Getting Beyond the Beyond Campaigns: Top Tips for Preparing to Defend Your Project
On September 21, 2022, Michael Bloomberg announced his newest grassroots public health and climate change campaign called Beyond Petrochemicals: People over Pollution. Still in its early conceptual stages, the campaign will be modeled on the Beyond Coal and Beyond Carbons initiatives, kicking off with $85 million funded by Bloomberg Philanthropies and other sources.
The campaign's primary objective is to prevent increases in US emissions from refineries and petrochemical plants by halting the construction or expansion of 120 planned petrochemical projects concentrated in three geographical areas- Louisiana, Texas, and the Ohio River Valley - where most of the projects are located. The list of companies, which Bloomberg Philanthropies has not yet disclosed, is reported to be based on a database launched by the Environmental Integrity Project (EIP) last April, with input from local communities.
For now, Bloomberg identified a four-pillar framework for Beyond Petrochemicals as follows:
- Community Leadership – Funding and organizing to “accelerate grassroots power to challenge industrial buildout and enforce environmental and health protections in their own backyards.”
- Data and Research – Supporting data collection and expert analysis for use with government and supporting financially-driven decisions.
- Legislation and Litigation – Using experts and various approaches for “educating decision-makers about the harms of petrochemicals pollution, and advancing environmental policies.”
- Stakeholder Engagement – Engagement in an effort to “improve enforcement of regulations and reduce demand for plastic and petrochemical products.”
The current campaign will likely employ tactics used in Beyond Coal, an initiative that claims to have blocked and shuttered hundreds of coal plants. That campaign was a comprehensive, well-run grass-roots advocacy campaign that included: (1) funding almost 200 litigators and organizers; (2) soliciting community involvement and support through door-knocking, phone banking, and educating officials; (3) organizing boot camps to teach lawyers and volunteers how to block permits; (4) monitoring dockets, scrutinizing permit applications for any weaknesses, preparing extensively and showing up at hearings; (5) building alliances among likely and unlikely groups, in some instances by leveraging shared economic interests (e.g., big box stores also disfavored expensive pollution controls for coal plants that were more costly to the consumer than cleaner energy sources).
Petrochemical companies whose permit applications may be targets of this campaign should prepare in advance to defend their projects. Steps we recommend considering include:
1. Look to Beyond Coal as a blueprint for legal strategies and tactics
2. Engage your communities and local groups, both supporters and your opposition
3. Assess your community for environmental justice challenges and opportunities
4. Review your facility’s compliance profile, emissions reporting, and other publicly available information readily available to the public and correct any identified errors
5. Understand the permit application public participation process, notice and comment periods, and opportunities for administrative hearings and judicial appeals – state rules and permit applications vary – each phase of the process could present an opening for challenge
6. Engage the permitting agencies before submitting an application; during the permit application process, address concerns quickly to help bolster agencies’ decision-making so it can survive judicial review
7. Prepare permit applications with litigation in mind; ideally, include your legal team in the permit application review in advance of submitting applications to an agency; provide supporting information and data where you identify legal issues or technical vulnerabilities
8. Ensure the accuracy of all notices of public meetings and permit applications at the time they are published, so as not to incur delays from a need to re-notice or risk being challenged on appeal for inadequacy
9. Identify and prepare your expert and litigation teams in advance to respond quickly to challenges. Response and briefing deadlines come up quickly, often with no opportunity to seek an extension of time
10. Consider undertaking compliance audits to address any unknown noncompliance in advance of permit application submission; resolve ongoing enforcement actions
11. Consider emissions off-set opportunities; Beyond Petrochemicals aims to reduce emissions from existing operations and prevent an increase of emissions that would occur from new facilities and expansions; off-sets and new technologies for new facilities may result in fewer emissions than running old facilities
12. Develop the positive story on the facility and facility products, and increase that messaging; much of the strategy plays out in the court of public opinion
Beveridge & Diamond assists clients with strategic regulatory compliance and risk assessment, enforcement and investigation, and litigation matters arising from petrochemical production or use. Our Infrastructure and Project Development and Permitting team helps clients successfully permit new infrastructure and litigate infrastructure permitting challenges. Additionally, B&D's multidisciplinary team combines substantive expertise with air and chemical regulatory programs, as well as environmental justice to help our clients succeed. For more information, please contact the authors.