Key Contacts
Practice Areas
Feds Attempted to Advance Environmental Justice Priorities in 2024, but Future Approach Will Undoubtedly Change
Since 2020, we have reported on how the Biden administration has made environmental justice (EJ) considerations a primary focus of its environmental policies through the issuance of executive orders, and how, consistent with those orders, both EPA and the US Department of Justice (DOJ) made structural changes and issued several policy and guidance documents intended to facilitate implementation of these EJ priorities through enforcement of existing environmental laws. While both agencies have continued those efforts through 2024, the ongoing legal actions related to EPA’s civil rights investigation into Louisiana’s environmental permitting practices, which was noted in last year’s issue, has continued to be a thorn in the agency’s side regarding EJ-related enforcement. And, more importantly, it is likely that the incoming Trump administration will de-emphasize certain EJ policies and make corresponding structural changes that reflect a shift away from EJ considerations in permitting, rulemaking and enforcement.
Cumulative Impacts
As noted in last year’s proposed updates to EPA’s Technical Guidance Document for Assessing Environmental Justice in Regulatory Analysis, the issue of cumulative effects has been an important—and “evolving”—issue for EJ assessments. To assist with those evaluations, on November 21, 2024, EPA released a draft Interim Framework for Advancing Consideration of Cumulative Impacts. According to the Interim Framework, cumulative impacts are comprised of the combination of environmental stressors that affect health and quality of life outcomes. The Interim Framework includes five principles that are intended to serve as a reference point for when and how to consider cumulative impacts for EPA actions such as standard setting, permitting, rulemaking, cleanup, and emergency response. The Interim Framework, however, does not mandate cumulative impact analyses under all circumstances, instead leaving that to policymakers to decide “as appropriate, feasible, and consistent with applicable law.” EPA is taking comments on the Interim Framework until February 19, 2025.
DOJ
Towards the end of December 2024, the DOJ Office of Environmental Justice finally released its Environmental Justice Strategic Plan, as required by the two EJ Executive Orders issued by the Biden administration. The Strategic Plan includes four goals that are consistent with DOJ’s previously announced EJ priorities:
- Prioritize cases with potential to advance environmental justice and make strategic use of DOJ’s legal tools;
- Meaningfully engage with impacted communities and expand efforts to communicate environmental justice efforts;
- Increase education and collaboration relating to environmental justice; and
- Ensure DOJ considers the environmental justice impacts of the management and operation of the agency.
Disparate Impact Under Fire in 2024
As noted in last year’s forecast, EPA and the State of Louisiana have been entangled in a dispute since 2022 as to whether the State’s air permitting program resulted in disparate impacts on black residents in violation of Title VI of the Civil Right Act. After initial negotiations broke down, the State sued EPA and sought a preliminary injunction to prevent EPA from applying disparate impact and cumulative impact requirements as part of its oversight of Louisiana’s permit program. Shortly thereafter, EPA dropped its investigation and moved to dismiss the case as moot. Louisiana, however, opposed the motion to dismiss, arguing that the proper standard under Title VI is intentional discrimination, and the continued concern over disparate and cumulative impacts was unlawful. In January, Judge Cain of the US District Court for Western Louisiana granted the preliminary injunction, and in August he granted Louisiana’s request for a permanent injunction prohibiting EPA from implementing any “disparate-impact regulations” in the state. The state subsequently requested for the injunction to apply nationwide, and that request is pending. Judge Cain’s ruling is clearly an issue for DOJ and EPA EJ enforcement efforts going forward. For example, EPA’s Office of Environmental Justice and External Civil Rights has a separate webpage stating that it “will not impose or enforce Title VI disparate-impact requirements contained in 40 C.F.R. § 7.35(b), (c) against any entity in the State of Louisiana, nor require compliance with those requirements as a condition of past, existing, or future awards of financial assistance to any entity in the State of Louisiana.” And the recently released Interim Framework for Advancing Consideration of Cumulative Impacts referenced above includes a statement that EPA “will not impose or enforce any disparate-impact or cumulative-impact-analysis requirements under Title VI against any entity in the State of Louisiana.
Regardless of the outcome of the Louisiana case, the Trump administration is expected to deemphasize, or potentially eliminate, policies and agency structures that consider EJ principles in enforcement, permitting and rulemaking.
