December 02, 2021

Environmental Justice: EPA’s New Focus in Inspection and Enforcement

If regulated parties don’t yet know if they are operating in an Environmental Justice (EJ) community, they should find out quickly. The Environmental Protection Agency (EPA) has an online tool, EJSCREEN, that can identify EJ communities across the country by address. Because the EPA has promised to deliver “measurable” results, you can expect EPA to start focusing its state oversight and direct inspection and enforcement efforts in EJ communities to achieve those results. Further, enforcement actions in EJ communities will likely include requirements for enhanced community outreach and input on company operations. The regulated community should be prepared for EPA to initiate outreach to community groups in EJ communities as part of their assessment of the company’s performance. Further, because state implementation of federal programs is reviewable by EPA, they can try to compel states to take similar steps.

Along with new enforcement and inspection practices, permit amendments and new permits may also have to consider EJ impacts through “disproportionate impact” evaluations and required enhanced public outreach. While a disproportionate impact may not be grounds for disapproving a permit, it could result in greater negative attention for a project and more difficulty gaining approval. This warrants that regulated communities take stock of their community relations and consider how they will address potential questions about disproportionate impact of their operations if they are seeking a new permit or a permit amendment.

While climate change may be the most discussed issue among environmental practitioners since the Biden administration took office last January, a close second should have been environmental justice. While climate change has dominated the discussion from a regulatory and legislative perspective, how the administration will deliver on its promise to make environmental justice a cornerstone of its environmental and social agenda has yet to be seen. The Environmental Protection Agency, backed by the Department of Justice, will be at the center of implementation and it’s clear they plan on doing more than just enhanced engagement or additional grantmaking. Based upon all indications, they intend to take a more aggressive approach, making EJ a key component of federal and state permitting, inspection and enforcement.

EPA is driving President Biden’s promised emphasis on EJ issues. Most notably, EPA’s draft strategic plan notes that it will take “decisive action” to address and advance environmental justice by focusing on promotion of environmental justice at the federal, tribal, state and local levels. They have committed to “embed” environmental justice and civil rights into EPA programs and review their statutory authorities to accomplish the goal of achieving, “…measurable environmental, public health, and quality of life improvements in the most overburdened, vulnerable and underserved communities.”

Foreshadowing this more aggressive approach, EPA recently released findings into an investigation of the Missouri Department of Natural Resources (MoDNR) based on complaints of discrimination against communities of color and whether MoDNR has been implementing procedural safeguards by providing “meaningful access” to decision making for state-run but federally funded programs. On the claim that Missouri was failing to provide meaningful access, EPA found MoDNR’s efforts wanting and suggested detailed recommendations to remediate that deficiency. There is still an ongoing investigation on whether the MoDNR’s issuance of a specific permit was an act of discrimination against a community of color, “… regarding its emission of various pollutants that are harmful to human health in violation of Title VI and that resulted in a disproportionate impact on the basis of race, color and/or national origin.”

EPA also recently weighed in on the location of a scrap yard in Chicago with Administrator Regan sending a letter to Mayor Lighfoot recommending that the City, “… complete an environmental justice analysis, such as a Health Impact Assessment, to meaningfully consider the aggregate potential health effects of the proposed RMG facility on the southeast area of Chicago. This would include consideration of not only a robust analysis of ambient air quality data from Chicago's southeast side, compared with other parts of the city, but also potential impacts from other pathways of exposure.”

What EPA is signaling with these actions is that they will have more robust and detailed instructions for states and local governments on necessary steps to fulfill EPA’s expectations in EJ communities. EPA’s views on what is appropriate outreach will also not be limited to federal programs, as evidenced by their letter to the City of Chicago. What will be revealing is if they find that MoDNR committed an act of discrimination under Title VI of the Civil Rights Act because it did not perform a disproportionate impact analysis prior to issuing a permit. If EPA finds that is the case, the process for issuing any permit will become much more complicated. However, even if EPA does not start using the Civil Rights Act to compel states to revise their public participation plans or analyze broader impact that issuing a permit could have in EJ communities, they have other tools at their disposal that can achieve this end.         

To achieve the greatest impact for their EJ efforts, EPA may start enforcing EPA-dictated requirements on states through Performance Partnership Agreements (PPAs). PPAs are tools that states — and EPA — rely upon to establish expectations and outcomes of state implementation of federal programs. By agreeing to terms of performance in a PPA, states’ environmental agencies receive funding and serve as an evaluation tool of whether states are meeting minimum federal requirements. The regulated community should expect that the federal government will use its funding power to compel states to implement broader reaching EJ goals as defined by EPA. Examples of broader EJ goals include increased inspections and enforcement in EJ communities and increased oversight of state settlement of enforcement matters in an EJ community. EPA is likely to also compel states to create more robust public participation and outreach. This, along with EPA direct inspection and enforcement in EJ communities, will result in more inspections, notices of violation and enforcement in EJ communities. Through requirements in PPAs, EPA will have states capture enhanced enforcement metrics to demonstrate the effectiveness of EPA’s EJ activities.

Environmental justice will be more than a buzzword for this administration but can be managed with proper legal, technical and outreach planning. Right now, companies should be:

  • Finding out if they are in an EJ community.
  • If in an EJ community, auditing the facility for compliance, as there will be increased inspection and enforcement by EPA directly and that EPA will expect from states.
  • Reevaluating relationships with their communities. Whether it’s through an inspection or as part of enforcement, EPA will be examining the relationship between regulated entities and the community.
  • If considering expansion into an EJ community or opening a new facility in an EJ community, make a deliberate effort to address EJ in the permit application and address EJ issues upfront with the regulators.
  • Talking to state regulators and find out if and how they are changing their permitting practices and enforcement and inspection priorities.
  • At a minimum, considering the cumulative impact of a new permit or a permit renewal in an EJ community and how to address questions from regulators and communities on those impacts.

Most importantly, companies that operate in EJ communities are going to receive more attention from regulators and interested parties (e.g., neighborhood associations, concerned citizens, non-governmental organizations, etc.). Companies need to understand their position in the community and perform internal environmental audits to ensure compliance before inspectors come knocking. It is almost a certainty that there will be some early, high profile enforcement actions that EPA will use to demonstrate their focus on environmental justice — don’t be one of them.

The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.

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