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Environmental Justice Update: Three Areas to Watch in Spring 2024
Tuesday, April 16, 2024
While environmental justice (EJ) concerns continued to drive policymaking in early 2024, EJ efforts increasingly faced headwinds coming from various and sometimes unexpected directions. Below, we will summarize recent developments in the EJ space and outline three areas to watch for the regulated community in spring 2024.

We continued to write regularly about developments in the EJ space in recent months. Since our discussion of 2024 Environmental Issues to Watch including deep-dives EJ policy and the plastic and petrochemical industry — where many issues have EJ ties — other EJ-focused articles include:

Taken together, these developments emphasize both that EJ issues will continue in regulatory focus on a going-forward basis but also that meaningfully addressing many issues will require statutory reforms which, at least at the federal level, seem unlikely to occur soon.

EJ and Preexisting Law

Environmental agencies at all levels are created by statutes and have limited and defined authorities. As we have discussed, some of the efforts necessary to address EJ issues require statutory changes because holistically addressing EJ issues does not neatly fall into the US Environmental Protection Agency’s (EPA) statutory authority, particularly related to issues like “cumulative risk.”

Federal authorities have focused enforcement and compliance efforts in EJ communities, which is generally within their discretion. EPA’s FY2023 report on Enforcement and Compliance, released in December 2023, notes that the percentage of inspections in EJ communities has effectively doubled in recent years. 

Some state legislatures have endeavored to close EJ-related statutory and regulatory loops. For instance, in March, Massachusetts announced regulatory changes to air permits that required facilities in or near EJ communities to evaluate 33 environmental, health, and socioeconomic indicators, which purport to help characterize “existing pollution sources, health vulnerabilities, and other stressors that could be worsened by increased air emissions from the proposed project.” (For more, see here.) The regulations apply to permit applications submitted on or after July 1, and are intended to be reviewed within two years of their effective date.

Where reform efforts aimed at underlying authorities do not occur, efforts to address EJ issues often fail. Two examples:

  • We’ve discussed EJ issues in Louisiana with some regularity, most recently two months ago here. In the two months since we wrote about the case, EPA has declined to appeal its preliminary injunction loss and the Western District of Louisiana is currently engaged in finalizing entry of judgment in the matter.
  • In March, the Court of Appeals for the DC Circuit found that EPA had failed to justify parts of its Clean Air Act State Implementation Plan (SIP) call related to “Startup, Shutdown, and Malfunction” events. Environmental nongovernmental organizations (NGOs) cite SSM events as having the potential to “release extremely high concentrations of soot, smog, and toxic chemicals” which can threaten “the health of vulnerable communities, which are frequently low-income and communities of color.” While EPA may have been persuaded by these arguments when it issued the SIP call, upon review, the DC Circuit’s analysis focused on whether the involved regulatory process was appropriate, and not whether the process outcomes resulted in harms to particular communities.

Other EPA efforts continue use of clearer statutory authorities to address issues perceived to affect EJ communities. Of note, on April 9, EPA announced a Clean Air Act final rule affecting chemical plants which emit chemicals including ethylene oxide and chloroprene. Chloroprene emissions were a focus of EPA litigation against a Louisiana elastomer plant, which we wrote about here. Notably, the rule requires fenceline monitoring at involved facilities, which can be used to evaluate risk to communities proximate to plants. (For more, see here.) When fenceline monitoring will be required will vary by what a particular facility produces. For neoprene facilities, monitoring is required to begin within 90 days of the rule.

EJ and Civil Rights

EJ concerns are often persuasive as an advocacy strategy. That big corporations “capture” governmental regulators in ways that harm poor communities is cinematic trope. While the Louisiana case discussed above may emphasize that civil rights concerns do not always prevail in policy debates, that they can be used to compel policy change is inarguable.

We have written with regularity about areas where civil rights and environmental issues overlap. Cases like Juliana v. United States (discussed above) or the 2023 Montana case Held v. State of Montana argue that particular governments are constitutionally and morally obligated to meaningfully address issues like climate change. When we wrote about Held, we noted that it was an outlier as “a rare win for activist plaintiffs seeking to use rights-based theories to address environmental concern.”

This month, the European Court of Human Rights (ECHR) ruled in favor of a class of Swiss women older than age 64 who contended that the Swiss government violated their human rights by failing to meaningfully address climate change. ECHR is an international court charged with interpreting disputes under the European Convention for the Protection of Human Rights.

In Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, the ECHR found that the Swiss government failed to meet its own targets for cutting greenhouse gases and failed to set a national carbon budget, and therefore violated the human rights of the women who brought the claim, as defined by the European Convention on Human Rights. While the ECHR found that the Swiss government was obligated to do more to address climate change, it largely deferred to Swiss authorities to determine what measures needed to be taken.

While ECHR decisions have no precedential value on US disputes, this decision, like the Montana state court Held decision before it, will be viewed as a victory by NGOs and others seeking to use courts to press for change on climate issues.

EJ and Funding

A final EJ issue worth watching this spring relates to how large-scale grants allocated by EPA’s $600 million Thriving Communities program begin to be distributed.

The Thriving Communities program, established by the Inflation Reduction Act, is part of the Biden Administration’s Justice40 Initiative. The Justice40 Initiative, established by Executive Order 14008, Tacking the Climate Crisis Home and Abroad, directed 40% of the benefits of programs including clean energy and energy efficiency, clean transit, and the remediation and reduction of legacy pollution, to flow to disadvantaged communities.

Eleven grantmakers were announced in December. The grantmaking process will be refined this spring with subgrants becoming available to communities in summer 2024, with thousands of subgrants to be issued during the three-year program. Grantmakers are organized geographically with lead institutions and partners including organizations with more particularized focus. Like some other efforts in the EJ space, these efforts are intended to deploy money quickly into EJ communities.

For a more detailed discussion of EPA EJ programming, see here.

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