Feds Continued to Integrate Environmental Justice Considerations in 2022, but will Implementation in 2023 Continue on a Similar Pace?

January 18, 2023
Todd D. Kantorczyk, Esq.
MGKF Special Alert - Federal Forecast 2023

At this time last year, we noted that environmental justice (EJ) concerns would be a top priority at the federal level in 2022, and both EPA and the US Department of Justice (DOJ) in particular did not disappoint.  In 2022, both agencies announced significant structural changes and issued major strategy and guidance documents that are intended to elevate EJ concerns when it comes to permitting, enforcement, funding and regulatory development.  With this infrastructure in place, the federal government is poised to push EJ considerations even more forcefully in 2023 when implementing and enforcing federal environmental laws.  In the continued absence of a federal EJ statute, however, it will be interesting to see how far EPA and DOJ are willing to press EJ considerations, and whether affected stakeholders such as state governments or the regulated community will challenge federal actions based on EJ concerns.   

In 2022, EPA took a number of steps to—in the words of Administrator Regan— “bake environmental justice and civil rights into the DNA of the Agency.”  From a structural perspective, on September 24, EPA announced the establishment of a new Office of Environmental Justice and External Civil Rights (EJCR).  The new office combines three existing EJ-related offices, and importantly will be headed by a new assistant administrator to be nominated by the President and confirmed by the Senate.  These actions elevate the EJCR to the same level as the traditional major EPA programs such as the Office of Water, the Office of Air and Radiation, and the Office of Enforcement and Compliance Assurance, meaning that the EJCR will have a direct line to the Administrator.  The new EJCR will have approximately 200 employees and will be responsible for areas related to the Biden Administration’s EJ goals, including among other things, compliance with and enforcement of federal civil rights laws with respect to environmental permitting, and overseeing distribution of the $2.7 billion in environmental justice grants related to climate change funding provided by the Inflation Reduction Act.

In addition to making structural changes, EPA also issued a number of policy and guidance documents in 2022 that signal how EPA intends to approach EJ considerations in 2023.  For example, in May the USEPA Office of General Counsel released a document entitled EPA Legal Tools to Advance Environmental Justice, updating a document originally issued in 2014.  The almost 200-page guidance document explores how EPA can address EJ concerns under existing federal environmental statutes such as the Clean Air Act, the Clean Water Act, CERCLA, and Toxic Substances Control Act, emphasizing instances where EPA has the authority to assess, consider and address cumulative impacts and risks. And most recently, on January 11, 2023, EPA released additional guidance on assessing cumulative impacts as an addendum to the Legal Tools document.  This addendum is 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.”

Another EJ guidance document for the Office of General Counsel that has received significant attention recently is the Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions (EJ FAQs), released in August.  The EJ FAQs include eighteen questions and responses that are intended to provide federal, state and local environmental permitting agencies EPA’s views on how to integrate requirements under civil rights laws when administering environmental permitting programs.  Importantly, the EJ FAQ explicitly states that a permitting authority’s compliance with federal environmental laws and regulations does not necessarily mean that federal civil rights laws have been satisfied, meaning that permitting agencies must also establish compliance with federal civil rights laws as part of its environmental permitting programs.  Furthermore, the EJ FAQs endorse the use of EJ screening tools, such as EJScreen and the identification and assessment of cumulative impacts as part of the permitting process.  Most notably, the EJ FAQs raise the prospect of permit denial in instances where a permit decision will have a disparate impact, there are no mitigation measures the permitting authority can take to address the disparate impacts, and the permitting authority cannot identify a “substantial legitimate justification” for the permitting action.  The EJ FAQs assert that a decision to deny a permit based upon unjustified disparate impacts is a fact specific determination.  EPA goes on to list a number of proactive mitigation measures that could address a disparate impact, including additional controls or limits, continuous or periodic monitoring, recordkeeping or reporting, a website with real time monitoring data, or third-party monitoring.               

In 2022, DOJ also implemented structural changes and policies to promote EJ considerations in the context of environmental enforcement.  Specifically, on May 5 Attorney General Garland announced three major EJ items.  First, he released the Department’s “Comprehensive Environmental Justice Enforcement Strategy.”  The strategy is comprised of four principles:

  1. Prioritize cases that will reduce public health and environmental harms to overburdened and underserved communities;
  2. Make strategic use of all available legal tools to address environmental justice concerns;
  3. Ensure meaningful engagement with impacted communities; and
  4. Promote transparency regarding environmental justice enforcement efforts and their results.

Each of the principles is accompanied by a number of actions including the creation of an EJ Steering Committee, the use of Title VI and other civil rights authorities, and tracking progress on cases brought and outcomes achieved under the strategy.

DOJ’s second announcement related to the creation of a new Office of Environmental Justice.  This office will be charged with implementing the new EJ Enforcement Strategy.

Finally, the Attorney General announced that DOJ would be issuing an interim final rule that would restore its ability to use supplemental environmental projects (SEPs) as part of environmental enforcement settlements and rescind the Trump Administration rule that had removed this authority.  In tandem with the final rule, DOJ released a related guidance memorandum on settlement agreements involving payments to non-governmental authorities, in an attempt to provide more procedural safeguards to protect against alleged violations of the Miscellaneous Receipts Act, which was ostensibly the basis for the Trump Administration abandoning SEPs.  In the new EJ Strategy document, DOJ touted SEPs as being able to secure significant environmental and public health benefits for impacted communities.

Federal EJ Enforcement in 2022
2022 saw an increase in federal efforts to enforce the EJ principles embodied in the structural and policy changes referenced above.  First, EPA continued its more aggressive oversight of state environmental permitting processes that, in EPA’s view, do not sufficiently assess and address disparate impacts.  For example, as part its evaluation of three civil rights complaints filed by Louisiana residents, on October 12, EPA issued a 56-page “Letter of Concern” stating that their initial investigation of the Louisiana Department of Environmental Quality and the Louisiana Department of Health “raises concerns” that administration of their air permitting programs “may have an adverse and disparate impact on Black residents….”  The Letter notes that it is part of an Information Resolution Agreement negotiation process and recommends a series of targeted changes to the Louisiana environmental permitting process for the emission units at issue.

Similarly, in July DOJ announced that it had begun an investigation of Houston city agencies in response to complaints that the agencies had policies that resulted in discriminatory responses to reports of illegal dumping in Black and Latino neighborhoods as compared to more affluent, predominantly White neighborhoods.  Specifically, DOJ was going to examine whether the Houston Police Department, the Department of Neighborhoods, and the Solid Waste Management Department had violated Title VI of the Civil Rights Act when implementing their illegal dumping policies.

Federal EJ Enforcement in 2023—Any Limits?
Based on the recent structural and policy announcements, one can expect in 2023 more of the aggressive federal EJ enforcement seen in 2022.  In the context of resolving Title VI complaints, or possibly its own investigations, we will likely see EPA continue to take a more active role in state permitting actions.  Likewise, 2023 will likely bring more high-profile DOJ Title VI enforcement matters rooted in EJ concerns.  To date, these matters have been addressed without much push back from the targeted entities.  However, as both EPA and DOJ advance these EJ policies on the ground in 2023, given the changes in Congress and a Presidential election process beginning to heat up, it will be interesting to note any challenges arguing that either agency has exceeded their authority under existing environmental laws by advancing EJ outcomes.