United States: Emerging Environmental Justice Concerns For California Companies

According to the U.S. Environmental Protection Agency, environmental justice is

Importantly, environmental justice concerns are not new

For example, in February 1994, former President Bill Clinton signed Executive Order No. 12898 on federal efforts focusing on environmental justice in minority and low-income populations.

Pursuant to the executive order, "each Federal agency shall make achieving environmental justice part of its mission."¹

Despite decades of awareness of environmental justice issues, both federal and state governments have struggled to identify concrete action to address the reality of persistent disproportionate impacts from environmental stressors.

This time may be different. Both California and the Biden administration are focused on taking concrete, verifiable and comprehensive actions to address persistent environmental inequities and also address climate justice.

This article discusses recent regulatory and enforcement efforts by both the Biden administration and the state of California, and further provides guidance for companies seeking to understand how environmental justice issues may affect them.

Biden Administration Starting to Make Environmental Justice Goals Concrete

Since the early days of his administration, President Joe Biden has issued a number of executive orders and memoranda that set the stage for addressing environmental justice on a national level.

Most significantly, Executive Order No. 14008 on tackling the climate crisis, issued on Jan. 27, 2021, describes a governmentwide approach to addressing climate change and environmental justice and announces the Justice40 Initiative, which aims to deliver 40% of the overall benefits of federal investments in climate and sustainable transportation to disadvantaged communities.

The EPA followed suit, and on April 30, 2021, the Office of Enforcement and Compliance Assurance issued a memorandum titled "Strengthening Enforcement in Communities with Environmental Justice Concerns," calling for increased facility inspections in overburdened communities, the implementation of remedies that benefit overburdened communities, and increased engagement with communities about enforcement cases that affect them.

On June 21, 2021, the OECA issued another memorandum titled "Strengthening Environmental Justice Through Criminal Enforcement," calling for increased outreach to crime victims in overburdened communities and enhanced remedies, including restitution, for redressing harms these victims suffer.

Then on Oct. 1, 2021, the EPA released its draft strategic plan for fiscal years 2022-2026, which includes several environmental justice initiatives and specific numerical goals - such as, for example, ensuring that 55% of all the EPA's inspections relate to communities with environmental justice concerns.

Earlier this year, on Jan. 5, the EPA released a draft environmental justice action plan called "EJ Action Plan: Building Up Environmental Justice in EPA's Land Protection and Cleanup Programs," focusing on strategies to strengthen compliance and enforcement, incorporate environmental justice considerations in the agency, increase community engagement, and advance the Biden administration's Justice40 initiative.

And on Jan. 26, following his November "Journey to Justice" Tour, EPA Administrator Michael S. Regan announced a number of actions the EPA will take to respond to the concerns of overburdened communities, including conducting unannounced inspections of suspected noncompliant facilities, and expanding air monitoring tools and technologies to enhance enforcement, among other actions.

The administrator's announcement also describes various agencywide and communityspecific actions that the EPA plans to undertake as part of its renewed commitment to addressing environmental justice issues in communities that are "marginalized, underserved, and overburdened by pollution."

California Is Leading the Way on Environmental Justice Policy

Both before the Biden administration and since, California has taken a number of important actions that have further incorporated environmental policy into government activities and affirmed California's status as a leader in environmental justice policy.

A review of the environmental justice developments in 2021 and in the first part of this year signals an increase in state implementation of environmental justice policy that we expect will continue in 2022.

Companies with operations in California should pay close attention to these developments and prepare for a future where environmental justice concerns take center stage.

California law defines environmental justice as

The law further describes environmental justice as including a healthy environment for all people; the reduction or elimination of pollution burdens for populations and communities experiencing the adverse effects of that pollution; the provision of technical assistance to communities most affected by pollution; and the promotion of meaningful participation of such communities in environmental and land use decision-making processes.

The law requires that government entities, at a minimum, consider the recommendations from communities most affected by pollution when making environmental and land use decisions.

A.B. 617, signed into law in 2017, focuses on implementing policies to improve air quality and public health in communities that experience disproportionate burdens from exposure to air pollutants.

The law directs the California Air Resources Board, or CARB, and local air districts to protect overburdened communities. It requires the implementation of community-level air monitoring and emission reduction plans; expedited best available retrofit control technology; enhanced emission reporting requirements; and increased penalty provisions.

CARB may also direct grant funding to communities determined to have the highest air pollution burden.

In response to A.B. 617, CARB established the Community Air Protection Program to reduce exposure in communities most affected by air pollution.

Air monitoring and emission reduction programs have already been implemented in a number of communities. These efforts can be monitored via CARB's CommunityHub dashboard.

Despite these programs, some nonprofit organizations have raised doubts about A.B. 617's effectiveness and criticized its implementation.

Pressure from such organizations and renewed focus on environmental justice issues on both the state and federal levels could lead to more aggressive state efforts to apply and possibly strengthen A.B. 617.

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Footnotes

1. See also, Brian D. Israel, An Environmental Justice Critique of Risk Assessment, 3 N.Y.U. Env't L. J. 469 (1995) (exploring ways in which environmental risk assessments may fail to detect risks in overburdened communities).

2. Cal. Gov't Code, § 65040.12 (e).

Originally published by Law360

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