Has EPA’s Environmental Justice Efforts Reached Their Peak?

EPA’s environmental justice efforts have certainly increased since January 2021 when the Biden Administration came into power. From Administrator Regan’s Journey to Justice tour in 2021, embedding environmental justice concepts in all aspects of EPA’s activities, and accepting and aggressively investigating civil rights complaints, it seemed environmental justice was EPA’s Number One priority. While additional efforts were perhaps overdue, EPA’s fast-paced journey to environmental justice has not been without potholes and roadblocks.

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Supreme Court Deals a Blow to the Administrative State

The Supreme Court has overruled Chevron, its forty-year-old decision which has allowed administrative agencies to impose their regulatory will on industries, small businesses, and individuals by requiring that courts defer to an agency’s interpretation of a statute. According to EPA Administrator Regan, the decision “hits EPA extremely hard.”

In general terms, Chevron provides guidelines for a court to review an agency’s action pursuant to an act of Congress using a two-step framework. First, a court must assess whether Congress, in the statute, has spoken directly to the issue at hand and, if so, that is the end of the inquiry as the clear will and intent of Congress must be followed. However, if the statute is silent or ambiguous as to the agency action at issue, the court must, as the second step, defer to the agency’s interpretation if it is based on a permissible construction of the statute. As many statutes are silent or ambiguous as to an issue, Chevron allowed agencies to wield great power to act as long as the action was based on a permissible reading, even if the court did not necessarily agree with that reading.

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Has EPA’s Environmental Justice Push Peaked?

Upon assuming office, the Biden Administration began an ‘all of government’ approach to securing environmental justice for everyone, especially those living near industrial facilities and contaminated sites. Based on a series of executive orders, federal agencies used existing statutes and regulations, plus new guidance, to advance the new agenda.

EPA was no exception and, in fact, may have set the pace for infusing environmental justice considerations into permitting, regulations, compliance, and remediation activities. Administrator Regan went on a “Journey to Justice” tour in Texas, Louisiana, and Mississippi and created the Office of Environmental Justice and External Civil Rights to enforce several federal civil rights laws, including Title VI of the Civil Rights Act of 1964. Strategic plans, equity action plans, and guidance memos were written to guide EPA’s activities and annual reports extolling EPA’s accomplishments were published.

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EPA Unleashes the Public on Industry

EPA has issued two final rules that provide significant rights to the public that may, and likely will, increase litigation or otherwise be used against industry.  First, EPA issued the final Risk Management Program revisions which contain requirements to provide voluminous information to the public regarding the regulated substances at a facility. Second, EPA empowered ‘third-party’ notifiers to record and report “super emitter” events. Together, they create a greater possibility of agency enforcement and private litigation.

On February 27, 2024, EPA issued the “Safer Communities by Chemical Accident Prevention” rule, which added numerous provisions to the Risk Management Program. Most concerning is the addition of an obligation for a facility to provide detailed, internal information about the facility to the public.

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The Right Result for The Sunshine Project

By John B. King (John B. King was a member of Formosa’s legal team, submitting portions of the briefs at the district court and First Circuit.)

The Louisiana First Circuit has issued a sweeping decision affirming and upholding the issuance of air emission permits by the Louisiana Department of Environmental Quality (LDEQ) for the Sunshine Project, Formosa’s $9.4 billion petrochemical facility located in St. James Parish (the Facility). RISE St. James, et al v. LDEQ, 23-0578 (La. App. 1 Cir. 1/19/24), — So.3d —, 2024 WL 207859 (the Decision). In doing so, the First Circuit reversed the legally deficient decision of the district court, which had adopted “almost verbatim” the suggested written reasons submitted by the Opponents to the Project.

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