Continuing prioritization of environmental justice, EPA extends comment period for draft revision of Technical Guidance

The Environmental Protection Agency (EPA) has extended the comment period for a draft revision of its Technical Guidance for Assessing Environmental Justice in Regulatory Analysis to January 30, 2024.

Originally released on November 15, 2023, the Technical Guidance was shortly followed by the Biden Administration’s announcement of a $2 billion allotment to fund environmental and climate justice through Community Change Grants, and came in the wake of President Biden’s Executive Order 14096, the creation of the Office of Environmental Justice at DOJ, and a wide variety of other environmental justice[1] (EJ) initiatives over the course of the Biden Administration’s tenure.

The guidance sheds light on how EPA will incorporate environmental justice considerations using the most recent state of the science, peer-reviewed agency guidance, and new terminology to effectuate its new community focused priorities in future agency rulemaking.

Overview

While earlier iterations of the Technical Guidance laid the groundwork for articulating how policymakers at EPA should broadly consider the needs of minority populations, low-income populations, and indigenous peoples under the broader environmental justice framework, the recent revisions aim to provide more information on how the agency will use its analytical tools to incorporate environmental justice into rulemaking.

Specifically, the revised Technical Guidance provides information on how to use and interpret data to identify environmental justice concerns and then perform the regulatory analyses to ensure the information is factored into EPA’s rulemakings under the numerous federal environmental laws.

Key updates to the Technical Guidance

EPA’s proposed revisions to the Technical Guidance incorporate numerous changes, including, most notably:

• The addition of disability status to list of characteristics rendering a population to be “a population of concern”

The technical guidance includes a discussion of key terms used in EJ assessments, including a “population of concern.” The updated guidance adds the community of persons with disabilities[2] to the groups that were incorporated in the 2016 guidance – namely race, ethnicity, tribal affiliated and indigenous peoples, national origin, low-income populations, and populations that rely on cultural and subsistence practices. As described in our earlier alert, this expansion reflects the new framing presented in Executive Order 14096, which includes “disability” among the list of factors included in the Order’s definition of “environmental justice.”

• Deploying an enhanced definition of “meaningful involvement”

The 2023 update more specifically defines the term “meaningful involvement,” which is an essential element of EJ. Previously, “meaningful involvement” was defined as the requirement to, in general terms, afford potentially affected populations an “appropriate opportunity to participate” in decision-making, ensuring a population’s contribution “can influence rulemaking,” ensuring that concerns of all participants are “considered in the decision-making process,” and enabling the EPA to “seek out and facilitate the involvement of populations” potentially involved.[3]

Reflecting the approach of Executive Order 14096,[4] the proposed 2023 update heightens the specificity and expectations of “meaningful involvement,” providing that the EPA must “provide timely opportunities for members of the public to share information and concerns and participate in the decision-making process,” and “seek out and encourage[e]… the involvement of persons and communities affected…” Regulated parties can expect this to mean increased prioritization of the interests of EJ communities in EPA rulemaking.

• Heightened emphasis on quantifying EJ impacts

The new guidance places a greater emphasis on the agency’s quantitative analysis that undergirds its regulatory efforts. Regulated parties can anticipate that EPA rulemaking will be heavily influenced by tracking quantitative data, particularly any adverse environmental or health impacts, affecting EJ communities.

• New use of compliance and enforcement history in policymaking

The updated Technical Guidance advises analysts to consider compliance and enforcement history because “past compliance issues may indicate pre-existing EJ concerns that warrant further investigation.”[5] As a result, the regulated community should prepare for targeted EPA rulemaking in topic areas in which substantial enforcement or compliance challenges have left EJ communities unprotected in the past.

Looking ahead

The updated proposed guidance reflects EPA’s ongoing prioritization of EJ and its intention to detail and quantify the impacts of vulnerable communities’ concerns in the environmental regulatory decision-making process.

Although not yet finalized, the guidance signals that EJ will continue to be a top priority in EPA’s rulemaking and subsequent enforcement activity. The regulated community should take note of these priorities when advocating before, or otherwise interacting with, the agency. Regulated parties may also wish to address potential EJ concerns proactively in their business planning and operations in order to meet the agency’s anticipated compliance goals.

EPA hosted informational webinars on December 6 and December 12, 2023. Public comments on the draft Technical Guidance must now be submitted on or before January 30, 2024. Options for submitting comments are available here.

DLA Piper’s Environmental team continues to monitor the latest updates on EPA’s evolving environmental justice platform and advise clients on integrating EJ assessments into their respective compliance and enforcement strategies and initiatives. Please reach out to the authors with any questions.

^{[1] EPA defines “environmental justice” as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” https://www.epa.gov/environmentaljustice#:~:text=Environmental%20justice%20is%20the%20fair,laws%2C%20regulations%2C%20and%20policies.
[2] Technical Guidance 2023, pg. 9
[3] Technical Guidance 2023, pg. 9
[4] E.O. 14096, Section 3
[5] Technical Guidance 2023, pg. 78}