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Polluted Communities Need Bigger Role in Settlements, EPA Says

Sept. 29, 2022, 9:30 AM

The EPA is encouraging companies and other defendants accused of air and water pollution, as well as other environmental crimes, to gather input from affected communities about what beneficial projects residents might want as part of a legal deal.

That approach marks a shift from the Environmental Protection Agency’s historical stance on supplemental environmental projects, or SEPs, which are beneficial works that a company can voluntarily undertake as part of a settlement. SEP negotiations haven’t always considered affected residents’ voices, according to former federal officials and environmental justice activists.

But Carol Holmes, senior counsel at EPA’s civil enforcement office, said the agency is now urging defendants to “reach out to communities, if they are interested in doing a SEP, to see what types of projects the community thinks would benefit.”

The EPA is especially encouraging defendants to consider SEPs when “the content can benefit disadvantaged communities,” said Holmes, speaking at a Sept. 26 briefing sponsored by the Environmental Law Institute.

Such a pledge “gives me hope,” said Catherine Flowers, founding director of the Center for Rural Enterprise and Environmental Justice. “We can’t pursue EJ without the impacted community sitting at the table and being a part of negotiating the solution.”

VIDEO: Will Environmental Justice Change Under Biden?

Emphasis on Engagement

Some examples of SEPs include mobile asthma clinics, stream or creek restoration projects, and the providing of equipment to fire stations and other emergency responders, Holmes said.

The Trump administration prohibited most uses of SEPs, but the Justice Department announced in May it was restoring their availability as a settlement tool.

The Biden administration’s emphasis on inviting residents is “much stronger” than it has been in the past, even under administrations that used the settlement tool widely, said Steve Solow, former chief of the Justice Department’s environmental crimes section under President Bill Clinton.

“Now they are more explicitly tying the notion of community to the use of SEPs,” said Solow, now a partner at Baker Botts LLP. “So long as there’s an appropriate nexus to the enforcement issue, they want to look for opportunities to advance environmental justice and climate efforts.”

Suzi Ruhl, former senior counsel at EPA’s environmental justice office, said the agency has historically focused more on “what sounds good inside the Beltway than on what makes a difference in the real world.”

Results in the States

In states that already invite environmental justice groups to participate in SEP planning, communities say they’ve seen positive results.

One such state is California, where local agencies are legally required to find ways to let disadvantaged communities have a voice in adding SEPs to pre-approved lists, according to Tim Little, executive director of the Rose Foundation for Communities and the Environment.

That policy has allowed groups such as the Central California Environmental Justice Network get a SEP approved by the state for advanced air quality monitors in Fresno—whose population is roughly half Latino—according to Gustavo Aguirre Jr., the group’s Kern County director.

The new monitors provide more accurate air quality data because they’re localized in Fresno, rather than pulling in data across a large area, Aguirre said.

“Agencies that are administrating the SEP are reaching out to EJ organizations in that area and saying, ‘Hey, check this out—there’s this violation. Would a green space in front of this refinery work, or would an asthma clinic work better?’” Aguirre said. “There’s communication between the polluter, the regulatory agency, and these community organizations.”

Gauging Interest

The value of outside engagement was also illustrated in a SEP from earlier this month, in which BP Products North America Inc. agreed to pay $1 million in SEPs—half for a tree-planting effort and half for the replacement of indoor filtration devices. The company was found liable for repeatedly violating emissions limits at an Indiana oil refinery.

In that case, the Sierra Club Hoosier Chapter worked with the Environmental Integrity Project to provide input on the SEPs, according to Amanda Shepherd, the group’s director. The coalition reached out to schools around the facility and “gauged interest in having air filtration systems in their classrooms,” Shepherd said.

It also recommended the tree planting because a local group, the Student Conservation Association, has “young people on the ground that could help guide where the most useful spaces would be for those plantings,” she said.

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

To Little, the outreach is a simple principle that puts the victims of pollution where they should be—at the center of the conversation.

“We’re personal experts in the air we’re breathing. We’re experts in the personal impacts of what we’re consuming,” he said. “People in the communities that have been harmed by pollution ought to be involved in crafting the solutions.”

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