March 01, 2015

Is environmental justice still a consideration for the regulated community in 2015?

Susan Floyd King

EPA’s environmental justice initiatives in 2015

The U.S. Environmental Protection Agency (EPA) intends to convene the first community-wide Federal Interagency Working Group on Environmental Justice (EJIWG) meeting in Turkey Creek near Gulfport, Mississippi. This meeting, scheduled for January 2015 and the first among others EPA is scheduling for locations around the country, is part of EPA’s initiative to pull together resources from multiple federal agencies to help meet economic, environmental, and other needs of selected communities.

The first meeting will focus on environmental justice (EJ) issues and the goal is to collaborate on efforts by EPA and its community partner in the area, the Turkey Creek Watershed Partnership (Partnership). Members of the Turkey Creek and North Gulfport communities established the Partnership to address their communities’ environmental and cultural concerns. The Partnership now includes over 50 individuals representing more than 20 city, county, and state agencies; local and regional nonprofit organizations; citizen groups; churches; and homeowners. The desired outcome of the January 2015 EJIWG meeting is for other federal agencies, along with EPA, to assist the Partnership and community members with revitalization efforts to make a noticeable difference in an area impacted by potential EJ concerns.

All federal agencies are beginning to incorporate these EJIWG environmental justice initiatives as required under Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (signed by President Bill Clinton on February 11, 1994).

So how should the regulated community prepare for these new, expanded EJ initiatives?

EPA’s policies and procedures

Through Executive Order 12898, EJ considerations are now a part of the permanent fabric of EPA’s policies and procedures. Hence, it is important that leaders in the regulated community understand and are prepared to address EJ issues that may affect their projects or development activities. It is equally important for community and environmental groups to work cooperatively with the regulated community to address EJ concerns.

Plan EJ 2014” provides EPA’s current position and overarching strategy for advancing environmental justice into its programs, policies, and activities and making EJ an integral part of virtually every type of agency decision, including rulemaking, permitting, compliance, and enforcement.

EPA incorporates EJ considerations into rulemaking by implementing guidance it developed to more effectively protect human health and the environment for overburdened populations. EPA’s permitting programs include EJ considerations by facilitating full and meaningful access to the permitting process for members of overburdened communities and by addressing EJ issues in permit actions to the greatest extent practicable under existing environmental laws. Finally, EPA is committed to integrating EJ considerations when it initiates a compliance or enforcement action.

EJ defined

EPA defines “environmental justice” as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.” As related to environmental justice, “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.” To attain the goal of “fair treatment,” Plan EJ 2014 seeks to:

  • protect the environment and heath in overburdened communities;
  • empower communities to take action to improve their health and environment; and
  • establish partnerships with local, state, tribal, and federal governments and organizations to develop healthy and sustainable communities.

“Fair treatment” is measured by “meaningful involvement.” Thus, it is necessary for the regulated community to understand “meaningful involvement” when attempting to address any EJ issues related to a particular project or development.

Proof of meaningful involvement

Affirmative answers to the following questions provide “proof of meaningful involvement,” which is essentially the barometer for determining whether potential EJ issues have been identified and addressed:

  1. Have the people potentially affected by the project or development had an opportunity to participate in decisions about activities that may affect their environment and/or health?
  2. Did the public’s contribution have an opportunity to influence the regulatory agency’s decision process?
  3. Did the agency consider the public’s concerns and contributions in the decision-making process?
  4. Did the decision makers seek out and facilitate the involvement of people potentially affected?

Strategies to meet EPA’s criteria

What specific tasks can the regulated community employ to form a strategy that effectively meets EPA’s EJ criteria (described above)? The following are the core components of a good EJ strategy:

  • Become familiar and well-versed with Plan EJ 2014, including supplemental all supplemental materials.
  • Become familiar and well-versed with EJ or related initiatives at the state agency level.
  • Identify and initiate communications with state and local environmental groups and other relevant local community groups.
  • Consider and take into account potential cultural or language barriers that may be present.
  • Plan and implement a strategic public engagement process in collaboration with the applicable regional EPA office and/or state agency.
  • Demonstrate due diligence in seeking to meet EPA’s EJ criteria by actively engaging all stakeholders involved.

Finally, the most important task of all is communicating the strategy and its potential benefits to the community with the community itself.

Susan Floyd King

_____

Susan Floyd King is special counsel on the Environmental Team at Jones Walker LLP in Jackson, Mississippi, in the areas of permitting, enforcement, and compliance, where she advises clients on issues related to regulatory requirements under state and federal law, especially in the area of environmental justice. She is active with the ABA Section of Environment, Energy, and Resources’ leadership and chair of the 2016 Spring Conference.