Key Takeaways:
- EPA continues to stress the importance of incorporating environmental justice considerations at the beginning of the permitting process.
- New guidance seeks to further empower permitting agencies to leverage other regulatory and discretionary authority to mitigate permitting impacts.
- Permit applicants should carefully review these emerging and evolving policy statements and consider how an emphasis on cumulative impacts might impact their projects.
The EPA has issued new guidance on environmental justice that urges regulators to incorporate EJ concerns and communities into the permitting process earlier on, make changes to the process that enable EJ communities to participate more fully, and use existing legal authorities to require would-be permittees to fully address EJ issues.
Office of Air and Radiation: EJ in Permitting
According to the first guidance document, issued by EPA’s Office of Air & Radiation (OAR) at the end of 2022, State and local air regulators will be expected to incorporate several EJ considerations to fully engage and analyze potential impacts as part of their permitting actions. Entitled “EJ in Air Permitting: Principles for Addressing Environmental Justice Concerns in Air Permitting,” the OAR guidance document states its goal as providing “a framework of principles and practices to assist each EPA region to promote environmental justice and equity through air permitting programs” using existing CAA and other discretionary authorities, along with federal civil rights laws and State laws “to mitigate potential adverse and disproportionate effects of a permitting action.”
OAR’s guidance implements recommendations from the National Environmental Justice Advisory Council and the White House Environmental Justice Advisory Council to consider EJ and cumulative impacts as part of agency actions. In addition, the guidance recommends that permitting authorities engage affected communities and encourage their participation in assessing cumulative impacts in all phases of the permitting process.
The OAR guidance outlines eight key principles for considering cumulative impacts and other EJ considerations as part of the Clean Air Act (CAA) permitting process:
- Identify communities with potential EJ concerns – EPA regions and permitting authorities are encouraged to utilize EJSCREEN and other similar geographic information, mapping tools and data to proactively identify and meaningfully engage with communities affected by air permitting actions through examination of various environmental and non-environmental indicators (e.g. age, employment status, linguistic isolation).
- Early engagement in the permitting process to promote meaningful participation and fair treatment – The guidance encourages permitting authorities to identify permit actions that may have a disproportionately high and adverse effect on communities, as early as before an application is submitted, to encourage the applicant to proactively facilitate affected communities’ understanding of the potential effects of a permitting action and possibly identify alternative or mitigation measures an applicant can take to address any such concerns. This principle encourages meaningful engagement with affected communities before, during, and after the air permitting process.
- Enhance public involvement throughout the permitting process – For permitting decisions that may result in disproportionately high and adverse human health or environmental effects on a community, regional permitting authorities and applicants are encouraged to provide the affected community with meaningful opportunities to provide effective input into the permit decisions that will impact their ways of life. Such opportunities might include, for example, “training on how to make effective comments on permits; making the permit application, administrative record, and data easily and publicly available; notifying the public of the action through multiple communication methods (e.g., mail, online, social media, door-to-door, etc.); providing multiple methods for public comment (e.g. mail, online, voicemail); holding formal public hearings and informal public meetings in or near the community; providing translation and interpretive services where appropriate; providing more easily understandable support documents to supplement a statement of basis or other permit decision support documents; and other actions that may address barriers to meaningful participation and further encourage public engagement during the permitting process.”
- Conduct a “fit for purpose” EJ analysis – This principle encourages permitting authorities to conduct an EJ analysis to inform the permit decision. Authorities should evaluate the specific circumstances of any permit decision, including but not limited to factors such as: demographic data indicating vulnerabilities in the affected population; stakeholder input; existing environmental data, including air monitoring, air modeling, or, as appropriate, data from other media; the facility’s compliance record; the cumulative impacts of the permitting action under consideration together with impacts from other regulated and non-regulated sources of pollution in the community; the potential effects of the project on the health of a population and the distribution of those effects within the population.
- Minimize and mitigate disproportionately high and adverse effects associated with the permit – Permitting authorities should fully examine all relevant statutory and regulatory authorities, including discretionary authorities to develop permit terms and conditions to address or mitigate air quality impacts identified in the permit process.
- Provide federal support throughout the air permitting process – EPA officials will remain available to collaborate with regional permitting authorities and to provide technical support, guidance, and recommendations to address these effects on the community, including cumulative effects.
- Enhance transparency throughout the air permitting process – Regional permitting authorities are encouraged to remain transparent in decision-making throughout the permitting process by making the administrative record and other clear documentation of compliance monitoring, test results, records and reports understandable and readily accessible, both in location and format, to affected communities.
- Build capacity to enhance the consideration of EJ in the air permitting process – Regional permitting authorities are encouraged to create the capacity necessary to confront EJ challenges through a coordinated approach that includes peer-to-peer learning between regulators, stakeholders, and affected communities to identify best practices on how to collectively address EJ concerns.
The accompanying memorandum, authored by Acting Air Chief Joseph Goffman and directed to Air and Radiation Division Directors in Regions 1-10, explained that the overarching goal of these principles is “to improve and consistently practice meaningful stakeholder involvement and fair treatment at all stages of the permitting process, promote issuance of air permits containing terms that are appropriately protective of public health and the environment consistent with applicable environmental laws, and improve transparency in the permitting process.” The guidance also encourages the consideration of all existing relevant statutory and statutory authorities and points to other EPA documents, such as the “EPA Legal Tools to Advance Environmental Justice” published in May 2022, to advance EJ goals. Lastly, the guidance also recognizes the importance of ensuring that permitting decisions comport with Title VI of the Civil Rights Act, of which compliance is mandatory for EPA funding recipients “and represents an important enforcement tool for achieving environmental justice.”
Cumulative Impacts Addendum to EPA Legal Tools to Advance EJ
The second EPA guidance, issued by the EPA Office of General Counsel (OGC) on January 11, 2023, outlines how EPA and other regulators can consider cumulative impacts consistent with existing legal authorities. This document supplements a summary of environmental justice legal authorities issued by OGC in May 2022. While the cumulative impacts addendum itself does not have legally binding effect, it explains that the authority to address cumulative impacts “permeates the full breadth of the Agency’s activities—including, for example, standard-setting, permitting, cleanup, emergency response, funding, planning, state program oversight, and other decision-making… .”
The guidance falls short of specifying any particular methodologies to be used during a cumulative impacts risk assessment itself or how the Agency should undertake specific actions. The guidance notes that in some contexts, “EPA may be able to factor the combined exposures to stressors into its decision when the Agency has authority or a mandate to take public health and welfare into account.” However, in other contexts, “EPA may only be able to address a part of that combined exposure” or may even need to address cumulative impacts on a community “outside the context of EPA’s immediate decision, through a separate, coordinated application of other authorities across program activities.”
As such, the Addendum is intended to be used exclusively as a reference tool for EPA decisionmakers, along with State, tribal, and local stakeholders, encouraging cooperation to better understand EPA’s authority to address cumulative impacts.
Conclusion
It is worth noting that both OAR’s guidance and the Addendum are separate from the highly-anticipated and long-awaited guidance from EPA’s Office of Research and Development, which is expected to provide a structure for conducting and evaluating cumulative risk assessments within EPA, specifically to avoid discriminatory effects and disproportionate environmental burdens on EJ communities. And while both guidance documents are substantive, they only encourage application of the above-listed principles and associated practices and provide legal context for consideration of cumulative impacts.
Regulated entities, and specifically air permit applicants, should anticipate inquiries from EPA and other State, tribal and local stakeholders regarding active steps undertaken to identify and meaningfully engage with any communities potentially affected by a proposed action, even more so now that their authority to consider cumulative impacts has been clearly delineated. And for those air permit applicants seeking to get ahead of the curve, they might proactively consider alternatives to, and mitigation measures for potential actions that might add to the environmental stressors on EJ communities, even prior to the submission of an application. In light of these clarifications of both agency-wide and air permitting authorities to consider cumulative impacts, these documents illustrate that regulated entities should also contemplate the impacts of their actions forestall challenges to Agency approvals down the line.
EPA’s decision to issue multiple guidance documents covering similar—but not identical—ground increases the potential for a permit applicant to miss the Agency’s evolving interpretations, and therefore increases the likelihood of permitting delays and additional costs. Crowell’s Environmental Justice Working Group will continue to monitor these developments as they are published by the Agency in order to best assist clients in need of support.
For further information, please contact:
Elizabeth B. Dawson, Partner, Crowell & Moring
edawson@crowell.com
