backNational Environmental Policy Act Implementing Regulations Revisions Phase 2
The White House's Council on Environmental Quality (“CEQ”) recently finalized its “Phase 2” rule, which revises CEQ’s National Environmental Policy Act (“NEPA”) regulations. The rule aims to accelerate NEPA project review by enhancing consistency and clarity of NEPA’s regulations, and also builds environmental justice into the NEPA process.
The new rule imposes one-year deadlines for completion of certain environmental assessments and two-year deadlines for more rigorous environmental impact statements. The rule also gives federal agencies discretion to create categorical exclusions for projects, such as solar storage or transmission upgrade projects, and clarifies that agencies can adopt exclusions established by another agency or jointly establish exclusions. Projects or actions covered by a categorical exclusion are not subject to NEPA environmental review.
Further, the Phase 2 rule directs agencies to consider community input early in the review process, particularly input from those communities that have been disproportionately harmed by pollution or climate change. The rule states that environmental justice reviews are intended to help agency decisionmakers make better decisions by allowing them to be “fully informed about each decision’s reasonably foreseeable environmental effects.”
Some experts agree that the new rule will accomplish its goals by better preparing project developers for more robust discussions with agencies and allowing for consideration of long-term costs and benefits of projects. Others are skeptical, noting that any benefits of the rule’s enactment will depend on the agencies’ efficiency and consistency in incorporating the rule into their regulations and that encouraging agencies to review “environmental justice” aspects of projects could lead to delays in the project approval process.
Louisiana Seeks Vacatur of EPA Regulations Imposing Disparate Impact Requirements; 23 States Petition EPA to Amend Title VI of the Civil Rights Act
A hallmark of the Biden Administration’s approach to environmental justice has been using preexisting authorities to advance its agenda, none more so than Title VI of the Civil Rights Act. That approach now faces several challenges.
In early 2024, in State of Louisiana v. U.S. Environmental Protection Agency et al., the State of Louisiana obtained a preliminary injunction enjoining the Environmental Protection Agency (“EPA”) and the Department of Justice (“DOJ”) from imposing or enforcing disparate impact requirements against the State of Louisiana or any Louisiana state agency under Title VI. Generally, Title VI prohibits recipients of federal funds from discriminating on the basis of race, color, or national origin.
The State of Louisiana now requests that the Court vacate the challenged regulations or, in the alternative, seeks a statewide permanent injunction that would prohibit the EPA from imposing any regulations that consider disparate impacts. The EPA contends that any permanent injunction should not extend beyond the parties to the action and that vacatur is inappropriate where injunctive relief is sufficient to protect the State’s interest. The EPA emphasizes that the State’s requested relief would effectively “vacate across the country the challenged regulations that have existed for over fifty years.”
By way of background, in 2022 the EPA opened investigations into the practices of the Louisiana Department of Environmental Quality and the Louisiana Department of Health to determine whether these agencies were in violation of Title VI with respect to their consideration of environmental impacts upon minority communities near pollution-emitting facilities and for the lack of environmental justice policies to protect such communities. The State of Louisiana sued the EPA in May 2023, alleging that EPA impermissibly imposed disparate impact requirements under Title VI. Shortly after suit was filed,
the EPA closed its Title VI investigations in Louisiana that formed the basis of the suit. Despite there being no active investigations, the Court found the State of Louisiana faced a credible risk of enforcement and, therefore, maintained standing to pursue injunctive relief regarding EPA’s disparate impact regulations and extra-regulatory mandates.
Prior to any ruling by the Court, the EPA will be permitted to file its final briefing. However decided, this Court’s ruling has the potential to create immediate nationwide impacts on environmental justice initiatives, and litigation in this area is quickly evolving.
Relatedly, on April 16, the Attorneys General from 23 states petitioned EPA to “amend its regulations under Title VI of the Civil Rights Act…to bring them in line with the text of that statute and the Equal Protection Clause of the U.S. Constitution.” The Attorneys General state that disparate impact requirements promote racial discrimination instead of preventing it, and that the Administration’s environmental justice focus “asks the States to engage in racial engineering” instead of focusing on environmental factors. They ask the EPA to amend its regulations to focus on intentional discrimination.
EJ in EPA Rulemaking
In the first half of 2024, EPA has finalized a host of rules driven, at least in part, by concerns about disparate impacts and environmental justice.
For instance, in conjunction with an April rule targeting greenhouse gas emissions from powerplants, EPA issued revisions to the Mercury and Air Toxics Standards (MATS) to lower standards for mercury, particulate matter (PM), sulfur dioxide (SO2), nitrogen oxides (NOx), and other constituents emitted from coal-fired powerplants. At the same time, EPA issued new Effluent Limitations Guidelines and Standards reducing limitations for constituents in effluents from powerplants. Also in April, EPA implemented New Source Performance Standards and amended National Emission Standards for Hazardous Air Pollutants (NESHAP) to slash emission standards for ethylene oxide (EtO), chloroprene, and a host of other constituents from manufacturing plants; to remove exceptions for emissions during startup, shutdown,
and malfunctions; and to require fence-line monitoring to protect neighboring communities. EPA’s April action on EtO dovetails with a rule, finalized in March, to amend NESHAP for EtO emissions at commercial sterilization facilities. And in February, EPA targeted particulate matter standards, reducing the primary annual National Ambient Air Quality Standard for PM2.5 from 12 µg/m3 to 9 µg/m3. Each of these rules expressly address—and, in some cases, are expressly premised on—the environmental justice benefits of anticipated emissions reductions.
EPA’s environmental justice-driven actions were not limited to point sources. In March, EPA finalized rules governing carbon dioxide emissions from cars, light trucks, and heavy-duty vehicles. These rules were largely driven by the Biden Administration’s focus on climate change; however, the rules were also influenced by environmental justice considerations. Specifically, both rules note the impact of emissions from vehicle traffic on low-income communities and communities of color—which EPA identifies as “uniquely vulnerable”—and point to anticipated reductions in emissions of constituents including NOx, PM, volatile organic compounds, and SO2 in the coming decades as additional justifications for the rules.
Nor was EPA’s rulemaking limited to implementing stricter standards on emissions. In April, EPA issued a rule updating procedures for risk evaluations under the Toxic Substances Control Act, which governs the presence of chemical substances in U.S. commerce. Specifically, EPA amended the term “potentially exposed or susceptible subpopulation” (PESS) to include “overburdened communities” as an example of such populations. While EPA’s responses to comments note that the inclusion of “overburdened communities” as an example does not change the actual definition of PESS, the change does indicate EPA’s commitment going forward “to fully consider the impacts a chemical undergoing TSCA evaluation may present” to environmental justice communities.
As the above examples make clear, EPA remains committed to addressing environmental justice issues via rulemaking and other agency action.
Interior, EPA, DOE Announce New Racial Justice Plans
The Interior Department, EPA and Department of Energy (DOE) announced updated equity plans in February 2024. The three updates respond to President Biden’s 2023 Executive Order and the Administration’s initiative to advance racial equity through environmental justice. The Interior Department’s plan seeks to achieve equity in access to public lands and programs, prioritize contracting in underserved communities, and increase trust in law enforcement. The EPA’s plan lays out eight “priority strategies” which generally aim to improve access to federal assistance, reduce health disparities, strengthen civil rights, and ensure environmental exposure protection for children. The DOE plan responds not only to President Biden’s Executive Order but also to its internal, comprehensive examination of methods and polices. In its plan, the DOE intends to address data gaps that it says will lead to data-informed decision-making, opportunities for community applicants to receive DOE funding, and increase participation in federal programs. These plans display the administration’s continued commitment to environmental justice.
EPA Enforcement
David Uhlmann, the Assistant Administrator for EPA’s Office of Enforcement and Compliance Assurance (“OECA”), gave the keynote speech at the ABA Section of Environment, Energy, and Resources’ Fall Conference in Washington, D.C.. In his speech, Uhlmann discussed the strategic plan that the Agency is implementing to achieve fair and vigorous enforcement. The Administrator highlighted two requirements that are part of the EPA’s climate enforcement and compliance strategy. The first requirement is to focus on compliance activities that reduce emissions of the so called “highest impact—climate super-pollutants” such as methane and hydrofluorocarbons (“HFCs”). The second requirement is to target facilities most likely to be affected by climate change based on how frequently the geographic area is impacted by catastrophic weather events. The intended impact of this approach is to reduce risk of future harm to the environment or community.
Uhlmann also discussed the National Enforcement and Compliance Initiatives (“NECIs”) which are meant to address the most serious and widespread environmental challenges facing the country. Along with two initiatives continuing from
the previous cycle, EPA introduced or modified four NECIs this cycle. These new or updated initiatives include the Mitigating Climate Change NECI, which focuses enforcement resources on what EPA says are three significant contributors to climate change: (1) methane emissions from oil and gas facilities, (2) methane emissions from landfills, and (3) the use, importation, and production of HFCs. The Per- and Polyfluoroalkyl Substances (“PFAS”) NECI will identify the extent of PFAS exposure that EPA says poses a threat to human health and the environment and will pursue responsible parties for those exposures. The Coal Ash NECI focuses on examining nearly 300 facilities nationwide that are responsible for approximately 775 coal ash units, which EPA says are associated with cancer and other serious health effects. The Agency has modified its Air Enforcement initiative to add a geographical focus. Each EPA Region will identify at least two or three overburdened communities that face significant pollution from hazardous air pollution and will work with their state partners to drive down those unhealthy exposures.
The revitalization of these programs is meant to center the efforts of the Agency on seeking environmental justice for underserved communities. You can read the full speech here.
EJ Screen Updates
On May 15, EPA announced it was going to update to its EJScreen tool in June. According to EPA’s website, “EJScreen is EPA's environmental justice mapping and screening tool that provides EPA with a nationally consistent dataset and approach for combining environmental and demographic socioeconomic indicators.” EJScreen allows EPA and others to use the data to identify and map potentially overburdened communities. EPA says the June update will
- add two environmental indicators, noncompliance of drinking water systems and satellite-measured nitrogen dioxide air levels;
- add map layers for extreme heat, modeled drinking water service area boundaries, private wells and EPA environmental justice grants; and
- update its data, using 2018-2020 American Community Survey demographic data from the U.S. Census Bureau and refreshed EPA data for environmental indicators.
EPA last updated EJScreen in June 2023.
Cumulative Impacts
A panel of EPA’s National Environmental Justice Advisory Council (NEJAC) recently released draft recommendations for how EPA should more effectively address cumulative impacts. NEJAC recommends EPA’s work “center” on four principles:
- Decrease disproportionate cumulative burden
- Move beyond traditional risk assessments
- Take historic burden seriously
- Prioritize precaution over a high burden of proof
These four principles were the first of eight themes in the draft report. Here are the other seven themes:
- EPA should workshop, translate, and improve the Office of Research and Development definition of cumulative impact before full-agency adoption
- Comprehensive - Solution Oriented - Community Driven” Programs
- EPA must determine and communicate a set of principles to guide the practice of cumulative impact assessment
- Validating “lived experience” and incorporating it into assessments and processes through co-design and shared leadership
- EPA must incorporate structural drivers such as colonialism and racism into its cumulative impacts practice and framework
- Climate justice
- Accelerating progress of and innovative approaches for cumulative impacts implementation
At the same time, recent departures from environmental justice-related EPA offices have raised the potential that EPA guidance on cumulative impacts and other environmental justice efforts may be delayed. These departures include Lilian Dorka, EPA’s Office of Environmental Justice & External Civil Rights (OEJECR) deputy assistant administrator for external civil rights, and Anhthu Hoang, acting director of EPA’s External Civil Rights Compliance Office within OEJECR, who both moved to different roles in EPA. Before these moves, EPA senior EJ advisor Robin Morris Collins left in February, and Matthew Tejada, deputy assistant administrator for environmental justice in OEJECR, left in December 2023.