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Environmental Justice Advocates Seek Changes to Permitting Law

May 27, 2021, 10:01 AM

Environmental justice leaders are urging the White House to force agencies to address the needs of low-income communities of color when making permitting decisions for big projects.

Two former Trump administration officials, however, say the permitting process already covers many of their concerns—and that further changes could slow attempts to cut greenhouse gas emissions.

The timing is ideal for making changes, environmental justice leaders say, because several factors are coming together at once. The White House Council on Environmental Quality is already contemplating reversing Trump-era changes to the National Environmental Policy Act’s implementing regulation, and President Joe Biden also has made environmental justice a top priority.

Finally, Biden and Senate leaders are trying to button up a massive infrastructure bill that would authorize the building of many projects that could either help or hurt environmental justice communities. Those projects must be permitted under NEPA, such as highways that may slice through communities of color and new housing units that could shelter millions of low-income Americans.

“We know that vulnerable communities are the ones that have traditionally gotten the short end of the stick,” said Mustafa Santiago Ali, a former environmental justice official at the EPA. “Let’s make sure that’s no longer true.”

Cumulative Impacts

One key change to the NEPA rules would be language telling agencies to consider the cumulative impacts of a project on an EJ community when making a permitting decision, Ali said.

Such a provision would make a difference because many frontline communities are being hammered by multiple sources of pollution that compound each other. As a result, regulators must take a close look at the overall burdens a community already faces, said Ali, now vice president of environmental justice, climate, and community revitalization at the National Wildlife Federation.

Angelo Logan, campaign director at the Moving Forward Network, said regulators need to ask what another project will do to areas suffering from asthma, bronchitis, or other health problems.

“It’s not the same type of analysis you might have on a community that’s not thoroughly burdened, or that’s more affluent and can put in air filtration in their homes or move if they need to,” he said.

CEQ Reviewing Changes

The Trump-era 2020 NEPA rewrite deleted a requirement for regulators to assess the cumulative impacts of potential decisions, telling them to focus instead on reasonably foreseeable effects with a “close causal relationship” to the proposed action.

CEQ is reviewing the 2020 changes and is expected to announce soon whether it will launch another rulemaking to undo them. The agency declined an interview request.

However, CEQ Chair Brenda Mallory said at the National Association of Environmental Professionals conference on May 19 that it “would not be that surprising” if the agency tried to capture environmental justice concerns “more directly” in any regulatory overhaul it undertakes.

She also told the Michigan Environmental Justice Conference the next day that the Biden White House wants to incorporate “equity for overburdened and underserved communities throughout the administration’s policy initiatives.”

More Time to Comment

Another helpful change to the NEPA regulation would be an extension of the minimum 45-day comment period for citizens speak up about proposed environmental impact statements, said Kim Gaddy, national environmental justice director at Clean Water Action.

“Meetings aren’t always accessible for community members,” Gaddy said. “Residents have jobs. Our youth are in school.”

Similarly, Gaddy said CEQ should strive to make funding and technical assistance available to help residents understand dense, technical material. Doing that would give ordinary citizens more of an equal footing when pushing back against project applicants and their teams of highly experienced lawyers and scientists, she said.

Anthony Rogers-Wright, environmental justice director at New York Lawyers for the Public Interest, said the NEPA rule should be overhauled to provide guidance on what qualifies as an EJ community.

Those guidelines should go beyond basic census data showing the density of minority citizens, and encompass qualitative metrics like home ownership rates, poverty rates, and household wealth levels, Rogers-Wright said. All of that data should be distributed throughout the federal government to create a single, authoritative database that all permit applicants must use, he said.

“A lot of times, environmental impact statements are written by consultants whose job is to get them approved, so they do everything they can to do the bare minimum so they’ll be approved,” Rogers-Wright said.

CEQ is now developing a screening tool to identify communities most in need, Mallory said at the Michigan Environmental Justice Conference.

Mitigation Rules

A further helpful change would be more specific language in the NEPA rule requiring mitigation plans of proposed projects, said Christine Appah, a senior staff attorney in the environmental justice program at New York Lawyers for the Public Interest.

That would benefit EJ communities because the current definition of mitigation in the NEPA rule allows project applicants to compensate for their environmental impacts by creating substitute resources or environments, which “don’t line up with the proposed action,” Appah said.

“It might be a community center or something that speaks to local economic development, as opposed to the environment,” she said.

Groups like Appah’s, Logan’s, and Ali’s have already started contacting CEQ to press for changes.

But to Mario Loyola, who served as CEQ’s associate director for regulatory reform during the Trump era and played a role in the 2020 rewrite, tweaks such as the ones that EJ advocates seek could end up slowing or blocking Biden’s plans to cut carbon emissions in half by 2030.

“EJ is a very important policy goal, but to the extent that it becomes yet another obstacle to the rapid, large-scale deployment of renewable energy infrastructure, it could turn into yet another serious problem for the current administration as it seeks to achieve its climate goals,” said Loyola, now a senior fellow at the Competitive Enterprise Institute.

Loyola also said the current NEPA rules already take social justice into account and provide ample opportunities for public comment.

Alex Herrgott, who led the Federal Permitting Improvement Steering Council during the Trump years, agreed that permitting is already a thorough process.

“If you don’t follow the steps outlined in law, more than likely your project is not going to make it through the review process,” said Herrgott, now president of the Permitting Institute, a group advocating for infrastructure investment.

To contact the reporter on this story: Stephen Lee in Washington at stephenlee@bloombergindustry.com

To contact the editor responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com

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