Feds Continued to Advance Environmental Justice Priorities in 2023, But Questions on Effectiveness and Authority Emerge

January 18, 2024
Todd D. Kantorczyk, Esq.
MGKF Special Alert - 2024 Federal Forecast

At this time last year, we reported on how both EPA and the US Department of Justice (DOJ) made structural changes and issued a number of policy and guidance documents intended to facilitate implementation of the environmental justice (EJ) priorities articulated at the outset of the Biden Administration through enforcement of existing environmental laws.  In 2023, both agencies continued those efforts and reported on measurable progress with respect to EJ concerns.  At the same time, and as we predicted, the pursuit of EJ priorities at the federal level has not been without challenges.  In particular, the ultimate outcome of the EPA’s civil rights investigation into Louisiana’s environmental permitting practices, which was noted in last year’s issue, may establish some limits on EPA authority to pursue EJ initiatives absent additional statutory authority.   

The pace of structural changes and new policy and guidance documents related to EJ coming out of EPA in 2023 was somewhat slower as compared to 2022, as EPA worked to integrate the programs announced in 2022.  At the outset of 2023, EPA released guidance on assessing cumulative impacts as an addendum to EPA’s Legal Tools to Advance Environmental Justice document, which itself was updated in 2022.  The addendum was intended to provide “further detail and analysis, and some illustrative examples of the Agency’s authority to advance environmental justice and equity by addressing cumulative impacts.”  In August, EPA updated its mapping and screening tool, EJSCREEN, for the third time.  This most recent update, among other things, adds a new indicator to quantify health impacts from air exposure to Toxic Release Inventory (TRI) chemicals.  Most recently, EPA proposed changes to its Technical Guidance Document for Assessing Environmental Justice in Regulatory Analysis, which was first released in 2016Among other things, this document updates various EJ definitions and emphasizes the need for consideration of EJ issues early in the rulemaking process.  Interestingly, in a section about multiple exposures and cumulative effects—an important issue for EJ assessments—EPA acknowledges that the science regarding assessments of cumulative risks is “evolving” and does not provide a specific assessment approach.

EPA made significant strides in 2023 regarding enforcement activities in EJ communities.  In its 2022-26 Strategic Plan, EPA had set a goal to increase the percentage of annual on-site inspections in EJ communities from 30 percent to 55 percent by 2026.  At the end of 2023, EPA announced that it has already achieved this goal, with 60 percent of onsite inspections occurring in EJ communities.  Additionally, of almost 1,800 civil settlements, over 55 percent related to facilities in EJ communities.                

Like EPA, DOJ continued to make progress in 2023 on previously announced EJ priorities.  In October, DOJ released its first Comprehensive Environmental Justice Enforcement Strategy Annual Report.  The report steps through each of the
four principles of the DOJ EJ strategy announced in 2022, noting the progress made under each principle.  In particular, the report notes that each of the 94 US Attorneys’ offices has appointed at least one civil or criminal prosecutor to serve as an Environmental Justice Coordinator.  And throughout the report, DOJ highlights efforts surrounding enforcement pursued by its Civil, Civil Rights and Environment and Natural Resource Divisions, including:

  • Interim resolution of its first Title VI EJ investigation into the Alabama Department of Public Health concerning its onsite wastewater disposal program in Lowndes County;
  • A settlement of an EJ investigation of the City of Houston’s response to illegal dumping in Black and Latino neighborhoods;
  • A lawsuit and settlement with City and State officials concerning the drinking water system in Jackson, Mississippi; and
  • A lawsuit against Denka Performance Elastomers concerning chloropene emissions coming out of EPA’s EJ investigation of the Louisiana Department of Environmental Quality air permitting program.

Potential EJ Pushback in 2024?
While 2023 saw EJ efforts by both EPA and DOJ continue to advance using current statutory authority, there were some developments that could signal a more complicated path for EJ initiatives in 2024.  For example, In August, EPA’s Office of Inspector General released a report of its audit of actions taken by EPA to address disproportionate effects to disadvantaged communities at the 35th Avenue Superfund Site in Birmingham, AL.  The audit concluded that despite EPA developing guidance and plans, EJ issues remained “siloed” in individual programs, and that improved coordination and performance measures were necessary to be able to address cumulative impacts in EJ communities.

Additionally, state targets of EPA EJ enforcement efforts have begun to challenge the extent of EPA’s authority in the EJ space.  Most notably, readers may recall that in 2022, EPA and the State of Louisiana entered into negotiations as to whether the State’s air permitting program had “an adverse and disparate impact on Black residents…. resulted in disparate impacts” in violation of Title VI of the Civil Right Act.  After negotiations broke down, the State sued EPA, and sought a preliminary injunction to prevent EPA from applying disparate impact and cumulative impact requirements as part of its oversight of Louisiana’s permit program.  Shortly thereafter, EPA dropped its investigation and moved to dismiss the case as moot, stating that it had filed a separate lawsuit against Denka Performance Elastomers (as noted above) and that EPA planned to conduct its own cumulative impact analysis.  Louisiana, however, opposed the motion to dismiss, arguing that the proper standard under Title VI is intentional discrimination, and the continued concern over disparate and cumulative impacts was unlawful.  EPA’s motion remains pending before the US District Court for Western Louisiana.  A ruling from the Court that intentional discrimination from is necessary to support an EJ based Title VI claim could seriously hamper EPA and DOJ EJ enforcement efforts going forward.

In short, in 2024 we expect EPA, DOJ and other federal agencies to continue to incorporate EJ concerns into policies, guidance and procedures, although the pace of new documents being issued may not be as furious in years past.  We also expect EJ related enforcement efforts to increase.  At the same time, states and other stakeholders have begun to push back, and those efforts, in particular the Louisiana matter, could significantly alter the course of federal EJ enforcement going forward.