A Few Hurdles to Facility Siting

A modern industrial facility requires a large tract of land ideally located in an area designated for industrial use that has access to an existing transportation matrix for raw materials and products. In Louisiana, for example, the industrial corridor along the Mississippi River offers ready access to natural gas pipelines, rail transportation, and barge and ship loading and unloading.

However, when such large tracts are available, there is inevitably a community within a mile or two of the proposed location. Further, local governments in these communities are increasingly enacting ordinances that mandate local approval of facilities. These two developments present hurdles to successfully obtaining the necessary authorizations to begin construction.

The first hurdle to address relates to environmental justice, which EPA defines as the fair treatment and meaningful involvement of all people with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. Under Title VI of the Civil Rights Act, a recipient of federal funds must administer the program receiving those funds so as not to subject individuals to discrimination because of their race, color, national origin or sex.

Communities located in proximity to industrial areas can have a higher percentage of low income and minority residents. A facility locating in proximity to such a community must ensure there is no adverse and disparate impact as a result of the construction and operation of the facility. EPA has taken the position that emissions should not be viewed as “adverse” within the meaning of Title VI when air quality is in compliance with an ambient, health-based standard, such as the National Ambient Air Quality Standards (NAAQS). If there is no adverse impact, there is no need to reach the question of whether the impacts are disparate. As a result, meeting the NAAQS is important evidence that there is no impact and thus no environmental justice concern.

The second hurdle is the rise of local land-use restrictions and procedures. Many local jurisdictions, from cities to counties and parishes, have enacted ordinances requiring a facility that needs a state or federal permit to also obtain approval from the local governing authority. Further, many now require that the facility establish it is compatible with other uses in the area, will protect the public, and will not adversely impact the location of other industrial or commercial interests. An application must be made, and multiple hearings are required to receive public input and ultimate approval.

However, many environmental nongovernmental organizations (NGOs) have begun to use the local processes to obstruct and delay the construction of facilities. They arrive in a community, provide “facts” to members of that community and urge opposition to the local government’s approval. This may lead to extended and contentious hearings, statements and votes, pitting neighbors who are in favor of industrial development against those who oppose it. Usually, the opponents are more vocal and organized, which sometimes creates the impression that an entire community is in opposition.

Environmental justice issues and local land use requirements must be understood very early on in the site selection process. Arguments that may be made in opposition to the facility must be anticipated and addressed either in the applications for permits or in response to the anticipated arguments when they arise, such as at a public hearing. Only with such advanced planning can a facility overcome these hurdles and successfully obtain the necessary approvals.

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