The Environmental Protection Agency recently issued draft guidance updating how agencies are to evaluate environmental justice (EJ) concerns when undertaking regulatory actions, entitled "Technical Guidance for Assessing Environmental Justice in Regulatory Analysis" (the "Guidance"). This 130-page document outlines analytic expectations and technical approaches that can be used by agency analysts in such an evaluation.
The draft revision updates and expands on EPA's original guidance issued in 2016. The draft guidance addresses scientific advancements, peer-reviewed Agency guidance, and the Biden administration's new priorities, policies, and direction on EJ by incorporating Executive Order 14096. The draft guidance highlights early integration of EJ in the rulemaking process and provides approaches for using analytics to ensure EJ concerns are addressed as regulatory actions are developed.
The main updates that EPA has included in the draft Guidance include updating several key definitions and concepts so that they align with the terms used in Executive Order 14096.
"EJ Concerns." In its 2016 guidance, EPA defined "EJ concern" as:
the actual or potential lack of fair treatment or meaningful involvement of minority populations, low-income populations, tribes, and indigenous peoples in the development, implementation.
EPA updated the definition used in the draft Guidance to mirror the EJ groups identified in EO 14096, including the adding national origin, color, and disability status—
An EJ concern is the actual or potential lack of just treatment or meaningful involvement on the basis of income, race, color, national origin, Tribal affiliation, or disability status in the development, implementation and enforcement of environmental laws, regulations and policies.
The draft Guidance also updates how to identify and define these populations groups of concern, noting that agency analysts should be most concerned with identifying groups with increased vulnerability based on economic and social factors. This may include additional considerations, such as linguistic isolation, gender, age, and employment status.
"Meaningful Involvement." Additionally, based on how the term is defined in EO 14096, EPA proposes updating "meaningful involvement" to focus on active and early engagement with EJ communities. EPA suggests that to meaningfully involve or engage EJ communities, it must go beyond the minimum requirements of standard notice and comment periods, and the agency should actively work to engage EJ communities early in the process well before a proposed rule is published.
Cumulative Impacts and Climate Change. As directed in the Executive Order, EPA places a higher priority on cumulative impacts and climate change in the proposed Guidance. Under the proposal, EPA analysts should consider a community's vulnerability, including cumulative impacts and climate change. While these were considerations in the 2016 guidance, the proposed Guidance puts cumulative impacts and climate change front and center, including more information and tools on how to incorporate these considerations.
In addition to the changes based on Executive Order 14096, EPA also proposes:
- Incorporating an analysis of compliance and enforcement history in determining whether policy options that encourage better compliance (such as publicly available real-time monitoring data or enhanced reporting requirements) can reduce exposure to EJ communities.
- Evaluating the underlying heterogeneity (i.e., diversity or differences) of the regulated industry in question, the populations at risk, and the risks themselves when determining the correct analytical approach. For example, with respect to selecting a geospatial unit for analysis, EPA explains that it is important to weigh any potential tradeoffs between fully capturing the populations at risk and the heterogeneity in risk which may mask information about those most at risk by including populations that are much less affected.
While focused on technical metrics in this Guidance, EPA is clear that it is not proposing a bright line test to determine whether an EJ concern results in disproportionate and adverse health and environmental effects. That determination is "ultimately a policy judgment." Nor does the proposed Guidance require EPA analysts to conduct a specific type of technical review for EJ concerns. Rather, it includes key considerations that should be taken into account when completing an EJ review, and it encourages analysts to provide transparent justification for their choices.
While the Guidance is not directly applicable to non-government actors, it provides insight into methods EPA considers appropriate for analyzing EJ concerns that private actors should bear in mind when conducting their own EJ analysis for use in seeking federal approval for proposed activities. Comments on the proposed Guidance are due by January 15, 2024.
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