The law firm of Kilpatrick Townsend has written about how EPA’s draft Strategic Plan (Plan) for 2022 – 2026 renews the Agency’s commitment to its original principles and adds a new foundational principle – advancing environmental justice and equity. Environmental justice under Title IV of the Civil Rights Act has not seen much emphasis or action in the past. The firm points to a 2016 study that found “EPA had never made a formal finding of discrimination nor withdrawn funding on the basis of civil rights violations.” This may be changing.
The article provides these concluding thoughts:
EPA is taking the first steps to exercise civil rights authorities to influence environmental activities by the state regulatory community and has taken more civil rights-based actions in the past year than in the previous 20+ years. Whether the impact of these actions extend beyond starting the investigation remains to be seen. The ultimate penalty, denial of federal funds, would be a bold move and may be counterintuitive to continued effective enforcement of the programs.
Many of the EPA letters initiating the Title VI investigations refer to EPA’s EJSCREEN tool as one basis for accepting the Title VI complaint. EJSCREEN is an environmental justice mapping and screening tool that combines environmental data indicators to provide environmental justice indexes for decision-making. The regulated community is advised to utilize this tool to understand the lens through which EPA is viewing the facility and the neighborhood.
The facilities most “at risk” for delays and other permitting impacts are those “new” facilities and or significant expansions of existing facilities located in proximity to low-income historically-disadvantaged communities. Red flags include moving the facility from a higher income community to a low income community as well as the state regulatory agency’s failure to respond to environmental justice complaints during the permitting process. In addition, ongoing compliance issues before expanding a plant are sure to raise community concerns.
Promises of economic returns and jobs related to the facility in question are not necessarily going to be legally responsive to environmental justice concerns.
As noted by Michigan’s EGLE, a state agency’s permit decision-making is constrained by statute and existing regulations. If a permit application is in conformance with regulatory requirements, the agency arguably is compelled to issue the permit. Failure to do so would make the action subject to challenge as arbitrary and capricious.
There are certainly many interesting facets to Title VI claims, but I am most curious about those in relation to air and water new permit and renewal applications – most of which are managed by state agencies that have been authorized to do so by EPA. States obtain delegation for managing EPA permitting programs by developing their own environmental regulations that are at least as stringent as federal requirements. Because that entire process takes years, there is always a lag between the time EPA (or Congress) issues a new mandate and when states obtain primacy for the new regulation (it took Texas more than 20 years to obtain EPA wastewater permitting delegation). If, as Kilpatrick Townsend points out is the case in Michigan, states are compelled to issue environmental permits if all state regulatory requirements are met – this could set the stage for some federalist versus states rights drama.
What This Means to You
Environmental permitting has always been a costly, long and difficult road. Public hearings and claims of racial inequity have been part of the process from the beginning, but to minimal effect. With this Administration’s EPA adding environmental justice as a foundational principle – and backing that up with more specific action than ever – companies should plan on it being a major new component of permitting. It would be prudent to read up on Title VI, EPA’s environmental justice resources, carefully review the socio-economic settings of operating locations and consider meaningful ways to address environmental justice allegations that may come forward.