Bloomberg Law

A White House effort to ensure the federal government addresses the effects of climate change in environmental reviews will likely give disadvantaged communities more say in permitting, if agencies champion updated guidance, advocates say.

The Council on Environmental Quality advised agencies in interim guidance Jan. 6 to consider the direct and indirect emissions of new energy and other infrastructure projects and minimize effects on low-income and other vulnerable communities that bear disproportionate amounts of pollution.

Agencies are asked to identify, notify, and “meaningfully engage” with those communities when making permitting decisions under the National Environmental Policy Act.

While advocates are satisfied with the focus on environmental justice impacts for projects such as pipelines and oil and gas extraction, some question whether many federal agencies have the expertise, resources, and commitment to satisfy added environmental justice reviews.

The Biden administration might be committed to make good on the equity efforts, but getting the same effort from senior career officials and other staff could be trickier, said Mustafa Santiago Ali, who spent more than two decades as an environmental justice adviser for the Environmental Protection Agency.

One solution could be to add environmental justice efforts and progress to performance metrics for career positions at agencies, Ali said. “I’m a big proponent of folks doing the right thing because it’s the right thing to do, but I’d supplement that by making sure that it’s built into the structure” of each agency and linking it to compensation and bonuses, he said.

The guidance is the latest attempt to provide agencies some consistency in addressing climate impacts during environmental reviews. Federal courts have generally held that agencies should weigh climate effects under the 1970 National Environmental Policy Act, which requires environmental assessments for major projects.

CEQ’s guidance strengthens the Obama administration’s 2016 climate guidance, which President Donald Trump rescinded in 2017.

High-Level Commitment?

One broad concern for advocates is whether many agencies and states with permitting authority will fully embrace the guidance, particularly its significant focus on environmental justice concerns, said Anthony Karefa Rogers-Wright, environmental justice director for the New York Lawyers for the Public Interest.

The absence of environmental justice advisers at the highest levels of some agencies also has advocates worrying the guidance will result in inconsistent agency-by-agency commitments.

Ali, who now leads environmental equity issues for the National Wildlife Federation, estimates that only a quarter of agencies and departments are fully incorporating environmental justice into their work, including having senior advisers that have the ear of agency heads.

The issue isn’t just having a voice for communities when decisions on environmental permitting and reviews are made, he said, but also in the early framing of environmental justice in setting each agency’s priorities and policies.

That commitment is key, given “there’s only a tiny percentage” of agencies that aren’t impacted either by NEPA or the climate guidance, Ali said.

The guidance frames climate change as “a fundamental environmental issue” and calls for quantifying the additional emissions of projects, or the net emissions reductions in the case of climate-friendly renewable energy projects.

Agencies are to identify project alternatives and options to mitigate emissions and consider incremental emissions of a project—particularly whether “certain communities experience disproportionate cumulative effects, thereby raising environmental justice concerns.”

While the CEQ is tasked with ensuring all agencies meet their NEPA obligations, individual agencies from the Army Corps of Engineers to the Department of Energy oversee actual environmental reviews.

The Army Corps of Engineers recently completed a methodology to ensure environmental equity concerns are considered throughout its civil works programs, Adoratia Purdy, an agency spokeswoman, said. Individual Corps districts are working on plans to “ensure continued access and meaningful involvement of underserved communities on a more regional scale,” Purdy said.

Similarly, the Department of Housing and Urban Development has boosted its staffing levels by more than 20% under the Biden administration “due to increased responsibilities associated with new environmental requirements,” according to an agency spokesperson. HUD plans to hire new staff with environmental justice expertise, but the agency doesn’t anticipate that the new NEPA guidance will add significant time to its review process, the spokesperson said.

Both the EPA and DOE have expanded environmental justice work under the Biden administration, including adding staff specifically tasked with reaching out to disadvantaged communities.

Straining Agency Resources?

Even so, some agencies may embrace the guidance only reluctantly, depending on how aggressively CEQ promotes and enforces it, according to Thomas O McGarity, an environmental and administrative law professor at the University of Texas at Austin. Whether agencies take the guidance seriously will depend on how strenuously the Biden administration encourages them to, he said.

Courts may also play a role in how closely agencies will ultimately have to hew to the guidance, McGarity said.

CEQ’s guidance isn’t legally binding on agencies, but courts “may take the guidance into account in determining whether the agencies have fulfilled their obligations under NEPA—which is legally binding,” he said.

Industry attorneys say they expected the guidance to call for a more thorough accounting of emissions and climate impacts for projects, and to direct agencies to give more serious consideration to environmental justice concerns and consultation with disadvantaged communities.

One industry group, the American Petroleum Institute, has already requested an extension of the March 10 comment deadline on the proposal, citing potential impacts from the guidance on oil and gas projects, including pipelines, petroleum refineries, and gas and oil exploration and production on federal lands and the Outer Continental Shelf.

“CEQ’s guidance, specifically regarding agencies’ analysis of indirect and cumulative effects in NEPA reviews, may have significant impacts on agency review of oil and natural gas projects,” API said.

There is “nothing really surprising” about the guidance, said Simone Jones, an attorney focused on environmental litigation for Sidley Austin LLP whose clients include oil refineries. But there are some significant industry concerns, including the emphasis in the guidance on the cumulative effects of a project under review, she said.

CEQ’s guidance calls for those reviews to include incremental effects of the project or other agency action when added to a host of “other past, present, and reasonably foreseeable” actions.

“One of the things that would be helpful is to just have a more explicit understanding” of what that analysis on cumulative effects will require, particularly for existing facilities, Jones said.

“I don’t think there are clients out there that just don’t want to advance environmental justice,” Jones said. “But I do believe that there are concerns about the limitations” industry faces in doing so, she said, including “uncertainty around expectations” that may vary agency by agency.

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