Although environmental justice (EJ) is not a new concept in the context of air permitting, the Biden administration’s increased focus on identifying and addressing disproportionate environmental impacts on low-income neighborhoods and communities of color is likely to spur an increase in EJ claims being raised as part of the public review process for both new air permits and permit renewals. Many, if not most, states do not have statutory or regulatory requirements dictating how EJ concerns must be considered in the air permitting context. Similarly, while there is a patchwork of EJ requirements applicable to federal agency actions, most are imposed by executive order and are not prescriptive in nature, meaning that there is no robust legal framework for considering EJ concerns in the air permitting context at the federal level either. Accordingly, while potential permittees and current permit holders seeking to renew or modify their air permits should be aware that there is an increased likelihood that EJ concerns may be raised by third parties or permitting agencies, there is little certainty about how these concerns will be implemented in the course of permit issuance.

In recent months, several petitions filed by environmental groups requesting the Environmental Protection Agency (EPA) to object to Title V permits issued at the state level have included EJ complaints. Two February 2021 petitions to object to Title V permits issued by the state of Louisiana to distinct operational units of a refinery complex in the Baton Rouge area note that “acute environmental justice concerns in the communities surrounding [the] refinery provide additional reasons why EPA must pay special attention and object to” the compliance assurance-related components of the contested Title V permit.

The petition cites to a 2012 EPA order in response to an earlier petition to object in which EPA itself states that the location of the permitted facility in a disadvantaged minority community warrants “focused attention to the adequacy of monitoring and other compliance assurance mechanisms.” The February 2021 petitions also cite the presence of multiple unrelated high-emitting industrial facilities located in close proximity to the refinery operations as additional reasons for EPA to ensure that the monitoring and emission calculation requirements in the Title V permit are adequate to ensure compliance with emission limits. In urging EPA to object to the contested compliance assurance provisions in the Title V permits for the refinery operations, the petitioners cite to Executive Order (EO)12898, issued in 1994, and its requirement that “[t]o the greatest extent practicable and permitted by law, … each Federal agency shall make achieving environmental justice part of its mission … .” The petitioners acknowledge that EO 12898 does not obligate EPA to object to a permit that satisfies Clean Air Act requirements, but they claim that the EO does “inform EPA’s review of the adequacy of those very requirements.”

Two Title V petitions to object filed in late March and early April in opposition to permits issued in Mobile County, Alabama — one to a chemical plant in the Africatown community just outside the city of Mobile and another to an electric utility generating plant located about 25 miles outside the city — also raise EJ concerns. Each of petitions raises distinct objections to the Title V permit renewal at issue, but each couches its opposition to the proposed permit in terms of its impacts on the surrounding EJ communities. One of the petitions cites to President Biden’s January 2021 EO addressing climate change, noting that the EO renews support for EO 12898 and calls for federal agencies to make environmental justice part of their missions.

EJ concerns are not only being raised to EPA in the Title V context; environmental groups recently filed a petition requesting EPA to object to a state construction permit issued in Georgia on the grounds that no opportunity for public notice and comment was provided, despite the fact that the permit contained emission limits allowing the permittee to avoid federal preconstruction permitting requirements. The petition noted that the community downwind of the wood pellet manufacturing facility at issue “is a particularly vulnerable environmental justice community” and claims that “the principles of environmental justice require that at a minimum … these communities be allowed to comment on permit applications for new sources and modifications claiming to be ‘minor.'” Some of the common themes raised by these petitions include (1) how to define or identify an EJ community, and (2) how to address cumulative impacts when multiple industrial operations are located in close proximity to an impacted community.

Efforts by environmental advocacy groups to raise EJ concerns in objection to federal air permits may in the future be aided by federal legislation requiring consideration of EJ issues in the air permitting context. The fact sheet for the “Clean Future Act” currently under review by the House Committee on Energy and Commerce explains that a provision in Title VI of the bill, which addresses environmental justice, “restricts air pollution permits from being issued or renewed for major sources in census tracts already overburdened by air pollution.” At an April 15 hearing on the bill, one member of the White House Environmental Justice Advisory Group stated that permitting for new facilities should be denied based on the cumulative effects of pollution on EJ communities.

While it is difficult to predict whether provisions requiring denial of new or renewed air permits based on EJ concerns will gain enough political support to be included in any future federal legislation, it appears from the recent flurry of EJ-based objections to Title V and construction permits that EJ issues will figure prominently in air permitting under the Biden administration. Even without a clear legal framework for evaluating EJ concerns, it is likely that inclusion of EJ concerns in any objections raised to a proposed air permit will elicit increased attention from regulators. Accordingly, facilities planning to seek new Title V permits or permit renewals over the next several years should become familiar with the EJ status of the communities surrounding their sites and should be prepared for enhanced scrutiny of proposed permit conditions from both the public and the regulators. Permittees should also stay attuned to changes in state law as states begin to formulate their own approaches to addressing environmental justice.