Environmental justice groups are asking the EPA to, for the first time, reject a state implementation plan (SIP) pertaining to pollutants – in this instance, fine particulate matter (PM2.5) – due solely to environmental justice reasons. More specifically, the request to the EPA cites to the Civil Rights Act Title VI in arguing that the SIP would discriminate against a marginalized group of citizens. With increasing scrutiny on environmental justice issues, especially in light of the EPA’s Draft Environmental Justice Action Plan in 2022, the request to the EPA is an important reminder to companies that consideration of environmental justice impacts of projects is a key consideration for risk mitigation.

Environmental Justice Issues With SIP

California put forth a SIP for the San Joaquin Valley pertaining to PM2.5 air quality standards, which the EPA must approve as in conformity with the Clean Air Act. In a 28 page letter, however, several groups petitioned the EPA to reject the state’s SIP due to concerns that the plan does not alleviate the disproportionate burden that minority Latino communities have shouldered from PM2.5 pollution dating back many years. Under Title VI of the Civil Rights Act, the organizations argue, the SIP discriminates and should therefore be rejected. The focus on PM2.5 is noteworthy given that it is one of the pollutants that has received significant attention during the Biden administration and which the EPA has pledged to address. The environmental justice groups are urging the EPA to uphold its obligations under the Civil Rights Act and require the state to affirmatively show that the SIP does not discriminate. The EPA is required to issue a final rule on the issue by April 29, 2022.

Lessons For Companies

The San Joaquin Valley SIP controversy does not directly involve a challenge to private entity action that allegedly have impacts on marginalized communities. However, the lessons and takeaways from the pushback on the proposed SIP for PM2.5 are informative for companies considering projects of their own that may have impacts on water, air, or soil environmental impacts that disproportionately impact marginalized communities. Increasingly, challenges to expansion projects undertaken by corporations are being challenged on environmental justice grounds, namely through the Clean Air Act, Clean Water Act, and the Civil Rights Act Title VI.

Without proper due diligence regarding environmental impacts of a project that will be disproportionately felt by marginalized communities, companies will increasingly see challenges in courts that focus on environmental justice issues. Risk mitigation begins with the simple step of recognizing the attention that environmental justice is receiving and incorporating environmental justice considerations into the planning phase.

CMBG3 Law LLC has represented clients in environmental and environmental due diligence matters for years. Our work focuses on assisting companies plan for environmental justice related impacts in order to mitigate future risks. For more information, please contact John Gardella.