January 31, 2023

Volume XIII, Number 31

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January 30, 2023

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EPA Releases Interim FAQs Addressing How Environmental Justice Issues Could Impact Permitting

The Biden Administration has long been clear that it believes environmental justice (EJ) issues should be at the forefront of federal environmental law. With that in mind, US Environmental Protection Agency (EPA) and other environmental agencies have released materials discussing how EJ initiatives could shape environmental compliance and enforcement decisions, among others. The role of EJ in environmental permitting, however, has previously received somewhat lesser attention in guidance matters. 

EPA’s External Civil Rights Compliance Office recently issued an Interim Environmental Justice and Civil Rights in Permitting FAQs (available here) that provides preliminary, albeit interim, answers to key permitting-related EJ questions. These FAQs build on prior guidance from the External Civil Rights Compliance Office, in which the office expressed its intent to proactively audit relevant compliance programs to ensure compliance with federal civil rights laws. A primary concern linking many of the FAQs’ questions is the extent to which federal civil rights laws — enacted to address many forms of discrimination — can be used in the context of environmental protection in addition to traditional areas like education, employment, housing, and transportation. One key difference not clearly addressed by these FAQs is the role federal funding plays in shaping these areas, which is somewhat more pronounced than in the environmental context.

FAQ Highlights

EPA’s recent EJ efforts are intended to address historical environment permitting practices but did not evaluate whether new permits add “to the pollution burden in . . . vulnerable communities [in a way that is] discriminatory under civil rights law or unfair under environmental justice policies.” Key questions answered in the FAQs include:

  • What are EPA’s responsibilities under federal EJ policy, including with respect to permitting?

  • How can states and other funding recipients screen for EJ and civil rights concerns with respect to permitting programs and decisions?

  • What responsibilities does EPA have related to permit issuance to ensure compliance with civil rights laws by recipients of EPA financial assistance?

  • Does an entity’s compliance with the federal environmental laws in carrying out its permitting programs and decisions equate to compliance with the federal civil rights laws?

  • How can states screen for EJ and civil rights concerns with respect to their permitting programs and decisions?

  • What steps permitting programs could consider to address EJ concerns or ensure compliance with federal civil rights laws?

  • What are “promising practices” in conducting an EJ analysis related to permitting?

  • How would EPA factor in “cumulative impacts” (i.e., the total burden from chemical and non-chemical stressors that affect human health, well-being, and quality of life) in a “disparate impacts” analysis related to permitting?

  • What are examples of measures that permitting programs may be able to take to “mitigate adverse and disproportionate impacts” related to permitting?

  • How should permitting programs conduct community engagement?

Other Biden Administration EJ Efforts

EPA’s stated intent with the FAQs was to provide further guidance related to permitting issues, which have been left relatively undiscussed in prior Biden Administration EJ materials, which are extensive. EPA’s release of these FAQs is consistent with prior statements by EPA Administrator Michael Regan, who has emphasized that “environmental justice is not an add-on or afterthought – it is a central driving factor” in all EPA does. (See our discussion of these remarks here.)

EPA's "Equity Action Plan” released in April committed the agency to – among other things – increase community engagement, focus on equity in procurement and contracting, and use federal civil rights laws and a “whole of government” approach to advance environmental compliance. (See our discussion here.) An example of this approach is the US Department of Housing & Urban Development’s recent finding labeling the City of Chicago’s efforts to move a recycling facility from a wealthy, majority white neighborhood to a community that had been previously classified as “environmentally overburdened” as being problematic from an EJ perspective. (See our discussion here.) The Biden Administration’s efforts related to the Chicago facility provide a concrete demonstration of how civil rights laws can be used in the permitting context.

© 2023 ArentFox Schiff LLPNational Law Review, Volume XII, Number 249
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About this Author

J. Michael Showalter, Litigator, Schiff Hardin LLP
Associate

Mike Showalter is a litigator whose practice is focused on resolving complex disputes. Mr. Showalter's past clients span diverse industries including manufacturing, mining, power generation and transmission, oil and gas, the financial and insurance sectors, and process outsourcing.

Mr. Showalter's practice has focused on distilling complicated technical information into a format where it can be understood by decision makers. He has worked with experts in fields including medicine, economics, history, physical sciences, industrial hygiene, toxicology, environmental engineering and...

312-258-5561
Daniel Deeb Civil Litigation Attorney Schiff Hardin
Partner

Dan has been practicing environmental law for more than 20 years. His practice includes all facets of environmental law permitting, compliance and litigation, including federal and state cases involving the Clean Water Act, Clean Air Act, RCRA, CERCLA, FIFRA, TSCA, brownfields redevelopment, and state analogs. Before practicing law, Dan worked as a senior chemist for an environmental consulting firm and clerked for the U.S. EPA’s Office of Enforcement and Compliance Assurance. He is a frequent lecturer and has written about environmental legal issues for a variety of publications. His...

312-258-5532
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