Recent actions by the US Environmental Protection Agency (EPA) aim to institutionalize environmental justice as a key agency function and support development of tools, guidance and policies to advance it. A newly formed office will elevate environmental justice considerations to the highest levels of the agency. This increased institutional capacity will boost enforcement efforts targeting violations in disadvantaged communities—discussed in this prior WilmerHale alert—and drive changes in state permitting processes. Companies that integrate environmental justice considerations into business decision-making will be best prepared to adapt to increasingly robust regulatory requirements.
EPA Office of Environmental Justice and External Civil Rights
The most significant action is the establishment of a new national office charged with promoting environmental justice and civil rights. EPA’s new Office of Environmental Justice and External Civil Rights—created by merging three existing offices—will dedicate more than 200 EPA staff across the country under the leadership of a US Senate-confirmed assistant administrator to advancing environmental justice. While EPA has had an environmental justice function for years, the new national office will elevate environmental justice considerations to a higher level of the agency. The yet-to-be-named Senate-confirmed assistant administrator will have regular contact with EPA Administrator Michael Regan. And the expanded staff will increase the agency’s ability to distribute $3 billion in climate and environmental justice grants created by the Inflation Reduction Act, implement environmental justice goals and enforce civil rights laws.
The new office’s emphasis on civil rights forecasts an increased focus on environmental justice in state permitting programs—including those under the Clean Air Act and Clean Water Act. As a stand-alone office tasked with enforcing Title VI of the Civil Rights Act—which prohibits any recipient of federal funding from discriminating on the basis of race, color or national origin—the former External Civil Rights Compliance Office rarely took steps to investigate state programs. Civil rights investigations will now be handled by the new national office and are anticipated to be more aggressive and closely aligned with the agency’s environmental justice priorities. EPA has initiated a record number of civil rights investigations in recent months, examining whether state environmental agencies are violating civil rights laws in implementing environmental permitting and other programs. Under Title VI of the Civil Rights Act, EPA can withhold federal funding from state programs that violate civil rights laws. EPA is, for example, investigating Louisiana’s environmental and health agencies’ air pollution control permit program and practices to determine whether the agencies’ actions “result in disparate adverse impacts on Black residents” in Louisiana. These investigations are expected to become more frequent and could drive changes in state permitting programs to incorporate environmental justice considerations.
Interim Guidance on Environmental Justice and Civil Rights in Permitting
To help states understand their obligations under civil rights laws in environmental permitting programs, EPA issued interim guidance in August providing best practices for screening potential environmental justice issues, conducting environmental justice analyses, mitigating adverse or disparate impacts, and conducting community engagement, among other topics. Notably, the guidance advises that in cases where a permit decision will have adverse disparate impacts, “denial of the permit may be the only way to avoid a Title VI violation.” Although the guidance is not legally binding, it articulates a federal interpretation of civil rights law in the context of environmental permitting that could drive substantial changes to state permitting processes. New Jersey’s recently proposed regulations implementing the state’s landmark Environmental Justice Law provide one example of how state permitting programs may be revamped to integrate environmental justice considerations and avoid disparate impacts.
EPA is not alone in its increased scrutiny of state environmental permitting programs and permit decisions. Courts are also faulting state agencies for inadequately considering environmental justice and civil rights issues in permit decisions. For example, in September, a Louisiana state court canceled air permits issued by Louisiana’s Department of Environmental Quality to Formosa Plastics in part because the state agency failed to adequately analyze how the proposed petrochemical facility would impact nearby disadvantaged communities.1 Court decisions like this have significant implications for project permitting. Developers that proactively conduct robust environmental justice analyses will be well situated to withstand heightened scrutiny and avoid costly litigation and delay.
EPA also continues pushing forward practical tools to help agencies, developers and the public understand environmental justice. In October, EPA released an update to its environmental justice screening tool—EJScreen 2.1—that provides additional data for regulators and the public to use to screen for potential disproportionate environmental impacts. In addition to providing valuable data for environmental justice analyses supporting permit applications, these public screening tools can inform agency enforcement actions, federal grant distribution and internal governance and ESG policies.
These recent actions by EPA demonstrate the agency’s continued commitment to implementing President Biden’s ambitious environmental justice agenda. The new national office, staffing increases and focus on civil rights compliance are likely to permanently shift the agency’s operations and policies. Increasingly robust requirements for environmental justice analysis are anticipated to extend beyond EPA into state permitting programs. A thoughtful and proactive environmental justice strategy can help companies adapt to the evolving regulatory regime. The WilmerHale team monitors trends in this area and regularly advises companies on navigating developments. Please contact the WilmerHale ESG team to learn more.
1 RISE St. James et al. v. Louisiana Department of Environmental Quality, Case No. 694,029, in the 19th Judicial District Court Parish of East Baton Rouge, State of Louisiana.