On Aug. 16, 2022, EPA issued its Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions (FAQs) to provide federal, state, and local governmental agencies with guidance on how to integrate environmental justice and civil rights into environmental permitting. The FAQs come amid a long line of Biden administration actions taken addressing environmental justice,¹ highlighting the administration’s emphasis on placing environmental justice at the forefront of federal environmental enforcement. Although the guidance, which is subject to modification, does not create any new legal rights or responsibilities, it builds upon the framework of current civil rights laws by helping environmental permitting agencies to “better identify and address discriminatory or unfair permitting processes and outcomes.” EPA noted the pollution burden that vulnerable communities have historically borne and that federal enforcement action in the civil rights arena has been deficient in environmental protection. Thus, EPA rested its obligation to address environmental justice in permitting on Executive Order 12898, noting that “it is time to use the full extent of [EPA’s] enforcement authority under federal civil rights laws.” With this in mind, the FAQs are crucial for industries to understand — agencies will be enforcing civil rights with a fresh direction not only when reviewing environmental permits for facilities (such as those relating to air, water, and waste), but also through the various other permits facilities may require.

Foundational Law for the FAQs

Federal policy directs EPA to “make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.” Specifically, federal policy on equity and environmental justice is based on three Executive Orders: (1) E.O. 12898, which lays the foundation for EPA’s environmental justice policy, (2) E.O. 14008, which reaffirms the importance of environmental justice with a focus on climate-related impacts, and (3) E.O. 13985, which establishes a “whole-of-government” equity agenda.

However, the strongest foundation for environmental justice is provided through Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin by public and private entities that receive federal funds. Title VI is the civil rights law that is most frequently invoked in the permitting context.

Although Title VI does not apply to federal agencies, such as EPA, the equal protection guarantee in the Due Process Clause of the U.S. Constitution prohibits the federal government from engaging in intentional discrimination. Additionally, as a federal agency, EPA is responsible for civil rights enforcement. EPA’s civil rights regulations prohibit recipients of federal financial assistance from taking intentionally discriminatory actions, or actions that have an unjustified discriminatory effect. Two provisions of EPA’s civil rights regulations are particularly relevant to permitting processes:

1. “A recipient shall not use criteria or methods of administering its program or activity which have the effect of subjecting individuals to discrimination because of their race, color, national origin, . . . or have the effect of defeating or substantially impairing accomplishment of the objectives of the program or activity with respect to individuals of a particular race, color, [or] national origin . . . .”²
2. “A recipient shall not choose a site or location of a facility that has the purpose or effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any program or activity to which this part applies on the grounds of race, color, or national origin . . . ; or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of this subpart.”³

Per these regulations, when governmental agencies accept federal financial assistance, they acknowledge an “affirmative obligation to implement effective Title VI compliance programs” and commit to “ensure that [their] actions do not involve discriminatory treatment and do not have discriminatory effects even when facially neutral.”⁴

Highlights of the FAQs

The FAQs provide interim guidance in the form of a series of 18 questions paired with answers, which explain how agencies will be screening their permits for environmental justice and civil rights concerns, along with the steps agencies will be taking to address these concerns and comply with Title VI. The FAQs address the disparate impact analysis under Title VI as well as what “cumulative impacts” means in the environmental context.

Of particular interest to the industry is that the FAQs discuss at length the environmental justice analyses for permits. EPA notes, however, that there is no “one size fits all” approach to environmental justice analysis and that each analysis “should be tailored to the specific permitting decision,” because “permits vary widely in purpose and effect.” One example of an environmental justice analysis discussed by the FAQs is the inclusion of a Health Impact Assessment in a permitting decision, which evaluates how a proposed action may affect the health and well-being of individuals in the surrounding community.

Should the analysis indicate that a permitting decision will likely have an adverse and disproportionate effect on the basis of race, color, or national origin, the FAQs explain that less discriminatory alternatives should be considered by the agency. These can be in the form of alternative siting or implementing mitigation measures. Notably, for industry, EPA states that such mitigation measures could include numerous requirements that go above and beyond the normal requirements for environmental permits, such as:

1. Adjusting permits’ terms to include additional monitoring, more stringent limits and work practices, and modifications to facility operation and design;
2. Using the assistance of non-environmental authorities, such as public health authorities to impose additional requirements on operations or public outreach; and
3. Other potential commitments, including third party oversight and agreements with local communities.

Where mitigation measures cannot address unjustified disparate impacts of the permitting action, EPA has clearly articulated that a permit may be denied solely on the basis that it may violate Title VI.

Attorneys in Taft’s Environmental practice group are continuing to closely track developments in environmental justice policy. For help navigating EPA’s policies on environmental justice, contact Taft attorneys Will Gardner and Tommy Sokolowski.

¹Among these actions are President Biden’s establishment of the first ever White House Environmental Justice Advisory Council (Mar. 29, 2021), EPA releasing the Equity Action Plan (Apr. 14, 2022), and EPA announcing the creation of the Office of Environmental Justice and External Civil Rights (Sept. 24, 2022). Additionally, the Inflation Reduction Act, which was signed into law on Aug. 16, 2022, invests $60 billion in environmental justice work.
²40 C.F.R. § 7.35(b).
³40 C.F.R. § 7.35(c).
⁴See General Terms and Conditions Effective Oct. 1, 2021, EPA