Beyond the Fenceline: Environmental Justice Updates – December 2023

Environmental Justice: 2023 Year in Review and 2024 Look-Ahead

As a concept, Environmental Justice, or EJ, has been around for more than 40 years.  Beginning as a slogan at protests in Warren County, NC in 1982, EJ became the subject of a February 16, 1994 Executive Order by President Clinton.  With the issuance of President Biden’s January 27, 2021, Executive Order, EJ is now a central tenant for all federal government activities, and new EJ guidance and policies by the U.S. Environmental Protection Agency and U.S. Department of Justice seem to be issued on a monthly basis. This Newsletter summarizes the key developments in EJ over the last year, and then looks ahead to potential trends in 2024.

Whole-of-Government Environmental Justice Approach and Importance of NEPA in Achieving EJ Policy

The Biden Administration continued to emphasize a whole-of-government approach to EJ in 2023. On April 21, 2023, President Biden issued an Executive Order 14096, titled “Revitalizing Our Nation’s Commitment to Environmental Justice for All” (“EO”). The 2023 EO continues the Administration’s emphasis on EJ by creating a new White House Office of Environmental Justice and directing each federal agency to make EJ part of its mission.

With the issuance of the EO, President Biden created a new White House Office of Environmental Justice in the Council on Environmental Quality (“CEQ”), led by a new Federal Chief Environmental Justice Officer, Dr. Jolanne L. White-Newsome. In this role, Dr. White-Newsom is charged with coordinating the development of policy to advance EJ, and the EO directs all agencies to cooperate in the endeavor.

The CEQ, in turn, published an Environmental Justice Scorecard, a government-wide assessment of federal agencies’ efforts to advance EJ, and released a guidance document to help in developing the plans required by the EO, Strategic Planning to Advance Environmental Justice. CEQ describes the document as a “playbook” or “how to guide” to help agencies develop the agency-specific strategy plans required by the EO.

A central tenant of the EJ strategic plan is for agencies to use the National Environmental Policy Act (“NEPA”) to advance EJ. That strategy aligns with EO 14096, which directs agencies to conduct environmental reviews under NEPA in a manner that “analyzes direct, indirect, and cumulative effects of Federal actions on” EJ communities, “considers best available science and information on any disparate health effects (including risks) arising from exposure to pollution and other environmental hazards[,]” and provides opportunities for meaningful engagement of EJ communities in the NEPA process. In addition, the EO requires EPA to assess agencies’ efforts in mitigating disproportionate impacts on EJ communities in carrying out its responsibility to review NEPA Environmental Impact Statements under Clean Air Act Section 309.

In furtherance of EO 14096, on July 31, 2023, CEQ released proposed Phase 2 NEPA regulations governing how federal agencies implement NEPA (the “Proposed Rule”) that, among other things, stresses the consideration of EJ in the environmental review process. In a change from the practice of issuing guidance on how to use existing authorities to achieve EJ goals, the Proposed Rule expressly includes new EJ requirements in the NEPA process. In the administration’s own words, “the proposed rule will direct agencies to consider environmental justice in environmental reviews and—for the first time—encourage agencies to incorporate measures to avoid or reduce disproportionate effects on communities, including the cumulative effects of pollution.” CEQ received over 148,000 public comments before the public comment period ended September 29, 2023.

EPA Remains the Most Active Agency

Within a whole-of-government approach to EJ, EPA led the way, announcing on July 18, 2023, that it was opening stand-alone EJ offices in each region and updating its main EJ screening tool, EJScreen, which combines environmental and demographic indicators into an interactive mapping tool. Version 2.2 includes some critical additions:

• For the first time, Toxic Release Inventory data, quantifying and mapping potential health effects from releases of chemicals EPA has identified as potentially causing cancer or other health and environmental impacts.
• EPA-regulated facilities that are currently or have been out of compliance with environmental laws and regulations.
• Data on health disparities including cancer and persons with disabilities; critical service gaps on accessibility to housing, health insurance, transportation.
• Updated demographic data from the U.S. Census.

Following this, on November 15, 2023, EPA issued a draft revision to its Technical Guidance for Assessing Environmental Justice in Regulatory Analysis (“EJ Technical Guidance”), updating guidance issued in 2016. The purpose of the EJ Technical Guidance “is to outline analytical expectations and particular technical approaches and methods that can be used by Agency analysts…to evaluate EJ concerns for regulator actions.” The EJ Technical Guidance recommends integrating EJ into the rulemaking process “at its earliest stages” and provides guidance on how to do so. (Relatedly, in October 2023, EPA also proposed changes to its Meaningful Involvement Policy, last updated in 2003, providing guidance for EPA on meaningfully involving the public in agency decision-making.) The EJ Technical Guidance further suggests characterizing EJ risks across specific population groups, rather than average effects, and requires consideration of economic challenges for relevant population groups that the regulatory action may exacerbate, for example, how an EJ community might be impacted by price increases arising from regulatory action. But by its terms, the EJ Technical Guidance does not mandate a specific process and states that analysts should use their best professional judgment when analyzing the EJ impacts of a potential regulatory action. 

Widening the focus on EJ, in March 2023 the US EPA’s Office of Environmental Justice and External Civil Rights and Office of Land and Emergency Management approved a policy formally incorporating EJ into emergency response preparedness and management. On January 11, 2023, EPA’s Office of the General Counsel released a Cumulative Impacts Addendum (“Addendum”) to its May 2022 Legal Tools To Advance Environmental Justice, providing EPA and its tribal, state, and local partners a compilation of legal authorities to address cumulative impacts affecting EJ communities. However, an August 22, 2023 report from the EPA’s Office of the Inspector General says EPA’s actions to date still do not go far enough. Similarly, EPA also announced greater focus on EJ issues in warehouse construction and operations, becoming one of the clearest examples of EPA injecting EJ into “ordinary” real estate transactions. 

EJ continued to expand into more and more regulatory action, even when such action is not expressly characterized as EJ action. While 2021-2022 saw a proliferation of EJ guidance documents that relied on existing statutes and regulations to further the administration’s EJ goals, and there is still no EJ statute on the horizon, in 2023, EPA moved to incorporate EJ into proposed regulatory action governing air quality.

• EPA finalized its plan under the Clean Air Act’s “good neighbor” provision (the “Plan”) on March 15, 2023, requiring 23 states to reduce their air pollution that significantly contributes to a downwind state’s ability to meet EPA’s air quality standard for ground-level ozone, or smog, known as the 2015 Ozone National Ambient Air Quality Standards (NAAQS). In balancing the Plan’s costs and benefits, EPA considered the effects of the Plan on minority populations, low-income populations and/or tribal nations.  According to EPA, the Plan and its components, including daily backstop emissions rates for large power plants and regulation of both existing and future power plant and industrial sources, will directly improve the air quality in downwind communities that suffer a disproportionate burden from ozone pollution. 
• In 2023, companies and coalitions brought suit across the country challenging the Good Neighbor Plan, although not on EJ grounds, arguing that it was an invalid exercise of power by EPA. So far, the EPA’s attempts to consolidate all litigation to the D.C. circuit have been unsuccessful. However, in October, the Court of Appeals for the D.C. Circuit issued a favorable decision for EPA. In Utah v. EPA, the Court held that the Good Neighbor Plan will remain in effect for the duration of the litigation. In the Fifth Circuit, a similar lawsuit was filed on behalf of industry leaders seeking to also invalidate the Plan, again not on EJ grounds. The State of Texas brought its lawsuit after the EPA rejected the state plan for ozone reductions. EPA reasoned the Texas’ plan included no permanent or enforceable emission controls. The Fifth Circuit has issued a temporary stay of the EPA’s decision in June and the case is set to be heard in 2024.
• On April 6, 2023, the US EPA announced a new proposal to further regulate air emissions of ethylene oxide and chloroprene at roughly 200 chemical plants, stating that the “reductions would dramatically reduce the number of people with elevated air toxics-related cancer risks in communities surrounding the plants that use those two chemicals, especially communities historically overburdened by air toxics pollution....”According to EPA, its community risk assessment shows the numbers of people with elevated cancer risk could drop by 96 percent in communities surrounding chemical plants if the proposal is finalized. 
• 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 effected by, and vulnerable to, the impacts from the facility. EPA further proposed 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.

Environmental Justice Spending Spree

The Inflation Reduction Act (“IRA”) passed in 2022 provides approximately $60 billion in funding to a wide variety of projects and programs addressing EJ issues. Specifically, the IRA includes over $3 billion in EJ grant funding for EPA to distribute through 2026. In 2023, EPA and others began to announce grant winners for this funding under several programs.

Environmental Justice Government-to-Government (defined as "EJG2G")

The EJG2G program, formerly known as EPA's State Environmental Justice Cooperative Agreement Program, provides funding at the state, local, territorial, and tribal level to support those governments’ activities to address EJ.

EPA selected 88 EJG2G awardees to receive over $80 million in IRA funding, and awardees will receive up to $1,000,000 each. According to EPA, these grants will fund projects that address, among other things, “air monitoring, indoor/outdoor air quality, solar panel installation, small-scale cleanups, community education, EJ tool development, green jobs and infrastructure, food access, emergency preparedness and planning, toxics exposure, land reuse, water quality, stormwater infrastructure installation, equitable transportation and mobility, and support of healthy homes through asbestos, lead, and radon testing, remediation, and mitigation.”

Environmental Justice Collaborative Problem-Solving (defined as "EJCPS")

About the same time, EPA also announced winners of Environmental Justice Collaborative Problem-Solving (EJCPS) Cooperative Agreement Program funds. EJCPS provides grants to organizations addressing environmental or health issues in their communities and requires grantees to collaborate with stakeholders in the community, including industry and academia, to address EJ issues. The 98 EJCPS awardees will receive over $40 million in IRA funding, up to $500,000 each. EJCPS grants will fund a variety of projects to address wide-ranging issues, such as “wildfires, health impact assessments, air monitoring, indoor/outdoor air quality, food access, community planning, community revitalization, community agriculture, green jobs and infrastructure, emergency preparedness and planning, toxic exposures, water quality, and healthy homes projects, wood burning stove replacement, solar panel installation, assessments, and water sampling and monitoring.” As EPA notes, twenty-three projects are located in rural areas and 60 address climate change, disaster resiliency, and/or emergency preparedness.

Data Sources: Government to Government; Collaborative Problem-Solving Cooperative Agreement

Environmental Justice Thriving Communities Technical Assistance Centers (defined as "EJ TCTACs")

In partnership with the U.S. Department of Energy, EPA announced the selection of Environmental Justice Thriving Communities Technical Assistance Centers (EJ TCTACs) to receive $177 million in grants of at least $10 million each. The TCTACs, in turn, will train and assist other organizations in applying for and managing grant funding. The TCTACs will also assist organizations’ outreach efforts in EJ communities and create and manage communications channels with EJ communities.

Data Source: 2022-23 Environmental Justice Thriving Communities Technical Assistance Centers Program. Map does not reflect $30 million in national awards. Region 1 funding will be announced in the first quarter of 2024.

Environmental Justice Thriving Communities Grantmaking (defined as "EJ TCGM")

Making good on a promise from earlier in the year, on December 20, 2023, the Biden administration announced $600 million in IRA funding for EPA’s new Environmental Justice Thriving Communities Grantmaking (EJ TCGM) program. EPA’s February 23, 2023 press release stated, “The new program advances the Biden-Harris Administration’s whole-of-government commitment to achieving environmental justice by building early, meaningful, and sustained partnerships with communities.” The EJ TCGM program will fund eleven entities to serve as grantmakers to community-based projects that reduce pollution.

EPA intends to award each grantmaker $50 to $100 million. EPA anticipates grantmakers will begin awarding subgrants to community-based organizations by summer 2024. The selected grantmakers are instructed to simplify the grant process to allow more funding to organizations that historically have faced barriers to receiving federal grants for addressing environmental harms and risks. 

Along with this, the Department of Energy’s IRA grant and loan programs give substantial weight to applicants’ community benefits plans and demonstrations of conformity with EJ principles and goals.

Other EJ grants have been awarded or are in the process of being awarded. Although the funding is not broken down by state or region, this EJ funding covers a wide range of issues and concerns:

• Grid Resilience State/Tribal Formula Grant Program awarded by the Department of Energy ($25.31 million) to Native American tribes to address grid resilience.
• Thriving Communities Program awarded by the Department of Transportation ($21.15 million) to a multitude of states and tribes to advance transformative infrastructure projects.
• Climate-Smart Communities Initiative awarded by the Biden Administration ($12.7 million) to under-resourced, historically marginalized communities across the U.S. to develop resilience plans.

Environmental Justice Disputes

Among many lawsuits and enforcement actions, DOJ secured an agreement to address the Jackson, Mississippi water crisis and sued to limit air emissions at a facility in Louisiana. And there’s a growing trend toward EJ litigation over air quality impacts from warehouses.

In 2023, community groups sued local governments and state agencies on EJ grounds. On August 21, 2023, three environmental groups in Colorado—GreenLatinos, 350 Colorado, and Earthworks—filed a lawsuit in Denver County District Court against the Colorado Air Quality Control Commission to broaden the scope of the State’s recently finalized EJ Rules. According to the lawsuit, the State’s EJ Rules fail to ensure that residents of communities who “have long borne a disproportionate share of adverse human and environmental effects from polluting industries” receive the protections provided by the State’s recent Environmental Justice Act. 

On November 16, 2023, a federal judge in the Eastern District of Louisiana dismissed, on procedural grounds, an EJ lawsuit filed by residents and others against their local government in St. James Parish, Louisiana. Plaintiffs filed suit in March 2023 under 28 U.S.C. Sections 1982 and 1983, the Thirteenth and Fourteenth Amendments, the Religious Land Use and Institutionalized Persons Act, and the Louisiana Constitution relating to the Parish’s land use policies. Inclusive Louisiana, et al. v. St. James Parish, et al., 2:23-cv-00987 (E.D. La.). Collectively, Plaintiffs claimed their members were residents of St. James Parish who descended from formerly enslaved persons whose rights and civil liberties were violated by the Parish’s land use policy. St. James Parish was alleged to have directed industrial development into areas predominately occupied by Black residents that led to adverse health impacts. According to Plaintiffs, the Parish’s land use plan placed burdens on their members’ ability to practice their religion and access their ancestors’ unmarked graves. Ultimately, the lawsuit was dismissed on procedural grounds because the Court determined Plaintiffs lacked standing and/or the asserted claims were time-barred. Despite its dismissal, the lawsuit could still become a template for other EJ activists, as the Court’s dismissal order determined that while Plaintiffs’ claims were “procedurally deficient,” it could not “say that their claims lack a basis in fact or rely on a meritless legal theory.” The Court left the door open for similar claims in other locales—particularly those where elected officials and state regulatory agencies are not perceived as adequately addressing EJ issues—which could embolden other activists to seek redress through the courts.

But Louisiana pushed back against EPA’s EJ initiatives as well. On May 24, 2023, the State of Louisiana sued EPA, alleging that EPA is attempting to force the Louisiana Department of Environmental Quality (“LDEQ”) and Louisiana Department of Health (“LDH”) into adopting EJ policies that lack a basis in statute or regulation. For the State, EPA’s attempt to impose a 

disparate impact analysis requirement on the State’s environmental permitting decisions exceeds EPA’s authority under Title VI of the Civil Rights Act, which provides that no program or activity that receives federal funding can discriminate against a person on the ground of race, color or national origin. Louisiana also argues EPA’s policy misconstrues Title VI’s prohibition on intentional discrimination and, in practice, compels Louisiana to engage in the very intentional discrimination that the Civil Rights Act prohibits. And the State argues that EPA’s requirement to evaluate a projects’ potential cumulative impacts on EJ communities has no basis in EPA’s Title VI regulations.

On June 21, 2023, Louisiana filed a Motion for Preliminary Injunction and Motion to Expedite the resolution of its request for injunction, citing an impending July 11, 2023, deadline to resolve the citizen group complaints via negotiation. Less than a week later on June 27, EPA filed a notice that it closed its investigations into the complaints against LDEQ and LDH without any finding of discrimination or other Title VI violation. EPA also announced that it will not initiate any further action in response to the complaints. As these complaints formed the basis of the State’s lawsuit and justification for its Motion for Preliminary Injunction, EPA suggested the State dismiss its lawsuit—which the State declined.

As of December 2023, the State continues to pursue its claims against EPA, alleging that EPA will continue imposing their disparate-impact and cumulative-impact mandates for most or all of the permits that the LDEQ issues. As the State claimed: “despite Defendants’ abrupt abandonment, post-preliminary-injunction motion, of their enforcement efforts in response to two specific complaints, the State continues to seek preliminary relief against unlawful mandates that would otherwise burden innumerable permitting decisions by LDEQ and other Louisiana agencies during the pendency of this suit.” It remains to be seen whether this lawsuit will lead other states to challenge the Biden Administration’s attempts to pursue EJ via Title VI of the Civil Rights Act.

What to Expect in 2024

2024 will see a continued focus on EJ by the administration and community groups, with the following trends likely to shape the EJ landscape.

Increased focus on Environmental Justice across federal agencies; EPA will remain the lead agency and continue to expressly incorporate Environmental Justice into agency action and enforcement.

To date, EPA has led the Administration’s EJ efforts. However, the directive in Executive Order 14096 for all federal agencies to dedicate staff to EJ and to develop plans and metrics to assess progress, and CEQ’s issuance of EJ strategic guidance to agencies, suggest that other federal agencies will prioritize EJ going forward.

That focus likely will manifest itself, in part, through heightened scrutiny on EJ in agency NEPA reviews. Notably, CEQ is responsible for ensuring federal agencies comply with NEPA. The EO’s creation of the Office of Environmental Justice within CEQ, and the requirement that agencies report their EJ plans’ effectiveness to CEQ, strongly suggests that NEPA may play an increasingly large role in the Administration’s EJ efforts. Accordingly, regulated entities may be required to undertake comprehensive EJ analyses to obtain permits and other approvals from a growing list of agencies and may face an increase in enforcement actions relating to alleged EJ and civil rights impacts stemming from their operations.

Time will tell if the Administration’s instructions to coordinate across agencies will bring some cohesiveness or consistency to the various agencies’ approaches to EJ. However, EPA’s inclusion of EJ in its Technical Guidance suggests that EJ will factor into more EPA agency actions, including rulemaking, similar to the increased activity in air pollution regulations in 2023.

Increased Environmental Justice Funding.

In addition to the funds distributed in 2023, on November 21, 2023, the Administration announced $2 billion in EPA Community Change Grants. EPA describes the grants as “the single largest investment in EJ going directly to communities in history[,]” with 100% of the funding going to disadvantaged communities. Under the Community Change Grant program, the Administration set aside $200 million for technical assistance to grant applicants and recipients. EPA identified five “Target Investment Areas (TIAs) for $200 million of the $2 billion funding, including Tribal communities; Indian Tribes in Alaska; U.S. territories; rural areas; and U.S./Mexican border communities.

EPA intends the grants to fund activities in several categories, among them:  

• Climate resiliency and adaptation;
• Climate and health risks from heat and fire; 
• Air, water, and waste pollution monitoring, prevention, and remediation;
• Low and zero-emission technologies and infrastructure;
• Workforce development supporting the reduction of greenhouse gas emissions and air pollutants;
• Indoor toxics and air pollution; and
• Facilitating the meaningful engagement of disadvantaged communities in public processes.

EPA will accept applications on a rolling basis through November 21, 2024. 

In addition, DOT plans to award $1.5 billion in RAISE grants in 2024, with applications due at the end of February and awardees announced June 27, 2024. DOT notes that half that funding will go to projects in rural areas, at least $15 million will fund projects located in Areas of Persistent Poverty or Historically Disadvantaged Communities, and projects “located in these areas will be eligible for up to 100 percent federal cost share, as directed by Congress in the Bipartisan Infrastructure Law.” 

Increasing Risk of Environmental Justice Disputes.

The expansion of EJScreen and other EJ screening tools, along with the EJ funding awarded in 2023 and to be awarded in 2024, will fuel environmental permit application challenges for new and for reissued permits, government enforcement actions, and citizen lawsuits. For example, the inclusion of Toxic Release Inventory data and data on facilities out of compliance in EJScreen 2.2 will provide information that may foster allegations of negative health or environmental impacts by specific facilities located in EJ communities, raising the risk of permit challenges and personal injury and environmental litigation. Similarly, increased 

funding to community groups and environmental non-governmental organizations (“eNGOs”) will assist them in monitoring environmental impacts, training them to effectively assert EJ issues, and likely empower them to mount more EJ challenges to permits and operations. 

Indeed, eNGOs are increasingly raising EJ related concerns in legal challenges to various projects requiring permits or other forms of governmental approval. Notably, industrial projects of all types—including clean and renewable energy projects that seek to lower overall carbon emissions but may be situated in close proximity to EJ communities with some attendant impacts—may be targeted for opposition by eNGOs.

In addition to permit challenges, citizens groups are likely to continue to file EJ lawsuits to prompt action at the state and local level, such as those filed in Louisiana and Colorado. As EPA itself has suggested, agencies and eNGOs are expected to increase their focus on of the role of hazardous air pollutants in EJ communities.

However, some states are expected to push back on EPA’s EJ policies, given Louisiana’s success in challenging EPA’s use of the Civil Rights Act. One example is the State of Texas. On October 20, 2023, the Texas Commission on Environmental Quality (“TCEQ”) withdrew from negotiations with EPA concerning EPA’s investigation of TCEQ’s permitting of a chemical plant and concrete batch plants in EJ communities, which may portend future litigation.

Increased Enforcement in Environmental Justice Communities.

EJ was featured heavily in EPA’s National Enforcement and Compliance Initiatives (“NECI”), announced August 17, 2023. Although EJ is not a specific NECI, EPA’s memo states that all of the NECIs incorporate EJ, and one need barely scratch the surface to find an EJ thread connecting them. Carryover priorities include reducing air toxics in overburdened communities, increasing compliance with drinking water standards, and chemical accident risk reduction. The new priorities – climate change, coal ash contamination, and PFAS – are and are expected to continue to be a focus of advocates and local communities.

Implications

With the Administration’s mandate that EJ be a central tenant for all federal actions, EJ will increasingly surface in all areas of law and regulation, from technically challenging matters such as reissuance of a 30-year Title V Clean Air Act permit for a plant that has not changed operations, to seemingly ordinary matters such as construction of a warehouse with potentially increased traffic as an EJ impact. The EJ focus will continue to extend beyond the federal government, as well, with increasingly informed, funded, and active eNGOs and citizens’ groups raising the possibility of EJ disputes. As it continues to evolve at a federal and state law, 2024 will be another eventful year for EJ.