The U.S. Department of Energy (DOE) defines environmental justice as: “The fair treatment and meaningful involvement of all people, regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” It says “fair treatment” means that no population bears a disproportionate share of negative environmental consequences resulting from industrial, municipal, and commercial operations or from the execution of federal, state, and local laws; regulations; and policies. “Meaningful involvement,” meanwhile, “requires effective access to decision makers for all, and the ability in all communities to make informed decisions and take positive actions to produce environmental justice for themselves,” according to the DOE.
Environmental justice (EJ) has become a very important consideration when it comes to siting and/or expanding energy projects, including power plants. While many people associated with the power industry tend to focus on the benefits provided to communities when a project is developed, such as well-paying jobs and an increase in the tax base, people in the affected community may have a different view. They may be more focused on the negative effects, which could include an increase in harmful emissions, water usage, and heavy-haul traffic.
“Communities are weighing the pros and cons of having industry there—having a job creator—and that, of course, generating additional economic activity. On the flip side, there are actual or perceived environmental or health issues,” Erich Almonte, a senior associate with King and Spalding, said as a guest on The POWER Podcast. King and Spalding is a full-service law firm with more than 1,300 lawyers and 23 offices globally, including a large team focused on energy-related matters.
“It’s important to note that there really isn’t any ‘Environmental Justice Law.’ What we have instead are a use of current statutes and regulations that were perhaps designed for something else to try to achieve environmental justice ends,” Almonte said.
In a factsheet published by the University of Michigan Center for Sustainable Systems, it says EJ was “inspired by the Civil Rights movement” and “became widespread in the 1980s at the intersection of environmentalism and social justice.” Almonte noted that President Clinton issued an executive order on environmental justice in 1994—nearly 30 years ago—yet, despite that, there is still no environmental justice statute or regulation. “Even though it’s been around for a long time, I’d say that the Biden administration has really stressed it the last couple of years,” said Almonte.
The impact EJ could have on a project is quite substantial. “A company could meet all of its environmental permitting requirements, but still have a permit denied, if there were disparate impacts that weren’t mitigated properly, under Title VI of the Civil Rights Act,” Almonte explained. “This came out in a guidance document in April 2022, and since, it’s featured a couple of times in subsequent guidance documents that the administration has put out,” he added. While Almonte said he wasn’t aware of a permit being denied in that fashion to date, it’s a major consideration for companies when planning projects.
Another potential show-stopper could be triggered through Section 303 of the Clean Air Act. This section provides “emergency powers” to the Environmental Protection Agency (EPA). “When there’s an environmental threat that poses an imminent and substantial endangerment to the public, or to the environmental welfare, then EPA can essentially stop that activity or file a lawsuit against it,” Almonte explained. “This is true even if the activity that’s causing the supposed endangerment is allowed by the permit.”
According to Almonte, the EPA has only used this authority 14 times in the past five decades, but four of those occurrences have been in the past two years. This suggests it could become a regular tool used by the administration to achieve its EJ goals.
Almonte suggested companies must engage regularly with members of the communities in which they operate in order to ensure they stay on the right side of EJ matters. “It’s not just a ‘check-the-box’—I talked to the folks now I can do whatever I want. People expect some kind of outcome. People expect action to be taken from this engagement, of course, but that’s not always easy to do,” he said.
It takes time to develop relationships, and build trust and credibility. “It’s better to start that process today, and continue to build it up over time. And, then, if the point in time comes where you’ve got a permit renewal or you want to expand a facility, at the very least, you’re not going in cold. You’re talking to people that you know, and that know you,” said Almonte. “I’m not saying that’s going to be a magic wand either, and then they’re going to be fine with whatever you want, but at the very least, you’ve positioned yourself for perhaps a more fruitful engagement.”
To hear the full interview with Almonte, which includes more about EJ, benefits EJ can provide to projects, and mitigation measures that can help projects move forward, listen to The POWER Podcast. Click on the SoundCloud player below to listen in your browser now or use the following links to reach the show page on your favorite podcast platform:
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—Aaron Larson is POWER’s executive editor (@AaronL_Power, @POWERmagazine).