In a recent US Environmental Protection Agency (EPA) letter issued to the Louisiana Department of Environmental Quality (LDEQ) and the Louisiana Department of Health (LDH), the Biden Administration deploys its plans to use the “whole of government” to address what it believes are long-standing civil rights concerns which are either outside or incompletely remedied by traditional environmental statutes like the Clean Air Act, Clean Water Act, or CERCLA.
The letter (available here) is rooted in three civil rights complaints filed by private parties which EPA accepted for investigation. The 54-page long letter summarizes EPA’s preliminary fact-finding based on evidence which “suggests” that the Louisiana regulators’ “actions or inactions have resulted and continue to result in disparate impacts on Black residents” at three Louisiana locations. Below, we summarize the letter, the legal authority upon which it’s based, and provide some preliminary takeaways for the regulated community. While the letter has a host of issues to unpack, today we will focus on just two.
First, EPA spends much of the letter building links between environmental risks and Louisiana’s history. Industrial development in Louisiana occurred in the shadows of its pre-Civil War plantation economies. Former plantations became land used for redevelopment. Because Black communities were often established on the periphery of former plantations, those communities also ended up being proximate to newly developed industries. These industries could then have some effect on the Black communities’ health. EPA’s explicit focus on these linkages stems from its prioritization of environmental justice (EJ) issues.
Second, EPA continues to build and expand upon the use of “fenceline” monitoring to evaluate localized ambient air impacts from industrial sources. Traditionally, ambient impact monitoring requirements were limited to a demonstration during permitting that certain non-hazardous air pollutants would not be emitted at levels that could exceed “National Ambient Air Quality Standards” (NAAQS) (standards set by EPA to protect human health and the environment). Hazardous air pollutants were typically monitored only at the point of emission. In EPA’s letter to LDEQ and LDH, EPA asserted that the state errored by not evaluating whether hazardous air pollutants were present at the facility’s fenceline, regardless of concentration, because the presence of any hazardous air pollutant could impact human health in these disproportionally impacted areas.
LDEQ administers Louisiana air permits. LDH is tasked with informing Louisiana residents of issues related to health and make reductions to the public about prevention and reduction of health threats. Additionally, “LDEQ relies on information and analysis provided by the medical health professions at LDH in its decision making.” The letter summarizes EPA’s preliminary findings about how these agencies performed these tasks in relation to residents living in or near three Louisiana locations: one in LaPlace, one in St. James Parish, and the third in an 85-mile-long stretch of land along the Mississippi called the Industrial Corridor.
The letter relies on information from historical texts, articles, and census data to correlate environmental issues in these areas with race. More specifically, EPA emphasizes that these areas developed in ways that resulted in Black residents being physically closer to industrial operations, and that Louisiana industrial operations are physically located in real estate that formerly contained plantations. In short, towns where Black residents settled “share fence lines with plants.”
This physical proximity, in EPA’s view, results in heightened risk of exposure to pathogens, including the chemical chloroprene. Because residents often live from childhood into adulthood at locations proximate to industry, this results in an increased lifetime risk of cancer. Summing through various probabilities, EPA notes that residents “who are facing elevated estimated lifetime cancer risks are 3.03 times more likely to identify as Black than as other than Black.”
In 2017, LDH contracted with a researcher at Tulane School of Public Health to convene a scientific panel to advise “on the immediate public significance of the current levels of chloroprene in the air in the community” around one of the plants, and how the results of current monitoring could inform actions LDH could take to protect the public health of local residents. While the report was completed, EPA took issue with the report’s conclusions that chloroprene emissions were “intermittent” despite detecting chloroprene in 75% of involved samples, and also with LDH’s follow-through on its own commitments to educate community medical and public health providers on potential health impacts of chloroprene. EPA noted similar issues in LDH’s responses to various similar reports issued in subsequent years.
The letter relies on two areas of the law which historically have been viewed separately: EPA’s authorities under federal civil rights laws and EPA Clean Air Act regulations. The “whole of government” approach EPA intends to use to tackle EJ issues (see our prior discussion here) attempts to use these authorities in complimentary ways.
EPA’s contentions in the letter rely on Title VI of the Civil Rights Act of 1964 and EPA’s nondiscrimination regulations at 40 C.F.R. Parts 5 and 7. These regulations prohibit discrimination by entities that accept federal funding. Title VI mandates that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
The Clean Air Act requires that federal and state regulators control the emission of hazardous air pollutants (HAPs) through regulations known as the National Emission Standards for Hazardous Air Pollutants (NESHAP), 40 CFR Parts 61 and 63. The NESHAP contains both risk- and technology-based standards designed to require the reduction of hazardous air pollution from both major (large) and area (small) sources to levels that are determined by EPA to be protective of public health. Historically, a source’s obligation has been to demonstrate compliance with the applicable standard – the NESHAP has not required that either state agencies or the source evaluate the potential impact of emitting HAPs as the emissions were presumed “safe” provided levels were at or below the levels established under the NESHAP.
EJ Lessons from the Letter
The letter highlights EPA’s increasing use of civil rights authorities to compel EJ-focused changes at the state level. Because federal funding is a primary source of leverage to state regulatory agencies, using federal civil rights authorities to threaten funding can change regulatory behavior. Here it has: the letter indicates that Louisiana regulators are already in dialogue with EPA to address issues here informally. This parallels what has happened in Chicago where city officials are reportedly now in dialogue with federal officials related to the city’s efforts to compel a recycling facility to relocate, which we discussed here.
Something that is relatively novel in this letter is seeing EPA meaningfully engage with state regulators seeking to modify state permits in somewhat unexpected ways. EPA challenged the lack of EJ process and considerations that LDEQ relied upon during its review and issuance of the air permits for St. James Perish and the Formosa facility. LDEQ argued that because the air pollution from the facilities had decreased over time and because the levels of pollutants were in compliance with federal NAAQS health-based standards, any impacts on the surrounding communities were minimal and should not impact issuance of the air permits. EPA disagreed.
EPA relied upon LDEQ’s own NAAQS modeling to find that EJ communities were (or likely were) impacted at the facilities’ fencelines by the emission of hazardous air pollutants like ethylene oxide and chloroprene. As noted above, while neither EPA nor LDEQ are by rule required to model the ambient impact of HAP emissions from permitted facilities, EPA concluded that such an evaluation was necessary and appropriate here because of the proximity of the EJ area to the permitted facilities. EPA noted that “[w]hile reducing pollution levels is desirable, the fact that there are emissions reductions does not mean there are no adverse impacts.” [pg. 52]. In short, because of the proximity of the EJ area to the fenceline, EPA found that mere compliance with environmental air pollution standards was not enough; LDEQ had to demonstrate that fenceline emissions of all air pollutants did not adversely impact the EJ area. How EPA defines or determines what constitutes an “adverse impact” is unknown and identifies the significant risk that facilities face with air emissions bordering EJ areas.
We will keep an eye out for further developments in this area. As we move toward the halfway point of the Biden Administration’s first term, we are increasingly seeing EJ efforts migrate from funding initiatives like “Justice40” and community capacity building into the permitting sphere. In this regard, EPA External Civil Rights Compliance Office recently issued an Interim Environmental Justice and Civil Rights in Permitting FAQs (available here) that provides preliminary, albeit interim, answers to key permitting-related EJ questions. These FAQs build on prior EPA guidance expressing its intent to review civil rights issues related to compliance programs.