Environmental Justice 2022 Year-End Review
Environmental Justice (“EJ”) continued to prove a major focus of the Biden administration in 2022. With wide-ranging initiatives across several federal agencies, the administration worked to strengthen enforcement, release new tools and data, issue new guidance policies and memoranda, and create national offices, among other key actions.
This year-end review covers the key highlights of the administration’s EJ work. For more information, please visit our Environmental Justice page.
What is Environmental Justice?
Within days of taking office, President Biden signed an Executive Order on Tackling the Climate Crisis at Home and Abroad (“Executive Order 14008”) stating that it is the “policy of [the] Administration to secure environmental justice and spur economic opportunity for disadvantaged communities that have been historically marginalized and overburdened by pollution and underinvestment in housing, transportation, water and wastewater infrastructure, and health care.”
The Environmental Protection Agency (“EPA”) defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA is particularly concerned with protecting historically “overburdened communities,” i.e., “[m]inority, low-income, tribal, or indigenous populations or geographic locations in the United States that potentially experience disproportionate environmental harms and risks.”
New EJ Offices Open
Two federal agencies launched national offices aimed at advancing EJ initiatives. Although operating independently, the offices will work together to protect disadvantaged and overburdened communities, often referred to as “EJ communities.”
In September 2022, the EPA opened its Office of Environmental Justice and External Civil Rights (“OEJECR”), announcing that it would be staffed by more than 200 people and eventually be led by a Senate-confirmed assistant administrator.1 The OEJECR aims to advance EJ and civil rights by enforcing federal civil rights laws, ensuring that EJ communities are treated fairly in the implementation of environmental laws and regulations, and overseeing the allocation of a $3 billion EJ block grant created by the Inflation Reduction Act of 2022 (“IRA”).
In May 2022, the Department of Justice (“DOJ”) opened its Office of Environmental Justice (“OEJ”), appointing Cynthia M. Ferguson as director in November. The OEJ will lead DOJ’s efforts to implement its EJ enforcement strategy focused on civil and criminal environmental violations developed pursuant to Executive Order 14008.
The Inflation Reduction Act of 2022 and EJ
On August 16, 2022, President Biden signed the IRA, a historic piece of climate policy legislation designed to reduce greenhouse gas emissions while providing substantial investments in “green” technology and EJ initiatives. In a previous analysis, we noted that the IRA includes a mix of provisions aimed at (1) improving the health and environment of communities facing environmental justice issues (particularly in the context of harmful emissions), and (2) providing tax credits, grants, and funding to disadvantaged communities.2
The IRA’s focus on EJ initiatives furthers President Biden’s Justice40 Initiative, which promises to provide 40 percent of the benefits of clean-energy investments to disadvantaged communities. The IRA provides a $3 billion block grant for distribution to states, tribes, and nonprofit organizations for EJ-related activities, such as monitoring air pollution, mitigating climate risk, and engaging disadvantaged communities. It also allocates $3 billion to reduce air pollution and emissions at ports, $37.5 million in grants to monitor air pollution and emissions at schools in EJ communities, and $33 million to the Council on Environmental Quality (“CEQ”) to track the disproportionate impacts of pollution on EJ communities.
EPA Administrator Michael Regan has committed to ensuring that the EPA’s funding practices “meet or exceed” the expectations of the Justice40 Initiative. On January 10, 2023, the EPA announced that $100 million of the allocated funds were available through two programs: the Environmental Justice Collaborative Problem-Solving Program and the Environmental Justice Government-to-Government Program. Additional funds are expected to become available in the coming months.
The IRA also provides funding to make clean energy more accessible to disadvantaged communities through various programs. These programs include the Department of Energy’s Tribal Energy Loan Guarantee Program, which provides rebates for purchases of energy-efficient appliances, brings clean power to homes without electricity, and creates new investments in energy infrastructure.
The EPA’s EJ Enforcement Focus Continues
The EPA sought to highlight EJ issues by conducting more inspections of facilities in overburdened communities, imposing higher penalties for noncompliance, and approving more supplemental environmental projects in matters handled by the DOJ. According to a December 16, 2022 press release from the EPA’s Office of Enforcement and Compliance Assurance:
- More than 56 percent of on-site inspections were at facilities in overburdened communities in 2022, exceeding the EPA’s goal of 45 percent.
- More than 44 percent of enforcement cases concluded in 2022 involved facilities in areas with potential EJ concerns, the highest percentage since the EPA began tracking this metric.
- Penalties for EJ enforcement cases totaled more than 26 percent of all administrative and civil judicial penalties assessed by the EPA in 2022.3
Part of the EPA’s work in 2022 involved proposing more ways for communities to participate in EJ enforcement. In November 2021, the EPA released its “methane rule” (discussed here), which it then expanded by issuing a supplemental proposal in November 2022. The supplemental proposal would impose additional compliance requirements on the oil and gas industry (discussed here) and creates a “super-emitter response program.”
Under this program, qualified third parties that have been approved by the EPA — and that use approved remote detection technology — would be able to report large methane leaks to operators, which then must respond and take any corrective action necessary. If the program takes effect, communities might team up with qualified third-party leak detectors to raise compliance issues with operators where the EPA might not have previously been involved.
The EPA Flexes its Authority to Leverage State and Local Governments
Under Title VI of the Civil Rights Act, the EPA receives allegations of civil rights violations from third parties. In 2022, the EPA received multiple requests from citizens and environmental groups to bring actions against some state environmental protection agencies, citing health concerns regarding disadvantaged communities. For example, the EPA:
- Wrote a lengthy “letter of concern” to the Louisiana Department of Environmental Quality and the Louisiana Department of Health to attempt to resolve claims that the state’s failure to protect residents from air pollution in a highly industrialized area violated civil rights laws.
- Launched investigations into Texas and Colorado to determine whether their regulation of air pollution is resulting in discrimination against minorities located in those states.
- Started investigating whether Mississippi discriminated against its majority-Black residents in Jackson by refusing to fund improvements to the city’s water system.
In our 2021 year-end review, we noted that the EPA repeatedly raised EJ and civil rights concerns in the context of state permitting decisions affecting EJ populations; particularly in the context of Clean Air Act permits.
- The City of Chicago placed a Clean Air Act permit application from a metal recycling facility on hold, after the EPA sent a letter to Mayor Lori Lightfoot highlighting EJ and civil rights concerns with the facility’s planned location. The Chicago Department of Public Health conducted a Health Impact Assessment to assess, in part, cumulative risks to overburdened communities in “the absence of existing practice standards for applying cumulative impact assessment.” Guided by Title VI concerns, Chicago ultimately denied the permit in February 2022. But in July, the U.S. Department of Housing and Urban Development found that Chicago violated Title VI in citing the metal recycling facility.
- North Carolina is now the subject of a similar investigation relating to its permitting of a facility that generates biogas from animal waste in an EJ community.
The EPA Releases A Legal Tools Roadmap and DOJ Releases An Enforcement Strategy
The “EPA’s Legal Tools to Advance Environmental Justice” roadmap (“EJ Legal Tools”) updates the EPA’s “Plan EJ 2014 Legal Tools,” released in 2011. Published in May 2022, EJ Legal Tools identifies the legal authorities that the EPA can rely on to ensure that its programs and activities advance equity for all communities. Although EJ Legal Tools does not provide guidance on how the EPA should undertake a specific action, EPA decision-makers can use it to better understand how to leverage existing authorities to advance EJ.
Additionally, the EPA noted that EJ Legal Tools intends to “foster a dialogue among [the] EPA offices and programs to accelerate [the] EPA efforts to advance [EJ] and equity.”4 EJ Legal Tools divides the EPA’s legal authorities into nine categories: (1) Clean Air Act Programs; (2) Water Programs; (3) Solid Waste and Emergency Response Programs; (4) Pesticides and Toxics Programs; (5) Tribal Programs; (6) Environmental Review Programs; (7) Civil Rights in Federal Assistance Programs; (8) Grants, Assistance Agreements and Procurement; and (9) Freedom of Information Act Processes. The EPA has committed to more frequent updates to EJ Legal Tools to reflect changes in the legal and policy landscapes.
On May 5, 2022, DOJ issued a Comprehensive Environmental Justice Enforcement Strategy memorandum (“the DOJ Strategy”), pursuant to Executive Order 14008. Importantly, the DOJ Strategy indicated that DOJ will use enforcement tools beyond environmental statutes to address concerns that overburdened communities may experience multiple public health and environmental risks at the same time or over a period of time.
In doing so, DOJ indicated a willingness to partner with other federal agencies during an environmental enforcement investigation. Finally, DOJ indicated that it would devote significant resources to convene a standing Environmental Justice Enforcement Steering Committee, co-chaired by the Assistant Attorney Generals of the Environment and Natural Resources Division and the Civil Rights Division (or their designees).
The Federal Energy Regulatory Commission Signals Moves on EJ
Two policy statements released from the Federal Energy Regulatory Commission (“FERC”) signal the possible direction that the agency may move upon obtaining the full complement of Commissioners.
First, the Updated Policy Statement on the Certification of New Interstate Natural Gas Facilities (“Updated Policy Statement”) would revise FERC’s 1999 Certification of New Interstate Natural Gas Facilities Policy (“1999 Policy”) and change the balancing test by which FERC evaluates applications to construct interstate natural gas facilities under Section 7 of the Natural Gas Act (“NGA”).
Second, in a new interim policy statement on the Consideration of Greenhouse Gas (“GHG”) Emissions in Natural Gas Infrastructure Project Reviews (“GHG Policy Statement”), FERC would commit to ensuring that EJ and equity concerns are better incorporated, and that its consideration of impacts to communities would include any EJ communities and necessary mitigation. FERC also added detail on identifying EJ communities, and anticipates that the Office of Public Participation would help facilitate public participation in FERC proceedings to ensure that EJ communities are able to fully participate. FERC noted that pipelines would work to identify and engage with EJ communities early in the project development timeline and consider ways to avoid or mitigate impacts by working with affected EJ communities.
Although the policy statements were pulled back, re-labeled as “draft,” and given no force at present (i.e., the policies do not apply to pending applications or applications filed before the issuance of final policy statements), they nonetheless signal the direction FERC may move in the future.
Separately, in April 2022, FERC released an Equity Action Plan that “promotes equity and removal of barriers for underserved communities including environmental justice communities” and “details how the Commission will incorporate equity and environmental justice into the Commission’s operations in several key areas.”
DOJ Revives the Use of Third-Party Payments and Supplemental Environmental Projects to Address Environmental Justice
Supplemental Environmental Projects (“SEPs”) are typically environmentally beneficial projects that a defendant agrees to implement or pay for as part of a settlement in an enforcement action. After DOJ curtailed the use of SEPs in 2020, the new administration revived the practice in a May 2022 memorandum released concurrently with the DOJ Strategy. The DOJ published an interim final rule that restores the general use of third-party payments in settlement agreements, including in environmental cases, and allows the use of SEPs as part of settlement terms to “advanc[e] environmental justice.”
The release of the DOJ Strategy indicates that the DOJ will strengthen its efforts to reduce disproportionate public health and environmental impacts on EJ communities. The DOJ Strategy also suggests that the DOJ will look beyond the traditional environmental statutes for enforcement in or near EJ communities.5
The EPA Rolls Out Guidance on Cumulative Impacts
EPA has issued various guidance documents addressing the cumulative impacts that environmental hazards have on EJ communities. In September 2022, EPA’s Office of Research and Development published a report (“ORD Report”), recommending best practices for researching the effects of cumulative impacts and conducting cumulative impact assessments. The ORD Report defined cumulative impacts as “the totality of exposures to combinations of chemical and non-chemical stressors and their effects on health, well-being, and quality of life outcomes.” The ORD Report explained the importance of applying a cumulative impact assessment approach to risk-based decision-making, with a focus on disproportionate environmental burdens resulting from the systematic recurrence of stressors in EJ communities.
In December 2022, the EPA Office of Air and Radiation (“OAR”) published a memorandum and attachment to provide the EPA regions with a framework for addressing EJ concerns in Clean Air Act permitting. The guidance addressed eight principles for air permitting decisions: (1) identify communities with potential EJ concerns; (2) engage early in the permitting process to promote meaningful participation and fair treatment; (3) enhance public involvement throughout the permitting process; (4) conduct a “fit for purpose” EJ analysis; (5) minimize and mitigate disproportionately high and adverse effects associated with the permit action to promote fair treatment; (6) provide federal support throughout the air permitting process; (7) enhance transparency throughout the air permitting process; and (8) build capacity to enhance the consideration of EJ in the air permitting process.
In January 2023, the EPA issued a “Cumulative Impacts Addendum” to EJ Legal Tools. In this addendum, EPA provides guidance on the extent of its legal authority to address cumulative impacts affecting communities with EJ through Clean Air Act programs, various water programs, waste management and emergency response programs, pesticides and toxics programs, environmental review programs, and civil rights in federal assistance programs.
These guidance documents show that the EPA seeks to address environmental and health burdens that accumulate and disproportionately exacerbate the vulnerability of disadvantaged communities over time.
EJ and Cumulative Impacts Tools — More Access to More Data
The EPA updated its environmental justice mapping and screening tool — EJScreen — several times in 2022, first releasing version 2.0 in February 2022. This tool creates “EJ Indexes” using a formula that combines a selected environmental indicator — e.g., ozone levels, traffic proximity, lead exposure — with a demographic indicator. The tool aims to provide the public with a way to “access high-resolution environmental and demographic information for locations in the United States,” to “compare their selected locations to the rest of the state, [the] EPA region, or the nation,”6 and to identify minority populations and low-income populations. In October 2022, the EPA released EJScreen 2.1 as a response to community feedback. Version 2.1 includes environmental, demographic, and index data for the U.S. Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands — along with threshold maps, which allow users to better identify disadvantaged communities by looking across all indexes at once.
At the state level, Maryland, Vermont, and Wisconsin have all released or announced plans to create their own EJ mapping tools. In June 2022, the Maryland Department of the Environment launched an EJ Screening Tool intended to “enhance agency compliance, oversight, monitoring, and to enhance communication and outreach in areas with permitting activities in EJ or overburdened communities, or underserved communities.” In August 2022, Vermont passed its Environmental Justice Law, which requires the creation of an EJ mapping tool. And in October 2022, Wisconsin announced its intention to create its own EJ mapping tool.
The EPA helpfully compiled a list of other EJ mapping tools that it and various states have developed, as well.
In early 2022, the CEQ launched a beta version of its Climate and Economic Justice Screening Tool (“CEJST”), a critical step in implementing the Justice40 Initiative. The first version of the tool followed in November 2022. Unlike EJScreen, which is intended for public use, CEJST aims to help federal agencies better identify communities that will most benefit from federal investments. Version 1.0 of the CEJST includes nine datasets that were not in the beta version, covering projected climate risks, transportation barriers, lack of green space, redlining data, and more. Version 1.0 identifies 27,251 communities as disadvantaged or partially disadvantaged.7
In August 2022, the Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry, in partnership with the Department of Health and Human Services Office of Environmental Justice, released the Environmental Justice Index (“EJI”). It is the first mapping tool that seeks to identify cumulative impacts at a national level — and, to our knowledge, it remains the only one. In a recent article, we noted that the EJI is not intended to be a definitive tool to identify EJ communities or estimate cumulative impacts, and that significant data limitations may limit its usefulness. That said, the ORD Report,“Cumulative Impacts Research: Recommendations for EPA’s Office of Research and Development,” cites to the EJI in addressing the issues of cumulative impacts in the permitting context. The EPA’s signaling here reflects its recent trend of inserting itself into state permitting processes to raise the issue of cumulative impacts on EJ communities.
State Action: New Laws, Regulations, and Initiatives
For many years, states have been on the forefront of environmental justice laws, regulations, and initiatives, and 2022 proved no different. We highlight a few important developments below.
In December 2022, New York Governor Kathy Hochul signed the Cumulative Impacts Bill, which requires state agencies to consider a cumulative impact analysis on overburdened communities during the permitting approval and reissuance process. The bill requires that the environmental impact statement created by an agency for permitting decisions disclose whether the siting of a facility will lead to or cause a disproportionate burden on disadvantaged communities.
In December 2022, the Massachusetts Department of Environmental Protection released Cumulative Impact Analysis Proposed Regulations, which require a cumulative impact analysis for air permit Comprehensive Plan Approval (“CPA”) applications for certain existing and new facilities located in or near EJ populations.
In September 2022, California passed Senate Bill 1137, which bans new oil and gas wells from being built within 3,200 feet of homes, schools, and hospitals. The bill went into effect on January 1, 2023.
Additionally, in May 2022 and March 2022, respectively, Minnesota and Pennsylvania updated their EJ policies to encourage more public participation and community engagement in development and siting decisions.
In pursuing numerous EJ-related actions in 2022 — and in allocating significant personnel and financial resources to EJ initiatives — the Biden administration redoubled its commitment to addressing the disproportionate environmental harms on disadvantaged communities. The past year also demonstrated the Biden administration’s approach to EJ across federal agencies — a whole-of-government tactic designed to enhance consistency and cohesiveness in decision-making.
The administration will likely continue its EJ-related work through 2023, and — depending on the actions it takes — both public and private entities could face heavier regulatory and compliance pressures as a result. Businesses would be wise to stay vigilant to the development and progression of EJ-related actions — at both the federal and state levels — in order to manage and mitigate any potential risks.
Please note Alyssa Sieja is a law clerk at Vinson & Elkins.*
1 Marianne Engelman-Lado is currently serving as Acting Principal Deputy Assistant Administrator. An Assistant Administrator has not yet been named.
2 For further information, see Elevating EJ: How EPA’s New Environmental Justice Office Raises the Stakes for EJ Enforcement and IRA Funding Opportunities, V&E Insights (Oct. 5, 2022), https://www.velaw.com/insights/elevating-ej-how-epas-new-environmental-justice-office-raises-the-stakes-for-ej-enforcement-and-ira-funding-opportunities/.
3Enforcement and Compliance Annual Results for FY 2022: Data and Trends, EPA (Dec. 4, 2022), https://www.epa.gov/enforcement/enforcement-and-compliance-annual-results-fy-2022-data-and-trends.
4 EPA Legal Tools to Advance Environmental Justice, EPA (Jan. 19, 2023), https://www.epa.gov/ogc/epa-legal-tools-advance-environmental-justice.
5 For further information, see DOJ’s Environmental Justice Enforcement Strategy and Restoration of Settlement Projects: 5 Things You Should Know, V&E Insights (May 19, 2022), https://www.velaw.com/insights/dojs-environmental-justice-enforcement-strategy-and-restoration-of-settlement-projects-5-things-you-should-know/.
6 Purposes and Uses of EJScreen, EPA (Jan 30, 2023), https://www.epa.gov/ejscreen/purposes-and-uses-ejscreen#:~:text=EJScreen%20allows%20users%20to%20access,and%2For%20low%2Dincome%20populations.
7 For further information, see EPA and CEQ’s New Environmental Justice Screening Tools: Five Things You Should Know, V&E Insights (Mar. 9, 2022), https://www.velaw.com/insights/epa-and-ceqs-new-environmental-justice-screening-tools-five-things-you-should-know/.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.