The first two years of the Biden Administration have resulted in a seismic shift in terminology in the environmental space. Environmental justice (EJ), formerly viewed as a theoretical goal, has become unifying federal driver touching permitting, rulemaking, civil-rights investigations and policy-setting across all sectors of environmental law, including those at the state and local governments.
No longer is EJ an issue relegated to community activists and NGOs. Instead, EJ is positioned to remain a cornerstone of environmental compliance affecting all industry types and sizes for the foreseeable future.
The switch in focus from statutory compliance as a policy driver introduces new vocabulary and – in essence – new contours to the policymaking process. Over the past year, we’ve cataloged the tools the Biden Administration has been using to drive EJ policy, from its initial executive orders (see here) through early high-level policy guidance (here, here, here, here, and here), through EJ-focused spending initiatives (here) and the beginnings of civil-rights-focused investigations (here and here).
The regulated community – like EPA and state environmental regulators – is beginning the process of knitting this all together and, more specifically, looking at how businesses can successfully manage new changes posed by EPA’s intense focus on EJ issues. We recently wrote about how EJ-focused risks can best be managed in the permitting and compliance space. This said, EPA’s relentless focus in this area has resulted in shifts in emphasis, nomenclature, and – to some degree – legal processes. Below, we list five questions stemming from recent federal EJ efforts and provide some preliminary answers.
1. How Are “Disparate Impact” and “Cumulative Impacts” Defined in the Environmental Context?
While sometimes forgotten, federal regulation in the environmental space is partially rooted in the civil rights movement. Martin Luther King, Jr. was in Memphis for a strike by sanitation workers protesting pollution and hazardous working conditions when he was assassinated. (See here.) Perhaps then, it is unsurprising that the main federal environmental statutes – all drafted in the same era of the civil rights movement – have provisions related to civil rights.
“Disparate impact” in the environmental context originates in Title VI of the Civil Rights Act of 1964 and EPA’s nondiscrimination regulations at 40 C.F.R. Parts 5 and 7. These regulations prohibit discrimination by entities that accept federal funding. Title VI mandates that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” While this language hinges on there being a “program or activity receiving Federal financial assistance,” federal funding is omnipresent in the governmental space. Accordingly, the federal government can potentially deploy these civil rights provisions to broad effect.
“Cumulative impact” is a legal term – historically with ties to individual statutes — which relates to how effects of individual, even minor actions, when summed together, can result in greater systematic changes when used with a broader EJ lens. In September, EPA’s Office of Research and Development issued a report outlining open issues requiring further research in this space. The report defines “cumulative impacts” as
the totality of exposures to combinations of chemical and non-chemical stressors and their effects on health, well-being, and quality of life outcomes.
“Cumulative impacts” are assessed through a “cumulative impact assessment,” which
requires a systematic approach to characterize the combined effects from exposures to both chemical and non-chemical stressors over time across the affected population group or community. It evaluates how stressors from the built, natural, and social environments affect groups of people in both positive and negative ways. The posited elements of a cumulative impact assessment include community role throughout the assessment, such as identifying problems and potential intervention decision points to improve community health and well-being; combined impacts across multiple chemical and non-chemical stressors; multiple sources of stressors from the built, natural, and social environments; multiple exposure pathways across media; community vulnerability, sensitivity, adaptability, and resilience; exposures to stressors in the relevant past and future, especially during vulnerable life stages; distribution of environmental burdens and benefits; individual variability and behaviors; health and well-being benefits/mitigating factors; uncertainty and variability associated with the data and information; and approach for how to integrate data and information to assess cumulative impacts.
In EPA’s view, “cumulative impact assessments” may use information supported by relationships among stressors, exposures, effects, and/or health, well-being, and quality of life outcomes for which cause-and-effect linkages may not be well understood. Whether EPA’s view will ultimately align with how individual states propose to evaluate so-called cumulative impacts remains, for the foreseeable future, uncertain. Cumulative impact assessments can factor “unknown effects of co-exposures to non-chemical stressors” as “risks . . . even if causal mechanisms are not fully understood.” These can differ based on state, region, and even locality; thus, developing a comprehensive process for evaluating site-specific cumulative impacts remains a significant challenge.
2. What Are the Main Tools EPA Is Using To Address EJ Issues?
EPA has used three main tools in its first year of renewed focus on EJ issues:
- engagement with states and local governments on issues that might be adjacent to past federal efforts;
- targeted and increased spending; and
- Increased use of monitoring technologies (especially at “fencelines”).
Efforts in each area are summarized below.
Increased (and re-targeted) spending. Shortly after the Biden Administration took office, it announced the “Justice40 Initiative” (see here), setting a goal for 40 percent of the benefits of certain federal programs to go to “communities which are marginalized, underserved, and overburdened by pollution.” The Biden Administration has indicated that, between January 2021 and May 2022, Justice40-included programs totaled over $29 billion in opportunities.
Additionally, Congress and the Biden Administration have provided billions of dollars in new funding to address EJ concerns. EJ-focused spending has included preexisting grants, new Justice40 funding, and EJ-targeted funds associated with the Inflation Reduction Act. (See here.)
Engagement with other government units. EPA has directly and indirectly influenced state and local regulators to use delegated authorities to address EJ concerns. Major efforts include:
- Using threats to federal Housing and Urban Development funding to influence Chicago’s behavior in relation to the relocation of a recycling facility from a wealthy area to an environmentally overburdened community. (See here.)
- Weighing in on the siting of new chemical facilities in Louisiana, including suggesting to state regulators that an elementary school be relocated by a regulated entity as a condition to secure state environmental permits. (See here.)
- Efforts in Michigan to influence regulators to impose more stringent monitoring on an asphalt facility located in an EJ area. (See EPA’s letter to Michigan regulators here.)
- EPA’s civil rights investigation into whether Texas state regulators improperly amended permit standards to omit requirements that permit applicants to 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. At this point, Texas regulators embraced increased community outreach. Their newly released Public Involvement Form is available here.
Increased monitoring. As we have previously discussed (see here and here), EPA is addressing this concern, among other ways, by using its authority under Section 114 of the Clean Air Act to require that businesses and facilities collect air quality data or conduct computer air modeling to assess the impact of their operations on the surrounding communities. Increased monitoring – particularly at the “fenceline” of communities – is likely to result in increased enforcement.
3. At What Point Will EJ Actions Primarily Focus On Regulated Entities Directly and Not on State or Local Governments?
As we discussed above, much of EPA’s new efforts in the EJ space focus on leveraging state or local regulators to themselves address concerns in environmentally overburdened communities. Because state regulators frequently bear primary permitting responsibilities under federal law, using them as boots on the ground who can prioritize EJ issues is likely a necessary first step.
It is reasonable to expect that EPA will eventually weigh in through direct compliance and enforcement activities. Likewise, EPA has stressed that it intends to “proactively” audit activities it has funded to ensure compliance with civil rights laws. (See here.) From this, we infer a greater role for federal enforcement in the coming years.
4. To What Extent Will “Red” States Comply With EPA Civil-Rights-Focused Requests?
Recent years have seen “red” states increasingly lodge court challenges to actions by the federal executive branch when it is led by Democrats, while “blue” states do the same when we have a Republican president. And there is no doubt that this will continue. This said, at least at this point in the Biden Administration, “red” states have been more willing to comply with Biden Administration efforts to focus on EJ issues, as is evidenced by efforts in Louisiana and Texas discussed above. One can reasonably expect “red” state challenges to any Biden Administration efforts to promulgate new regulations or guidance materials under the Administrative Procedure Act.
5. Will These Changes Last Into Subsequent Non-Democratic Administrations?
It is too soon to tell whether the Biden Administration’s efforts to address EJ issues last into future non-Democratic administrations. To be sure, any changes which rely on executive orders or discretionary decisions made by political appointees can quickly be undone. Other efforts, such as those backed by increased spending, will likely continue. And, data generated by increased monitoring requirements under permits will generally continue to exist in a format that can be picked up by others even if EPA’s enforcement priorities would change.