EPA Publishes Guidance on Legal Tools to Advance Environmental Justice

Further to our earlier Alerts on the Biden Administration’s Environmental Justice (“EJ”) initiatives, the Environmental Protection Agency (“EPA”) has now released a guidance document, EPA Legal Tools to Advance Environmental Justice (the “Legal Tools Guidance”), outlining how the EPA and other federal agencies can advance EJ goals using existing authorities. The 191-page Legal Tools Guidance is the first update to the inaugural “Plan EJ 2014 Legal Tools” document the EPA published during the Obama administration. Significant changes in the updated Legal Tools Guidance include consideration of some key new areas, such as EPA’s use of EJ considerations in performance of environmental impact assessments under the National Environmental Policy Act (“NEPA”) and implementing regulations, testing of chemical impacts in economically disadvantaged communities of color under the 2016 amendments to the Toxic Substances Control Act (“TSCA”), the application of civil rights laws to EPA grant recipients, and authority to conduct cumulative impact assessments when reviewing permit applications.

The Legal Tools Guidance reviews dozens of existing laws that the EPA could use to advance EJ, a few of which are discussed in detail below. At a broader level, strategic themes recurring throughout the Legal Tools Guidance include the EPA’s intent to:

• Exercise the EPA’s broad discretion to expand regulation to include EJ considerations when the relevant statute or regulation allows it to do so;
• Exceed the minimum regulations required by statute to advance EJ goals;
• Encourage public participation in the regulatory process and consult with impacted communities and tribal governments regarding the scope of regulation;
• Emphasize the connection between environmental statutes and civil rights statutes that can substitute for the lack of a comprehensive federal EJ framework.

NEPA Environmental Impact Assessments

The Legal Tools Guidance identifies both NEPA and Section 309 of the Clean Air Act (“CAA”) as “powerful, broad tools to advance environmental justice” by incorporating EJ considerations into federal agencies’ environmental impact assessments. Under NEPA, the EPA may serve as a “cooperating agency” assisting other federal agencies in conducting environmental impact assessments, while Section 309 of the CAA gives the EPA authority to independently review and publicly comment on other agencies’ actions that require NEPA review. The EPA plans to use both of these tools to ensure that federal agencies have “fully analyzed” the environmental effects of proposed actions, including “human health, economic and social effects on communities of color and low-income communities.”

Toxic Substances Control Act

The TSCA gives the EPA wide authority to gather information about chemicals (Section 4), assess the risks of new and existing chemicals (Sections 5 and 6), and regulate the life cycle of chemical substances and mixtures to protect human health and the environment. The Legal Tools Guidance notes that the EPA is afforded “broad discretion to implement these in a manner that advances environmental justice.”

The Legal Tools Guidance focuses on specific sections of the TSCA that were amended in 2016 to broaden the EPA’s authority to incorporate EJ considerations, including the following:

• The EPA will “incorporate relevant environmental justice work,” such as conducting risk evaluations in fenceline communities under TSCA Section 6, into underlying EPA costs for purposes of calculating fees to be collected from regulated parties under the TSCA.
• The EPA will broadly construe the term “potentially exposed or susceptible subpopulations,” which the EPA must apply in implementing multiple sections of the TSCA, to advance EJ goals by identifying communities who “may be at greater risk than the general population.”
• The Legal Tools Guidance stresses the EPA’s broad authority under TSCA Sections 4, 8, and 11 to gather data from manufacturers, processors, and distributors about risks from chemicals to communities with EJ concerns.
• The Legal Tools Guidance emphasizes the EPA’s ability to “engage with communities with environmental justice concerns to identify potential chemicals for prioritization,” including by designating chemical substances as high-priority to address potential unreasonable risks for communities with environmental justice concerns.
• The EPA will use its discretion in designing its risk evaluation process to incorporate EJ considerations.

Civil Rights Laws Applied to EPA Grant Recipients

The Legal Tools Guidance encourages the EPA to enforce civil rights laws against recipients of EPA grants in order to advance EJ. The Legal Tools Guidance notes that the EPA “enforces several federal civil rights laws that, together, prohibit discrimination,” and the EPA’s implementing regulations under such laws create affirmative legal obligations for grant recipients and prohibit both intentional discrimination and practices that create disparate impact. The EPA’s focus on enforcing civil rights laws to address EJ concerns could result in the EPA disapproving siting decisions based on the demographics of impacted communities. Specifically, if an EPA grant recipient’s proposed siting will have a disparate impact on a protected class, then the EPA could require the grant recipient to justify the siting decision and explain why alternate sites would not achieve the recipient’s goals.

Cumulative Impact

Another major shift in the 2022 version of the EPA’s Legal Tools Guidance is the focus on assessing cumulative impact in regulatory decisions, which the EPA “may not have fully utilized…in the past.” Currently, EPA’s review of permits focuses on whether the applicant successfully meets the environmental standards under a relevant statute for a particular pollutant. With a shift to cumulative impact considerations, however, the EPA would consider how an additional permit may contribute to the aggregate emissions of chemicals coming from multiple existing sites in a community. To support its authority to consider cumulative impacts, the EPA pointed to the Food Quality Protection Act, which requires the EPA to aggregate pesticide exposures from all sources and mandates that the EPA consider the cumulative impact of exposure to multiple pesticides that have a common mechanism of toxicity. The EPA also pointed to the TSCA, under which the EPA has the authority (under certain circumstances) to require the development of information about “cumulative or synergistic effects” and any other effect that may present an unreasonable risk of injury to health or the environment. In addition to these sources of statutory authority to conduct cumulative impact assessments, the EPA points to its regulatory and implicit authorities to “consider cumulative impacts in the context of environmental justice.”

Key Takeaways

The Legal Tools Guidance emphasizes the EPA’s intent to broadly incorporate EJ considerations into federal environmental regulation and to expand the participation of impacted communities in the regulatory process. To achieve these goals, the EPA will exercise its discretion to consider EJ in making enforcement decisions, exercising its permit authorities and reviewing other agencies’ environmental reports, enforce civil rights laws against EPA grant recipients, and work closely with affected communities. The EPA’s publication of the Legal Tools Guidance is the latest in a number of recent federal EJ initiatives spurred by President Biden’s Executive Order 14008, Tackling the Climate Crisis at Home and Abroad, which called on the federal government to “organize and deploy the full capacity” of federal agencies to address EJ. Last month, the Department of Justice launched a new comprehensive EJ enforcement strategy, which is the subject of its own Client Alert.

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. Eric Rothenberg, an O’Melveny of counsel licensed to practice law in New York, John Rousakis, an O’Melveny partner licensed to practice law in New York, 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.

© 2022 O’Melveny & Myers LLP. All Rights Reserved. Portions of this communication may contain attorney advertising. Prior results do not guarantee a similar outcome. Please direct all inquiries regarding New York’s Rules of Professional Conduct to O’Melveny & Myers LLP, Times Square Tower, 7 Times Square, New York, NY, 10036, T: +1 212 326 2000.