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EPA Mulls How to Defend Environmental Justice Decisions in Court

June 23, 2022, 4:31 PM

The EPA is taking a hard look at its legal authorities for enforcing its environmental justice agenda across the US, and is encouraging states to team up and do that work as well, agency officials said on Thursday.

That push comes as environmental justice advocates across the country face tough battles to put additional protections on the books, especially in states with Republican-controlled legislatures.

“It’s going to be challenged,” said Robin Morris Collin, the Environmental Protection Agency’s environmental justice senior adviser. “And I think it’s only fair to acknowledge that.”

But states in a coalition, including New Jersey, New York, Connecticut, and others, are now “looking at their local authority to see whether and how they can begin to use the power that they actually do have to implement some of these ideas about environmental justice,” said Collin, speaking at a meeting of the EPA’s Local Government Advisory Committee.

Some states have already run into problems trying to enact the Biden administration’s ambitious environmental justice agenda, which includes steering at least 40% of the overall benefits from federal clean energy investments to disadvantaged communities.

Subjective Rules

Del. Evan Hansen (D) of the West Virginia House of Delegates said he’s already seen pushback in his state. An official from the Department of Environmental Protection recently said the agency is “powerless to statutorily enforce environmental justice and that the EPA is short on guidance,” Hansen said at the Thursday meeting.

“His exact quote is, ‘A lot of this stuff becomes subjective,’” said Hansen, who didn’t name the official. “And if you’re in the regulatory business, subjectivity is not helpful.”

Many state regulatory agencies “want to do the right thing, and are looking for something less subjective, because they’re really concerned about issuing permits that will then get appealed and go to court,” Hansen said. “They’re looking for some way to solidify their decision so that they can defend them in court.”

Matthew Tejada, director of the EPA’s Office of Environmental Justice, said “it would be great” to have a statute to “cut through some of those things.” But the agency’s existing statutes already equip it with enough firepower to regulate, he said.

“The Clean Air Act doesn’t say it’s OK for 10% of the population to breathe air toxics all day long,” Tejada said. “The Clean Water Act or Safe Drinking Water Act—it doesn’t say it’s OK for 5% of the population just not to have access to safe drinking water.”

Change Takes Time

The EPA will draw on scientific findings to ensure its environmental justice actions aren’t subjective, Tejada said.

“This is us looking backwards at 50 years of policy and practice and experience and saying, ‘Well, those weren’t really done in ways that are going to be effective in these communities with cumulative challenges,’” Tejada said. “So we’re really going to have to relook at our statutes, at our regulations, at the gaps in the science so that we can start to actually use our regulatory authorities to protect health.”

Tejada conceded that achieving clarity, regularity, and stability is “not going to happen overnight. It’s going to be a process of us working together on it.”

“States and local governments are going to be out there on the front lines, innovating and trying and succeeding and failing, and we want to learn from all of that,” he said.

The EPA has already taken some steps to address the problem. In May the agency released a document cataloging the legal authorities at its disposal for finding and fixing disproportionate impacts of pollution on underserved communities.

The advisory group at Thursday’s meeting also called on the EPA to come up with draft language that helps buttress local enforcement, and to play a convening role where collaboration is needed to implement or change policies.

The group further said the EPA should urge state governments to include environmental justice and equity principles in their permitting decisions, including talking to parties affected by a permit and considering cumulative impacts.

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

To contact the editor responsible for this story: Zachary Sherwood at zsherwood@bloombergindustry.com