Environmental Justice: Looking Ahead to 2024

2023 was another busy year in environmental justice (EJ) both at the federal and state levels. From the federal level, we saw a continuation of a lot of the elements from 2022 along with some new guidance and initiatives from the United States Environmental Protection Agency (U.S. EPA):

• A focus on enhanced enforcement efforts, with special attention to cases that impacted EJ communities. Consent decrees related to permit violations near EJ communities often included a fence line monitoring requirement.
• More guidance related to how existing regulations can be used to consider EJ in permitting and rulemaking activities in lieu of new rules related to EJ.
• A continuation of U.S. EPA commenting on permits issued by state agencies for potentially not taking EJ concerns into consideration.
• U.S. EPA’s publication of its draft Guidelines for Cumulative Risk Assessment Planning and Problem Formulation was designed to “lay the foundation for considering current and anticipated future cumulative risk analytical methods”, but did not provide any specifics as to the execution of a cumulative risk assessment that many in industry craved.
• A continuing flow of money for grants and programs to enhance public engagement, focus on projects designed to improve conditions in EJ communities, and for fence line and “hyper-local” community level monitoring programs.
• Release of version 2.2 of the EJSCREEN tool with more focus on providing data that might support a cumulative impact analysis (CIA) in the future. Another tool, the ECHO Clean Air Tracking Tool (ECATT) also brings together EJ data, enforcement data, and emissions data of both criteria pollutants and toxics, with a very powerful search capability, also very much conducive to supporting CIA’s.

We also saw EJ advocacy groups like the White House Environmental Justice Advisory Committee (WHEJAC) and others increasingly involving themselves in regulatory matters, including:

• Continued opposition to carbon capture and sequestration (CCS) projects, tangentially including hydrogen production projects that require CCS to manage Greenhouse gas (GHG) emissions. How this opposition plays out given U.S. EPA’s recent grant of primacy to the state of Louisiana in issuance of permits for Class VI underground injection control wells (UIC), which are critical to CCS projects, will be one of the things we pay attention to in 2024.
• The reconsideration of the particulate matter of 2.5 microns (PM_2.5) or less National Ambient Air Quality Standards (NAAQS)
• The revisions to the National Environmental Policy Act (NEPA) rules.

On the state front, many states continue to develop their policies and consider rulemaking and have started to consideration EJ in their permitting programs. Some of these include:

• New Jersey finalized its first in the nation Environmental Justice Rule first passed in October 2021.
• Colorado passed its own Environmental Justice Rule for disproportionately impacted communities that includes the potential for requiring air dispersion modeling of toxics, fence line monitoring, additional controls, and additional public outreach.
• Connecticut passed SB 1147, which allows the Connecticut Department of Energy and Environmental Protection or the Connecticut Siting Council to deny a permit on EJ grounds.
• Massachusetts’ amendment to their 310 CMR 7.00 requires a cumulative impact assessment for those permit actions proposed for facilities in or near EJ communities.
• New York finalizing its cumulative impacts bill, modeled after New Jersey’s EJ law. This led to the state’s Draft Policy for Evaluating and Averting Disproportionate Impacts of Permitting Actions on Disadvantaged Communities issued in September.
• Virginia issued its draft Environmental Justice in the Permitting Process guidance that outlines a permit evaluation process for all permitting actions and establishes methods for permits of particular concern near EJ communities.
• Pennsylvania advanced House Bill 652 to evaluate the potential impacts of permitting projects in or near low-income neighborhoods, also modeled after New Jersey’s law.
• North Carolina Governor Roy Cooper signed Executive Order 292 “Advancing Environmental Justice for North Carolina”, which cements North Carolina’s commitment to EJ regardless of what might happen at the federal level in the future.

Big EJ Questions and Things to Look for in 2024:

Looking ahead to 2024, what is on the radar and what do we at ALL4 see happening? Here are a few things we’ll be following closely:

• Guidance on Cumulative Impact Analyses (CIA): This is the 3^rd year we’ve done this lookahead for EJ and the 3^rd time we’ve anticipated guidance on CIA’s. We’re still waiting. One thing we do know from Matt Tejada’s talk at the AWMA EJ conference in October 2023 is that we should not expect specifics on what to do and what is required, but instead the guidance will have suggestions on how a CIA could be performed. This is likely to disappoint those looking for certainty in the requirements so that they know how to plan their projects.
• Who will replace Matt Tejada, who left U.S. EPA for a role at the National Resources Defense Council (NRDC), as deputy assistant administrator for Environmental Justice at the U.S. EPA Office for Environmental Justice and External Civil Rights? So far we have not heard any rumblings as to who will step into the role, but that selection will be important in either continuing to prioritize the elements of EJ that were the focus of Mr. Tejada’s agenda or in setting a new course in terms of the administration’s EJ efforts.
• How might the 2024 Presidential Election impact EJ efforts? This is a two-pronged question: First, in the run up to the election, will the administration increase its EJ efforts to get more done before a potential administration change and potentially cement the Biden administration’s legacy on EJ? Or will they at some point put a moratorium on new efforts while waiting for the outcome of the election? Second, if the Republican Party wins the election, what will that mean to federal EJ investment and interest? It seems pretty clear that should a Republican win, the administration’s funding of EJ programs and offices would likely fall to next to nothing as soon as the new administration takes over. This was highlighted in the Heritage Foundation’s draft policy guide for a future Republican administration. On the state side, we would expect that those states that have advanced their EJ policies during the Biden administration would continue to do so, while those states that have only acted on EJ when nudged by U.S. EPA would likely halt any future investment.
• Whether U.S. EPA will continue to use Title VI of the Civil Rights Act as their approach to forcing states to include EJ considerations in their permitting programs after having withdrawn their investigation in Louisiana when legally challenged by that state and coming to a state-friendly agreement with Michigan while facing a similar legal challenge by that state. The expectation is that well-funded NGO’s will continue to use EJ as an avenue to oppose permit actions, both in petitioning U.S. EPA to investigate the permitting entity on potential Title VI violations and by other legal means.
• What will the impact of U.S. EPA’s Thriving Communities Development Centers, designed to assist overburdened communities in navigating the grant process and access funds provided in the Inflation Reduction Act (IRA) be?
• The IRA and other programs have made available millions of dollars for fence line and hyper-local monitoring programs. When will we begin to see data from these programs, and how will it be utilized, and scrutinized?

Conclusions

Many questions remain as to where the administration’s EJ agenda will go in 2024, but we know it will continue to be a major factor in permitting considerations, especially in those states that are most active in developing their own EJ rules and policy.  ALL4 will continue to follow EJ activity at the state and federal level and can help you address EJ concerns near your facilities and help prepare and plan to address EJ in your permit actions; for more information, please contact Rich Hamel.