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Air Permits Get More Environmental Equity Scrutiny With Guidance

Jan. 13, 2023, 10:30 AM

Clean air attorneys and advocates expect tougher EPA scrutiny of environmental justice considerations in air permitting following the agency’s release of updated guidance last month.

The EPA’s air office on Dec. 22 announced a set of principles outlining resources and recommendations to the EPA regions for addressing environmental justice in air permits.

The guidance is the latest in a series of agency documents outlining its authorities to address longstanding environmental inequities in response to EPA Administrator Michael Regan’s 2021 call to find ways to integrate environmental equity in the agency’s work, including its enforcement and regulatory arms.

The Office of Air and Radiation’s guidance isn’t legally binding, but “at the very least, it’s a set of instructions or suggestions that are in one place, emphasizing the focus of the agency on environmental justice issues,” said McGuire Woods LLP partner Makram Jaber.

EPA’s guidance makes clear to states and other permitting agencies that receive EPA funding that they must comply with Title VI of the Civil Rights Act and ensure permitting decisions do not discriminate against people on the basis of race, color, or national origin.

The guidance draw from EPA’s August environmental justice and civil rights permitting document and clarifies that where there is “evidence that seems to suggest that these permitting decisions can have disparate or disproportionate adverse impacts certain communities, you’re going to probably need to go a little further” and conduct a civil rights analysis, EPA Deputy Assistant Administrator for Civil Rights Lilian Dorka said in an interview.

The guidance lays out eight nonlegal principles for regional offices to consider when reviewing projects in environmental justice communities, including provisions on early review of demographics, increased transparency, and inclusion of federal support.

The Biden administration is using the guidance and previously published set of legal tools to advance its environmental justice work.

A nearly 200-page legal “toolbox” the agency updated in May 2022 describes dozens of existing laws it can use to better protect marginalized communities from pollution. The EPA on Jan. 11 published an addendum to the toolbox asserting that its authority to address cumulative impacts for such communities “permeates the full breadth” of its activities—including permitting but also standard-setting, waste cleanups, and oversight of state programs.

‘Poking Around’

The Office of Air and Radiation principles are a signal that the EPA is cracking down on its justice commitments, using the threat of permit objections under both the Civil Rights Act and Clean Air Act, according to Holland & Hart LLP partner Emily Schilling.

“A lot of what is said in this memo is a reminder that EPA wants to be involved in these decisions, and if it isn’t involved in a collaborative way then it will comment,” and the threat of objection is the teeth behind all of it, Schilling told Bloomberg Law.

Title VI of the Civil Rights Act and Title V of the Clean Air Act would be avenues to challenge permits should environmental justice concerns arise. Title VI bars discrimination in activities or programs receiving federal funding, including from EPA. Title V allows citizen groups to petition for objections to permits under the Clean Air Act.

“This memo, to me, indicates that EPA will be poking around in states’ permitting programs if there are projects that implicate overburdened and disadvantaged communities,” Schilling said.

Pointing the Way

While the agency’s environmental justice office has input into such guidance documents, a top EPA environmental equity official said the individual offices authoring them will continue to play the primary role.

“It’s still not our job to issue guidance on Clean Air Act permitting, that is [the air office’s] job,” Matthew Tejada, EPA deputy assistant administrator for environmental justice, said in an interview. “We need to provide them the impetus and kind of point the way.”

The fourth of the eight principles—conducting a “fit for purpose” environmental justice analysis—is new and noteworthy in that process, according to King & Spalding LLP partner Doug Henderson.

“This is really the first time that we’ve seen this ‘fit for a purpose’ environmental justice analysis,” Henderson noted. “What the agency, by my interpretation, is saying is just because you have a permit and you may have run through the EJ screen that EPA uses, that doesn’t necessarily mean you’ve done all you need to do to evaluate environmental justice.”

EPA’s EJScreen tool combines pollution and other environmental data and socioeconomic indicators to hone in on marginalized and disadvantaged communities.

Environmental justice advocates say the agency needs to go further and show it is integrating such concerns not just in permitting but in other areas, from stronger regulations to more aggressive enforcement to better protect disadvantaged communities.

Maria Lopez-Nunez of the Ironbound Community Corp., a service and advocacy organization in Newark, N.J., said the Biden administration and EPA need to do more to prove they are committed to addressing environmental inequities, including in permitting and enforcement.

Polluters “also need to be held accountable, not just slapped on the wrist—that’s the true accountability that will stop the harm to communities,” she said.

To contact the reporters on this story: Jennifer Hijazi in Washington at jhijazi@bloombergindustry.com; Dean Scott in Washington at dscott@bloombergindustry.com

To contact the editors responsible for this story: Zachary Sherwood at zsherwood@bloombergindustry.com; Renee Schoof at rschoof@bloombergindustry.com