Environmental Justice Developments in 2026: States Take the Lead, Feds Recede

Background

The compliance landscape remains active and dominated by varying state approaches to advancing environmental justice (EJ) at the state level. As noted in a previous update, while the federal government has sought to roll back EJ programs, state EJ laws and regulations, local planning requirements, permitting guidance, public records activity, and community engagement expectations remain important for regulated entities. In Minnesota, for instance, the regulated industry should consider submitting comments during the ongoing public comment period for proposed air-related rules with EJ implications. Numerous other States continue to take steps to expand and refine state-level EJ programs, including California, Illinois, Massachusetts, New York, Pennsylvania, and Virginia.

Key Takeaways 

• EJ remains relevant as ever for project developers operating in certain states—despite the continued federal effort to eliminate federal EJ programs. Stakeholders in key jurisdictions should continue to monitor and address project-specific EJ considerations. 
• Industry stakeholders should review Minnesota’s proposed rules and, if appropriate, submit comments by the July 17, 2026, deadline.
• Regardless of the federal stance on EJ, it remains a valuable tool for project developers and can help mitigate oppositional risks, facilitate project development, and establish meaningful community relationships. 

Federal Retreat from EJ Policy Continues

Since our last update on the state of EJ policy in July 2025, the federal government has continued to take steps to fulfill Trump campaign promises to eliminate federal EJ programs and policies. The White House’s 2027 budget, for instance, proposes to “eliminat[e] the [EPA’s] environmental justice program that enabled a witch hunt against private industry.” The budget proposal builds on recent federal actions as discussed below. 

Eliminating EJ Civil Rights Enforcement Tools

Building on the April 2025 termination of the Biden-era settlement agreement resolving alleged EJ-based civil rights violations in Lowndes County surrounding wastewater system failures, the U.S. Department of Justice (DOJ) issued a final rule in December 2025 that repealed longstanding disparate-impact regulations issued under Title VI of the Civil Rights Act of 1964. The disparate-impact regulations enabled agencies to enforce civil rights protections where practices or decisions by federal funding recipients, though facially neutral, may have disproportionately harmed protected groups. This decision follows: (1) a Louisiana federal court’s April 2024 decision to permanently enjoin the U.S. Environmental Protection Agency (EPA) and DOJ from enforcing their respective disparate-impact regulations, and (2) the Trump administration’s directive to DOJ in Executive Order 14281 to repeal or amend all Title VI of the Civil Rights Act disparate-impact regulations.

DOJ’s decision to eliminate the disparate-impact regulations aligns with the Trump administration’s position that federal civil rights enforcement should focus on intentional discrimination rather than disparate-impact theories. The updated regulations eliminate the blanket prohibition on federal funding recipients to administer federally funded programs in a way that would have the effect of discrimination on the basis of race, color, or national origin, eliminating a pathway that EJ advocates and the Biden DOJ—including in the Lowndes County investigation—used to claim disparate impact. DOJ also eliminated the prohibition on federal funding recipients from siting facilities in a way that would have discriminatory effects, leaving only the prohibition against intentional discrimination. These changes eliminate a key tool that EJ and civil rights advocates have used for decades to advance EJ claims.

EJ Grant Claw-back Litigation Continues

Litigation over terminated, frozen, or clawed-back EJ grants has continued with mixed results. In Green & Healthy Home Initiative v. EPA, a federal court in Maryland held that EPA unlawfully terminated EJ-focused grants under the Thriving Communities Grantmaking Program, rejecting EPA’s jurisdictional arguments and finding that the terminations violated the Administrative Procedures Act. EPA appealed the court’s decision to the U.S. Court of Appeals for the Fourth Circuit, and briefing is ongoing. Additionally, in August 2025, the U.S. District Court for the District of Columbia dismissed a challenge to EPA’s termination of Environmental and Climate Justice block grants, holding that the court lacked jurisdiction since the plaintiff’s claims were based in contract, and only the Court of Federal Claims can hear contract claims against the government. The Plaintiffs appealed to the D.C. Circuit Court of Appeals and oral arguments were held in March 2026.

Restrictions on Federal Contractor DEI Activities

The Trump administration has continued to impose restrictions on federal contractor DEI activities. In April 2026, the Administration issued a memorandum directing federal agencies to incorporate language barring DEI activities by federal contractors into agency contracts. Also in April 2026, the Administration announced a $17 million settlement with IBM that it characterized as tied to IBM’s DEI programs. Although the Administration did not directly include EJ in these announcements, it has historically grouped EJ together with DEI, for example, in Executive Order 14151.

EPA Proposes to Remove EJ-based Expedited FOIA Processing

In response to a December 2025 petition filed by the nonprofit America First Legal asking EPA to remove the use of “environmental justice-related need” as a basis for expedited FOIA processing, EPA proposed a rule in January 2026 that would eliminate EJ-based expedited processing or fee waivers for FOIA requests. Among the comments submitted on the rule was a letter from the Attorneys General of 10 states, opposing the proposed rule.

State EJ Activity Tells a Different Story

States have long followed their own paths in developing approaches addressing EJ, and the federal government’s EJ policy reversal has not deterred that. This includes an increasing number of states choosing to embed EJ considerations into environmental permitting decisions, following New Jersey’s lead after it adopted the first proactive EJ permitting law in 2020.

Minnesota Advances Cumulative Impacts Rules and CI-MAP

On May 18, 2026, the Minnesota Pollution Control Agency (MPCA) published its proposed rules implementing Minn. Stat. § 116.065. The statute requires MPCA to promulgate rules to implement cumulative impacts analyses when evaluating air permits for facilities that impact EJ areas. According to MPCA, the proposed rule is “needed to establish a clear and transparent methodology to evaluate the cumulative impacts” of various projects that require an air permit.

The draft rules would add a detailed review process to certain air-permit actions for stationary sources located in or within one mile of an EJ area in the Twin Cities seven-county metropolitan area or in a city of the first class (currently Duluth and Rochester). The draft rules would require an initial assessment with the permit application and, in specified circumstances, a full cumulative impacts analysis and public participation requirements. Along with the cumulative impacts analysis, the owner or operator would also be required to conduct air-quality modeling and air emissions health-risk analyses. If the cumulative impacts analysis results in a determination of substantial adverse impact, a community benefit agreement would be necessary.

MPCA also released a draft Cumulative Impacts Mapping and Analysis Platform, or CI-MAP. MPCA describes CI-MAP as a tool that compares 26 environmental and public health stressors for a given census tract to county and statewide averages.

MPCA’s rulemaking on the cumulative impacts rule is now active - the public-comment period runs from May 18 to July 17, 2026. A public hearing is scheduled for September 1, 2026, and an informational webinar occurred on June 2, 2026.

Minnesota stakeholders should consider viewing the June 2 Cumulative Impacts Rule informational webinar, which is available online, and submitting comments by July 17, 2026.

Virginia Adds EJ Planning and Permitting-Guidance Requirements

In April 2026, Virginia enacted HB 256, which requires cities with populations greater than 20,000 and counties with populations greater than 100,000 to “consider” adopting an “environmental justice strategy” during future reviews of their comprehensive plans, plans designed to guide the city’s development by designating specific land uses for particular areas. The EJ strategy must identify EJ and fenceline communities, major pollution sources, hazardous waste sites, objectives to reduce compounded health risks, civic engagement policies, and baseline environmental and health conditions.

Virginia also enacted HB 1266, which directs the Department of Environmental Quality (DEQ) to update its draft guidance on EJ in permitting, which establishes a process for DEQ to follow in determining whether additional engagement procedures are merited. Any projects located within an EJ community that receive a “permit of concern”—specified types of air, water, and waste permits DEQ has determined to be “historically of interest to communities”—will automatically be subject to additional engagement procedures and disproportionate-impact analysis. Other permits can also be subject to these additional procedures on a case-by-case basis at DEQ’s discretion. The legislation requires DEQ to update its updated guidance to assess cumulative impacts associated with covered permits and to develop outreach strategies for affected communities. In developing the updated guidance, the law also requires DEQ to hold two town halls by July 31, 2026, respond to public comments by October 31, 2026, and publish final guidance by December 31, 2026.

The significance of these laws will become clearer over the next several months as DEQ finalizes its permitting guidance and covered jurisdictions decide whether and how to incorporate EJ strategies into their comprehensive plans.

Stakeholders with Virginia operations should consider attending and participating in DEQ’s town halls, submitting comments on proposed approaches for assessing cumulative impacts, and stay tuned for DEQ’s ultimate publication of the final guidance.

Other State Developments

California: The Department of Toxic Substances Control (DTSC) revised its proposed regulatory text on updated hazardous waste facility permit criteria for additional community protection. The draft regulatory text, as revised, proposes, among other things, a Community Vulnerability Assessment requirement for permit applicants. The public comment period for the revised rules began on June 16, 2026, and will close on July 1, 2026.

Illinois: On May 30, 2026, Illinois SB 3772 passed both houses. As amended, the bill creates an Illinois EPA Office of Environmental Justice. It further requires agency review of certain air permits in EJ-concern areas, including consideration of emissions reductions, modeling, permit enhancements, compliance history, and effects on EJ communities. The bill applies to certain new or modified sources in areas of EJ concern, including existing sources seeking increased annual permitted emissions.

Massachusetts: The Energy Facilities Siting Board (EFSB) adopted new regulations governing cumulative impact analysis and site suitability criteria for certain energy infrastructure filings. The new regulations will apply to applications/petitions filed on or after July 1, 2026. The regulations require evaluation of existing environmental burdens and related public health consequences in the specific geographical area near a proposed project, and assessment of whether the project would result in disproportionate adverse effects, including environmental, public health, or climate change-related impacts.

New York: Effective June 12, 2026, the New York State Department of Environmental Conservation adopted amendments to State Quality Review Act regulations. Please refer to a previous B&D alert for further details.

Pennsylvania: Pennsylvania’s Department of Environmental Protection (DEP) adopted its final Environmental Justice Policy effective January 3, 2026. The policy applies to DEP-administered environmental authorizations and permit reviews, as well as to certain DEP program areas and initiatives. Projects that are “Trigger Projects” or designated “Opt-In Projects” will be subject to Enhanced Public Participation when they are located in, or create an “Area of Concern,” that touches an “Environmental Justice Area.”