Environmental Justice Update: Four Issues to Watch in Spring 2023

To recap, we spent much of 2022 cataloging developments, including providing end-of-year lessons from the Environmental Protection Agency’s (EPA) 2022 efforts in the environmental justice (EJ) space and on what regulated entities can do to manage risks in the permitting and compliance space. As we proceeded through early 2023, developments continued to pile up at a rapid clip.

• State-level environmental justice efforts in New York and New Jersey
• EPA Air Office Guidance on Air Permitting
• Federal EJ Grants and Guidance on Potential “Cumulative Impact” Claims
• White House Office of Information and Regulatory Affair Guidance on Equity Issues
• EJ as a Basis for ESG-Related Litigation
• EPA’s Clean Air Act Suit related to chloroprene at a Louisiana Plastic Facility
• EPA’s 2024 Budget Request, and specifically, the amount included for EJ Activities
• Litigation Filed by Louisiana NGOs Based on the “Racist” Nature of Local Permitting

Below, we will run down four must-watch EJ issues for the next quarter:

1. Federal Emissions-Related Rulemaking Affecting Plastic-Related Facilities

EPA’s EJ focus on plastic-related facilities continues with the EPA’s April 6 announcement of more stringent Clean Air Act standards applicable to the Synthetic Organic Chemical Manufacturing Industry.

The proposal updates several regulations which apply to chemical plants that make synthetic organic chemicals and plants that make polymers like neoprene. Notably, EPA states that the proposal is based upon “a first-of-its kind community risk assessment” that “evaluated the impacts of the proposed emissions reductions from synthetic organic chemical manufacturing on the total air toxics-related cancer risks from all large industrial facilities in an area combined – not just from the equipment and processes covered by today’s proposal.” Notably, many of the involved facilities are in EJ areas. (See EPA’s list here.)

More specifically, the proposed rule amends the National Emissions Standards for Hazardous Air Pollutants (NESHAP) affecting the synthetic organic chemical manufacturing industry (SOCMI) (specifically 40 CFR part 63, subparts F, G, H and I). These are commonly known has the Hazardous Organic NESHAP or “HON.” The proposed amendments impact heat exchange systems, process vents, storage vessels, transfer racks, wastewater, and equipment leaks at these affected facilities, and are aimed at further reducing emissions of six key air toxins: ethylene oxide (EtO), chloroprene, benzene, 1,3-butadiene, ethylene dichloride, and vinyl chloride. For these facilities, EPA is proposing fenceline monitoring (discussed in a different context here) for the above-noted hazardous air pollutants (HAP). Facilities will be required to conduct root causes analyses on the collected data and implement corrective action upon exceed annual average concentration action levels set forth for each HAP.

Additionally, EPA is proposing four new New Source Performance Standards (NSPS) that also affect SOCMI sources. Specifically, EPA is proposing to amend existing NSPS subparts III, NNN, and RRR (regulating volatile organic compound emissions from SOCMI) to reduce the emissions of total organic carbon (TOC) emissions by 98% by weight (20 ppmv on dry basis) from all vent streams of SOCMI air oxidation unit processes, distillation operations, and reactor processes. The proposed amendments to subpart VVa require more stringent leak detection monitoring for all gas/vapor and light liquid valves and connectors.

2. Continued Efforts to Advance Equity at the Federal Level

We expect meaningful efforts to increase procedural equity will fly under the radar while enforcement and permitting issues increasingly draw political fire.

On April 6, the Biden Administration released an Executive Order (EO) on Modernizing Regulatory Review, which modifies regulatory processes that could have major effects on daily life. Highlights of this Executive Order:

• The EO seeks to affirmatively promote opportunities for “equitable and meaningful participation by a range of interested or affected parties, including underserved communities.”
• It seeks to broaden “the development of regulatory agendas and plans” through proactive engagement of “interested or affected parties, including members of underserved communities,” including through requiring more direct outreach to these communities in terms of meeting requests; and
• Requiring the Office of Management and Budget's (OMB) Circular A-4 – which deals with regulatory analysis – to be revised to allow for broader public input. (We have discussed Circular A-4 before here.) While we will write soon to discuss potential revisions in greater detail soon, draft language which has been released illustrate an intent to wrestle with how cost-benefit analyses are applied to regulations.

3. “Right to a Clean Environment” Cases in Courts

While not EJ cases per se, cases evaluating state constitutional rights to a clean environment touch many of the same issues as EJ cases. And — like EJ cases — NGO efforts to advance “positive” environmental rights will continue to advance. States including New York, Montana, and Hawaii have had recent high-profile litigation under state constitutional provisions guaranteeing rights to a clean environment. Summaries of the involved litigation:

New York

In 2021, New York voters approved an environmental rights amendment to the New York State Constitution. The amendment provides: “Environmental Rights. Each person shall have a right to clean air and water, and a healthful environment.” While the language in this amendment is straightforward in principle, various cases remain pending evaluating how the green amendment changes preexisting regulatory practice. (For further discussion, see here.)

Montana

In contrast to New York’s new green amendment, the facially similar provisions of Montana’s state constitution date to 1972. While Montana’s language may be “aspirational” as noted in the linked article, the language is being used by 16 Montana residents under age 18 who allege that they “have been and will continue to be harmed by the dangerous impacts of fossil fuels and the climate crisis,” with the fossil fuel use being supported by state policy. The trial of this matter is set to begin in June. (See the discussion here.)  

Hawaii

A third state to watch is Hawaii, where state courts have handed down two notable state-law decisions in the past month. The first case is In re Hawai’I Electric Light Company, which reviewed the rejection of a power purchase agreement (PPA) involving a biomass power plant by the Hawaii state public utility commission (PUC). The PUC rejected the PPA for reasons including that it would increase costs and emit significantly more carbon than it sequestered for its first 25 years of operation. Accordingly, the PUC rejected the PPA because it was not in the public interest. The Hawaii Supreme Court approved PUC’s rejection of the PPA.

While the majority’s decision is process-focused, a concurrence emphasizes “that the right to a life-sustaining climate system is . . . included in the due process right to ‘life, liberty, [and] property’” enumerated in the Hawaii state constitution as well as the “public trust doctrine” embodied in other sections of the same document. In the concurrence’s view, climate change poses an emergency that poses “the single greatest threat to the natural environment and human societies that ‘the world has ever experienced’.” Accordingly, Hawaii state agencies have a “constitutional duty to limit greenhouse gas emissions to prevent . . . global warming.” The state government is accordingly obligated to address these concerns under the “public trust doctrine,” a theory which has been rejected by federal courts. (See our brief discussion of this here, discussing the Juliana case.)   

The second case, Navahine F. v. Hawai’i Dept. of Transportation, on April 6 a Hawaii trial court denied a motion to dismiss a case brought by a group of Hawaii children alleging violations of their rights under the state constitution and the “public trust doctrine” against the state Department of Transportation seeking to compel the decarbonization of the state’s transportation system. Navahine F. will now head into discovery.

4. Further EPA Programmatic Developments

PA’s efforts to build out EJ continue. One item worth noting is that EPA recently reached a Memorandum of Understanding (MOU) with the Colorado Department of Public Health and the Environment. EPA’s announcement of the MOU notes that it promotes both agencies’ EJ goals through coordinated enforcement.

Other highlights include “strategic targeting of inspections” to EJ communities; through prioritizing remedies with “tangible benefits” for communities in enforcement actions; and through increased efforts at community engagement. Notably, each of these activities directly aligns with EPA’s individual actions related to equity in the EJ space and are consistent with EPA’s “whole of government” approach to EJ Issues. (See our discussion here.)  

Stay tuned for further updates on these topics.

Members of the Firm’s Environmental & Energy Groups regularly monitor state and federal EJ efforts. Contact us with questions about how these efforts or programs affect you.