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Minimizing Risks to Permitting and Compliance Associated with Increased Focus on Environmental Justice

Securing environmental permits is often big part of operating a business. How the US Environmental Protection Agency’s (EPA) recent focus on environmental justice (EJ) issues might affect that permitting remains something of an open question.

Nevertheless, even accepting that the Biden Administration’s EJ efforts so far related to permitting are nascent, there is now sufficient data to discuss guideposts the regulated community can use to help proactively mitigate possible EJ risks in the permitting and compliance space.

While the Biden Administration has used spending under the Inflation Reduction Act (IRA) to begin to reshape the energy space (see our discussion here), proposals to alter federal environmental statutes to explicitly incorporate EJ measures, have not advanced as of the date of this post. Without federal statutory reform, permitting- and compliance- focused efforts are likely to remain largely reactive or derivative of a more robust application of federal civil rights laws. There is particularly significant activity recently on the latter front.

Three examples illustrate this:

  • Biden Administration efforts related to a Chicago metal recycling facility relocation to an EJ area have resulted in the facility operator building a facility it cannot legally operate.  Since Chicago officials pushed the relocation, Chicago’s future funding from the US Department of Housing and Urban Development has been put at issue. (See our discussion here.)  

  • In Louisiana, EPA EJ officials are pushing for dramatic changes in state-level permitting. (See our discussion here.)

  • Regarding some of the same Louisiana facilities but at the state level, local organizations recently succeeded in an appeal to vacate air permits issued by the state environmental agency on the grounds that the agency’s EJ analysis relied on “selective” and “inconsistent” data and failed to appropriately consider air quality impacts on an already overburdened community. This case is discussed here.

These examples are not outliers. Recent guidance issued by EPA EJ personnel confirms its intent to proactively audit relevant compliance programs to ensure compliance with federal civil rights laws.

Broader diligence efforts as part of operational planning can mitigate some of the risks incident to increased focus on EJ issues. While some general steps might be appropriate at all sites, other steps differ depending on whether a site is currently an operating site or a planned new operation. We outline general principles the regulatory community can follow regarding permitting and compliance below.

Community Engagement

Regulated entities have long known that their neighbors can, and often do, influence regulators. For operating facilities, this means that community complaints can drive increased enforcement. But, such is often not the case with respect to complaints from EJ communities. Complaints from those communities, according to proponents of EJ efforts, often go unheeded. Under-enforcement in EJ communities results in worse health outcomes for community members.

The first step in managing operational risks posed by EJ issues is understanding the communities where facilities operate. Regulated entities are often engaged in the communities where they operate. They participate in community events. They meet with local officials. They listen and react to community concerns. All of these efforts inherently help to manage risks in all communities.

Learn and Monitor the Extent to which Facility is in an EJ Community

As EJ concerns have become more important to regulators, the regulated community needs to proactively understand whether the communities where they operate are EJ communities. EPA is focused on addressing risks posed by cumulative impacts to EJ communities. (See our discussion here.) One of the primary tools regulators are using to do this is through using databases like the federal EJSCREEN tool to target enforcement efforts. Keeping an eye on new data incorporated into the EJSCREEEN tool is a second step that members of the regulated community can take. We discuss the latest revisions to this tool here.

Prepare for Increased Regulator Scrutiny

Outside of databases, the presence of well-organized groups advocating for action on EJ issues is a second.  Facilities identified in relevant databases or facing community pressure may face increased scrutiny in terms of ongoing operations. This increased scrutiny could come in various forms:

  • Increased site inspections. A recent strategic plan by EPA indicates that – by 2026 – 55% of site inspections should occur in EJ areas. (See here.)

  • The use of air- and land-based sensors and other technology to promote increased compliance. (See here.)

  • Focused resources on “capacity building” in EJ communities so that community members are better able to advocate for their needs. (See here.)

Regulators’ deployment of these tools may not result in a tsunami of new notices of violation. However, cost-effective proactive steps can be taken in EJ communities to minimize risk. These include having a strategy in place to monitor and address community concerns; stressing open lines of communication with community members and local government officials; and working with public health personnel to develop an understanding of health issues prevalent in communities near permitted operations.  

Monitor for Local Legislative and Regulatory Actions

In the absence of changes to federal environmental statutes, EJ proponents are often working to impose EJ requirements through new state laws, and other avenues. Examples include:

  • Charging permitting applicants more to site facilities in EJ communities. (Proposed Illinois legislation taking this approach is discussed here.)  

  • Requirements for increased monitoring for facilities located in EJ areas. One example of this is “fenceline” monitoring at Chevron facilities imposed pursuant to an EJ-focused settlement with US Department of Justice. (See our discussion here.)

  • Increased reporting requirements. In response comments to a permit request being evaluated by Michigan officials, EPA stressed that daily – as opposed to monthly – reporting would be better in part to address EJ concerns. (See EPA’s letter here.) An example of increased attention focused on operating facilities is EPA’s recent announcement that it would investigate whether Texas permitting programs for concrete batch plants violate federal Title VI civil rights laws. The petitions – filed by the Harris County Attorney’s Office and Lone Star Legal Aid allege that Texas state regulators improperly amended permit standards to omit requirements that permit applicants show that permit-related particulate matter and crystalline silica emissions would not affect human health or the environment. EPA is specifically investigating whether the public process leading up to the permits’ amendment excluded participation by Spanish speakers. This investigation will be continuing and Texas regulators will have an opportunity to defend the process it used in modifying the affected permits. Texas appears ready to address some of EPA’s concerns: less than a month after EPA’s investigation was announced, Texas regulators embraced increased community outreach in some environmentally overburdened to work toward compliance with to comply EPA’s directives in the EJ space. Their newly-announced Public Involvement Form is available here.

© 2023 ArentFox Schiff LLPNational Law Review, Volume XII, Number 301
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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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