It’s Time for Pennsylvania to Act on Environmental Justice

The Pennsylvania Department of Environmental Protection has a public comment period on proposed revisions to the DEP’s Environmental Justice Policy Guidance (EJ Policy). The deadline for written comments is May 11 and the last of four public hearings will take place on May 4 at 6:00 p.m.

This blog: (1) summarizes the EJ Policy; (2) outlines recommendations made by a group of Pennsylvania frontline community, community-based and low-income advocacy groups to strengthen it; (3) discusses environmental justice legislation introduced by members of the Pennsylvania Legislative Black Caucus; (4) and notes two near-term opportunities that Pennsylvania offers to advance environmental justice.

What is environmental justice?

The concept of environmental justice arose from lived environmental experience injustice – particularly the experience of people of color and low-income people when they saw their neighborhoods disproportionately focused on activities that cause pollution and threaten human health. Environmental justice is about preventing further burdens on these communities, ending environmental racism for people of color, and ensuring these communities are treated fairly advantages of government policies aimed at reducing pollution, improving health and well-being and investing in a clean energy future.

For the purposes of the policy, which focuses on DEP activities, “environmental justice” is defined as “the fair treatment and meaningful involvement of people regardless of their race, colour, national origin or income in relation to the development of the Commonwealth , implementation and enforcement of environmental laws, regulations and policies.” (emphasis added).

DEP’s EJ Policy is a “Policy Guidance” – what does that mean?

The DEP EJ Policy is a policy, not a law, and this limits its effectiveness.

Laws, such as statutes and regulations adopted by the General Assembly, developed by government regulators under the authority conferred on them by law, impose binding and enforceable duties on government agencies and regulated entities. In contrast, the agencies’ policy documents encourage regulated entities to act in certain ways, but do not require You to. Agencies also use policy documents to communicate how they exercise their discretion in areas where the law gives them discretion.

The fact that the EJ Policy is a policy limits the extent to which the DEP can use it to influence the behavior of regulated entities. The keyword in the policy is “should” which occurs 71 times. (The word “must” occurs 0 times). On the other hand, the DEP enjoys and can retain significant discretionary powers under the laws and regulations it administers, particularly inspection and enforcement self in these areas to the high EJ standards.

What the EJ policy would do

The EJ Policy consists of eight sections:

  • Section I defines key terms, provides background information and outlines the responsibilities of the DEP’s Office of Environmental Justice (OEJ) and Environmental Justice Advisory Board (EJAB). Section I also states: “[i]Identification of EJ areas is necessary for policy implementation” and suggests using interactive mapping to identify these areas as well, but does not provide clear criteria for identification.
  • Section II identifies certain DEP permits as “participation-triggering permits” because the activities they permit have “traditionally raised significant public concern over potential impacts on the environment, human health and communities” and recommends “enhanced scrutiny” and “enhanced “public participation” protocols for these permits. Other permissions may be “pended” for the trigger permissions category under certain circumstances. (Both trigger permissions and opt-in permissions are listed in Appendix A).
  • Section III also addresses permitting requests, but focuses on ways the DEP can facilitate community input on requests affecting EJ communities, including through working with volunteer “community liaisons”.
  • Section IV establishes limited public participation protocols for oil and gas permits that are not classified as either trigger permits or op-in permits under the EJ Directive.
  • Section V states that when inspecting approved facilities and other measures to ensure approved individuals are in compliance, the DEP will prioritize inspections and compliance in EJ areas and consider increased penalties for violations of the law in those areas .
  • Section VI states that the DEP will prioritize the needs of communities disproportionately affected by climate change in climate change initiatives, including initiatives that involve financing and investments.
  • Section VII builds on Section VI by obliging DEP to prioritize environmental justice in grant allocations in general, and emphasizes DEP’s support for brownfield redevelopment as it has “a critical role in supporting the environmental, social and economic development in EJ communities”.
  • Finally, Section VIII provides that the DEP will review the EJ policy at least every four years and revise it “in accordance with the latest resources at the federal, state and local levels, as set forth in the [Office of Environmental Justice] annual reports.

How politics could be strengthened

NRDC echoes the comments that the Pennsylvania Utility Law Project, the Center for Coalfield Justice, POWER and other frontline organizations, low-income advocates and community-based organizations have developed regarding the EJ policy. These equity-oriented organizations make a number of recommendations that, if accepted, would greatly improve policy. Among them:

  • The EJ Directive should extend the public comment period for future updates to the EJ Directive and other policy guidelines and regulations that directly impact environmental justice;
  • The EJ Directive should clarify or define certain key terms including “environmental justice area”, “cumulative environmental impacts” and “disproportionate environmental impacts” and the DEP should set up an intersectoral working group to refine the criteria for EJ areas;
  • The EJ Directive should clarify what is expected of the DEP and regulated entities under the Directive;
  • The DEP should reward community liaisons fairly for their services;
  • The DEP should exercise its discretion under the Pennsylvania Oil and Gas Act (Act 13 of 2012) to determine that when a gas company applies for an unconventional drilling permit within an EJ area, it has “reasonable cause” to change the standard 45- day application review period to extend to 60 days;
  • The DEP should further develop the sections of the EJ Directive related to inspections, compliance and enforcement, climate initiatives, and community development and investments;
  • DEP should improve its communication strategies and meeting practices in the interests of developing stronger partnerships with EJ communities and frontline community groups; and
  • To the extent that the DEP is legally empowered to do so, the DEP should propose the EJ Directive as EJ rulemaking.

When the comments are submitted to the DEP, this blog will be updated and include a link.

The EJ Policy Guidance is a good first step – but Pennsylvania needs good environmental justice Law

Presumably, the DEP did not propose the EJ Policy for regulation because the General Assembly never passed legislation authorizing it to base permitting decisions on environmental justice. Fortunately, members of the General Assembly Legislative Black Caucus have introduced three bills – HB 2256, HB 2034 and HB 2043 – to address this issue and ensure that environmental justice considerations are part of it everything state policy making.

HB 2256, sponsored by Rep. Malcolm Kenyatta, would make it Pennsylvania statutory policy to “ensure that environmental justice is realized in this Commonwealth” and the Office of Environmental Justice, with support from the Environmental Justice Advisory Board (EJAB), with the integration of EJ commission on behalf of all government agencies.

HB 2034, also sponsored by Representative Keynatta, supplements HB 2256 by establishing a detailed membership and administrative structure for the EJAB.

HB 2043, sponsored by Caucus Chair Donna Bullock, would require the DEP to classify Pennsylvania census counties that are in the bottom 33% of counties in terms of median household income as “burdened communities” and impose stricter permitting requirements in these communities, including a cumulative impact assessment and a mandatory public consultation. The DEP would have the authority to deny a permit application “if it is determined that granting the permit, together with the cumulative effects of existing conditions … would pose an unacceptable risk to the health of local residents and the environment of the impacted community.” ”

Given that a majority of members of the House Environmental Resources and Energy Committee oppose even a DEP political guidance On the subject of environmental justice, nobody expects these bills to postpone this session.

But in the short term, the Commonwealth can take action against EJ in two ways. First, the General Assembly can pass the Whole House Repair Act (SB 1135), a bipartisan law introduced by Senator Nikil Saval to create a one-stop shop for programs to help repair, weatherproof, and counter dilapidated homes to take action. Although the bill is not about EJ, it would clearly serve EJ purposes and could be supported with American Recovery Plan funding.

Second, Pennsylvania can invest its proceeds from the Regional Greenhouse Gas Initiative (RGGI) auctions to support EJ. With the DEP carbon budget trading program now released, the Commonwealth is on track to start participating in RGGI auctions in September. It has not yet proposed an investment plan but hoping that it will soon and the plan will comply with Sections VI and VII of the EJ Directive by targeting RGGI investments to EJ communities as much as possible. In a recent NRDC survey of its Pennsylvania members, 93 percent of respondents said investing RGGI proceeds in EJ communities is either important or very important. Similarly large majorities also want DEP to target investments in communities where fossil-fuel power plants have closed.

The DEP should then finalize the EJ policy as soon as possible, make changes in line with the equity groups’ recommendations and use them for RGGI investments.