We know that pollution is bad, but there has been less awareness that emissions and siting affect some people especially badly, simply because of where they live. "Environmental Justice" is about addressing fairness, including the legal implications. This article's author, Mary Ellen Ternes, is a distinguished chemical engineer, attorney, and past president of the American College of Environmental Lawyers.
Chemical engineers should understand the term environmental justice (EJ), its legal implications and impacts on operations, design, siting, business strategies, and project implementation. The U.S. Environmental Protection Agency (EPA) defines EJ as the fair treatment of all people, regardless of race, color, national origin, or income, with respect to the development and enforcement of environmental laws, regulations, and policies. Fair treatment implies that no population should be forced to shoulder a disproportionate share of exposure to the negative effects of pollution due to lack of political or economic strength.
How the U.S. addresses EJ
The U.S. has addressed EJ through law and executive action under multiple administrations to protect “overburdened communities,” defined as: minority, low-income, tribal, and indigenous populations or communities in the U.S. that potentially experience disproportionate environmental harms and risks due to exposures, cumulative impacts, or greater vulnerability to environmental hazards.
As recognized by agency authorities, this increased vulnerability may result from negative environmental, health, economic, or social conditions such as generational financial stress that limits mobility, poorly supported schools that limit employment opportunities, and food deserts that contribute to poor health. When manufacturing centers and waste management sites grow up around overburdened communities, residents often can’t afford relocating or leaving their extended families. Also, they are generally not equipped to engage in public participation opportunities built into the environmental permitting process for individual industrial facilities.
The U.S. 1964 Civil Rights Act
The U.S. 1964 Civil Rights Act (CRA) provided the initial legal framework for U.S. EJ actions. The CRA prohibits discrimination on the basis of race, color, and national origin when programs and activities receive federal financing, codifying President John F. Kennedy’s assertion that “simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination.”
The U.S. government provides significant public funds to individual states, particularly in delegated implementation of federal environmental laws such as the Clean Air Act (CAA), the Clean Water Act (CWA), and the Resource Conservation and Recovery Act (RCRA). Two key agencies with respect to EJ are thus the EPA and the U.S. Dept. of Justice.
U.S. Executive Branch policies on EJ have been established mainly through Executive Orders (EOs) and interpretive guidance. In 1994, President Clinton signed EO 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.” President Biden has also taken action on EJ, issuing EO 14008, “Tackling the Climate Crisis at Home and Abroad” in 2021, which announced the Justice40 initiative mandating that at least 40% of the benefits of certain federal investments flow to disadvantaged communities. In addition, EO 14096, “Revitalizing Our Nation’s Commitment to Environmental Justice for All” was issued in 2023, requiring that all federal agencies develop EJ Scorecards to track progress toward Justice40 goals, thereby instituting accountability mechanisms supporting environmental and civil rights protections. EPA also developed EJScreen, a mapping and screening tool for use in program implementation, which tracks permitting, enforcement, and compliance.
The impact of EJ
EJ is impacting both federal and state actions. In April 2022, EPA initiated an EJ investigation regarding whether Louisiana’s environmental agencies discriminated against Black residents in permitting existing and proposed facilities between New Orleans and Baton Rouge. In recently closing the matter, EPA reached enforcement agreements with Denka Performance Elastomers in St. John the Baptist Parish to mitigate chloroprene pollution pursuant to the CAA and RCRA, and proposed a new CAA regulation further limiting chloroprene emissions nationally, along with other measures.
In September 2022, Louisiana’s proposed CAA permits for a new $7.9 billion Formosa Plastics complex in St. James Parish were vacated by a district judge (currently on appeal) based in part on EJ concerns as well as CAA failures. In April 2023, EPA issued its draft National Plastics Recycling Strategy specifically requesting comments regarding EJ implications of plastic recycling. Recently, in August 2023, EPA proposed to deny Alabama’s coal combustion residual RCRA permit program, finding that its failures to protect the environment posed particular risk to low-income communities of color.
Responsibility of ChemE’s
Chemical engineers should consider potential EJ issues in their decision-making, especially regarding siting, compliance, enforcement, reporting violations, proposed enforcement resolutions, and environmental review. They should also maintain good relationships with communities surrounding their facilities and engage thoughtfully in the public participation process.
This article is also featured in the ChE in Context column of the October 2023 issue of CEP. Members have access online to complete issues, including a vast, searchable archive of back-issues found at www.aiche.org/cep.