The White House Counsel on Environmental Quality (“CEQ”) released proposed Phase 2 National Environmental Policy Act (“NEPA”) regulations governing how federal agencies implement NEPA (the “Proposed Rule”) that, among other things, stresses the consideration of environmental justice in the environmental review process. In a change from previous administration practice of issuing guidance on how to use existing authorities to achieve environmental justice goals, the Proposed Rule expressly includes new environmental justice requirements in the NEPA process. In the administration’s own words, “the proposed rule will direct agencies to consider environmental justice in environmental reviews and—for the first time—encourage agencies to incorporate measures to avoid or reduce disproportionate effects on communities, including the cumulative effects of pollution.”
Under the proposed rules, “Federal agencies shall to the fullest extent possible…[e]ncourage and facilitate…meaningful engagement with communities with environmental justice concerns…” and “identify and assess the reasonable alternatives to proposed actions that…address adverse health and environmental effects that disproportionately affect communities with environmental justice concerns.” Proposed 40 C.F.R. § 1500.2(d), (e). CEQ also proposes redefining environmental justice, including replacing the term “cumulative effects” with “cumulative impacts,” to reflect the aggregate effect of multiple environmental and non-environmental stressors. Id. § 1508.1(k) and 88 FR 49924, 49961.
With respect to disproportionate impact, the proposed rules:
- Require agencies, when determining the “significance” of the action, to consider “[t]he degree to which the action may have disproportionate and adverse effects on communities with environmental justice concerns.” Proposed 40 C.F.R. § 1501.3(d)(2)(ix).
- Require the analysis of alternatives, which CEQ calls “the heart of the environmental impact statement,” to include identification of alternatives that “address… disproportionate and adverse effects on communities with environmental justice concerns…” Id. § 1502.14(f).
- Require the environmental consequences discussion to include “[t]he potential for disproportionate and adverse human health and environmental effects on communities with environmental justice concerns.” Id. §1502(16)(a)(14).
- “[W]here relevant and appropriate, incorporate mitigation measures that address or ameliorate significant adverse human health and environmental effects…that disproportionately and adversely affect communities with environmental justice concerns.” Id. § 1505.3(b)
The proposed rule is open for public comment through September 29, 2023.
EPA: Environmental Justice Underpins 2024-2027 Enforcement Priorities
EPA recently finalized its national enforcement and compliance initiatives (NECIs) for fiscal years 2024-2027. Although environmental justice is not a specific NECI, one need barely scratch the surface to find an EJ thread connecting many, if not all, of the NECIs. Indeed, the issuing statement from David Uhlmann, now Assistant Administrator for the Office of Enforcement and Compliance Assurance, states that EPA will “integrate environmental justice considerations into each of its” NEICs. Carryover priorities include reducing air toxics in overburdened communities, increasing compliance with drinking water standards, and accident risk reduction confirm continuing resonance with events that dominated the news over the past few years. And the newest priorities – climate change, coal ash contamination and PFAS – are and are expected to continue to be a focus of advocates and local communities.
New EJ Lawsuit Seeks Broader EJ Protections in Colorado Environmental Permitting
Along with EPA’s recent broad-based focus on environmental justice in environmental permitting, third parties are now filing lawsuits to force State agencies to significantly increase EJ assessments in environmental permitting. On August 21, 2023, three environmental groups in Colorado—GreenLatinos, 350 Colorado, and Earthworks—filed a lawsuit in Denver County District Court against the Colorado Air Quality Control Commission (“AQCC”) to broaden the scope of the State’s recent finalized EJ Rules. According to the lawsuit, the State’s EJ Rule fails to ensure that residents of communities who “have long borne a disproportionate share of adverse human and environmental effects from polluting industries” receive the protections provided by the State’s recent Environmental Justice Act (“Environmental Justice Act”).
For the Plaintiffs, the AQCC failed to promulgate EJ regulations that fairly and fully reflected the broad requirements inherent in the State’s Environmental Justice Act. In Colorado, the AQCC is a governmental entity within the Colorado Department of Public Health and Environment (“CDPHE”) that exercises primary rulemaking authority to implement the Colorado Clean Air Act.
For the three environmental groups, the State’s EJ Rule fell short of the Act’s requirements in five ways. First, it failed to require additional source-specific monitoring requirements for most sources, and, instead, allows most sources to pay a fee for community monitoring. Second, it created a vague community monitoring program that does not explain how it will operate or how the fees imposed will be adequate to fund it. Third, it improperly divided disproportionately impacted communities into two categories, only one of which will receive the benefits from statutorily mandated enhanced modeling and source-specific monitoring, leaving many disproportionately impacted communities with the greatest air pollution burdens without those benefits and making it even more difficult for communities to understand what protections exist for them. Fourth, it did not consider including “hazardous air pollutants” that have the potential to cause significant health or environmental impacts. Fifth, it limits enhanced modeling and source-specific monitoring to a handful of sources, leaving many communities without the protections mandated by the Act.
With respect to their legal claims, the groups alleged the following actions by the AQCC violated the State’s Environmental Justice Act violated the State’s Environmental Justice Act and violated the State’s Administrative Procedures Act (“APA”):
- the Commission’s failure to require source-specific monitoring in all disproportionately impacted communities;
- the Commission’s decision to give letter protections to a “subset” of disproportionately impacted communities “highly burdened by air pollution,” and
- the Commission’s failure to evaluate the high-risk hazardous air pollutants.
As for other claims, the groups also alleged the AQCC violated the Colorado APA because:
- the Commission’s community monitoring requirements were “unreasonably vague and arbitrary”, and
- the Commission’s thresholds for criteria affected pollutants were “arbitrary and capricious.”.
As one of the first lawsuits forcing broader EJ regulation in state permitting, the GreenLatinos’ EJ lawsuit is expected to be widely followed by State governments and permitted industry.
EPA Regions Open Stand-Alone EJ Offices
EPA is planning to expand the model of its recently formed national Office of Environmental Justice & External Civil Rights to the 10 regional offices. As announced during a national environmental justice engagement call, each EPA region will have a new independent Environmental Justice division on par with the existing offices for air, water, and Superfund. According to initial plans, the standalone EJ regional offices will also handle the agency’s NEPA (National Environmental Policy Act) work, children’s health, and public engagement. Additional details, including a timeline, for the new offices are not yet available, but EPA has signaled its intention to engage with the public as it works to implement the regional EJ divisions.
Over 16,500 comments were provided in response to the request of the White House Council on Environmental Quality and Office of Science and Technology Policy for feedback on developing an “ocean justice strategy.” In June, CEQ stated the goal of this strategy is to address disparities found in communities near oceans and the Great Lakes that are attributable to discriminatory decisions or patterns.
However, after receiving a large number of responses from a diverse range of commentors, there are concerns that the term “ocean justice” may prove difficult to define. Certain eNGOs promoted the development of science-based approaches to mitigate harm and improve circumstances for ocean justice communities in coastal areas. The American Petroleum Institute asked CEQ to consider a flexible approach given the “distinct perspectives and priorities” of different stakeholders. Attorneys general from states including California, New York, and Washington, D.C. focused on the fact that federal decision-making on construction and infrastructure projects, flood control and navigation projects, and goods movement and freight operations historically excluded underserved communities. As such, they expressed the need for federal funding to improve coastal access and amenities to these communities. And certain members of the fishing industry submitted comments considering the industry to be an underserved community whose ability to fish is impacted by offshore wind, and requested that any future ocean justice strategy require the same stringent scientific/regulatory standards that apply to the commercial fishing industry be likewise applied to offshore wind developments.
Many different or competing perspectives and priorities were raised during the public comment period. It remains uncertain how the Biden administration intends to integrate these varying perspectives into a clear definition and strategy for “ocean justice.”
King & Spalding previously reported on the Environmental Protection Agency’s new guidance on addressing cumulative impacts. Accounting for cumulative impacts is a central feature of the Administration’s focus on environmental justice initiatives. But a recent report from the EPA’s Office of the Inspector General says EPA’s actions to date do not go far enough.
As a result, the OIG recommends that EPA “improve coordination between its Superfund, RCRA, Air, and Water programs to consistently address cumulative impacts across programs.” Should the EPA act on the OIG’s recommendation (assuming it has the statutory authorization to do so), clients can expect further policies requiring evaluation of cumulative impacts across programs—such as evaluating cumulative impacts to both air and water instead of cumulative impacts to either air or water—at sites regulated by the agency.
PHMSA Social Equity Mapping
As part of Department of Transportation’s implementation of EO 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, and EO 14008, Tackling the Climate Crisis at Home and Abroad, in August 2023, the Pipeline and Hazardous Materials Safety Administration (“PHMSA”) announced the launch of its Social Equity Mapping Tools, which allow users to visualize pipeline incidents across the U.S., the operator of the pipeline, and the cause of the incident. The Tools also provide information about whether the incidents occurred in a “disadvantaged community,” which DOT determines by analyzing census tracts using an index of five components: (1) transportation insecurity, (2) health vulnerability, (3) environmental burden, (4) social vulnerability, and (5) climate and disaster risk burden. PHMSA notes that the Tools are part of the DOT’s Justice40 initiative, which aims to direct 40% of the benefits of DOT grants and programs to disadvantaged communities.