News & Insights


April 12, 2023

Beyond the Fenceline: Environmental Justice Updates – April 2023

EPA Proposes New Restrictions on Ethylene Oxide, Citing Environmental Justice

On April 6, 2023, the US EPA announced a new proposal to restrict air emissions of ethylene oxide and chloroprene at roughly 200 chemical plants, stating that the “reductions would dramatically reduce the number of people with elevated air toxics-related cancer risks in communities surrounding the plants that use those two chemicals, especially communities historically overburdened by air toxics pollution...” EPA states that its proposal would update several regulations that apply to chemical plants, with the goal of reducing 6,053 tons of air toxics emissions each year, including a 58 ton per year reduction in ethylene oxide (EtO) and a reduction of 14 tons per year in chloroprene. Other air toxics the rule would reduce include benzene, 1,3-butadiene, ethylene dichloride and vinyl chloride. EPA estimates that its proposal would also reduce emissions of smog-forming volatile organic compounds by more than 23,000 tons a year.

EPA plans to make the monitoring data public through its WebFiRE database tool, using data generated in part by fenceline monitoring. EPA announced that it has conducted a “first-of-its kind” community risk assessment, evaluating the impacts of the proposed emissions reductions from synthetic organic chemical manufacturing on the total air toxics-related cancer risks from all large industrial facilities in an area combined – not just from the equipment and processes covered by EPA’s current proposal. EPA states that its community risk assessment shows that the numbers of people with elevated cancer risk could drop by 96 percent in communities surrounding chemical plants, if the proposal is finalized. 

EPA will accept written comments for 60 days after the proposal is published in the Federal Register and will hold a virtual public hearing. The Agency also will hold a training for communities on April 13, 2023, to review the proposal and answer questions.

EPA Approves Policy Incorporating EJ into Emergency Response

US EPA’s Office of Environmental Justice and External Civil Rights and Office of Land and Emergency Management recently approved a policy formally incorporating environmental justice into emergency response preparedness and management. Noting that previous efforts to incorporate EJ into incident response had limited effectiveness, EPA’s new guidance document makes five concrete recommendations to ensure EJ is considered during emergency response:

  1. Integrate EJ priorities into EPA’s National Approach to Response structure, and develop management and incident objectives to ensure responses are equitable.
  2. Engage EJ expertise in early incident management assessment processes.
  3. Incorporate EJ function and staffing support within Incident Management Teams and Emergency Operations Centers.
  4. Implement training requirements.
  5. Community engagement – develop and promote public participation guidelines for disaster response by relevant emergency response organizations in the public and private sectors.

EPA Announces EJ Funding Boost

On February 23, 2023, the Biden administration announced $550 million in funding for EPA’s new Environmental Justice Thriving Communities Grantmaking (EJ TCGM) program. The EPA press release states, “The new program advances the Biden-Harris Administration’s whole-of-government commitment to achieving environmental justice by building early, meaningful, and sustained partnerships with communities.” The $550 million originates from President Biden’s Inflation Reduction Act. The EJ TCGM program will fund up to 11 entities to serve as grantmakers to community-based projects that reduce pollution. The deadline to apply as a grantmaker is May 31, 2023, and applicants must be a community-based nonprofit organization (or a partnership of community-based nonprofit organizations), a partnership between a Tribal Nation and a community-based nonprofit organization, or a partnership between an institution of higher education and a community-based nonprofit organization. EPA intends to award each grantmaker approximately $50 million incrementally over a 3-year period. EPA anticipates grantmakers will begin awarding subgrants to community-based organizations no later than early 2024. The selected grantmakers are instructed to simplify the grant process to allow more funding to organizations that historically have faced barriers to receiving federal grants for addressing environmental harms and risks. EPA states that the EJ TCGM program will further the goals of President Biden’s Justice40 Initiative, which aims to deliver 40% of the overall benefits of certain federal investments to disadvantaged communities that have been overburdened by pollution and historic underinvestment.

Activists File Sweeping EJ Lawsuit Against Their Local Government

On March 21, 2023, activists in St. James Parish, Louisiana filed an environmental justice lawsuit against their local government, claiming that the Parish’s land use system directed industry into primarily Black communities and away from primarily white communities in the Parish, allegedly resulting in disparate racial impacts from pollution, adverse health impacts and the inability of the descendants of slaves to access their ancestors’ unmarked graves. Inclusive Louisiana, et al. v. St. James Parish, et al., 2:23-cv-00987 (E.D. La.). In what might become a template for other environmental justice lawsuits, the complaint chronicles centuries of the Parish’s racial and land use history, links that history to the Parish’s current land use system, and makes wide-ranging and novel constitutional and statutory claims based on that history. Plaintiffs seek various forms of injunctive relief, enjoining the local government from siting more industrial facilities in the 4th and 5th Districts; appointing an independent monitor to enforce and measure compliance with monitoring and reporting obligations; creation of a community board to advise on additional remediation measures; and ordering a study to identify unmarked cemeteries.

EPA Issues Final “Good Neighbor” Plan under the Clean Air Act

The U.S. Environmental Protection Agency (EPA) finalized its plan under the Clean Air Act’s “good neighbor” provision (the “Plan”) on March 15, 2023. The Plan requires 23 states to reduce their air pollution that significantly contributes to a downwind state’s ability to meet EPA’s air quality standard for ground-level ozone, or smog, known as the 2015 Ozone National Ambient Air Quality Standards (NAAQS). The goal of the Plan is to reduce ozone nationwide, “with a focus on areas struggling to attain and maintain the 2015 ozone standards.” By the year 2026, nine large industrial sectors will be required to meet sector-specific emissions control requirements and emissions limits.  

In balancing the Plan’s costs and benefits, EPA considered the effects of the Plan on minority populations, low-income populations and/or tribal nations by quantitatively evaluating: (1) the proximity of affected facilities to potentially vulnerable and/or overburdened populations for consideration of local pollutants impacted by this rule, and (2) the distribution of ozone and PM2.5 concentrations in the baseline and changes due to the final rulemaking across different demographic groups on the basis of race, ethnicity, poverty status, employment status, health insurance status, age, sex, educational attainment, and degree of linguistic isolation. According to EPA, the Plan and its components, including daily backstop emissions rates for large power plants and regulation of both existing and future power plant and industrial sources, will directly improve the air quality in downwind communities that suffer a disproportionate burden from ozone pollution.