Environmental Justice

Subscribe to Environmental Justice via RSS

The Biden administration has highlighted Tribal sovereignty and the federal trust responsibility to Tribal Nations as the cornerstones of its federal Indian policy. The involvement of Native American tribes is also a component of the Biden administration’s environmental justice initiatives. Accordingly, on January 26, the Biden administration issued a “Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships” (Presidential Memorandum), which seeks to prioritize regular, meaningful, and robust federal consultation with Tribal Nations. According to the Presidential Memorandum, “History demonstrated that we best serve Native American people when Tribal governments are empowered to lead their communities, and when federal officials speak with and listen to Tribal leaders in formulating federal policy that affects Tribal Nations.”

The topic of environmental justice garnered more attention as the Biden-Harris administration took office. On February 11, HB 432 was introduced by six Democrats in Georgia’s House of Representatives. The proposed bill is titled “Georgia Environmental Justice Act of 2021” and is the first proposed legislation in Georgia that directly addresses environmental justice. Below are the highlights of the contents of the proposed bill.

The Biden administration has already taken several actions that signal its intention to shift to a more federally focused environmental enforcement approach. Although the Trump administration generally adopted a “hands off” approach that afforded states broad deference in deciding when to initiate and prosecute environmental enforcement actions, the new administration appears to be moving toward a more robust federal role in environmental enforcement.

The COVID-19 pandemic has elevated fiscal concerns of water and sewer service providers, with many states imposing a moratorium on the collection of delinquent bills and the termination of service. The affordability of water and sewer service has also been a central topic in environmental justice discussions. In the midst of this heightened interest, the United States Environmental Protection Agency (“EPA”) released its long-awaited proposed updates to its Clean Water Act (“CWA”) affordability guidance. The pre-publication version of its 2020 Financial Capability Assessment for CWA Obligations (“2020 FCA”) was released on September 15, 2020. The proposal builds on EPA’s prior guidance, issued in 1997, as well as its 2014 Financial Capability Assessment Framework.  The purpose of the guidance is to establish criteria for EPA consideration of the impact of water quality, stormwater, and drinking water requirements on affordability. This information can then be used to prioritize different regulatory requirements and establish longer compliance schedules in permits and enforcement actions.

Environmental justice has received greater attention in 2020, both because it is an election year, but also because of the increased focus on racial inequality since the killing of George Floyd in May 2020. Many states are considering legislation on this topic, but on August 27, 2020, New Jersey passed a significant environmental justice bill, the first to require denial of a permit on environmental justice ground.

On March 3, 2020, the Illinois Environmental Protection Agency (IEPA) filed with the Illinois Pollution Control Board (Board) proposed regulations establishing standards for coal combustion residue (CCR) surface impoundments, commonly referred to as coal ash ponds, at power generating facilities. The Board published the rules for First Notice on April 16, 2020. The first public hearing was on August 11, and continued on August 12, 13 and 25. Due to the COVID-19 pandemic, virtual participation in the hearings was allowed by WebEx or by telephone. The second public hearing, which will allow testimony from the regulated community and other interested parties, is set for 9 a.m. on September 29, and continue as necessary on September 30 and October 1. The hearings are planned to be held in-person at the Board’s offices in Chicago, with virtual participation again allowed via WebEx or telephone. The hearing officer’s order scheduling the hearing dates and providing access information can be found here.

On May 5, 2020, the Illinois Attorney General filed a complaint against a developer and its contractors responsible for demolishing the smokestack of a former coal-fired power plant in Chicago. The suit provides a good reminder that careful planning for the control of fugitive dust emissions is critical during decommissioning activities—and that state legal offices and regulators will keep their eyes on potential environmental issues at coal-fired plants until the last brick comes down.

On May 23rd, the Trump administration released its full fiscal year 2018 budget proposal, continuing its call for significant funding cuts for many EPA programs. Consistent with the framework outlined in the administration’s “skinny” budget issued earlier in March, the proposal would cut EPA’s overall budget by 31.4 percent, reducing overall spending from $8 billion in 2017 to $5.7 billion for 2018.  The plan would eliminate approximately 20 percent of the agency’s workforce, reducing the number of staff from over 15,000 to approximately 11,600, a reduction of approximately 3,800 jobs.

Recent statements from Myron Ebell, the leader of President Trump’s U.S. EPA transition team, continue the drumbeat from the new Administration on reducing environmental regulation.  Ebell recently stated that the administration’s goal will be to reduce EPA’s 15,000-person staff to about 5,000 employees.  These statements follow on statements from President Trump in mid-November in which he would like to see two old regulations eliminated for every new regulation enacted.  Additionally, there is rampant speculation that EPA programs focused on climate change and environmental justice will be eliminated, and that the EPA Office of Enforcement and Compliance Assurance will be significantly overhauled.

EPA has released “EJ 2020 Action Agenda,” its action plan for addressing environmental justice (“EJ”) for 2016 through 2020.  The Agenda builds on the foundation established in its last EJ strategic plan, Plan EJ 2014, which laid the groundwork of EJ practices with guidance and tools to integrate EJ in EPA’s programs and policies. The Agenda is framed by three overarching goals with priority areas and examples of key actions for each goal, as well as measures to evaluate progress.