In our March 30, 2021 blog, we discussed President Joe Biden’s focus on Environmental Justice (EJ). We also noted that the words “climate justice” or “environmental justice” were used in proposed legislation (March 2021) 18 times in six pages.

More recently, an April 30, 2021 internal memo from the United States Environmental Protection Agency (EPA’s) acting enforcement chief, Larry Starfield, says, “This memorandum sets out steps to advance these environmental justice (EJ) goals.”

The “these environmental justice goals” to which Mr. Starfield refers is an April 7, 2021 memo, “Message from the Administrator.”  Starfield states, “…the (EPA) Administrator directed all EPA offices to ‘strengthen enforcement of violations of cornerstone environmental statutes’ in communities overburdened by pollution.”

The next logical question is what is an overburdened community?  According to the EPA, these communities are defined as, “Minority, low-income, tribal, or indigenous populations or geographic locations in the United States that potentially experience disproportionate environmental harms and risks.”

Businesses in one of these defined overburdened communities may face some significant EJ challenges in the near future.

The Controversy of Environmental Justice

With the various memos and directives, there is little doubt that EJ will play an increasingly prominent role in environmental permitting and enforcement. But EJ is not without controversy.

No one will argue with the precepts of EJ – fair treatment and meaningful involvement for all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws.  As we protect individuals, we too need to make sure we provide fair treatment of businesses that are already operating or looking to locate in an overburdened community.

For example, if you are managing a facility considered to be in an EJ Community:

• Will you be held to a “higher standard” than your competitor that is not located in a similar community?
• Will you have to spend more money on emission controls than a competitor does?
• What if you developed your facility before housing came to the area?

EJ can also affect rural areas defined as overburdened communities. Livestock farmers with low-income households nearby may be required to include EJ goals in the environmental permitting process.

The CLEAN Future Act (March 2021) includes a new provision that “Restricts air pollution permits from being issued or renewed for major sources in census tracts already overburdened by pollution.” This may be a significant challenge for a business that is a major source (as defined in the Clean Air Act) that may have previously renewed their permit without incident to find their permit will not be renewed.

Might these well-intentioned goals actually force businesses to move away from “overburdened communities” thus taking the potential for jobs and economic gain away from those communities that need it the most?

Immediate and Affirmative Steps

Included among the goals in the EPA Administrator’s April 7^th memo were to, “Take immediate and affirmative steps to incorporate environmental justice considerations into their (EPA Offices) work, including assessing impacts to pollution-burdened, underserved, and Tribal communities in regulatory development processes and to consider regulatory options to maximize benefits to these communities.”

So how will this focus on EJ affect the regulated community?  While no one knows for certain, it seems likely that focus and scrutiny of environmental permits, renewal of permits, and pollution control measures in EJ Communities will occur.

More Inspections by EPA

In an E & E News article, “Internal EPA memo urges agents to up inspections,” they wrote, “EPA’s top enforcement official has directed agents to ramp up inspections in communities that have long been afflicted by pollution and called on agents ‘to step in and take necessary action’ in cases where state regulators are falling short on the job.”

“What’s more, the Starfield memo also directs enforcement agents to step in if state regulators are not acting fast enough.” The E & E article later states that this refers to “red states.”

The Biden Administration is making Environmental Justice a prominent piece of their environmental protection program.  Further, they are not waiting – they are moving forward with some vigor.

Executive Order not Law

Complicating EJ further is that it is not a federal law or regulation, but an Executive Order. From Harvard Law School, “There is no federal law governing environmental justice (EJ). This means that agencies, including EPA, have no authority to mandate actions or remedies addressing EJ concerns independent of their authorities under other statutes. [2] Executive Order 12898, signed by President Clinton in 1994, requires all agencies to ‘make achieving environmental justice part of [their] mission.’ However, the order is not judicially enforceable.” There are about a dozen states that have specific EJ Legislation.

Environmental Justice Sites

We are used to dealing with quantitative terms such as a major source under the Clean Air Act or a characteristically hazardous waste under the Resource Conservation and Recovery Act. The definition of an overburden community that would warrant EJ involvement is not quantitative and in fact can include a wide range of businesses and activities.

As an example, Environmental Justice Atlas is a European-based non-profit that “…documents and catalogues social conflict around environmental issues.” The non-profit lists sites from across the globe.

This is not a USEPA or State site, but is interesting for their inclusiveness of sites of potential environmental justice. The information below is directly from their website.

• CAFO pollution in Lenawee County, Michigan. Concentrated animal feeding operations (CAFOs) polluted rural Michigan since the 1990s helped by weak regulation and government subsidies. Lynn Henning (Goldman Prize) exposed their socio-environmental injustices through successful activism.
• Amazon Prime cargo hub at CVG Airport, Kentucky. Residents living near the construction site of an Amazon Air Hub at CVG Airport filed a class action lawsuit after months of complaints about excessive dust, noise and shock waves from blasting works. An ironworker was killed in an accident at the site.
• Native American´s Sioux against the Dakota Access Pipeline (DAPL). “We are not protestors. We are life protectors”: Standing Rock Sioux Tribe resist against the construction of the Dakota Access Pipeline, an 1886 km underground oil pipeline. In July 2020, a judge ordered to shut it down for violating the NEPA.
• Gemini Solar Project, California. The planning and development of the largest mega solar project in the USA catalysed opposition from organisations such as environmental conservation, Native American, and union groups who wished to protect environmental and cultural resources.

There are quite a range of sites listed, 3,420 in all.

The EPA has a list of actions taken by the EJ program by region.  You can see this and more at Environmental Justice in Your Community.

Conclusion

We can say with some confidence that Environmental Justice will be used prominently during the Biden Administration.  We can also say with some confidence that there will be controversy and litigation along the way.

While the intent of EJ is laudable, how will this affect businesses and subsequent jobs in the EJ Communities?  Will the pressures for more emission controls lead to a move to developing “Greenfields” rather than Brownfields?  We don’t have an answer but we hope to learn more at Michigan’s Environmental Justice Conference (May 18-20, 2021).

If you need help with an environmental permit or plan, or if you want a review of your environmental compliance program you can contact us at info@dragun.com.

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