EPA’s “EJ 2020 Action Agenda”

Environmental Protection Agency (EPA) recently released its “EJ 2020 Action Agenda.” EPA confirms that it will three basic goals:

1. Deepen the environmental justice (“EJ”) practice within EPA programs;
2. Work with it “partners” — other federal agencies and state and local governments — to advance EJ programs; and
3. Demonstrate progress in significant EJ challenges, namely, lead disparities, drinking water, air quality, and hazardous waste sites.

EJ, at the present time, is almost exclusively an initiative of the federal executive branch; very little if any legislation has been enacted by the Congress to address these concerns and, apart from some General Title VI Civil Rights rules, no specific environmental justice regulations have been promulgated through the notice and comment process. Consequently, the definitions employed by EPA in the EJ program are important.

EPA provides the following definitions in its glossary:

• “Environmental Justice” means “The fair treatment and meaningful involvement of all people regardless of race, color, culture, national origin, income, and educational levels with respect to the development, implementation, and enforcement of protective environmental laws, regulations, and policies.”
• “Fair treatment” means The principle that no group of people, including a racial, ethnic or a socioeconomic group, should bear a disproportionate share of the negative environmental consequences from industrial, municipal and commercial operations or the execution of federal, state, local and tribal programs and policies. In implementing its programs, EPA has expanded the concept of fair treatment to include not only consideration of how burdens are distributed across all populations, but the distribution of benefits as well.”
• “Overburdened community” means a “Minority, low-income, tribal, or indigenous populations or geographic locations in the United States that potentially experience disproportionate environmental harms and risks. This disproportionality can be as a result of greater vulnerability to environmental hazards, lack of opportunity for public participation, or other factors. Increased vulnerability may be attributable to an accumulation of negative or lack of positive environmental, health, economic, or social conditions within these populations or places. The term describes situations where multiple factors, including both environmental and socio-economic stressors, may act cumulatively to affect health and the environment and contribute to persistent environmental health disparities.”

The latest iteration of this policy is described in nine chapters, and builds upon existing strategic plans drafted by EPA as well as the earlier plan (EJ 2014). It is clear that EPA will mostly rely on its rulemaking powers, permitting authority, compliance and enforcement powers, and the legal authorities vested in a large group of federal executive agencies whose oversight and permitting duties can also be used to advance the government’s environmental justice goals and commitments.

With respect to the role of federal rulemaking, EPA states that EJ concerns will be institutionalized in rulemaking “to the extent practicable and required by law.” EPA has recently issued a “Technical Guidance for Assessing Environmental Justice in Regulatory Analysis,” pursuant to which EJ will be considered during the development of an action. In addition, there will be a “rigorous assessment” of EJ rulemaking analyses every three years.

Permitting provides its own unique challenges for the EPA EJ program since the bulk of environmental permitting is performed at the state level under authority delegated to state agencies by EPA. Again, permitting actions will incorporate EJ “to the extent supported by the relevant information and law.” EPA will develop “best practices,” and make available to its staff and other agencies, special EJ training regarding EPA’s Compliance and Enforcement tools.

EPA states that it will direct more enforcement resources to review the impact of EJ issues in overburdened communities where there is a high likelihood of non-compliance with environmental laws. Indeed, EPA will focus on at least 100 overburdened communities. The settlement of EPA enforcement actions with EJ components will involve injunctive relief, Supplemental Environmental Projects, and “mitigation projects,” consistent with the latest EPA settlement policies.

EPA notes that both the federal and state and local authorities share the same basic environmental and EJ values, and EPA will not insist on ideological conformity to advance the cause of environmental justice. Moreover, EPA will engage in the “focused oversight” of delegated environmental permitting and enforcement programs.

It is also noteworthy that EPA emphasizes the important role that will be played by Interagency EJ Working Group of federal agencies having substantial permitting and enforcement powers. EPA notes, in this connection, that environmental justice is, in truth, more than ensuring that environmental impacts affect some communities disproportionately; the government is also concerned with “creating opportunities to build healthy, wholesome and sustainable communities.”

In addition to the location of facilities whose operations could present some EJ concerns, EPA notes that potential adverse impacts could result from the commercial distribution of freight and related infrastructure located in potentially overburdened communities.

By 2020, EPA promises that it will:

• Improve on-the-ground results for overburdened communities through reduced impacts and enhanced benefits;
• Institutionalize EJ integration in EPA decision-making;
• Build robust partnerships with states, tribes and local governments;
• Strengthen its ability to take action on EJ and cumulative impacts; and
• Better address complex national EJ issues.

In this policy statement, EPA has clearly outlined its goals and the means by which it intends to define and advance EJ in its many manifestations.