backAttorneys General Dispute the Environmental Justice Benefits of EPA’s Proposed Rule “Safer Communities by Chemical Accident Prevention”
Led by Oklahoma, twelve State Attorneys General submitted their written comment to the Environmental Protection Agency’s (EPA) proposed Safer Communities by Chemical Accident Prevention (SCCAP) rule. The SCCAP proposes revisions to the Risk Management Program (RMP), which sets out the chemical accident prevention requirements for qualifying stationary sources under the Clean Air Act. EPA’s proposed rule adds new requirements for facilities under the RMP, including (among others): (1) additional considerations for hazard evaluations; (2) an analysis by some facilities of safer technologies and alternatives; (3) conducting a specified root cause analysis during an incident investigation; (4) requiring employee participation in process safety related decisions; (5) expanding the recordkeeping and implementation requirements for notifying the public of an indecent; and (6) making risk management plan information more easily accessible to the public.
According to EPA, the proposed RMP changes are “expected to make communities safer by reducing the frequency of chemical releases and their adverse effects.” However, the signatory State Attorneys General argue in their comment that the proposed changes to the RMP would impose burdensome new regulatory requirements and would not lead to improvements in preventing accidental releases or minimizing the consequences of such releases. In addition, they contend that making sensitive chemical information more broadly available would present a high risk of misuse by “nefarious actors.” In conclusion, the State Attorneys General argue that “EPA seeks to impose additional Risk Management plan requirements that incorporate ‘climate change risks’ and impacts into the regulations and expand the application of so called ‘environmental justice,’ neither of which is an appropriate basis for regulating under the statutory provisions at issue in this proposed rule.” The comment period for the proposed rule ended on October 31 and all public comments are currently under EPA review.
This statement by the signatory State Attorneys General appears to be part of a larger campaign by “Red State” Attorneys General to push back on environmental justice (“EJ”) and ESG initiatives. We can expect a response by “Blue State” Attorneys General on these and other EJ and ESG initiatives. Companies in the middle of these competing initiatives would be well advised to closely monitor developments in these areas.
EPA’s Supplemental Proposed Methane Rule Has Environmental Justice Aspects
EPA released a supplemental proposed rule to its already sweeping proposed methane rule with major EJ impacts. In a first for the Clean Air Act, under the proposed rule, where a designated facility would qualify for a less stringent standard under a state air quality management plan, the state would have to consider impacts of emissions from the facility on the communities most affected by, and vulnerable to, the impacts from the facility. EPA further proposes to identify the communities with EJ impacts from these facilities as “pertinent stakeholders” and require states to meaningfully engage with them prior to submission of state plans. “Meaningful engagement,” in turn, must include early outreach and information sharing with the pertinent communities, and strategies to overcome linguistic, geographic, and other barriers to participation. EPA says it expects that defining meaningful engagement will provide states the specificity to meet the new requirements, while allowing for flexibility. EPA will take comments to the rule until February 13, 2023.
White House Releases Final Climate Environmental Justice Tool
After reviewing public comments on the draft Climate and Economic Justice Screening Tool (CEJST), the Biden Administration recently finalized this important new screening tool. The CEJST is designed to help implement the Justice 40 Initiative, which has the goal of directing 40% of federal clean energy, Environmental Justice and climate funds to disadvantaged and overburdened communities across the nation, including Native American tribes using data from the Bureau of Indian Affairs. With billions of federal dollars available for these Biden Administration initiatives, the CEJST will be an important tool not only for communities, but also for industry to use along with existing screening tools such as EJ Screen in assessing EJ risks and opportunities.
Environmental Justice Roundtable in Houston
Join us on January 31, 2023
Join King & Spalding for a roundtable discussion on the increasingly complex and important topic of Environmental Justice. Our discussion will include a plenary session along with panels on the trends related to EJ considerations in litigation, permitting and transactions. The full agenda is forthcoming. To RSVP or request more information, please contact Mary Viator at mviator@kslaw.com.