPA’s request, especially with no real guidance as to what would be adequate.

Finally, U.S. EPA has already, on January 11^th, 2023,  issued new guidance related to cumulative impacts in the form of an addendum to the “EPA Legal Tools to Advance Environmental Justice” that specifically describes how existing regulatory and legal programs can be used to address cumulative impacts.

Unfortunately, those (like us) who were looking forward to the upcoming framework having concrete requirements to be assessed if certain conditions were met for a project near an overburdened community, are likely to be disappointed: It appears that the framework is going to be primarily ideas for how an agency could conduct a cumulative impact assessment without concrete instructions or requirements. There is also the question of what kind of requirements, if any, the U.S. EPA could legally push states to implement in their minor source (not PSD) permitting programs.

Regardless of what the eventual federal cumulative impacts framework includes, a number of states are developing their own processes for assessing cumulative impacts, most notably California, Massachusetts, and New Jersey.

More Consideration of EJ in Permitting: On December 22, 2022, the U.S. EPA Office of Air & Radiation (OAR) reinforced the Interim Environmental Justice and Civil Rights in Permitting FAQ by issuing its own Principles for Addressing Environmental Justice Concerns in Air Permitting. This document puts forward eight principles and recommends that the 10 U.S. EPA regions immediately adopt them and begin working with states and other agencies to help implement them. The principles are wide ranging but focus mostly on early outreach and engagement on that “may have a disproportionately high and adverse effect on communities, including those with environmental justice concerns.” This statement is repeated several times in the five-page document and suggests that these principles are to be applied to ALL projects, not just those near potential EJ communities. The guidance also goes as far as suggesting that agencies should train the public as to how to make effective comments during the application process.  Whether these principles get adopted by any or all affected agencies remains to be seen but it is something to watch for. Regardless, across 2022 we saw many cases where states were adding EJ requirements to the permitting process without any formal rules requiring it or solid guidance as to what the state wanted to satisfy them. With the new U.S. EPA office revving up in 2023, we are likely to see that pressure, and the pace of enforcement activities, to continue to increase. Because of the uncertainty these case-by-case situations can cause, facilities need to be aware of what their state agencies are doing in terms of EJ and factor in more time and potentially budget into their permitting plans to address whatever concerns the agency might have related to EJ.

Expanded Monitoring Programs: With many millions of dollars coming from the IRA and other sources for fence line and hyper-local (i.e., within affected communities) monitoring programs, we expect to see an increase not only in public interest groups receiving grants to develop these programs but also additional monitoring requirements coming out of U.S. EPA as a result of enforcement actions in a similar vein to the Westlake Settlement from June, 2022. Another aspect of this that we’ll be watching closely is whether U.S. EPA adopts any of the National Environmental Justice Advisory Council (NEJAC) recommendations on how the agency should transform their air quality monitoring plan and model it after the Clean Water Act’s (CWA) total maximum daily load (TMDL) program to better assess the total cumulative impacts on overburdened communities. Their recommendations include moving monitoring in an “upstream” direction by collecting data from inside the fence line of facilities as close to the emission sources as possible and reporting the data in real-time to the public and regulators via websites. They additionally recommend notifications be sent automatically should a facility violate their air permit or show an exceedance of air quality standards via the real time monitoring. These recommendations, if adopted, would be onerous to industry and would also create numerous logistical issues regarding the siting of these monitors and the reporting mechanisms. While it seems unlikely that U.S. EPA would adopt all these recommendations, it again shows the direction toward assessing cumulative impacts that the various government agencies are heading.

Conclusions

EJ as an administration focus is here to stay, from billions of dollars being funneled to address EJ issues to the creation of a dedicated EJ office in the U.S. EPA. In 2023, we will see more policy and rulemaking activity related to EJ, both at the federal and state level, and no doubt continued federal activities related to permit actions and enforcement.  ALL4 will continue to follow EJ activity at the state and federal level and can help with any or all of the items discussed above; for more information, please contact Rich Hamel.