U.S. EPA Releases Several New Documents Related to Environmental Justice Policy

On November 9^th, the White House Office of Management and Budget (OMB) finalized the first major change to the cost benefit guide for regulatory changes in 20 years, including changes that address the benefits of greenhouse gas rules, and putting an emphasis on the effects of regulations on disadvantaged communities. The revised “Circular A-4”, last updated in 2003, includes a lower initial discount rate used to reduce the estimate of the future health and economic benefits of rules (thus driving those values up), and directives for agencies to weigh the possible global as well as domestic benefits of regulations. The revisions would impact draft proposals submitted after February 29^th, 2024, and draft final rules submitted after December 21^st, 2024. Environmentalists and public health advocates are praising the revisions, largely because of the first ever emphasis of equity as a policy goal.

On November 15^th, the United States Environmental Protection Agency (U.S. EPA) issued a 130-page draft document “Technical Guidance for Assessing Environmental Justice in Regulatory Analysis,” updating U.S. EPA’s first version of the document that was issued in 2016 during the Obama administration and attempting to cement the Biden administration’s goal of having EJ at the forefront of agency decision making. According to U.S. EPA, the guidance reflects “the state of the science; new peer-reviewed agency guidance; and new terminology, priorities and direction.” According to the Federal Register Notice, the guidance discusses “technical approaches and mandates that can be used to evaluate EJ concerns for regulatory actions.”

U.S. EPA adds that the guide builds on the experience the agency has in evaluating EJ “within the rulemaking analytic process and underscores the U.S. EPA’s ongoing commitment to ensuring the just treatment and meaningful involvement of all people with respect to the development, implementation and enforcement of environmental laws, regulations, and policies.” U.S. EPA will accept comments on the proposed guidance through January 15^th, 2024. This is the latest in a series of documents we’ve seen since early 2023 that have outlined how EJ matters can be incorporated into existing regulatory and policy decisions. Some of these previous documents include:

• December 2022: memorandum on Environmental Justice in Air Permitting
• January 2023: Addendum to EPA Legal Tools to Advance Environmental Justice that integrates cumulative impact assessments.
• The November 9^th cost-benefit guide described earlier in this update.
• The November 16^th draft Achieving Health and Environmental Protection Through EPA’s Meaningful Involvement Policy. This document updates U.S. EPA’s 2003 Public Involvement Policy.

Finally, U.S. EPA updated its draft “Guidelines for Cumulative Risk Assessment Planning and Problem Formulation” on June 16^th, 2023. While the revised guide attempts to expand the evaluation of EJ considerations, it also notes that gaps exist in the ability to link demographic characteristics to environmental stressors, a concern we’ve heard repeatedly in the context of how a cumulative impact assessment (CIA), that addresses both the environmental and social stressors in a quantitative manner and could be part of a larger cumulative risk assessment, would work. As an example of these complex challenges the draft notes “To better evaluate incremental changes associated with a regulatory action, U.S. EPA program offices expressed a need for dose-response curves that vary by demographic characteristics; information on how to consider exposures during critical life stages, such as childhood; and the link between genetic factors or behaviors that could give rise to greater susceptibility. Another frequently noted methodological gap was how to incorporate non-chemical stressors into the analysis and consideration of cumulative effects.” For a more detailed look at this document, see ALL4 Technical Director Joe Sabato’s blog on this topic.

What Do these Updates Mean to You?

These federal documents all serve the continuing integration of EJ concerns into all aspects of the Biden administration’s environmental agenda. While most of these don’t directly impact industry, there could be additional EJ related requirements that get integrated into new regulations that would trickle down to permitting activities in the future, and we continue to track whether formal cumulative impact assessments eventually become a requirement and how they might be implemented.

If you have concerns about the potential implications of these documents or need help parsing through them, feel free to contact your ALL4 Project Manager or Rich Hamel. We’ll continue to monitor EJ guidance from the administration and states and the tools available to evaluate EJ concerns as they develop. We can also help you evaluate permitting risks, from EJ concerns to regulatory issues, and assist in developing a strategy to make the permitting of your project as efficient as possible.