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EPA Environmental Justice Move Has Companies Bracing for Impact

Oct. 4, 2022, 3:00 PM

The Environmental Protection Agency’s launch of a new national environmental justice arm has left industry attorneys waiting to see how far the agency will go—and how fast.

The new office is set to influence actions across the agency, including clean air and water permitting, targeted enforcement, and environmental regulations. The extent to which the move, aimed at helping disadvantaged communities, affects core EPA missions will play out over the coming months.

“The regulated community craves certainty,” said Francis Lyons, a former EPA regional administrator and US Department of Justice environmental enforcement attorney.

The new Office of Environmental Justice and External Civil Rights, to eventually be run by a Senate-confirmed appointee, is the strongest signal yet that the agency wants environmental justice “embedded in the DNA of EPA,” Lyons said.

The office, including about 200 civil rights and environmental justice staffers, is set up to ensure that “environmental justice and civil rights are taken into account in everything that the agency does across the board—and that would include permitting, that will include enforcement, and that would include distribution of grants,” said Lyons, an attorney with ArentFox Schiff LLP.

“It may mean certain permits potentially don’t get renewed, or it may mean that certain conditions are put into permits that were never there before,” Lyons said.

Pollution Impact

Elevating EPA’s environmental justice and civil rights efforts into a top-tier office directly answering to the agency’s administrator is the biggest step yet by the agency to address the disproportionate impacts of pollution long borne by communities of color and low-income cities, towns, and neighborhoods.

EPA in a statement said the agency “must use the full extent of its authority and resources to enforce federal civil rights laws” to combat the legacy of pollution in overburdened communities “that results from discriminatory actions, whether direct or indirect, intentional or unintentional.”

The EPA is combining its Office of Environmental Justice with its External Civil Rights Compliance Office and the Conflict Prevention and Resolution Center, which works to resolve environmental cleanup disputes.

EPA said Oct. 3 the national office is being run by Marianne Engleman-Lado, serving as acting principal deputy assistant administrator. Two other longtime EPA officials are serving as deputy assistant administrators: Matthew Tejada, the former head of the agency’s Office of Environmental Justice, and Lilian Dorka, who oversaw its external civil rights compliance efforts.

The new office won’t take the lead role in enforcement, which will largely remain under the agency’s Office of Enforcement and Compliance Assurance, according to Tessa Allen, attorney adviser at the agency’s Office of Civil Enforcement.

Instead, it will help foster better engagement with the rest of the EPA, Allen said at a forum held by the Environmental Law Institute after the agency’s announcement.

Suzi Ruhl, former senior council at EPA’s environmental justice office, said the new office needs to do more than convene meetings and listening sessions, and push for solutions to improve lives.

“Listening sessions are not enough. You’ve got to go beyond grantmaking, education, and training. You have to get into the bowels of decisionmaking,” said Ruhl, now a senior research scientist at Yale School of Medicine.

Steering Money

Environmental advocates say industry worries are largely overblown. They argue that the EPA’s broad focus on multiple issues, from more protective permitting to civil rights enforcement, is crucial because disadvantaged communities have seen little progress for decades.

“There just hasn’t been enforcement on civil rights” in the past, said Leslie Fields, the Sierra Club’s national director, for policy advocacy and legal. “There’s not a lot here to support the idea that the industry should be worried about this,” she said.

The national office has also been given the lead role in overseeing billions of dollars in new funding via the climate legislation passed in August, and the 2021 infrastructure law.

The climate legislation directs $60 billion in environmental justice funding, including $3 billion in Environmental and Climate Justice Block Grants to invest in community-led projects to better address the disproportionate impacts of pollution and climate change.

“Thirty years ago, I don’t know that we could have imagined what we have today—a new national program, with billions of dollars to spend in transforming our communities,” said Robin Morris Collin, EPA’s senior environmental justice adviser, told an advisory panel after the agency’s announcement.

Early Sign

The EPA signaled a focus on environmental justice as a factor in permitting before its announcement.

EPA Administrator Michael Regan in 2021 urged Chicago officials to halt approval of a scrap recycling operation in the southeast side of the city.

“Substantial data indicate the current conditions facing Chicago’s southeast side epitomize the problem of environmental injustice, resulting from more than a half century of prior actions,” Regan wrote in a letter to Chicago Mayor Lori Lightfoot.

Regan argued that the community was already burdened with nearly 250 facilities being “actively monitored” under state and federal enforcement of environmental laws. More than 75 had been the focus of enforcement investigations alleging Clean Air Act violations since 2014, he wrote.

The battle over the company’s permit is still being litigated, but environmental justice advocates say Regan’s move showed the agency is flexing its muscles even where a single plant’s relocation or expansion would add pollution to neighborhoods already saddled with excessive pollution.

“In my memory—which is really long on these issues—I had to ask, when have I ever seen an EPA administrator reach down to the municipal level to say, `no, I don’t think so’ about a particular permit,” said Vernice Miller-Travis, who runs the Oregon-based Metropolitan Group, a nonprofit environmental justice group.

That level of direct intervention by Regan is likely to remain only an occasional but still potent display of EPA’s focus on equity, said Rich Glaze, a former EPA federal enforcement counsel.

—With assistance from Stephen Lee

To contact the reporter on this story: Dean Scott in Washington at dscott@bloombergindustry.com

To contact the editors responsible for this story: Keith Perine at kperine@bloombergindustry.com; Zachary Sherwood at zsherwood@bloombergindustry.com