EPA Issues Environmental Justice Guidance for Clean Air Act Permits

At the end of 2022, the U.S. Environmental Protection Agency (EPA)’s Office of Air and Radiation released guidance entitled “Principles for Addressing Environmental Justice in Air Permitting.” Issued as an attachment to a memorandum directed to all EPA Regional Air and Radiation Division Directors, the guidance provides an “interim operating framework” for evaluating environmental justice (EJ) issues during the Clean Air Act permitting process while EPA examines additional ways to advance EJ.

The guidance sets forth eight principles that regional air permitting staff should apply to permitting decisions. Companies seeking air permits or permit amendments should familiarize themselves with these principles and, where appropriate, consider strategies for proactively incorporating them into permit applications to mitigate the risk of adverse permit decisions or extensive delays.

Although the guidance is theoretically non-binding, based on experience, industry should anticipate that EPA will evaluate permit applications and draft preconstruction and Title V permits against these eight principles, likely in a checklist fashion. Documenting efforts to meet each of these principles – even if not required by law or as part of a formal EJ permitting strategy – will likely help streamline the permit review process and prevent undue delays in permit issuance. For significant permitting actions and projects for which the timing of issuance is critical, companies should consider a more robust approach (for example, a stand-alone permit application supplement). To the extent that a permit is denied or challenged on appeal, one can use the same documentation to defeat the challenge.

The eight principles are as follows:

  1. Identify communities with potential EJ concerns. EPA encourages permitting authorities to use EPA EJSCREEN or other mapping tools to identify EJ communities to engage with during the permitting process.
  2. Engage early in the permitting process to promote meaningful participation and treatment. EPA encourages permitting authorities to engage with impacted communities early, preferably before the relevant authority submits a permit. EPA recommends that permit applicants work with permitting authorities to provide opportunities for meaningful participation and fair treatment throughout the permitting process.
  3. Enhance public involvement throughout the permitting process. EPA recommends that both permitting authorities and permit applicants take community engagement a step further by providing adversely affected communities with the tools to properly engage in the permitting process, such as training on how to comment, access public data, and receive translation and interpretive services.
  4. Conduct a “fit for purpose” EJ analysis. EPA encourages permitting authorities to conduct an EJ analysis to achieve two policy objectives: (1) to address the fair treatment principle by evaluating potential impacts; and (2) to encourage meaningful community involvement. EPA provides a non-exhaustive list of elements that such analyses may contain, including but not limited to, an evaluation of the facility’s compliance record, and an evaluation of the facility’s air monitoring and modeling data.
  5. Minimize and mitigate disproportionally high and adverse effects associated with the permit action. EPA recommends that permitting authorities use all legal authority, including discretionary authority, to advance EJ. EPA also states its intention to submit formal comments on permits to identify available discretionary authority under federal, state, or local law that may apply to the permit.
  6. Provide federal support throughout the air permitting process. EPA states that it plans to collaborate with permitting authorities to provide technical support, guidance, and recommendations on addressing EJ concerns as necessary.
  7. Enhance transparency throughout the air permitting process. EPA reiterates the importance of permitting authorities providing transparency throughout the permitting process, including making the supporting administrative record readily available and clearly documenting concerns raised by an impacted community.
  8. Build capacity to enhance the consideration of EJ in the air permitting process. EPA stresses the importance of collaboration among regulatory authorities, stakeholders, and affected communities to share best practices for addressing EJ concerns.

EPA’s guidance is largely consistent with the recent agency guidance on EJ best practices, such as its recent FAQ on considering EJ in permitting. However, the targeted focus on considering EJ in the context of air permitting and the direction to EPA Regions to share this guidance when collaborating with state and local regulators signal a shift in tone from prior guidance, with a sharper and more determined call to action. This is consistent with the Biden EPA’s stated commitment to hold state and local authorities accountable through its oversight authority to ensure that they holistically consider EJ concerns in air permit applications

Beveridge & Diamond's Environmental Justice practice has been at the forefront of EJ issues for decades, bringing specialized private sector and government experience to bear. We represent multinational companies and municipal clients in complex disputes and high-profile project development, corporate ethics and governance, environmental compliance, and investigations related to EJ and Title VI of the Civil Rights Act of 1964 enforcement. Beveridge & Diamond’s Air and Climate Change practice group helps private and municipal clients navigate all aspects of compliance with Clean Air Act regulations for criteria pollutants, hazardous air pollutants, rulemakings, greenhouse gases, and permitting processes. For more information, please contact the authors.