USEPA Promises Continued Focus on Environmental Justice in 2022

January 14, 2022
Todd D. Kantorczyk, Esq.
MGKF Special Alert - Federal Forecast 2022

At the start of 2021, the Biden administration issued two executive orders that included directives for the federal government to advance environmental justice (EJ) goals.[1]  The balance of 2021 saw USEPA take a number of actions consistent with those directives with respect to enforcement, federal funding and permitting.  And in the fall, USEPA released its draft 2022-2026 Strategic Plan, which sets forth strategies, goals and objectives that confirm that EJ concerns will continue to be a top priority for USEPA in 2022 and beyond. To this end, we expect EJ to be reflected in USEPA enforcement, funding, permitting, and planning activities over the next year as set forth below,

Environmental Enforcement
In April, June and July, USEPA’s Office of Enforcement issued three memoranda that highlighted these actions”

  • Increasing the number of inspections in overburdened communities
  • Resolving environmental compliance through remedies with tangible benefits for the community
  • Community engagement through additional information and improved EJ screening tools
  • Early cleanups and expedited negotiations with responsible parties; and
  • Additional oversight and review of compliance with existing enforcement instruments

Examples of this enforcement emphasis cited by USEPA in its annual December press release on 2021 accomplishments, included  an emergency order issued under Section 303 of the Clean Air Act that suspended operations at a refinery “located in a community that is disproportionately affected by environmental burdens” and  a September 2021 Memorandum of Understanding between USEPA and California EPA to “enhance collaboration on enforcement and compliance assurance in overburdened communities.”

Federal Funding
In July, USEPA awarded $100 million for enhanced air pollution monitoring and other initiatives targeted in “environmentally overburdened, economically underserved” communities using funds from the American Rescue Plan.  In addition, USEPA recently announced that it will use $1 billion from the new infrastructure law to accelerate cleanups at 49 priority Superfund sites, 60 percent of which are located in what USEPA considers historically under-served communities.  These fund awards were made consistent with the Biden administration’s Justice40 Initiative which directs that 40 percent of the benefits from clean energy, climate and other funding be allocated to EJ communities.

Typically, USEPA plays a limited oversight role in environmental permitting actions where federal permitting authority has been delegated to individual states.  A recent minor source air permitting action for a hot mix asphalt plant in Michigan, however, illustrates how USEPA may take a more active role based upon EJ concerns.  In September, the Region 5 Acting Regional Administrator issued a comment letter on the application to the state agency noting that the neighborhood around the proposed plant had some of the highest levels in the state for pollution indicators used by USEPA’s EJSCREEN tool.  The letter included a number of comments and recommendations, including a cumulative analysis of emissions from all emission units at the facility and nearby industrial facilities, alternative continuous compliance measures, such as opacity cameras, and increased public engagement.  The letter also noted that the siting of the facility may raise civil rights concerns and “encouraged” the company and state to consider alternative locations, implying the possibility of pursuing enforcement under Title VI of the Civil Rights Act.

Draft 2022-2026 Strategic Plan
In October, USEPA released for public comment its draft 2022-2026 Strategic Plan, which included a number of strategies, goals and objectives that relate to USEPA’s renewed focus on EJ.  The draft plan includes, for the first time, “advance justice and equity” as a foundational principle.  Consistent with that principle, EJ concerns are infused throughout the document.  For example, under the enforcement goal, USEPA states that it will continue to rely on EJSCREEN to identify overburdened communities to be targeted for enforcement and reiterates the use of enforcement tools set out in the three memoranda issued earlier in 2021.  In addition, the draft plan sets a goal of conducting 55 percent of inspections annually at facilities in EJ communities (an increase from 27 percent between 2017-2019).

In addition, the draft plan includes a specific goal to “Take Decisive Action to Advance Environmental Justice and Civil Rights.”  This goal makes explicit USEPA’s responsibility to enforce civil rights laws, such as Title VI of the Civil Rights Act of 1964, to prohibit discrimination by applicants and recipients of federal assistance from USEPA, which would include state environmental agencies.  Under this goal, the plan highlights the role USEPA program and regional offices have during the permit review process to address civil rights issues (like the minor source permit in Michigan noted above), and the need to work with state partner agencies to address these issues.  Importantly, the goal includes an objective to strengthen USEPA’s External Civil Rights Office, directing an office that previously responded to complaints to engage in proactive investigations in overburdened communities, and setting a long-term performance goal of completing 100 audits by September 2026.

Looking at 2022
We expect USEPA to continue its focus on EJ concerns in 2022.  Notable items to watch for include:

  • Finalizing the 2022-2026 Strategic Plan (currently expected February 2022).
  • USEPA offices developing EJ action plans. For example, the Office of Land and Emergency Management released a draft action plan on January 5, 2022 that includes such items as revisions to the Risk Management Program, increasing the SPCC facility inspection rate in EJ communities, and the use of aerial surveillance to collect data in EJ  
  • The appointment of additional EJ leads at USEPA.
  • The refinement and use of EJSCREEN for enforcement efforts and the release of a new screening tool, called the Climate and Environmental Justice Screening Tool, to assist with the Justice40 initiative.
  • High profile enforcement actions in EJ communities and additional Memoranda of Understanding with state agencies to coordinate enforcement in those communities.
  • A more active role from USEPA regional and program offices in state permitting actions, resulting in additional permit conditions and compliance demonstrations, for activities in communities with high scores using the EJSCREEN tool.
  • Possible civil rights audits and actions brought in instances where USEPA believes that states or other recipients of federal funding are not adequately addressing EJ concerns.                      

[1] Executive Order 13985: Advancing Racial Equity and Support for Underserved Communities Through Federal Government (January 20, 2021); Executive Order 14008: Tackling the Climate Crisis at Home and Abroad (January 27, 2021).