The Permitting Process: A Level Playing Field

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 evolved into a set of requirements that must be considered when environmental permits are being developed. This is due to the changes in federal administrations as well as the intense global discussion on climate change. EJ concerns are considered in permitting decisions, giving affected communities a voice in planning for projects near them.

It All 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 includes 15 federal agencies, including EPA (“United States Environmental Protection Agency”), which is the Council’s chair, and the Department of Justice. Since 1994, when President Clinton directed federal agencies that develop EJ strategies to address the disproportionately severe and adverse human health effects of federal programs on minorities and low-income peoples, the EPA’s EJ Strategic Plan has been in place. 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 “the fair treatment of all people and meaningful involvement with respect to the development and enforcement of environmental laws and regulations, policies, and regulations.” 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. DraftStrategic Plan 2022-2026The Plan was published in October 2021. It is expected to be completed by the second quarter 2022. “Advance Justice and Equity” is one of the four core principles of the Plan. It entails taking decisive actions to advance EJ and civil liberties at the federal, state and local levels. This includes integrating EJ and Civil Rights in all EPA activities and strengthening civil rights enforcement within 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 provides that no person, regardless of race, color, nationality, sex, age or disability, shall be denied the rights to, or discriminated against, because of their disability. Section 601 of the Act prohibits discrimination and disparate adverse effects resulting from an apparent neutral decision by federal agencies. Disparate adverse effects are the most frequent violation in an environment setting. Although there is no private right to take action against an offending agency under Section 602, affected EJ communities can file an administrative complaint with EPA. The EPA will investigate the permitting process of the project in question if it receives a complaint alleging that there are prohibited disparate impacts. The federal funding could be withdrawn if the agency that oversees the project fails to adequately consider the impacts on EJ communities in its decision-making process.

The EJSCREEN is a color-coded mapping program developed by the EPA to aid in its investigations. This tool collects demographic and environmental indicators to create a national dataset and approach to environmental decision-making. TheEJSCREEN: Environmental Justice Screening & Mapping Tool | US EPAThis information is made publicly available. Users can input a location to identify demographic or environmental conditions within a certain radius of an industrial facility.

In 2021, there were at least six Title VI investigations and complaints. Notable is the DEQ’s issuance to three swine wastewater management and treatment system permits for farms within Duplin County. The complaint stated that the hog farms’ pollution and adverse health effects would have a disproportionate impact on 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 data to determine if a project’s location is in an area that is underrepresented and could have a disproportionate impact. It uses a variety of tools and data.Community Mapping SystemSimilar to the EPA’s EJSCREEN. This System gathers location, demographics, and health information. It also records permit or incident information for nearby projects. This information is used to inform DEQ decisions to implement plans for local outreach. A public online comment tool that allows the public to anonymously submit information or complaints about environmental concerns or incidents of discrimination involving environmental concerns. If the DEQ determines that the project is located in an EJ community it will initiate enhanced public outreach to determine whether the community is concerned or interested and will provide ways for the community participate in the permitting process.

House Bill 784, which was introduced at the legislative stage in early 2021, 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 bill will be dealt with 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 included in any diligence review and project plan. EJ assessments are required for project permitting. Respecting the applicable statutory standards of health will no longer be sufficient. The EPA is clear in stating that compliance with environmental laws doesn’t equal compliance with Title VI. Here are some considerations in the new EJ landscape.

FirstEJ communities should be identified by owners and managers early in the planning process. Use the DEQ’s Community Mapping System or EJSCREEN to determine how the agency will view the area 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 anticipate greater community engagement and public scrutiny of a permit application during the permitting process. The project will be more successful if it engages with local communities before and after the formal permit and environmental review process.

A recent federal appellate court decision is informative. InFriends of Buckingham v. State Air Pollution Control Board, 947 F.3d 68 (4th Cir. 2020), Virginia permit-issuing agencies approved an air emission permit for a natural gasoline pipeline compressor station that was to be constructed in a predominantly Black community. They relied heavily on a design that was intended to exceed the national ambient air standards in order to do so. 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 no adverse effect will result 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 oversight of state-delegated permits matters, which normally would only be reviewed by the DEQ. To avoid potential friction points, proactive compliance measures such as self-audits, community outreach, or engagement can be implemented.

ThirdExpect increased regulatory scrutiny for projects and operations. In areas with high levels of poverty, inspections may increase. To avoid these problems, compliance programs and training for personnel can be implemented.

FinallyThe DEQ sees its EJ Program as promoting good neighbor policies as a constitutional requirement. Therefore, it expects regulated entities to participate. As early as possible, legal counsel who is familiar with the requirements of both the EPA and the DEQ can help.