In all the years environmental justice has had a place in American legislation, it has never been more pervasive than it is now.
Since the advent of the Biden Administration, EPA has infused environmental justice principles into all its activities. It has also invigorated and encouraged citizen groups to file complaints alleging environmental justice issues.
Since January 2021, EPA has issued multiple pronouncements related to environmental issues in permitting, compliance and remediation matters. For example, in August 2022, EPA released guidance entitled “Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions.” In it, and for the first time, EPA suggested that “a permit denial may be the only way to avoid a Title VI violation” if there are no mitigation measures an agency can take to address disparate impacts.
In suggesting that a permit should be denied, EPA may well have gone beyond the remedies set forth in Title VI and its own Part 7 regulations. Title VI, after all, relates to recipients of federal assistance.
The prior remedy has generally been to withdraw such federal assistance of a program or activity violates Title VI.
The remedies set forth in the Part 7 regulations state that EPA “may terminate or refuse to award or to continue assistance.” It may also refer the matter to the DOJ “to get compliance.” However, neither Title VI nor Part 7 state that the agency should deny a permit.
Since January 2021, over 50 complaints have been lodged alleging some type of environmental justice issue. Texas and Louisiana have figured prominently in these complaints.
In Texas, complaints have been filed against the Texas Commission of Environmental Quality regarding the Concrete Batch Plant Standard Permit and certain minor sources permitted in Harris County under that general permit. Those complaints were accepted and are under investigation. An additional complaint was filed regarding the issuance of a Title V permit for a calcined coke facility in Port Arthur, Texas. According to EPA, that matter is pending and in informal resolution negotiations.
In Louisiana, complaints were filed against the Louisiana Department of Environmental Quality and the Louisiana Department of Health regarding several facilities and the Industrial Corridor in general. The Industrial Corridor runs along the Mississippi River and contains petrochemical facilities and other industrial facilities. EPA accepted those complaints for investigation and, according to EPA, those matters are pending and in informal resolution negotiations.
The onslaught of environmental justice pronouncements, guidance and complaints over the last two years has not been lost on industrial entities. Decision-making regarding the siting of new facilities or expansions of, and modifications to, existing facilities has become much more problematic and complex, requiring careful screening of existing populations and understanding the potential impacts of environmental emissions or discharges on those populations. Economic growth will likely suffer should negative decisions be made regarding siting, expansions or modifications due to environmental justice concerns.
EPA’s relentless focus on environmental justice may or may not yield benefits to those it seeks to protect. Emphasis only on environmental justice concerns may deprive a local community of a well-designed and operated facility which minimizes emissions and provides needed jobs. On the other hand, emphasis only on economic growth may create undue and unnecessary burdens for the local community. There is a proper balance between environmental justice concerns and economic growth, and government, industry and local communities must work together to find that balance.
John B. King is a partner with Breazeale, Sachse & Wilson LLP in Baton Rouge, Louisiana. Prior to joining the firm in 2003, he served as chief attorney for enforcement for the Louisiana Department of Environmental Quality.
For more information, visit bswenviroblog.com, email jbk@bswllp.com or call (225) 381-8014.
