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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.

Emboldened by this new focus, citizen groups began filing complaints with EPA under EPA’s regulations implementing, among other laws, Title VI. Dozens of complaints under Title VI have been filed since January 2021. As part of the resolution process, EPA seeks to enter into an informal dispute agreement with the agency that is the subject of the complaint in order to resolve the issues raised by the complaint. Many of the complaints accepted by EPA are still pending but some have been closed, subjecting EPA to criticism from the complainants.

One example is the series of complaints filed against the State of Louisiana in early 2022. Generally, the complaints focused on permitting and emissions in the Industrial Corridor (along the Mississippi River), the permitting of the Formosa petrochemical facility in St. James Parish, and emissions from the Denka facility in St. John Parish. EPA accepted these complaints for investigation and even issued a public Letter of Concern regarding its preliminary findings that the state agencies had created disparate impacts due to their actions and inactions over the years. During the course of the investigation and informal dispute discussions, the Attorney General for the State of Louisiana filed a suit against EPA in federal court, alleging, among other things, that EPA’s regulations prohibiting disparate impact were not authorized by Title VI. In response, EPA promptly closed its investigation of the complaints.

The Attorney General was not done, though, moving ahead to obtain a preliminary injunction against EPA, which was not appealed. Today, EPA’s EJ’s web-site contains this announcement: “Pursuant to a preliminary injunction issued by the U.S. District Court for the Western District of Louisiana on January 23, 2024, EPA will not impose or enforce any disparate-impact or cumulative-impact-analysis requirements under Title VI against the State of Louisiana or its state agencies.”

This retreat is not a single event. EPA accepted for investigation a complaint against two Mississippi agencies regarding the deterioration of drinking water systems in Jackson, Mississippi. The situation got so bad that emergencies were declared. The complaints alleged that the water crisis was caused by the systematic deprivation of funding and support for modernizing and maintaining water systems in Jackson. However, EPA recently closed its investigation, finding that although “the impacts of the water crisis fell disproportionately on the majority Black community of Jackson,” there was still “insufficient evidence” of a relationship between funding and the racial composition of the community.

Another recent example comes from Texas. A complaint relating to Oxbow Calcinating was accepted by EPA. However, EPA closed that investigation “for prudential reasons,” finding, among other things, that the complainants had also filed a petition for objection to Oxbow’s Title V permit, which was “sufficiently related to the Complaint at hand that it is prudent for OECRC to close the complaint/investigation until the conclusion of the administrative proceedings.” However, a few months later, EPA rejected the petition for objection. It is unknown whether the complaint will be refiled or if EPA will accept it if it is.

EPA’s closure of its investigations draws a great deal of criticism from the complainants. This may be because EPA seems to have let people believe that it would use environmental justice actions to address all manner of impacts. However, EPA’s environmental justice authority is limited; plus, the burden under Title VI and/or EPA’s regulations must still be met and not every impact is adverse or disparate. Complainants should not be surprised that EPA cannot, and should not, act beyond its legal authority. 

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.

Emboldened by this new focus, citizen groups began filing complaints with EPA under EPA’s regulations implementing, among other laws, Title VI. Dozens of complaints under Title VI have been filed since January 2021. As part of the resolution process, EPA seeks to enter into an informal dispute agreement with the agency that is the subject of the complaint in order to resolve the issues raised by the complaint. Many of the complaints accepted by EPA are still pending but some have been closed, subjecting EPA to criticism from the complainants.

One example is the series of complaints filed against the State of Louisiana in early 2022. Generally, the complaints focused on permitting and emissions in the Industrial Corridor (along the Mississippi River), the permitting of the Formosa petrochemical facility in St. James Parish, and emissions from the Denka facility in St. John Parish. EPA accepted these complaints for investigation and even issued a public Letter of Concern regarding its preliminary findings that the state agencies had created disparate impacts due to their actions and inactions over the years. During the course of the investigation and informal dispute discussions, the Attorney General for the State of Louisiana filed a suit against EPA in federal court, alleging, among other things, that EPA’s regulations prohibiting disparate impact were not authorized by Title VI. In response, EPA promptly closed its investigation of the complaints.

The Attorney General was not done, though, moving ahead to obtain a preliminary injunction against EPA, which was not appealed. Today, EPA’s EJ’s web-site contains this announcement: “Pursuant to a preliminary injunction issued by the U.S. District Court for the Western District of Louisiana on January 23, 2024, EPA will not impose or enforce any disparate-impact or cumulative-impact-analysis requirements under Title VI against the State of Louisiana or its state agencies.”

This retreat is not a single event. EPA accepted for investigation a complaint against two Mississippi agencies regarding the deterioration of drinking water systems in Jackson, Mississippi. The situation got so bad that emergencies were declared. The complaints alleged that the water crisis was caused by the systematic deprivation of funding and support for modernizing and maintaining water systems in Jackson. However, EPA recently closed its investigation, finding that although “the impacts of the water crisis fell disproportionately on the majority Black community of Jackson,” there was still “insufficient evidence” of a relationship between funding and the racial composition of the community.

Another recent example comes from Texas. A complaint relating to Oxbow Calcinating was accepted by EPA. However, EPA closed that investigation “for prudential reasons,” finding, among other things, that the complainants had also filed a petition for objection to Oxbow’s Title V permit, which was “sufficiently related to the Complaint at hand that it is prudent for OECRC to close the complaint/investigation until the conclusion of the administrative proceedings.” However, a few months later, EPA rejected the petition for objection. It is unknown whether the complaint will be refiled or if EPA will accept it if it is.

EPA’s closure of its investigations draws a great deal of criticism from the complainants. This may be because EPA seems to have let people believe that it would use environmental justice actions to address all manner of impacts. However, EPA’s environmental justice authority is limited; plus, the burden under Title VI and/or EPA’s regulations must still be met and not every impact is adverse or disparate. Complainants should not be surprised that EPA cannot, and should not, act beyond its legal authority. 

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.

Emboldened by this new focus, citizen groups began filing complaints with EPA under EPA’s regulations implementing, among other laws, Title VI. Dozens of complaints under Title VI have been filed since January 2021. As part of the resolution process, EPA seeks to enter into an informal dispute agreement with the agency that is the subject of the complaint in order to resolve the issues raised by the complaint. Many of the complaints accepted by EPA are still pending but some have been closed, subjecting EPA to criticism from the complainants.

One example is the series of complaints filed against the State of Louisiana in early 2022. Generally, the complaints focused on permitting and emissions in the Industrial Corridor (along the Mississippi River), the permitting of the Formosa petrochemical facility in St. James Parish, and emissions from the Denka facility in St. John Parish. EPA accepted these complaints for investigation and even issued a public Letter of Concern regarding its preliminary findings that the state agencies had created disparate impacts due to their actions and inactions over the years. During the course of the investigation and informal dispute discussions, the Attorney General for the State of Louisiana filed a suit against EPA in federal court, alleging, among other things, that EPA’s regulations prohibiting disparate impact were not authorized by Title VI. In response, EPA promptly closed its investigation of the complaints.

The Attorney General was not done, though, moving ahead to obtain a preliminary injunction against EPA, which was not appealed. Today, EPA’s EJ’s web-site contains this announcement: “Pursuant to a preliminary injunction issued by the U.S. District Court for the Western District of Louisiana on January 23, 2024, EPA will not impose or enforce any disparate-impact or cumulative-impact-analysis requirements under Title VI against the State of Louisiana or its state agencies.”

This retreat is not a single event. EPA accepted for investigation a complaint against two Mississippi agencies regarding the deterioration of drinking water systems in Jackson, Mississippi. The situation got so bad that emergencies were declared. The complaints alleged that the water crisis was caused by the systematic deprivation of funding and support for modernizing and maintaining water systems in Jackson. However, EPA recently closed its investigation, finding that although “the impacts of the water crisis fell disproportionately on the majority Black community of Jackson,” there was still “insufficient evidence” of a relationship between funding and the racial composition of the community.

Another recent example comes from Texas. A complaint relating to Oxbow Calcinating was accepted by EPA. However, EPA closed that investigation “for prudential reasons,” finding, among other things, that the complainants had also filed a petition for objection to Oxbow’s Title V permit, which was “sufficiently related to the Complaint at hand that it is prudent for OECRC to close the complaint/investigation until the conclusion of the administrative proceedings.” However, a few months later, EPA rejected the petition for objection. It is unknown whether the complaint will be refiled or if EPA will accept it if it is.

EPA’s closure of its investigations draws a great deal of criticism from the complainants. This may be because EPA seems to have let people believe that it would use environmental justice actions to address all manner of impacts. However, EPA’s environmental justice authority is limited; plus, the burden under Title VI and/or EPA’s regulations must still be met and not every impact is adverse or disparate. Complainants should not be surprised that EPA cannot, and should not, act beyond its legal authority. 

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.

Emboldened by this new focus, citizen groups began filing complaints with EPA under EPA’s regulations implementing, among other laws, Title VI. Dozens of complaints under Title VI have been filed since January 2021. As part of the resolution process, EPA seeks to enter into an informal dispute agreement with the agency that is the subject of the complaint in order to resolve the issues raised by the complaint. Many of the complaints accepted by EPA are still pending but some have been closed, subjecting EPA to criticism from the complainants.

One example is the series of complaints filed against the State of Louisiana in early 2022. Generally, the complaints focused on permitting and emissions in the Industrial Corridor (along the Mississippi River), the permitting of the Formosa petrochemical facility in St. James Parish, and emissions from the Denka facility in St. John Parish. EPA accepted these complaints for investigation and even issued a public Letter of Concern regarding its preliminary findings that the state agencies had created disparate impacts due to their actions and inactions over the years. During the course of the investigation and informal dispute discussions, the Attorney General for the State of Louisiana filed a suit against EPA in federal court, alleging, among other things, that EPA’s regulations prohibiting disparate impact were not authorized by Title VI. In response, EPA promptly closed its investigation of the complaints.

The Attorney General was not done, though, moving ahead to obtain a preliminary injunction against EPA, which was not appealed. Today, EPA’s EJ’s web-site contains this announcement: “Pursuant to a preliminary injunction issued by the U.S. District Court for the Western District of Louisiana on January 23, 2024, EPA will not impose or enforce any disparate-impact or cumulative-impact-analysis requirements under Title VI against the State of Louisiana or its state agencies.”

This retreat is not a single event. EPA accepted for investigation a complaint against two Mississippi agencies regarding the deterioration of drinking water systems in Jackson, Mississippi. The situation got so bad that emergencies were declared. The complaints alleged that the water crisis was caused by the systematic deprivation of funding and support for modernizing and maintaining water systems in Jackson. However, EPA recently closed its investigation, finding that although “the impacts of the water crisis fell disproportionately on the majority Black community of Jackson,” there was still “insufficient evidence” of a relationship between funding and the racial composition of the community.

Another recent example comes from Texas. A complaint relating to Oxbow Calcinating was accepted by EPA. However, EPA closed that investigation “for prudential reasons,” finding, among other things, that the complainants had also filed a petition for objection to Oxbow’s Title V permit, which was “sufficiently related to the Complaint at hand that it is prudent for OECRC to close the complaint/investigation until the conclusion of the administrative proceedings.” However, a few months later, EPA rejected the petition for objection. It is unknown whether the complaint will be refiled or if EPA will accept it if it is.

EPA’s closure of its investigations draws a great deal of criticism from the complainants. This may be because EPA seems to have let people believe that it would use environmental justice actions to address all manner of impacts. However, EPA’s environmental justice authority is limited; plus, the burden under Title VI and/or EPA’s regulations must still be met and not every impact is adverse or disparate. Complainants should not be surprised that EPA cannot, and should not, act beyond its legal authority. 

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.

Emboldened by this new focus, citizen groups began filing complaints with EPA under EPA’s regulations implementing, among other laws, Title VI. Dozens of complaints under Title VI have been filed since January 2021. As part of the resolution process, EPA seeks to enter into an informal dispute agreement with the agency that is the subject of the complaint in order to resolve the issues raised by the complaint. Many of the complaints accepted by EPA are still pending but some have been closed, subjecting EPA to criticism from the complainants.

One example is the series of complaints filed against the State of Louisiana in early 2022. Generally, the complaints focused on permitting and emissions in the Industrial Corridor (along the Mississippi River), the permitting of the Formosa petrochemical facility in St. James Parish, and emissions from the Denka facility in St. John Parish. EPA accepted these complaints for investigation and even issued a public Letter of Concern regarding its preliminary findings that the state agencies had created disparate impacts due to their actions and inactions over the years. During the course of the investigation and informal dispute discussions, the Attorney General for the State of Louisiana filed a suit against EPA in federal court, alleging, among other things, that EPA’s regulations prohibiting disparate impact were not authorized by Title VI. In response, EPA promptly closed its investigation of the complaints.

The Attorney General was not done, though, moving ahead to obtain a preliminary injunction against EPA, which was not appealed. Today, EPA’s EJ’s web-site contains this announcement: “Pursuant to a preliminary injunction issued by the U.S. District Court for the Western District of Louisiana on January 23, 2024, EPA will not impose or enforce any disparate-impact or cumulative-impact-analysis requirements under Title VI against the State of Louisiana or its state agencies.”

This retreat is not a single event. EPA accepted for investigation a complaint against two Mississippi agencies regarding the deterioration of drinking water systems in Jackson, Mississippi. The situation got so bad that emergencies were declared. The complaints alleged that the water crisis was caused by the systematic deprivation of funding and support for modernizing and maintaining water systems in Jackson. However, EPA recently closed its investigation, finding that although “the impacts of the water crisis fell disproportionately on the majority Black community of Jackson,” there was still “insufficient evidence” of a relationship between funding and the racial composition of the community.

Another recent example comes from Texas. A complaint relating to Oxbow Calcinating was accepted by EPA. However, EPA closed that investigation “for prudential reasons,” finding, among other things, that the complainants had also filed a petition for objection to Oxbow’s Title V permit, which was “sufficiently related to the Complaint at hand that it is prudent for OECRC to close the complaint/investigation until the conclusion of the administrative proceedings.” However, a few months later, EPA rejected the petition for objection. It is unknown whether the complaint will be refiled or if EPA will accept it if it is.

EPA’s closure of its investigations draws a great deal of criticism from the complainants. This may be because EPA seems to have let people believe that it would use environmental justice actions to address all manner of impacts. However, EPA’s environmental justice authority is limited; plus, the burden under Title VI and/or EPA’s regulations must still be met and not every impact is adverse or disparate. Complainants should not be surprised that EPA cannot, and should not, act beyond its legal authority. 

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.

Emboldened by this new focus, citizen groups began filing complaints with EPA under EPA’s regulations implementing, among other laws, Title VI. Dozens of complaints under Title VI have been filed since January 2021. As part of the resolution process, EPA seeks to enter into an informal dispute agreement with the agency that is the subject of the complaint in order to resolve the issues raised by the complaint. Many of the complaints accepted by EPA are still pending but some have been closed, subjecting EPA to criticism from the complainants.

One example is the series of complaints filed against the State of Louisiana in early 2022. Generally, the complaints focused on permitting and emissions in the Industrial Corridor (along the Mississippi River), the permitting of the Formosa petrochemical facility in St. James Parish, and emissions from the Denka facility in St. John Parish. EPA accepted these complaints for investigation and even issued a public Letter of Concern regarding its preliminary findings that the state agencies had created disparate impacts due to their actions and inactions over the years. During the course of the investigation and informal dispute discussions, the Attorney General for the State of Louisiana filed a suit against EPA in federal court, alleging, among other things, that EPA’s regulations prohibiting disparate impact were not authorized by Title VI. In response, EPA promptly closed its investigation of the complaints.

The Attorney General was not done, though, moving ahead to obtain a preliminary injunction against EPA, which was not appealed. Today, EPA’s EJ’s web-site contains this announcement: “Pursuant to a preliminary injunction issued by the U.S. District Court for the Western District of Louisiana on January 23, 2024, EPA will not impose or enforce any disparate-impact or cumulative-impact-analysis requirements under Title VI against the State of Louisiana or its state agencies.”

This retreat is not a single event. EPA accepted for investigation a complaint against two Mississippi agencies regarding the deterioration of drinking water systems in Jackson, Mississippi. The situation got so bad that emergencies were declared. The complaints alleged that the water crisis was caused by the systematic deprivation of funding and support for modernizing and maintaining water systems in Jackson. However, EPA recently closed its investigation, finding that although “the impacts of the water crisis fell disproportionately on the majority Black community of Jackson,” there was still “insufficient evidence” of a relationship between funding and the racial composition of the community.

Another recent example comes from Texas. A complaint relating to Oxbow Calcinating was accepted by EPA. However, EPA closed that investigation “for prudential reasons,” finding, among other things, that the complainants had also filed a petition for objection to Oxbow’s Title V permit, which was “sufficiently related to the Complaint at hand that it is prudent for OECRC to close the complaint/investigation until the conclusion of the administrative proceedings.” However, a few months later, EPA rejected the petition for objection. It is unknown whether the complaint will be refiled or if EPA will accept it if it is.

EPA’s closure of its investigations draws a great deal of criticism from the complainants. This may be because EPA seems to have let people believe that it would use environmental justice actions to address all manner of impacts. However, EPA’s environmental justice authority is limited; plus, the burden under Title VI and/or EPA’s regulations must still be met and not every impact is adverse or disparate. Complainants should not be surprised that EPA cannot, and should not, act beyond its legal authority.