The Evolving Landscape Of Environmental Justice In 2020 And Beyond – Environment – United States – Mondaq News Alerts

A concept that previously garnered attention with activists andselect government agencies, environmental justice (EJ) is nowregularly discussed in corporate boardrooms and among C-suiteexecutives.1 This is for good reasonEJ hasrisen to prominence in recent years and months, buoyed by currentsocial justice efforts, the recognition of health disparitiesunderscored by the COVID-19 pandemic, and a presidential campaignin which EJ has taken center stage.

The U.S. Environmental Protection Agency (EPA) defines EJ as the"fair treatment and meaningful involvement of all peopleregardless of race, color, national origin, or income with respectto the development, implementation, and enforcement ofenvironmental laws, regulations, and policies." In the UnitedStates, EJ is arguably seeing the most significant progress sinceits outgrowth from the 1960s Civil Rights Movement. In addition toincreased EJ advocacy in 2020, newly proposed federal legislationseeks to reframe the way in which the law addresses andincorporates EJ into existing systems for environmental protection.At the state level, new legislation and guidance set the tone forsignificant reform, with states like New Jersey and Connecticutpassing historic measures to build EJ requirements into permittingand remediation procedurespotentially serving as models forother jurisdictions to follow.

These converging trends signal what will likely be a notableshift in the status quo, with potential for exponentialamplification by the presidential and congressional electionoutcomes. The Democratic Party presidential nominee, former VicePresident Joseph R. Biden, Jr., has released dedicated climate andEJ policy proposals, promising sweeping changes to federal EJpolicy and prioritization should he and his running mate, SenatorKamala Harris (D-CA), win the White House. In addition,congressional election results could shift party dynamics such thatthe recent increase in EJ-related bills could have a strong chanceof becoming law. Regardless of election outcomes, the Bidencampaign's forceful prioritization of EJ has spurred those onboth sides of the aisle to take a stand. As such, the federaldiscussion on advancing EJ is likely to continuealbeit indifferent wayseven under a second Trump term.

Although the most significant EJ activity has occurred at thestate level, federal-level changes may be on the horizon, with muchat stake in the 2020 presidential and congressional elections.Indeed, during the last presidential debate of this election cycle,the moderator asked a question about EJ and Biden responded byacknowledging the importance of protecting fenceline communities.Should he take office, all indicators suggest that EJ will be agovernment-wide priority. Not only has Biden released the mostcomprehensive EJ platform of any presidential candidate, but hisselection of Senator Harris, a longstanding EJ advocate, as hisrunning mate signals his commitment to follow-through on hiscampaign promises. In his July 2020 Plan to Secure Environmental Justice and EquitableEconomic Opportunity, Biden advocates for such far-reachinginitiatives as: establishing an Environmental and Climate JusticeDivision of the U.S. Department of Justice; instructing theAttorney General to implement Senator Cory Booker's Environmental Justice Act of 2019 throughexecutive action; and overhauling EPA's program responsible forenforcing Title VI of the Civil Rights Act (Title VI).

A second term of the Trump Administration may also usher in anew wave of EJ prioritization. EPA Administrator Andrew Wheeler ina recent public address declared that"community-driven environmentalism" will be a focus of asecond Trump term and is "the best opportunity in at least ageneration to solve the environmental justice issues we facetoday." He retorted that community-driven environmentalism"will do more for environmental justice than all the rhetoricin political campaigns."

Beyond the White House, shifts in Congress's composition mayhave similarly significant impacts on EJ policy given a recentspike in EJ-specific legislative proposals. After co-sponsoring theGreen New Deal, Senator Harris introduced two EJ bills in August2020: the EJ for All Act (S.4401; H.R.5986) and the Climate Equity Act (S.4513; H.R.8019). Theformer is a sweeping overhaul of federal EJ policy, calling forexpanding National Environmental Policy Act requirements forcommunity engagement; amending the Clean Water Act and Clean AirAct to require consideration of cumulative impacts in permittingdecisions; and expanding the private cause of action under Title VIby explicitly prohibiting discrimination based on disparateimpacts. The latter requires Congress to consider the impacts oflegislation, regulation, or investments on EJ communities in itsdecision-making, in addition to creating a Climate andEnvironmental Equity Office within the Congressional Budget Office.After introducing the Environmental Justice Act in 2019, SenatorBooker released the Environmental Justice Legacy Pollution CleanupAct (S.4617; H.R.8271) in September 2020, which increasesfunding for cleanup of legacy pollution and amends the Clean AirAct to prohibit issuance of new major source air pollution permitsin overburdened communities. Additional recent EJ-related billsinclude the Clean Economy Jobs and Innovation Act(H.R.4447), which the House passed in September and features asection on EJ that incorporates the Environmental Justice for AllAct's key provisions, and the Public Health Air Quality Act of 2020 (S.4369;H.R.7822), which would require facility-specific fencelinemonitoring of air pollution in certain communities. These billsforeshadow EJ legislation that may be passed by the nextCongress.

In recent years, several states have enacted or proposedlegislation that strengthens existing civil rights laws andestablishes new EJ-specific laws. As a result, the vast majority ofstates now address EJ in some fashionvia legislation, agencypolicy and guidance, or advisory groupswith fewer than fivefailing to mention the concept at all. While there has been recentEJ activity in states from coast to coast, the extent to which aparticular state addresses EJ varies widely. Some states, likeCalifornia, have robust EJ schemes, while others make only passingreference to the concept. Overall, since 2017, the TrumpAdministration's deregulatory environmental agenda has inspiredgreater state activity, including concerted efforts to promote EJon behalf of their most vulnerable residents.

Notably, New Jersey's landmark EJ law, signed into law in September,promises to have wide-reaching effects. Under the legislation,applicants seeking new or renewed permits for specific categoriesof facilities sited in "overburdened communities" mustsubmit an "Environmental Justice Impact Statement" thatevaluates the potential cumulative environmental and public healthstressors associated with the permitted activity. New JerseyDepartment of Environmental Protection (NJDEP), in accordance withthe law, has published a list of "overburdenedcommunities," defined as any census block group withsignificant low-income, minority or non-English speakingpopulations (approx. 310 municipalities). The legislation empowersNJDEP to impose conditions on or deny a permit in its entirety,based on the agency's review of the applicant'sEnvironmental Justice Impact Statement. The law also introducessignificant public engagement and public notification mandates onapplicants. These requirements apply to permits for a wide range offacilities, including but not limited to: anything defined as a"major source" of air pollution under the Clean Air Act;resource recovery facilities or incinerators; sludge processingfacilities, combustors, or incinerators; sewage treatment plantswith a capacity exceeding 50 million gallons per day; and certainkinds of landfills. The new legislation goes further than any otherstate EJ law and may serve as a model for other similarly inclinedjurisdictions in the future.

Beyond the Garden State, other states have developed a host ofstrategies in recent years to further their EJ objectives,including establishing EJ oversight and advisory committees,identifying EJ communities statewide, and expanding publicengagement requirements. Recent examples include:

With few laws directly addressing EJ, activists have foundlittle success attempting to vindicate EJ communities' rightsin the courts.3 After the Fourth Circuit's recentopinion in the Friends of Buckingham case, however, thattide may be changing.4 In that case, the Virginia State AirPollution Control Board (Air Board) granted a permit to construct acompressor station that would have been part of the now-abandonedAtlantic Coast Pipeline in Union Hill, a predominantly AfricanAmerican community established during the Civil War.

Plaintiffs' challenged the Air Board's decision arguingthat it failed to perform its duties under Va. Code (Ann. 10.11307(E)) to consider the potential for disproportionatehealth impacts from the compressor station and made an incompleteand misinformed site suitability determination. The Fourth Circuitagreed, concluding that the Air Board (1) failed to make findingsregarding Union Hill's demographics, (2) failed to consider thepotential air pollution impacts regardless of compliance withapplicable air emissions standards, and (3) relied on an incompletefactual record in assessing site suitability. As such, it vacatedthe issuance of the permit and remanded the matter back to the AirBoard.

The Friends of Buckingham case is particularlysignificant because, although the proposed compressor station wouldhave met applicable air quality standards, the Fourth Circuitdetermined that compliance with environmental thresholds alone wasinsufficient to account for EJ concerns. In fully embracing theimportance of EJ, the Fourth Circuit explained that "[t]heBoard's reliance on air quality standards led it to dismiss EJconcerns. . . . But environmental justice is not merely a box to bechecked, and the Board's failure to consider thedisproportionate impact on those closest to the Compressor Stationresulted in a flawed analysis."5

While Friends of Buckingham is persuasive precedent, EJlitigants generally do not prevail in traditional litigation andoften turn to administrative remedies, primarily Title VI of theCivil Rights Act, as well as creatively using other civil rightslaws. For example, in Illinois, a coalition of environmental groupsfiled a complaint with the U.S. Department of Housing and UrbanDevelopment in August alleging that the City of Chicago violatedthe Fair Housing Act and the Housing and Community Development Actof 1974. The alleged violations stemmed, in part, from thecity's decision to approve the relocation of a recyclingfacility with high toxic air pollution from a wealthy neighborhoodto an EJ community.6 Undoubtedly, EJ activists will continueto find creative ways to assert EJ claims.

The breathless pace with which EJ developments continue toemerge leaves many stakeholdersincluding the regulatedcommunityanxiously wondering how they should mitigate risk,reform their practices, and proactively incorporate EJ bestpractices. This is particularly true given that despite its renewedmomentum, EJ remains difficult to define. Notably distinct fromother environment, health, and safety compliance areas, EJ lacks adedicated, overarching federal statute mandating specific actionsand remedies. That may not be the case for long. As these changescontinue to emerge, industry actors, in particular, will do well tofollow the current state of play in the EJ spacepayingparticular attention to state activity and creative litigation byEJ advocatesto understand how such developments can affectcontinuity of operations and compliance in the coming months. Caseslike Friends of Buckingham are reminders that it isintegral for industry stakeholders to assess the EJ implications inareas in which they operate, understand the impacts of theiroperations on vulnerable communities,andultimatelyshow themselves to be goodneighbors.

Stacey Sublett Halliday is an Independent Consultant forBeveridge & Diamond

This article was re-published as an "ExpertAnalysis" by Law360 (subscription required).

Footnotes

1. For example, Duke Energy Corp.'sCEO recently discussed the company's development of EJprinciples "to be sensitive to how a project might affectresidents closest to a facility and be more proactive onstakeholder engagement."

2. "Affecting facilities"include certain electric generating facilities, certain sewageplants, waste incinerators, certain processing or recyclingfacilities, medical waste, landfills, and any major source of airpollution.

3. See e.g., Town ofWeymouth v. Mass. Dep't of Envtl. Prot. (1st Cir. 2020)(rejected plaintiffs' claim that the Massachusetts Departmentof Environmental Protection failed to comply with the MassachusettsEnvironmental Justice Policy in review of air permit for compressorstation).

4. Friends of Buckingham v. State AirPollution Control Bd., 947 F.3d 68 (4th Cir. 2020).

5. Id. at 91-92.

6. https://aboutblaw.com/SzR

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The Evolving Landscape Of Environmental Justice In 2020 And Beyond - Environment - United States - Mondaq News Alerts