NSR and EJ: Part 2
A critical element in addressing environmental justice concerns is understanding the legal tools available to both EPA and the local permitting authority to address environmental justice concerns during the permitting process. EPA’s Office of General Counsel issued guidance entitled “EPA Legal Tools to Advance Environmental Justice” in May 2022. The conclusions of that guidance are addressed in this issue of NSR Law Blog.
EPA’s analysis begins with a review of scientific and other literature that shows that underserved and minority communities are often subject to disproportionate pollutant loading. It then recites current Executive Orders (EOs) to reflect both the Biden and prior Administrations’ commitment to advancing environmental justice with the important caveat that “EOs themselves are not an independent source of legal authority.” Guidance at 4. The Guidance then defines the following important terms that are used in discussing environmental justice:
Disproportionate impacts refers to differences in impacts or risks that are extensive enough that they may merit Agency action and should include cumulative impacts where appropriate.
Environmental justice is the fair treatment and meaningful involvement of allpeople regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.
Equity is the consistent and systematic fair, just, and impartial treatment of all individuals, including individuals who belong to underserved communities that have been denied such treatment.
Fair treatment means no group of people should bear a disproportionate share of the negative environmental consequences resulting from industrial, governmental, and commercial operations or policies.
Meaningful involvement means: (1) potentially affected communities have an appropriate opportunity to participate in decisions about a proposed activity that will affect their environment and/or health; (2) the public’s contribution can influence the regulatory agency’s decision; (3) the concerns of all participants involved will be considered in the decision-making process; and (4) decision-makers seek out and facilitate the involvement of those potentially affected.
Underserved communities refers to populations sharing a particular characteristic, as well as geographic communities, that have been systematically denied a full opportunity to participate in aspects of economic, social, and civic life, such as Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons; persons with disabilities; persons who live in rural areas; and persons otherwise adversely affected by persistent poverty or inequality.
Guidance at 5 (footnotes omitted). EPA then states that under existing guidance, environmental justice concerns are created if the action could: “(1) create new disproportionate impacts;20 (2) exacerbate existing disproportionate impacts; or (3) present opportunities to address existing disproportionate impacts through the action under development.” Guidance at 6.
The Guidance also notes that the extent of EPA’s influence on EJ requirements varies depending on the program (PSD, NNSR or minor NSR) and whether EPA or the state administers the program. For example, EPA states that when it is the permitting authority in may “enhance environmental justice by facilitating increased public participation the formal permit comment process (e.g., by granting requests to extend public comment periods, holding multiple public meetings, or providing translation services at hearings in areas with limited English proficiency)” or “informal steps to enhance participation earlier in the process, such as inviting community groups to meet with EPA and express their concerns before a draft permit is issued.” Guidance at 38. EPA also notes that is had legal authority to consider disparate impacts without issuing or amending regulations or guidance documents. Id.
On the other hand, when a state is a permitting authority, EPA states that it will comment on individual permits during the comment period to “focus the state’s consideration on potential disproportionate environmental burdens.” Id. EPA also states that it could potentially revise the state program regulations to require more explicit consideration of environmental justice issues. It notes that under Section 165(a)(2) of the Act, a public hearing must be held “on the air quality impact of [the proposed] source, alternatives thereto, control technology requirements, and other appropriate considerations.” Guidance at 39.
Federal PSD Implementation
EPA notes that the Environmental Appeals Board has approved consideration of environmental justice considerations in determining whether to hold a public hearing. See Guidance at 39, citing In re Sierra Pacific Indus., 16 E.A.B. 1 (EAB 2013). EPA also recites argument from its briefing in In Re Genesee Power that CAA Section 165 authorizes EPA to examine “the air quality impact of particular site location decisions.” Guidance at 40. The EAB did not expressly adopt this contention. On the broader issue of environmental justice consideration (but not siting in particular), EPA notes that the EAB remanded a federal EPA permit to the region for failing to consider environmental justice. Guidance at 41 (citing Knauf Fiber Glass, 8 E.A.D. 324 (EAB 1999)). EPA also notes that the EAB has remanded federal permitting decisions where environmental justice was not addressed. Guidance at 42. It concludes, on the basis of this record and EAB decisions, that the Clean Air Act grants it authority to issue permits containing environmental justice conditions. Guidance at 43.
The Guidance then reiterates that (1) EPA may request ambient monitoring pre- or post-construction when appropriate; (2) EPA may require cumulative modeling even when the initial project monitoring shows values under the significant impact level in the exercise of its discretion; and (3) that EPA may consider the impacts of BACT on HAPs as well as the primary pollutant in an environmental justice, notwithstanding Section 112(b)(6). Guidance at 43-45.
State/Local PSD Implementation
EPA notes that the existing PSD program regulations at 40 C.F.R. § 51.166 do not explicitly discuss environmental justice considerations and “do not directly require state permitting authorities to reflect these considerations in their permitting decisions.” Guidance at 45. EPA stresses, however, that public participation is required and provides discretion to state authorities to provide enhanced engagement for communities with environmental justice concerns.
Delegated Programs. EPA notes that federal law provides permitting authority discretion to provide longer than 30 day comment periods, additional public hearings, and additional means of public notification. For delegated programs, the federal discretionary authorities “pass through” to the permitting authority. Guidance at 46.
Authorized Programs. EPA clarifies that for authorized programs, the EPA discretionary authorities to not “pass through” to the state but are instead governed by state law. Guidance at 46. EPA notes that to the extent state law adopts federal regulatory language, that language could be interpreted in the same fashion as EPA has done above. The same would be true for state programs using Appendix W without additional state restrictions. EPA also notes that states can adopt more or additional requirements, citing Virginia’s Commonwealth Energy Policy, which requires that the development of new or expansion of existing energy resources “does not have a disproportionate adverse impact on economically disadvantaged or minority communities.” Id.
NNSR Implementation. EPA notes that nonattainment new source review for major sources in nonattainment areas (NNSR) is primarily a state responsibility. EPA notes that the federal NNSR program regulations at 40 C.F.R. § 51.165 do not provide for the same level of public participation as in the PSD program but notes that the general NSR rules 40 C.F.R. § 51.161 require provide an opportunity for public comment on information submitted by the owner/operator including a 30-day public comment period, public availability of the application and the permitting authority’s analysis in at least one location, and a prominent advertisement of the availability of the information.
Substantively, EPA notes that under Section 173(a)(5), the applicant must provide “an analysis of alternative sites, sizes, production processes, and environmental control techniques” and must demonstrate that the “benefits of the proposed source significantly outweigh the environmental and social costs imposed as a result of its location, construction, or modification.” Guidance at 47. EPA states that “social costs” are not defined but may be construed to include environmental justice considerations.
EPA’s Office of General Counsel has done a good job providing a succinct summary of the tools available in the Clean Air Act’s new source review programs to integrate environmental justice considerations in the permit program. The guidance is strongest on the procedural options and a bit vaguer on more substantive remedies as is probably unavoidable given their context-specific nature. The Guidance relies heavily on EAB decisions but the EAB is not a court, just another part of EPA, so it is unclear how much authority its pronouncements will carry beyond EPA.
One issue that the Guidance does not grapple with in much detail is how state permitting program requirements should reconcile EPA’s expectations with the limitations of state law. Some states have laws requiring permit issuance if certain conditions are met and it is not clear how those states will reconcile the competing obligations. Some of those details will likely be developed during the agency grant-writing and memorandum process.