How States And Cities Are Responding To Biden EJ Efforts

Addressing environmental justice issues has been a primary concern for the Biden administration. Recent developments — one in Chicago and one in Louisiana — show different ways local and state regulators have reacted to federal EJ efforts.

The administration has used a "whole-of-government" approach, combining enhanced compliance and enforcement efforts using federal environmental laws like the Clean Air Act, Clean Water Act, and Superfund; significant spending including the Inflation Reduction Act; and more aggressive use of powers granted by federal civil rights laws.

Recent initiatives range from update permitting guidance to address EJ issues in that context to implementation of fenceline monitoring programs intended to provide contemporaneous data to people living proximate to industrial facilities.

Muscular use of federal civil rights authorities has perhaps been the most notable federal focus. And, as all these efforts have been ongoing for two years, they have generated varying reactions from state and local regulators caught up in civil rights investigations.

Louisiana v. EPA Litigation

Louisiana has been at the heart of the Biden administration's EJ efforts since these programs were heralded as priorities in 2021, during a "Journey to Justice" tour through Louisiana, Mississippi and Texas.

In the years since, Louisiana has remained a consistent focus of both federal and nongovernmental organization efforts. The intensity and variety of issues that have arisen are significant. They include:

• Federal regulators' focus on air emissions from plastic-related facilities — including the April 6 announcement of more stringent Clean Air Act standards applicable to the synthetic organic chemical manufacturing industry, and the EPA's Clean Air Act Section 303 suit against the Denka Performance Elastomer LLC plastic facility in St. James Parish for releases of chloroprene;
• The EPA's pursuit of civil rights claims against regulators in various overburdened localities;
• Bloomberg Philanthropies' grant of $85 million in funding for a "Beyond Petrochemicals" campaign targeted at facilities in Louisiana, Texas and the Upper Ohio Valley;
• Inclusive Louisiana v. St. James Parish, a lawsuit filed by NGOs in March in the U.S. District Court for the Eastern District of Louisiana, alleging that the industrial permitting process in St. James Parish was rooted in racism; and
• The EPA's June 5 announcement of a $480,000 grant to Louisiana state regulators, funded by money allocated in the American Rescue Plan and the Inflation Reduction Act, and intended to fund a temporary air monitoring program in communities in St. James Parish believed to be overburdened by pollution, with the goal of making near-real-time data available to community groups.

Louisiana has been an active litigant against federal efforts it perceives as overreach since the Biden administration took office.[1]

In Louisiana v. Biden, filed in the U.S. District Court for the Western District of Louisiana on May 24, the state raises many of the U.S. Environmental Protection Agency's EJ activities during the Biden administration. These include:

• The Journey to Justice tour;
• The EPA's civil rights complaints against Louisiana regulators;
• The agency's requests for specific relief to address its concern that Louisiana's regulatory actions collectively have had disparate impacts on affected EJ communities; and
• What the state described as the EPA's effective delegation of enforcement activities to nongovernment actors like NGOs.

Louisiana views these actions, taken together, as unconstitutional, and violating statutes including the Administrative Procedure Act, and is seeking declaratory and injunctive relief.

Chicago Settlement

Like Louisiana, Chicago has been at the center of recent EJ controversies. For Chicago, these controversies were rooted in the planned relocation of a recycling operation from the wealthy Lincoln Park area to an EJ community on the city's southeast side.

Chicago city leaders originally opposed the federal civil rights complaint, which put $375 million in yearly funding at issue. But eventually, negotiations commenced, and a settlement was reached on May 12, shortly before former Chicago Mayor Lori Lightfoot left office on May 15.[2]

The civil rights complaint began after local community groups filed a complaint with federal housing officials in 2020, alleging that effectively racist city policies resulted in heavily industrial operations clustering in minority communities. Settlement terms included the following:

• In collaboration with community groups, Chicago will design and conduct a cumulative impact assessment by Sept. 1, describing "how environmental burdens, health conditions, and social stressors vary across Chicago, and identify neighborhoods that experience the greatest cumulative impacts."
• City officials including the chief sustainability officer and the commissioner of the Department of Public Health will engage in public outreach, and designate a city EJ project manager to work across departments to develop and supervise implementation of internal policies and operations that better support environmental justice, including an enhanced notification process to generate greater awareness of zoning, permitting and environmental enforcement; a new public participation policy with clear standards; and procedures that residents of EJ communities can use to raise civil rights complaints.
• The city will commit to revise zoning and industrial permitting to address EJ concerns.
• The city will improve its transparency and data collection efforts related to environmental permitting, monitoring and enforcement.

In exchange for Chicago making these commitments, the federal EJ-related civil rights claims against the city were withdrawn.

Notably, however, claims by the recycling facility against Chicago remain pending. A judge in the city's Department of Administrative Hearings, Environmental Division, found earlier this month that Chicago's denial of the facility's permit was inappropriate, because the facility had fulfilled procedural requirements necessary to be issued its permit. 

Steps Businesses Can Take

Even though federal EJ civil rights complaints are focused on state and local regulators, businesses can end up suffering collateral damage in these intragovernmental fights, and face reputational consequences themselves.

The Louisiana v. Biden case may be the first major effort to test whether the Biden administration's whole-of-government approach comports with environmental precedent, which is facility-focused to the exclusion of broader consideration of community impacts or civil rights concerns.

In the interim, steps businesses can take to minimize risks related to operations in EJ communities include consistent community engagement, assurance that the all the appropriate stakeholders inside a company are aware of EJ-related risks, and clear discussions on environmental justice-related issues in corporate sustainability reports, to ensure that affirmative claims rely on verifiable data, and strike a balance between aspiration and reality.
 

[1] For example, the Louisiana v. Biden case involving the social cost of carbon. See https://www.afslaw.com/perspectives/environmental-law-advisor/ten-environmental-and-energy-issues-watch-2023.

[2] https://www.hud.gov/sites/dfiles/Main/documents/Signed_VCA_Chicago.pdf.