Environmental Justice Update (August 2023)

This alert describes significant developments in federal and state initiatives relating to environmental justice (EJ), including several new federal policies under the Biden administration and developments in New Jersey and Louisiana. Our prior update was issued in March 2023, and can be found here.

Federal Updates

Biden Administration Issues Earth Day Executive Order

On April 21, 2023, President Biden issued an executive order (EO 14096) titled “Revitalizing Our Nation’s Commitment to Environmental Justice for All.” The executive order focused on incorporating EJ into the missions of all executive branch agencies. Key aspects of the executive order include:

• Establishing a comprehensive definition of “environmental justice,” which includes: (1) eliminating the word ‘high’ from the consideration of “disproportionately high and adverse human health and environmental effects,” which could lower the bar for what is considered by federal agencies; (2) explicitly including “tribal affiliation” and “disability” as categories to be considered in the EJ evaluation; and (3) looking beyond direct environmental impacts and considering the cumulative impacts of environmental and other burdens and “the legacy of racism or other structural or systemic barriers.”
• Directing all federal agencies to consider measures to address and prevent disproportionate and adverse environmental and health impacts on communities, including the cumulative impacts of pollution and climate change.
• Creating a new White House Environmental Justice Office, which will be led by a new Federal Chief Environmental Justice Officer, and which will coordinate all EJ efforts across the federal government.
• Requiring all federal agencies to consider Title VI of the Civil Rights Act when determining impacts on communities with EJ concerns.
• Calling for the development of an Environmental Justice Scorecard to track federal agencies’ progress in implementing EJ goals.
• Requiring all federal facilities to hold a public meeting on any hazardous substance releases subject to reporting under the Emergency Planning and Community Right to Know Act (i.e., releases that exceed Reportable Quantities established by the U.S. Environmental Protection Agency (EPA)).

The order demonstrates the Biden administration’s continuing focus on EJ and could provide additional support for nongovernmental organizations to raise EJ-related legal challenges to federal actions. Further, the availability of increasing amounts of EJ-related information, including information from EJ screening tools available today and from the executive order’s new EJ Scorecards and notice requirements, could increase the risk of challenges to federal permit applications.

DOJ and HHS Settle First EJ Deal Under Civil Rights Laws

The U.S. Department of Justice (DOJ) and the U.S. Department of Health and Human Services (HHS) investigated the Alabama Department of Public Health (ADPH) and the Lowndes County Health Department under Title VI of the Civil Rights Act. The investigation found that the state’s enforcement of sanitation laws threatened Lowndes County residents with criminal penalties and potential property loss for resorting to makeshift solutions for inadequate sewage and wastewater systems. The investigation further revealed that ADPH engaged in a pattern of inaction and neglect concerning the health risks associated with raw sewage, despite being aware of the disproportionate burden on Black residents. The DOJ and HHS reached a settlement with the ADPH on May 4, 2023, which includes a moratorium on enforcement of sanitation-related criminal statutes and a related lien statute against individual Alabama residents and property owners. The settlement is the first EJ settlement that the federal government has secured under civil rights laws.

White House Plans New Ocean Justice Strategy

On June 7, 2023, the Biden Administration sought input for a new “Ocean Justice Strategy” that is being developed by the National Oceanic and Atmospheric Administration’s Ocean Policy Committee. The strategy will aim to integrate EJ principles into the federal government’s ocean-related activities and address the disproportionate impact that polluting infrastructure (e.g., ports, landfills, and inadequate responses to storms and typhoons) has on minority or low-income communities. By the end of July, the administration had received 16,500 responses, including comments from six state attorneys general. The administration will use the responses to assess how the federal government should define ocean justice and describe barriers to and opportunities for ocean justice.

U.S. EPA Updates EJSCREEN

On June 26, 2023, the EPA announced the following updates to its EJ mapping and screening tool, EJSCREEN:

• EJSCREEN 2.0 added new indicators, including an environmental indicator on underground storage tanks, a socioeconomic indicator on unemployment, and a health indicator based on life expectancy, asthma, and heart disease.
• EJSCREEN 2.1 integrated demographic data from the 2016-20 American Community Survey and added environmental, demographic, and index data for U.S. territories (i.e., U.S. Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands).
• EJSCREEN 2.2 adds a new indicator on Toxic Releases to Air, new map layers indicating health disparities and critical service gaps and integrates more recent demographic data from the 2017-21 ACS.

EJSCREEN provides the EPA and stakeholders with a nationally consistent dataset and approach for combining environmental and demographic socioeconomic indicators. Stakeholders should understand this screening tool, as it informs how the EPA may approach a EJ-based decisions. To stay updated with future changes, click here.

EPA Unlocks $20B for Community Climate Projects

On July 14, 2023, the EPA announced $20 billion in grant funding for clean technology projects. The money comes from the EPA’s $27 billion Greenhouse Gas Reduction Fund (GGRF). The GGRF is split into three grant programs, but the EPA has opened the grant application process for only two: the $14 billion National Clean Investment Fund and the $7 billion Clean Communities Investment Accelerator. The National Clean Investment Fund will provide money to two to three national nonprofits that will partner with private capital providers to deliver financing to businesses, communities, community lenders and others. The Clean Communities Investment Accelerator will fund two to seven nonprofits that will be dedicated to building the financing capacity of community development financial institutions, including Native community development financial institutions, credit unions, green banks, housing finance agencies and minority depository institutions. Grant applications are due by Oct. 12, 2023. The EPA expects to notify winners by March 2024, and the projects could begin by July 2024.

State Updates

New Jersey Unveils New EJ Regulations

On April 28, 2023, New Jersey Governor Phil Murphy announced new EJ regulations for developers pursuing projects in low-income communities. The rules incorporate a “community-first approach” into the state’s planning process for pollution-generating facilities. The regulations apply to projects in overburdened communities that are seeking individual state permits, including permits for solid waste, water supply and air pollution. Under the rules, overburdened communities include the following: (1) communities with 35% low-income households, (2) communities that have 40% of households having limited English proficiency, and (3) communities made up of at least 40% of residents that identify as a minority or as members of a state-recognized tribal community. The regulations will require developers to prepare an EJ impact statement and host a public hearing in the community where the proposed project would be located. Developers will also be required to respond to all public comments in writing.

Louisiana Litigation and Investigation Updates

On March 21, 2023, activists filed Inclusive Louisiana v. St. James, an EJ lawsuit against St. James Parish in Louisiana. The activists claim that the parish’s land use system directed high-impact industrial operations into primarily Black communities and away from primarily white communities, resulting in racially disparate adverse health effects from pollution, and preventing the descendants of slaves from accessing their ancestors’ unmarked graves. The complaint alleges violations of the 13th and 14th Amendment, Title 42 and Title 43 of the U.S. Code, and Article XII of the Louisiana Constitution. If the plaintiffs are successful, the case may serve as a model for similar suits, particularly in states where environmental regulators and attorneys general are less active in pursuing EJ issues.

Further, on June 27, 2023, the EPA dropped its investigations against Louisiana for possible civil rights violations by state agencies. The investigations were focused on whether the state government discriminated against Black neighborhoods when it approved permits for a petrochemical plant. The EPA flagged its concerns to the state health and environmental department, but the parties were unable to reach an agreement. Nonetheless, the EPA has taken other actions to address pollution in the region, such as filing an air pollution lawsuit against Denka Performance Elastomer LLC (Denka), adding a rule to reduce certain toxic emissions (ethylene oxide and chloroprene), and planning an evaluation of the cumulative effects of pollution in the area. In the lawsuit against Denka, the EPA is seeking a preliminary injunction under the Clean Air Act that would require Denka to implement significant pollution controls to reduce chloroprene emissions.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. John Rousakis, an O’Melveny partner licensed to practice law in New York, Eric Rothenberg, an O’Melveny of counsel licensed to practice law in New York and Missouri, and Chris Bowman, an O'Melveny associate licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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