Fate of Environmental Justice Considerations

Just last summer, EPA released its final version of the Technical Guidance for Assessing Environmental Justice in Regulatory Analysis (EJ Technical Guidance), defining “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.” Now, not quite a year later, EPA is facing a proposed $2.6M budget decrease which will reportedly cripple the EJ program.

In reports issued by several news agencies, the details of the proposed budget cuts at Office of Management and Budget would potentially eliminate the entire EJ program EPA, along with others. This comes at a time when EJ issues are also front and center for proposed pipeline projects. All federal agencies are required to consider environmental justice in their activities as part of the National Environmental Policy Act (NEPA), pursuant to Executive Order 12898, including issuance of federal approvals (such as federal permits issued by EPA, the Corps, and certificates for natural gas pipelines granted by the Federal Energy Regulatory Commission (FERC)). While EPA issued its own guidance, other federal agencies follow the guidance issued by the White House Council on Environmental Quality (CEQ) issued Environmental Justice; Guidance Under the National Environmental Policy Act (December, 1997).

EPA’s latest guidance was issued on June 7, 2016, and complemented EPA’s Guidance on Considering Environmental Justice during the Development of Regulatory Actions that was issued in May 2015. That guidance was intended to be used by EPA analysts as a detailed framework for analyzing potential EJ concerns for regulatory actions. EPA released the EJ Technical Guidance on the heels of its proposed Environmental Justice 2020 Action Agenda (Proposed EJ 2020) released on May 23, 2016. A copy of the Proposed EJ 2020 is available here.

The EJ Technical Guidance was to inform EPA’s future rulemakings and the agency’s consideration of environmental justice impacts, but where it stands now in light of the pending budget cuts remains in question. That said, all federal agencies are nevertheless still subject to the CEQ guidelines at a minimum.