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.
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