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June 24, 2022
Advancing environmental justice

The Biden administration continues to take actions to advance its goals to elevate environmental justice (EJ) and address past injustices by enforcing pollution laws to create equity for overburdened communities. The latest action is the release of “EPA Legal Tools to Advance Environmental Justice (EJ Legal Tools), dated May 26, 2022, by the EPA Office of General Counsel. It outlines specific actions the EPA and other federal agencies can take in utilizing existing regulations to advance EJ goals.”

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“Of course, [EJ] Legal Tools should be viewed as only one type of tool, albeit an important one, in EPA’s toolkit for promoting environmental justice and equity,” wrote EPA General Counsel Jeffrey Prieto in the document’s foreword. “[It] should be read in tandem with various Agency guidance … that provides technical information and describes how to integrate [EJ] and equity into the Agency’s work.  Such guidance includes ways to identify and address, under EPA’s existing authorities, public health and environmental quality disparities in communities with [EJ] concerns—disparities that will be exacerbated or remain in place if we fail to act. … EPA has an extraordinary opportunity to work collaboratively to fill a historic gap in our work and build a future for our nation where everyone enjoys clean air, water, and land in the places where they live, work, learn, and play and everyone is safer from the risks of climate change.”

“The document builds on and updates EPA’s 2011 Plan EJ 2014: Legal Tools,” reports King & Spalding LLP in a JD Supra article. “Nearly double in length and featuring a new chapter on civil rights laws, the [publication] provides EPA and its tribal, state, and local partners a compilation of legal authorities for advancing [EJ].”

The updated publication also includes new areas “such as EPA’s use of EJ considerations in performance of environmental impact assessments under the National Environmental Policy Act (NEPA) and implementing regulations, testing of chemical impacts in economically disadvantaged communities of color under the 2016 amendments to the Toxic Substances Control Act (TSCA), the application of civil rights laws to EPA grant recipients, and authority to conduct cumulative impact assessments when reviewing permit applications,” says O’Melveny & Myers LLP.

Since the previous publication, the only big regulatory change has been to TSCA, which provided the EPA with more resources to speed up chemical reviews and more teeth for testing authority.

“While the document is primarily written for internal use, it also could assist states authorized to enforce environmental law and regulations as well as [EJ] advocacy groups and industry attorneys,” according to Bloomberg Law.

Summary

Recurring themes throughout the guidance document, as summarized by O’Melveny, reflect the EPA’s intent to:

  • “Exercise the EPA’s broad discretion to expand regulation to include EJ considerations when the relevant statute or regulation allows it to do so;
  • Exceed the minimum regulations required by statute to advance EJ goals;
  • Encourage public participation in the regulatory process and consult with impacted communities and tribal governments regarding the scope of regulation;
  • Emphasize the connection between environmental statutes and civil rights statutes that can substitute for the lack of a comprehensive federal EJ framework.”

Some examples of the guidance included in the document under specific regulations are provided below.

Clean Air Act

Section 111 of the Clean Air Act (CAA) provides the EPA authority to incorporate EJ considerations because it requires the Agency to list stationary source categories and then promulgate performance standards for new sources and regulations under which states establish existing source performance standards. This authority gives the EPA discretion to consider the impact of these emissions on EJ communities and the health impacts from sources.

“First, EPA retains the authority to add new source categories to the list and could consider disparate environmental justice impacts as one factor in deciding what categories to add. Second, EPA has the authority to prioritize the promulgation of standards for source categories that have a disparate health impact on communities with environmental justice concerns,” states EJ Legal Tools.  “Additionally, § 111(d) requires EPA to establish a ‘procedure similar to that provided by [§ 110]’ under which states submit plans that include standards of performance for existing sources. By delegating the obligation to establish that procedure to the Agency, the statute provides EPA with the discretion to specify the individual requirements that must be satisfied in the state planning process. …”

Clean Water Act

Under the Clean Water Act (CWA), discharges of any pollutant into any U.S. water must meet specific CWA requirements. The Act also requires states to adopt water quality standards for acceptable levels of pollution in their waters.

“For the protection of communities with [EJ] concerns, EPA’s methodology specifically considered ‘the States’ and Tribes’ need to provide adequate protection from adverse health effects to highly exposed populations such as recreational and subsistence fishers.’ EPA has broad authority under CWA §§ 304(a)(1) and (2) to update existing guidance if EPA determines that it would help to protect communities consuming higher levels of fish and shellfish,” the guidance states.

Resource Conservation and Recovery Act

The Resource Conservation and Recovery Act (RCRA) authorizes the EPA to regulate the generation, transportation, treatment, storage, and disposal of hazardous wastes. The promulgation of regulations under the Act are made “as may be necessary to protect human health and the environment.” The EPA may use these authorities to “advance the fair treatment and meaningful participation of communities with environmental justice concerns in the development of regulations, standards, and guidelines for hazardous waste management,” according to the guidance.

Superfund

Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), aka Superfund, EJ considerations could be utilized to set cleanup priorities, with more disproportionate communities being placed as a higher priority among non-National Priorities List (NPL) sites. The EPA ranking system for NPL sites would make this type of prioritizing challenging because the Agency is regulated to exclusively use numeric inputs under the required hazard ranking system (HRS).

Federal Insecticide, Fungicide, and Rodenticide Act

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) charges the EPA with ensuring regulated pesticides perform without “unreasonable adverse effects on the environment,” meaning the EPA should consider the economic, social, and environmental costs and benefits when making pesticide approval determinations.

TSCA

When the EPA assesses chemical risks under TSCA, it has broad powers in gathering information about those chemicals. Within the EJ Legal Tools guidance, specific sections of the Act are references to utilize for EJ considerations, advises O’Melveny:

  • “The EPA will ‘incorporate relevant environmental justice work,’ such as conducting risk evaluations in fenceline communities under TSCA Section 6, into underlying EPA costs for purposes of calculating fees to be collected from regulated parties under the TSCA.
  • The EPA will broadly construe the term ‘potentially exposed or susceptible subpopulations,’ which the EPA must apply in implementing multiple sections of the TSCA, to advance EJ goals by identifying communities who ‘may be at greater risk than the general population.’
  • The [guidance] stresses the EPA’s broad authority under TSCA Sections 4, 8, and 11 to gather data from manufacturers, processors, and distributors about risks from chemicals to communities with EJ concerns.
  • [It also] emphasizes the EPA’s ability to ‘engage with communities with environmental justice concerns to identify potential chemicals for prioritization,’ including by designating chemical substances as high priority to address potential unreasonable risks for communities with environmental justice concerns.
  • The EPA will use its discretion in designing its risk evaluation process to incorporate EJ considerations.”

NEPA

NEPA allows the EPA to serve as the “cooperating agency” to assist other agencies in preparing draft and final environmental impact statements (EISs) or brief environmental assessments (EAs). Additionally, Section 309 of the CAA provides authority to the EPA to review any agency action that requires a NEPA review. Both these tools can be utilized to ensure the environmental impact has been “fully analyzed,” which includes the “human health, economic and social effects on communities of color and low-income communities,” continues O’Melveny.

Cumulative impact reviews

It will be important for industry to pay close attention to the guidance’s “emphasis on the cumulative impacts on environmental justice communities of multiple pollutants, exposure pathways, and even non-pollutant stressors like poverty, educational attainment, and language barriers,” states King & Spalding.

Meaning, the EPA will shift to considering how adding an additional permit in a specific area will contribute to chemicals already present in an area. This authority is supported by “Food Quality Protection Act, which requires the EPA to aggregate pesticide exposures from all sources and mandates that the EPA consider the cumulative impact of exposure to multiple pesticides that have a common mechanism of toxicity,” adds O’Melveny. “The EPA also pointed to the TSCA, under which the EPA has the authority (under certain circumstances) to require the development of information about ‘cumulative or synergistic effects’ and any other effect that may present an unreasonable risk of injury to health or the environment. In addition to these sources of statutory authority to conduct cumulative impact assessments, the EPA points to its regulatory and implicit authorities to ‘consider cumulative impacts in the context of environmental justice.’”

EPA grant recipients and civil rights

The guidance states that there are many laws the EPA enforces that prohibit discrimination. Implementing regulations under these laws requires the Agency to ensure grant recipients are not engaging in discriminatory practices.

“The EPA’s focus on enforcing civil rights laws to address EJ concerns could result in the EPA disapproving siting decisions based on the demographics of impacted communities,” the O’Melveny article asserts. “Specifically, if an EPA grant recipient’s proposed siting will have a disparate impact on a protected class, then the EPA could require the grant recipient to justify the siting decision and explain why alternate sites would not achieve the recipient’s goals.”

Legal considerations

To protect itself from conservative challenges against its EJ efforts, the Biden administration EPA makes an important distinction that it is not basing its decision-making on race but rather “dipropionate pollution impacts,” says E&E News.

“My observation is that

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