It’s Time for Pennsylvania to Act on Environmental Justice

The Pennsylvania Department of Environmental Protection has an open public comment period on proposed revisions to the DEPs Environmental Justice Policy guidance (EJ Policy). The deadline for written comments is May 11 and the last of four public hearings is May 4 at 6:00 pm.

This blog (1) summarizes Pennsylvania’s EJ Policy; (2) discusses recommendations made by a group of Pennsylvania frontline community-based, low-income advocacy groups to strengthen it; (3) discusses Pennsylvania Legislative Black Caucus members regarding environmental justice legislation; (4) also notes two near-term opportunities Pennsylvania has to promote environmental justice.

What is Environmental Justice?

The concept of environmental justice grew out of the lived experience of environmental injustice specifically, the experience that people of color and low-income people have had in seeing their neighborhoods disproportionately targeted for activities that cause pollution and threaten human health. Environmental justice is about preventing further burdens for these communities, ending environmental racism for people of color, and ensuring that these communities receive equitable benefits from government policies that aim to reduce pollution, improve health and well-being, and invest in a clean energy future.

The policy, which focuses only on DEPs activities and the definition of environmental justice, refers to the fair treatment of all people, regardless of their race, color, national origin, income, or gender, in relation to the Commonwealth’s development, implementation, enforcement, and enforcement of environmental laws, regulations, policies, and regulations. (Emphasis added).

The DEPs EJ Policy is a Policy Guidance What Does that Mean?

The DEPs EJ Policy is a Policy Guidance. This limits its impact.

Legislations, such as statutes adopted by the General Assembly or regulations created by state regulatory agencies with authority granted by statutes, impose binding, enforceable duties on agencies, and regulated entities. By contrast, agency policy guidance documents encourage regulated entities to act in certain ways but dont require them to. In areas where the law allows, agencies also use policy guidance documents as a way to communicate their intentions.

The EJ Policy is a policy guide, and the DEP has limited power to influence the behavior of regulated entities. The policy’s key word is should, which appears 71 instances. The word must appears 0 instances. On the other hand, the DEP enjoys significant discretion under the statutes and regulations it administers, especially inspection and enforcement, and it can hold itself to high EJ standards in these areas.

What the EJ Policy Would Do

The EJ Policy has eight sections:

• Section I defines key terms, provides background information, and outlines the duties of the DEPs Office of Environmental Justice (OEJ) and Environmental Justice Advisory Board (EJAB). Section I also states that [i]dentifying EJ areas is necessary for policy implementation and proposes the use of an interactive mapping too to help identify those areas, but does not establish clear criteria for identification.
• Section II names certain DEP permits public participation trigger permits. This is because the activities they permit have been a source of significant public concern in the past due to their potential impacts on the environment, human health and communities. The section recommends that these permits be subject to increased scrutiny and public participation protocols. In certain situations, other permits may be added to the trigger category. Appendix A lists both opt-in and trigger permits.
• Section III is also about permit applications. However, it focuses more on the ways in which DEP can facilitate community involvement on applications that impact EJ communities.
• Section IV outlines limited public engagement protocols for oil-and gas permits. These permits are not classified as either trigger permits or op in permits by the EJ policy.
• Section V states the DEP will prioritize inspections of permitted facilities and take other steps to ensure permittees adhere to the law. In addition, it will consider imposing harsher penalties on those who violate the law.
• Section VI states that for climate initiatives, including initiatives that involve funding and investments, the DEP will prioritize the needs of communities disproportionately impacted by climate change,
• Section VII builds on Section VI by committing the DEP to prioritize environmental justice in grantmaking generally, and emphasizes DEPs support for the redevelopment of brownfields, as it can play a critical role in supporting environmental, social, and economic development in EJ communities.
• Finally, Section VIII provides for the DEP to review the EJ policy at least every four years, and to revise it in accordance with the latest resources at the federal, state and local levels, as identified in the [Office of Environmental Justice] annual reports.

How the Policy Could be Strengthened

NRDC is joining comments that the Pennsylvania Utility Law Project, Center for Coalfield Justice, POWER, and other front-line community, low-income advocate, and community-based organizations have developed concerning the EJ Policy. These equity-focused organizations offer a number of suggestions that, if accepted by the policy, would greatly improve it. Among them:

• The EJ policy should lengthen the public comment period for future updates of the EJ policy and other policy guidances and rulemakings that directly implicate environmental justice;
• The EJ policy should clarify or define certain key terms, including environmental justice area, cumulative environmental impacts, and disproportionate environmental impacts, and the DEP should establish a cross-sector working group to refine the criteria for EJ areas;
• The EJ Policy should clarify what is expected of both the DEP and regulated entities under the Policy;
• The DEP should fairly compensate community liaisons for their services;
• The DEP should exercise its discretion under the Pennsylvania Oil and Gas Act (Act 13 of 2012) to find that when a gas company seeks an unconventional well permit within an EJ area, good cause exists to extend the standard 45-day application review period to 60 days;
• The DEP should further develop the sections of the EJ policy concerning inspections, compliance, and enforcement, climate initiatives, and community development and investments;
• The DEP should improve its communications strategies and meeting practices in the interest of developing stronger partnerships with EJ communities and frontline community groups; and
• To the extent the DEP has statutory authority to do so, the DEP should propose the EJ policy as an EJ rulemaking.

This blog will be updated to include the link to the DEP’s comments.

The EJ Policy Guidance is a Good First Step but Pennsylvania Needs Good Environmental Justice Law

Presumably, the DEP hasnt proposed the EJ Policy as a regulation because the General Assembly has never passed a statute empowering it to base permitting decisions on environmental justice. Fortunately, members of the General Assemblys Legislative Black Caucus have introduced three bills HB 2256, HB 2034, and HB 2043 to help remedy this problem and ensure that environmental justice considerations are part of all state policymaking.

HB 2256, sponsored by Representative Malcolm Kenyatta, would make it Pennsylvanias statutory policy to ensure that environmental justice is effectuated in this Commonwealth and charge the Office of Environmental Justice, with support from the Environmental Justice Advisory Board (EJAB), with integrating EJ into the mission of all state agencies.

HB 2034, also sponsored by Representative Keynatta, complements HB 2256 by establishing a detailed membership and administrative structure for the EJAB.

HB 2043, sponsored by Caucus chair Representative Donna Bullock, would require the DEP to classify as burdened communities Pennsylvania census tracts that are ranked in the bottom 33% of tracts for median household income, and to establish more stringent permitting requirements in those communities, including a cumulative impacts analysis and mandatory public hearing. The DEP would be empowered to deny a permit application upon a finding that the approval of the permit would, together with the cumulative impacts posed by existing conditions constitute an unreasonable risk to the health of the residents and the environment of the burdened community.

Given that a majority of members on the House Environmental Resources and Energy Committee oppose the DEPs even having a policy guidance on environmental justice, no one expects these bills to move this session.

In the short term, however, the Commonwealth has two options to address EJ. First, the General Assembly can pass the Whole Homes Repair bill (SB 1135), a bipartisan bill introduced by Senator Nikil Saval to create a one-stop shop for programs that help repair and weatherize dilapidated housing and address blight. The bill is not about EJ but it would serve EJ ends. It could be supported by American Recovery Plan funds.

Second, Pennsylvania can use the proceeds of Regional Greenhouse Gas Initiative auctions to further EJ. The DEPs CO2 Budget Trading Program is now available. The Commonwealth will be able to participate in RGGI auctions starting in September. Although it has not yet offered an investment plan to the Commonwealth, it is hopeful that this will happen soon. The plan will address Sections VI and VII EJ Policy and will target RGGI investments to EJ community as much as possible. NRDC recently conducted a survey among its Pennsylvania members to determine how important or important it thought investing RGGI proceeds into EJ communities. Similar large majority want the DEP’s investments targeted at communities where fossil fuel plants have shut down.

The DEP should finalize the EJ Policy as soon as possible, then, making revisions in accordance with the equity groups recommendations, and put it to work on RGGI investments.