Protecting "Overburdened Communities" Through Environmental Justice

EQ Winter 2016 Environmental Justice Article Fig 1Looking forward, two simple letters represent an increasingly important aspect of environmental permitting processes for industrial operators:  "EJ." That's shorthand for "Environmental Justice," an issue that has become a top priority for U.S. EPA and is now trickling down through the regulatory framework to regional, state, local and tribal permitting authorities.

The basic concern driving EJ programs is that certain communities may be exposed to undue environmental hazards because those communities do not contain the wealth, resources or expertise to effectively understand those hazards and assert their rights within the permit process.  EPA describes these communities as "environmentally overburdened, underserved, and economically distressed communities," or simply "overburdened communities" for short.

In order to determine what defines an overburdened community, EPA directs permitting authorities to look at two factors:  demographics and existing environmental conditions.  In general, the demographic portion of the analysis focuses on minority populations and the low income population at and near the proposed project. There are other indicators, such as age and education of the target populace, but EPA directs permitting authorities to concentrate primarily on minority and income metrics when determining whether an area qualifies for EJ status.

The existing environmental conditions portion of the analysis focuses on twelve statistical indicators harvested from existing environmental monitoring and reporting databases.  Environmental indicators include data such as local ambient air ozone concentrations, proximity to treatment storage and disposal facilities (TSDFs), and local cancer risk as indicated by the National Air Toxics Assessment.  A complete list of environmental indicators can be found on EPA's website.

The EJ Philosophy

Essentially, the EJ philosophy dictates that if a project is proposed in an area that has a high proportion of low-income and minority individuals living nearby, and that same area is already high on the list for exposure to many environmental indicators, that project should trigger EJ consideration.  On the other hand, a proposed project built in an area that has a very low proportion of minority residents, is relatively affluent and not high on the list for environmental indicators should not trigger EJ consideration.

In between those two extremes exists an infinite number of nuanced situations that may or may not trigger EJ consideration, depending on how information is presented, the nature of the project itself, support or opposition within the local community, the attitude and experience of the permitting authority and a host of other factors.  There is no bright line with which one can consistently distinguish an EJ project from a non-EJ project. There are rather varying shades of grey that make triggering EJ a very subjective exercise.

It should be noted in passing that EJ programs have their critics, who say that the net effect of EJ is to discourage investment in low-income and minority communities by adding another regulatory obstacle that can be avoided by investing elsewhere.  Defenders of EJ say that these programs are necessary because low-income and minority communities have been disproportionately exposed to environmental risks over the years.  In the end, however, EJ is clearly here to stay and will impact permitting more and more as time goes on, as described below.

EJ Permitting Considerations

EQ Winter 2016 Environmental Justice Article Fig 2The EJ process is new enough and fluid enough that to claim there is a defined process would be misleading. EPA has, however, issued some guidelines and provided some tools which permitting authorities have made use of to varying degrees.  While the EJ process remains very much a work in progress, there is a general approach that can be recognized and discussed, namely: identification, notification, impact assessment, discussion and finalization.  These elements are not official or distinctly recognized steps set forth by EPA, but rather represent a distillation of the agency's language down to the essence of how EPA expects permitting authorities to approach EJ in the future. With that in mind, let's take a closer look at each step.

Identification refers to the process of determining whether the proposed project is located in an EJ area or not.  Ideally, EPA expects this will be step one whenever an environmental permit application is received by a permitting authority.  EPA has provided an on-line tool called "EJSCREEN" to help permitting authorities and permittees determine if a project is located in a potential EJ area or not.  (More information about EJSCREEN can be found here.

Use of EJSCREEN by a permitting authority is not required.  Some permitting authorities have developed alternative means of screening that are similar to EJSCREEN, but not exactly the same.  EJSCREEN does not provide a definitive answer regarding EJ applicability for a project, but rather, it ranks the affected area in terms of the demographic and environmental metrics described previously.  How the permitting authority uses those rankings is up to the permitting authority.

In any case, the permitting authority eventually decides whether the project triggers EJ consideration or not and, if not, the permitting process continues along the normal, historically-established path applicable to the project.  If EJ consideration is indicated, notification is triggered.

EJ Notification is in addition to any notifications typically required part of the standard permitting process.  In general, EPA expects that residents, houses of worship, schools, businesses, etc. within the affected area will be notified that a permit application for a new project has been received by the permitting authority, that the project may affect the local environment, and that affected parties will have an opportunity to learn more and participate in public review and comment.  Other "interested parties" may also be on the notification list, such as environmental NGOs like the Sierra Club and NRDC, as well as more locally-focused community action groups.

Impact assessment essentially describes the delicate and sometimes contentious manner in which the project and its potential environmental and human health risks are presented to interested parties.  The subtleties of technical communication always play a significant role in how potentially controversial projects are communicated to the public.  For example, when a permitting authority describes the environmental impact of a new natural gas fired turbine in the following factual terms, alarms bells may well go off in a community: "The turbine can emit up to 200 tons per year of nitrogen oxides, a pollutant that contributes to ozone formation, which in turn is linked to respiratory illness."

By comparison, the same project as communicated by another permitting authority in the following terms is less likely to raise a red flag: "The turbine can emit up to 200 tons per year of nitrogen oxides.  Modeling has demonstrated that these emissions will not have a significant impact on concentrations of nitrogen dioxide in the community, nor is this amount of emissions expected to materially contribute to any measurable increase in ozone formation." Although this is a simplification of a very complex topic, it serves to emphasize the point that the nuances of communication can play a significant role in this program, especially because the audience is often unfamiliar with environmental science and data analysis.

Discussion refers to public participation in the permitting process.  Projects in over-burdened communities that were previously not subject to public review and comment, such as non-PSD construction permit applications, will become subject to public review, potential public meeting(s), and public comment under the EJ process.

And that brings us to finalization, the issuance or denial of the permit requested.  The permitting authority is expected to address the issues identified as part of the EJ consideration process, either through modification(s) of the proposed permit and/or by explaining why modification(s) are not necessary, before issuing the final permit in an EJ area.  Because of this, a permit for a new project in an EJ area may be more restrictive and/or contain more requirements than an equivalent permit issued in a non-EJ area.

Moving Forward

What does all this mean to an industrial operator contemplating a new project? The complete answer to that question is complex, but as a starting point, the applicant should try to determine first, whether the project is likely to trigger EJ consideration, and if so, how the project is likely to be received by the host community, the permitting authority and other interested parties before moving forward.  A thorough and frank pre-project assessment of potential EJ issues can help applicants identify the siting and permitting strategies and possibly preempt a great deal of time, effort, and expenditures in the long run.