Environmental Justice Policy in the U.S.

Since the Biden administration took office on January 20^th, the topic of Environmental Justice (EJ), along with Climate Change, has jumped to the forefront of the U.S. Environmental Agenda. It seems like almost every communication from the administration related to the environment now addresses EJ directly, and appointments to the Biden Cabinet are staff who have expertise in EJ.

Before we get into it, what is Environmental Justice? There are several different definitions used by the states across the US, but the most common is:

“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.”

Along with that definition comes the concept of “overburdened communities”, or communities of minority, low-income, or indigenous populations that experience disproportionate environmental harm or risk. It seems like only a matter of time until formal legislation addressing EJ on a national scale is enacted. While we wait for the rulemaking to begin, let’s look at where the administration appears to be heading.

The Biden Administration, “Justice 40” and the CLEAN Future Act

At the federal level, EJ is to be at the heart the administration’s All-of-Government approach, which means that Environmental Justice must be considered in all government policy and purchase agreements. In the January 27^th Executive Order announcing much of the administration’s environmental agenda, what has become known as the Justice 40 plan was announced, which targets clean energy investments with the goal of delivering 40 percent of the benefit to overburdened communities. Also supporting the order from the 27^th would be the proposed Environmental Justice Mapping and Data Act, designed to provide a legislative framework and funding to support the Justice 40 plan and other EJ goals. Since the executive order on the 27^th, U.S. EPA has also released a new version of the EJSCREEN tool. EJSCREEN is an EJ mapping and screening tool with national coverage that provides demographic and environmental information in the form of indicators that can be used to create EJ indexes to help inform decisions related to whether a community is overburdened.  Amongst other changes, the update adds 2 new indicators related to climate change: flooding and sea rise, again solidifying the administrations linkage between the issues of EJ and climate change. The administration has committed to integrate the tool into the development of EJ regulations in the next 6 months. On March 30^th, the White House Environmental Justice Advisory Council (WHEJAC) held their first virtual public meeting to discuss topics around the Justice 40 plan and the EJ aspects of January 27^th executive order, and announced the next two meetings, to be held on April 28^th and May 13^th. Additionally, the new U.S. EPA Administrator, Michael Regan, has made it clear to all U.S. EPA offices that they should prioritize EJ issues and step up monitoring and enforcement in EJ communities.

The draft legislation developed by House Democrats, the CLEAN Future Act, has significant provisions related to Environmental Justice:

• Defines an overburdened census tract, which is a census tract that:
  • Has been identified within the National Air Toxics Assessment published by the Administrator as having a greater than 100 in 1,000,000 total cancer risk: or
  • Has been determined to have an annual mean concentration of PM_2.5 of greater than 8 micrograms per cubic meter (µg/m³), as determined over the most recent 3-year period for which data are available.
• After the date of enactment of the CLEAN Future Act, no permit shall be granted by a permitting authority for a proposed major source that would be in an overburdened census tract.
• After January 1, 2025, no permit for a major source in an overburdened census tract shall be renewed.

The potential impact of this rule, if enacted, would be enormous: A large percentage of the United States, including most industrial areas, has an annual mean PM_2.5 concentration greater that the 8 µg/m³ threshold, meaning that no permitting of major sources in those areas would be allowed, and no permit could be renewed after January 2025. The House Committee on Energy and Commerce’s environment and climate change subcommittee held a hearing on the CLEAN Future Act, as well as 10 additional bills related to EJ, on April 15^th. The purpose of the hearing was to discuss proposals for inclusion in the American Jobs Plan proposed by the Biden administration with “climate justice” at the center of the issue, a further indication of the administration’s linkage between EJ and climate change.

In our view it is unlikely that legislation as stringent as the CLEAN Future Act will be enacted in the near future, however we should pay close attention to the evolution of this Act and the other proposed EJ legislature.

State Activities

While the federal government gets organized around their EJ programs, many states have been beginning development of regulations that integrate EJ into their permitting processes. To date only one, New Jersey, has passed such legislation, but much more is coming. Of the many states that are developing EJ rules or forming commissions to begin the process, California may be the farthest along, having unveiled proposed rule AB1001, which would directly establish additional requirements for permitting for facilities near communities identified as overburdened. Some of the key features include:

• Mandates the upgrade of CalEnviroScreen, the state’s proprietary EJ screening tool. CalEnviroScreen is a more detailed took than the federal government’s EJSCREEN and it is expected that it will be used as the prototype to significantly upgrade EJSCREEN in the near future as part of the Biden administration’s plans to formally integrate the tool into their EJ policy.
• Use EJ indicators from CalEnviroScreen during siting and permit applications to identify affected EJ Communities.
• Require the state to publish and maintain a list of overburdened communities.
• By July 2022, permit applicants must perform an “environmental justice impact statement (EJIS),” conduct a public hearing in the overburdened community, and submit the EJIS to the permitting agency, which would then deny, or require additional conditions to the permit if it determined that the overburdened community will be impacted more than others.

What’s next, and what can you do?

At ALL4, we believe that we’re only seeing the tip of the iceberg on EJ regulatory actions. We have been tracking activity at both the state and federal level and will continue to do so to be ready to help our clients address any EJ issues that may arise.  The next big related federal deadline is May 27^th, when government agencies are required to submit their recommendations for compliance with the Justice 40 plan. We expect to start seeing more formal federal regulatory activities related to EJ after that.  Meanwhile we also expect to see more states proposing formal EJ rules with the support of the Biden Administration, especially those states that implement a progressive environmental regulatory approach.  Our current advice includes:

• Keep tabs on regulatory and policy developments on the state and federal level. Know how your state or local agency is considering EJ in permitting. Be prepared to comment on proposed rules when the opportunity arises.
• Know your facility’s EJ footprint: Are your plants close to overburdened communities? What is your company’s relationship with adjacent communities?
• Plan to factor in time for enhanced outreach and potential permitting delays during expansion projects at facilities near EJ communities.
• Public awareness is at an all-time high. Stay ahead of the curve by improving your confidence in your emissions inventory and engaging with your community.
• Keep accurate records of emissions for “hot topic” pollutants such as PM_2.5, ethylene oxide, benzene, and PFAS.

If you have concerns about the potential implications of EJ Policies and Regulations and you’d like to discuss them, feel free to contact your ALL4 Project Manager or Rich Hamel. We’d be happy to share what we’ve learned so far and what we’re hearing is just over the horizon and assist you in any way we can.