NSR and EJ: Part 1
Welcome to the start of an occasional series analyzing EPA’s efforts to implement the Administration’s goals of enhancing environmental justice across the United States. In this article, we analyze EPA’s “Principles for Addressing Environmental Justice in Air Permitting” issued by Joseph Goffman, Principal Deputy Administrator for Air and Radiation on December 22, 2022. This memorandum and its attachment, “EJ in Air Permitting, Principles for Addressing Environmental Justice Concerns in Air Permitting” (December 2022), represent the most specific EJ guidance potentially applicable to NSR permitting to date.
ANALYSIS
The memorandum and attachment (collectively “Air EJ Principles”) cite Executive Order Nos. 14008, 12898 and 13985 as requiring federal agencies to advance environmental justice and environmental equity. The Air EJ Principles also cite Title VI of the Civil Rights Act of 1964 as supplemental support. The Air EJ Principles state that their goal “is to provide a framework of principles and practices … to promote environmental justice and equity through air permitting programs using existing CAA authorities and discretion, federal civil rights laws, as well as other federal and state laws that may help mitigate potential adverse and disproportionate effects of a permitting action.” Air EJ Principles at 1. Eight principles are outlined.
1. Identify communities with potential environmental justice concerns. EPA advocates use of EJScreen “or other suitable geographic information system and mapping tools and data” to identify potential EJ communities with a goal of conducting “a screening of a community potentially disproportionately and adversely affected by environmental and human health harms or risks.” Air EJ Principles at 2. EPA recommends that additional environmental indicators be used to see whether such communities may be affected by other pollution sources or whether a permitting decision may raise possible issues of civil rights compliance by having an “adverse and disparate effect on the basis of race, color, or national origin (including LEP)” (LEP is limited English proficiency). Readers are referred to EPA’s “Interim Environmental Justice and Civil Rights in Permitting Frequency Asked Questions” (FAQ) #8. FAQ #8 suggests setting consistent benchmarks by highlighting the 80th, 90th, and 95th percentiles “in terms of the potential for disproportionate impacts relative to the state, regional, and national averages” presumably referring to EJScreen. FAQ #8 also recommends documenting responses to key questions such as ”is there a potential that the affected population already experiences disproportionate impact” and “how likely the potential impact will cause or contribute to such impacts.”
2. Engage early in the permitting process to promote meaningful participation and fair treatment. EPA advocates that where a permitting authority has identified a community under principle #1 then it should identify permitting actions of concern “preferably before the permit application is submitted.” Air EJ Principles at 2. This recommendation is not further explained but appears to contemplate pre-identification of communities of concern rather than addressing EJ only after an application is received. Next, EPA recommends early engagement to provide opportunities for meaningful participation and fair treatment, which EPA states may facilitate “early identification of siting alternatives, if appropriate, or mitigation measures.” Permitting authorities and applicants are instructed to engage “throughout” the permitting process.
3. Enhance public involvement throughout the permitting process. EPA advocates that where a potential EJ community is identified, early engagement should include training community members on how to make effective comments; making the application and data easily and publicly available; notification through multiple communication methods including mail, online, social media, door-to-door; multiple methods for public comment; meetings or hearings in or near the community; providing translation and interpretive services when appropriate; and providing “more understandable” documents. EPA suggests that lack of effective participation will be a component of evaluating whether a permitting authority is complying with 40 CFR part 5 and 7.
4. Conduct a “fit for purpose” environmental justice analysis. The environmental justice analysis should address the principle of fair treatment by evaluating adverse and disproportionate impacts and identifying ways to prevent or mitigate such impacts and it must address meaningful involvement by fostering enhanced community engagement. EPA recommends that the administrative record show whether and how there is adverse and disproportionate effect. EPA provides a list of potential actions, including evaluation of “potential health and non-health adverse effects (e.g., noise, odor, and traffic)”; evaluation of “cumulative impact” of the proposed action with impacts from other regulated and non-regulated sources; and evaluation of potential effects on the health of the population and distribution of those effects; and an evaluation of potential methods for minimizing or mitigating adverse effects. Finally, EPA cautions that if the screening analysis indicates a disproportionate effect on the basis of race, color, national origin or LEP status, then a disparate impact analysis is required under Title VI.
5. Minimize and mitigate disproportionately high and adverse effects associated with the permit action to promote fair treatment. Where a disproportionate impact “may result,” then EPA states that the permitting authorities should fully examine all relevant statutory and regulatory authorities, including discretionary authorities, to address or mitigate identified air quality impacts “to the extent feasible.” Permitting authorities are encouraged to engage other authorities that may have authority to address or mitigate effects. EPA notes that it will submit, when appropriate, formal comments to identify such discretion or when, in EPA’s view, a permitting action “raises an EPA recipient’s independent obligation to comply with federal non-discrimination laws.” Air EJ Principles at 4. EPA implies that if race, color, national origin or LEP, disability, sex or age issues are raised, then the program “should” consider “broadly” the availability of less discriminatory alternatives.
6. Provide federal support throughout the air permitting process. EPA promises to “be available to collaborate” with the permitting authority with technical support, guidance and recommendations.
7. Enhance transparency throughout the air permitting process. EPA emphasizes that the administrative record should be readily available in a format and location easily accessible to the affected community, that the community’s concerns should be clearly documented, and the steps the permitting authority has taken to address those concerns documented. EPA also recommends making compliance monitoring, test results, records and reports readily available to the community.
8. Build capacity to enhance the consideration of environmental justice in the air permitting process. EPA acknowledges that confronting environmental justice challenges will depend upon a coordinated, long-term effort by it and its co-regulators, stakeholders and affected communities and encourages training, technical assistance, outreach, and peer-to-peer learning about tools used by various parties to identify best practices.
In the accompany memorandum, EPA states that it will circulate these principles to permitting authorities and encourages feedback to be sent to ejinairpermitting@epa.gov. It also states that the principles do not constitute final agency action.
COMMENTARY
NSR Law Blog supports efforts made by EPA and permitting authorities to provide guidance to the regulated and broader community about their expectations for participants in the air permitting process generally and the NSR process particularly. The preparation of guidance and solicitation of feedback is an important step in finding the best path toward addressing a societal issue and, equally importantly, avoiding unintended consequences. The Air EJ Principles help provide forward motion.
One aspect of EPA’s Air EJ Principles that may prove contentious is the suggestion, in Principle #2, that early consideration should be given to “siting considerations.” NSR Law Blog believes that this makes sense for new sources but may make less sense for existing sources. NSR Law Blog hopes that EPA will provide further clarification on siting considerations and the factors permitting authorities should consider in deciding what mitigating measures are “feasible” as discussed in Principle #3.
In the next installment of NSR and EJ, we will look at the legal tools EPA believes are available to permitting authorities to implement these principles.