Over the years, environmental justice has been incorporated into American law, but it has never been as pervasive as it is now.
Since the birth of the Biden administration, the EPA has incorporated the principles of environmental justice into all its activities. It also activates and encourages grievance citizen groups that advocate for environmental justice issues.
Since January 2021, the EPA has issued multiple statements related to environmental issues in permitting, compliance, and remediation issues. For example, in August 2022, the EPA released guidance titled “Interim Environmental Justice and Civil Rights in Allowing Frequently Asked Questions.” In it, the EPA, for the first time, stated that, in the absence of mitigations that agencies could take to address different impacts, “denial of a permit may be the only way to avoid a Title VI violation.” suggested.
By suggesting that permission should be denied, EPA may go well beyond the remedies provided in Title VI and its own Part 7 rule. Ultimately, Title VI concerns anyone who receives federal assistance.
Previous remedies have generally been to withdraw federal support for programs or activities that violate Title VI.
The remedies set forth in the Part 7 rule state that EPA “may terminate assistance, refuse to award, or continue assistance.” It may also refer the matter to the DOJ “to obtain compliance.” However, neither Title VI nor Part 7 say that the agency should deny permission.
Since January 2021, more than 50 complaints have been filed alleging certain environmental justice issues. Texas and Louisiana stand out in these complaints.
In Texas, complaints have been filed with the Texas Environmental Quality Commission regarding certain minor sources permitted in Harris County under the Concrete Batching Plant Standard Permit and its General Permit. These complaints have been received and are under investigation. Additional complaints have been filed regarding the issuance of a Title V permit for a calcined coke facility in Port Arthur, Texas. According to the EPA, the issue is pending and an informal settlement is being negotiated.
In Louisiana, complaints were filed with the Louisiana Department of Environmental Quality and the Louisiana Department of Health regarding several facilities and general industrial corridors. The Industrial Corridor runs along the Mississippi River and includes petrochemical and other industrial facilities. EPA has accepted these complaints for investigation. According to the EPA, these issues are pending and informal settlement negotiations are underway.
The onslaught of environmental justice proclamations, guidance, and complaints over the past two years has not been lost to industry groups. Decision making regarding the siting of new facilities, the expansion and modification of existing facilities has become much more problematic and complex, requiring careful selection of existing populations and the potential for environmental emissions or emissions to those populations. You need to understand the impact. Economic growth will likely suffer if environmental justice concerns lead to negative decisions regarding siting, expansion, or alteration.
EPA’s constant focus on environmental justice may or may not benefit those it seeks to protect. Emphasizing only environmental justice concerns can deprive communities of well-designed and operated facilities that minimize emissions and provide needed jobs. On the other hand, focusing solely on economic growth can place an undue and unnecessary burden on local communities. There is an appropriate balance between environmental justice concerns and economic growth, and governments, industry and communities must work together to find that balance.
John B. King is a partner at Breazeale, Sachse & Wilson LLP in Baton Rouge, Louisiana. Prior to joining the firm in 2003, he served as Chief Law Enforcement Counsel for the Louisiana Department of Environmental Quality.
For more information, visit bswenviroblog.com, email jbk@bswllp.com, or call (225) 381-8014.
