The concept of environmental justice (or EJ) is not a new concept.
It was created in response to the excessive number of industrial facilities and contaminated locations located near underrepresented and overburdened communities. This adversely anddisproportionately affected the health, well-being and welfare of these communities. EJ has become a requirement for environmental permitting. EJ concerns are considered in permitting decisions, giving affected communities a voice in planning for projects near them.
It starts at the top
President Biden started his term by confronting the climate crisis head-on. The Environmental Justice Interagency Council was one of his first Executive Orders. The Council is made up of 15 federal agencies, including the United States Environmental Protection Agency (“EPA”) which chairs the Council and the Department of Justice. Since 1994, the EPA has maintained an EJ Strategic Plan. This plan was created by President Clinton to help federal agencies develop EJ strategies to address the adverse effects on human health and environment of federal programs on low- and minority-income groups. EJ principles will now be applied to projects, initiatives, enforcement actions across all federal agency, using metrics of the affected populations’ exposure to pollution. This will allow the community to get involved in the project process.
Administrator Michael S. Regan, the former Secretary for North Carolina Department of Environmental Quality (“DEQ”) now leads the EPA. EJ is defined as “fair treatment and meaningful participation of all people with respect to the development and implementation of environmental laws, regulations and policies.” It creates a strategic plan every four years that: (1) communicates priorities and strategies that serve to budget; and (2) gives the regulated community a preview of where the EPA’s attention will be. The draft Strategic Plan 2022-2026The Plan was published in October 2021. It is expected to be completed by the second quarter 2022. One of four overarching principles in the Plan is “Advance Justice and Equity”—defined as taking decisive action to advance EJ and civil rights at the federal, state, local, and tribal level by embedding EJ and civil rights in all EPA work and strengthening civil rights enforcement in EJ communities.
The EPA intends to focus its attention on the broader concept EJ by enforcing civil right protections in its programs. Title VI of Title VI of Civil Rights Act of 1964 (“Title VI”) allows federal agencies like EPA to issue rules and regulations to ensure no person is unlawfully excluded from protection or discriminated against by any of its programs or activities. Title VI says that no person can be excluded from, denied the benefits of, discriminated against on the basis of race, color or national origin. Section 601 of the Act prohibits discrimination and disparate adverse effects resulting from what may seem to be a neutral decision made by federal agencies. The most common environmental violation is discriminatory adverse impacts. Although there is no private right for an offending agency to be sued, Section 602 allows affected EJ communities the ability to file an administrative complaint to the EPA. The EPA investigates the permit process for the project in question when it receives a complaint alleging prohibited disparate effects. It is possible for the federal funding to be withdrawn from the agency responsible for the project if it fails to consider the impact on the EJ community.
The EJSCREEN is a color-coded mapping program developed by the EPA to aid in its investigations. This tool collects demographic information and environmental indicators in order to provide a nationally consistent dataset for environmental decision making. The EJSCREEN: Environmental Justice Screening & Mapping Tool | US EPAIt is freely available and users can input a geographical location to identify demographics and environmental conditions within a specified distance from an industrial facility.
At least six Title VI complaints were filed and investigations initiated in 2021. One of these complaints was about the DEQ’s issuance three permits for swine waste treatment and management systems to farms in Duplin County. The complaint claimed that the pollution and adverse effects on health caused by hog farms’ operation would be most detrimental to Black and Latino communities. The DEQ issued these permits on January 13, 2022. The EPA agreed to investigate.
What does EJ look in NC?
Former Secretary Regan increased the visibility of EJ during his tenure at the DEQ by creating an Environmental Justice and Equity Advisory Board and prioritizing efforts for the state’s Environmental Justice Program. This Program “aims to ensure fair treatment and meaningful participation of all people, regardless of race, color, income, in the development, enforcement, and enforcement of environmental laws and regulations.” The EJ Program uses public information and tools to determine whether a proposed project is located in an area with underrepresented communities that it may have a disproportionately negative impact. It uses a variety of tools and data. Community Mapping SystemSimilar to EJSCREEN by the EPA. This System collects and uses location, demographics, and health information as well permit or incident information for nearby project to inform DEQ decisions. It also helps to make local outreach plans and facilitate public participation in meetings, and the permitting process. An online comment platform that allows the public anonymously to report or complain about an environmental issue or incident of discrimination involving one. If the DEQ finds that the project location is within an EJ community then it will initiate enhanced outreach to determine if the community cares and will facilitate ways for them to be involved in the permitting process.
House Bill 784, which was introduced in the early 2021 legislative session, was introduced to statutorily address EJ issues. The bill proposes changes to several enabling statutes, such as those that cover solid waste management, actions involving state money or use public land, water quality permits and animal waste management system, to include Title VI requirements, which consider disproportionate adverse effects to low-income or minority communities. A new section of the statute has been proposed to address permits for new or expanded facilities within an overburdened community. This will include public hearings within that community as part the particular permit program. Although it is unlikely this particular bill will ever be addressed in the current term, DEQ Secretary Biser has placed emphasis on EJ after Administrator Regan’s efforts. However, there is still the possibility for further administrative action.
Considerations for the Regulated Community
EJ should be considered in any diligence review or project planning. EJ assessments are required for project permitting. Respecting the applicable statutory standards of health will not suffice. The EPA made it clear that Title VI compliance does not require compliance with environmental laws. These are some of the factors you should consider in this new EJ landscape.
FirstOwners and managers should identify EJ communities as early as possible in the planning process. This can be done by using the DEQ’s community mapping tool or EJSCREEN’s community mapping system. This will allow them to see how the agency will view the neighborhood and proposed facility. Because there aren’t enough statutory or regulatory structures to follow, each project will be handled individually, taking into account how historical environmental decisions have affected the community’s health. Applicants should expect more community engagement and public scrutiny during the permitting process. The project will benefit from engaging with local communities both before and after the formal permitting and environmental review process.
A recent federal appellate court decision is informative. In Friends of Buckingham v. State Air Pollution Control Board, 947 F.3d 68 (4th Cir. 2020), Virginia permit-issuing officials approved an air emissions permit for a natural gaz pipeline compressor station to be built in a predominantly Black area. They relied heavily upon a proposed design that would exceed national ambient air standards. The Fourth Circuit, North Carolina, vacated this permit decision and remanded proceedings as the permit-issuing agencies failed to conduct the EJ analysis required in Virginia’s statute. The Fourth Circuit stated that an EJ analysis is required to determine if a project will have a disproportionately negative effect on the location of the proposed project. The court found that the pipeline permit analysis did not provide any facts about the character of the local population to determine the potential injury to their health. This was independent of any national or state emissions standards under Clean Air Act. Therefore, meeting the statutory health standards won’t create a rebuttable assumption that there will be no adverse effect from a project. This is only part of an analysis.
SecondPreparation for increased federal enforcement activities in overburdened or disadvantaged communities The EPA has increased its scrutiny of state-delegated permit matters that would normally only involve the DEQ. In order to avoid potential friction points, proactive compliance measures like self-audits or community outreach and engagement can be helpful.
ThirdExpect increased regulatory scrutiny for projects and operations. In burdened communities, inspections of facilities may rise. Therefore, it is important to implement compliance programs for facilities and train staff to manage issues before complaints are filed.
FinallyThe DEQ sees its EJ Program as promoting good neighbor policies as a constitutional requirement. Therefore, it expects regulated entities to participate. Early in the process, legal counsel can be helpful if they are familiar with the requirements of the DEQ and EPA.
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