The commitment to environmental justice

Regulated businesses, civic leaders, and the public at large should be familiar with the emphasis being placed upon “Environmental Justice” by both the federal and State governments.  At the federal level, the U.S. Department of Justice and the Environmental Protection Agency (EPA), and at the State level the New Hampshire Attorney General’s Office and the New Hampshire Department of Environmental Services (NHDES) are committed to ensuring that racial and socioeconomic issues are considered when making a variety of environmental decisions ranging from siting of new facilities, to permit issuance and renewal, to enforcement. The governments will follow a more proactive strategy with respect to the application of environmental laws in those locations that may have historically been overlooked. These Environmental Justice initiatives will affect the distribution of millions of dollars in grant money, agency permitting decisions, and almost certainly enforcement decisions by regulators and prosecutors.

In April 2023, President Biden issued Executive Order No. 14096 On Revitalizing Our Nation’s Commitment to Environmental Justice for All. The Executive Order directs federal agencies to prioritize environmental justice, explaining “we must advance environmental justice for all by implementing and enforcing the Nation’s environmental and civil rights laws, preventing pollution, addressing climate change and its effects, and working to clean up legacy pollution that is harming human health and the environment.”

What exactly is Environmental Justice? The EPA explains Environmental Justice as, “the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, Tribal affiliation, or disability, in agency decision-making and other Federal activities that affect human health and the environment so that people are fully protected from disproportionate and adverse human health and environmental effects (including risks) and hazards, including those related to climate change, the cumulative impacts of environmental and other burdens, and the legacy of racism or other structural or systemic barriers; and have equitable access to a healthy, sustainable, and resilient environment in which to live, play, work, learn, grow, worship, and engage in cultural and subsistence practices.”

In it’s October 2022 Statement on Environmental Justice, NHDES elaborates on the EPA’s definition, explaining: “There is a body of evidence that suggests certain communities often bear a disproportionate impact from the implementation of environmental policies. These communities are more likely to experience: Greater exposure to environmental hazards, both outside and inside the home; less access to green space, clean air, and clean water; less access to opportunities for involvement in policy and permitting decisions. NHDES recognizes that environmental health disparities exist within the state. These disparities have a lasting impact on the communities in which we live and serve. Therefore, NHDES is committed to advancing EJ in New Hampshire.” NHDES has set out in some detail the steps it will take to further the proper consideration of Environmental Justice issues in its permitting decisions. NHDES has also established an Environmental Justice Coordinator within the department and has published a detailed Civil Rights and Nondiscrimination Implementation Plan, updated in January 2024, and available on the NHDES website.

So what does this mean for New Hampshire businesses and citizens? It will be easier and more convenient to track and monitor a variety of issues using EPA’s “EJScreen,” the agency’s Environmental Justice Screening and Mapping Tool. Further, EPA will issue grants for funding climate resiliency and adaptation; air, water, and waste pollution monitoring, prevention and remediation; indoor toxics and air pollution monitoring, as well as funding for engagement with disadvantaged communities.

In the regulated community, businesses and municipalities may be required to conduct Environmental Justice analyses to obtain new or renewed air, water discharge and other permits. These analyses may be subject to the review of a broader range of regulatory agencies than has been the case in the past.  Regulated entities are likely to encounter an increase in enforcement actions relating to alleged environmental justice civil rights impacts associated with their operations and discharges. Public screening tools will heighten the ability of public interest groups to call to the attention of regulators instances of disparate impact that might otherwise have escaped notice.

Although these effects may be more acute in more populous and industrialized areas of the country, no doubt New Hampshire will see the impact of this heightened attention on Environmental Justice as well.  The bottom line is that New Hampshire’s regulated community needs to be aware of this initiative and account for it in its activities going forward. 

Michael Quinn is a Director and member of McLane Middleton’s Administrative Law and Litigation Departments.  He is also the managing director of the firm’s Portsmouth office. He can be reached atmichael.quinn@mclane.com.