Genesee Township, like so many other majority-minority communities in Flint, Mich., is no stranger to the health risks associated with environmental pollution. After spending the better part of a decade dealing with the lingering effects of a lead-contamination crisis that placed Flint and its drinking water system at the forefront of a national reckoning around environmental injustice in America’s poorest neighborhoods, the residents of Genesee Township now find themselves embroiled in a new debate over environmental justice. Ajax Materials Corporation recently unveiled plans to construct a hot mix asphalt manufacturing facility in a section of Genesee Township in close proximity to large residential housing developments as well as heavy industrial facilities.¹ Eighty-six percent of residents in the immediate neighborhood identify as people of color, and the average median income in the community is below $15,000, placing it in the bottom 3% nationally.² The one-mile radius around the proposed Ajax facility also ranks in the bottom 6% statewide for a host of air quality criteria, such as levels of particulate matter and ozone.

Galvanized by what they view as merely the latest example of heavy industry following the path of least resistance by attempting to site yet another polluting facility in an already overburdened minority community, local environmental activists launched a campaign aimed at preventing the facility’s construction at the proposed site. This resistance turned a typically soporific state air pollution permit process into a national flashpoint for the federal government’s renewed interest in promoting environmental justice.

Although community activism around alleged disproportionate environmental burdens in minority communities is hardly a new development, what is new is the Environmental Protection Agency’s (the EPA) recent willingness to substantively consider these concerns in evaluating state permitting decisions. In a letter from the the EPA Region 5 administrator to the Michigan Department of Environment, Great Lakes & Energy (EGLE) the EPA, citing its commitment to “advancing environmental justice and incorporating equity considerations” into all aspects of its work, instructed EGLE to delay approval of Ajax’s requested air use permit until it conducted a cumulative impacts analysis of the facility’s emissions, combined with those from existing industrial facilities in the area.³ Referencing the potential for adverse and disproportionate impacts to local residents, the letter suggested that “the siting of this facility may raise civil rights concerns” and urged EGLE to assess its obligations under Title VI of the Civil Rights Act when considering whether to encourage construction of the facility at an alternative site. This action, the first time the EPA has invoked such a request in the air permit review context, along with the thinly veiled threat of EPA Title VI enforcement sent a clear message to the state environmental regulatory community.

Similar recent actions by the EPA across the country further suggest that the EPA intends to elevate Civil Rights Act compliance enforcement as an integral part of its environmental justice strategy.⁴ As the EPA signals its intent to crack down on state permitting decisions that it believes cause disproportionate harm to overburdened communities, permitting entities and other interested parties are grappling with an increasingly urgent question: how does one quantify a disproportionate environmental harm?

Environmental Justice and the Federal Government

The term environmental justice first received federal recognition under Executive Order 12898, signed by President Clinton in 1994. E.O. 12898 marked the first significant federal action on environmental justice in the United States and required that all federal agencies “make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies and activities on minority populations and low-income populations.”⁵ Although the order brought legitimacy and recognition to the concept of environmental justice, its lack of any concrete requirements that environmental justice play a determining factor in siting, permitting or rulemaking decisions meant that the order has had limited practical effect.

After campaigning on a platform of addressing systemic racial inequities, President Biden’s administration has repeatedly signaled its desire to take a more proactive approach to advancing environmental justice. The EPA, along with other federal agencies, has elevated environmental justice concerns in its decision-making, and has dedicated numerous new programs and funding sources solely to projects that promote environmental justice.

Beyond mere programmatic initiatives, the EPA’s External Civil Rights Compliance Office (ERCO) has made several recent moves designed to implement Title VI more effectively. Title VI of the Civil Rights Act of 1964 is a federal law that prohibits any federally funded program or activity from discriminating on the basis of race, color or national origin, and provides a statutory basis for relief for victims.⁶ Section 602 of Title VI requires agencies distributing federal funds to issue regulations implementing the prohibition of discrimination. Under the EPA’s Title VI implementing regulations that governs “every the EPA grant recipient, including each state environmental agency receiving financial assistance from the EPA,” state agency recipients of the EPA funding are prohibited from using ‘‘criteria or methods of administering its program which have the effect of subjecting individuals to discrimination because of their race, color [or] national origin.’’⁷ The EPA’s Title VI regulations concern the effect of agency policy and decisions, not their intent, and as such include prohibitions against both intentional and unintentional discrimination by EPA funded agencies. Per recent EPA guidance to permitting programs, the “question of whether or not individual facility operators are in violation of [environmental laws] is distinct from whether the permitting agencies’ decision to grant permits to the operators had a discriminatory impact on the affected communities.”⁸ Thus, the EPA’s position is that a facially neutral agency action in compliance with relevant federal and state environmental laws may still run afoul of a state agency’s Title VI obligations.

Although the EPA’s enforcement actions around its Title VI obligations have historically been scarce, the days of lax enforcement may be coming to an end. Senior EPA leadership recently vowed to utilize, for the first time, the agency’s “affirmative authority” to ensure that recipients of EPA funding comply with nondiscrimination requirements of the Civil Rights Act.⁹ The EPA’s draft strategic planning document for the fiscal years 2022-2026 signals a similarly proactive approach to Civil Rights Act enforcement, and compels the agency to “include commitments to address disproportionate impacts in all written agreements between EPA and states and Tribes (e.g., grant work plans) implementing delegated authorities” by Sept. 30, 2026.¹⁰ This draft strategic plan also notes that by 2026 the agency expects all state recipients of EPA financial assistance to have “foundational civil rights programs in place” to carry out the purpose of Title VI in the pre-award review process.

Beyond increasing federal scrutiny of state permitting procedures, the Biden administration has also pledged to prioritize environmental justice considerations in federal funding decision-making. Executive Order 14008, enacted during the first week of the Biden administration, created the government-wide Justice 40 Initiative, which mandates that 40% of the overall benefits of relevant federal investments go to “disadvantaged communities that have been historically marginalized and overburdened by pollution and underinvestment in housing, transportation, water and wastewater infrastructure, and health care.”¹¹ Specifically, Justice 40 includes investments in clean energy and energy efficiency, clean transit, affordable and sustainable housing, training and workforce development, the remediation and reduction of legacy pollution, and the development of clean water infrastructure. As states begin the herculean task of distributing the $1.2 trillion dollars in infrastructure investment funding contained in the recently enacted Bipartisan Infrastructure Law (BIL), Justice 40 is poised to deliver once-in-a-generation levels of investment to historically disadvantaged communities.¹²

Under its Title VI regulations, the EPA’s only enforcement tool for ensuring compliance is to withhold funding from recipients found in violation of its Title VI requirements, a penalty that has captured the attention of state environmental agencies, most of which rely on the EPA funding for a significant portion of their environmental programs. In an effort to help state agencies and other permitting entities navigate the EPA’s more robust approach to Title VI enforcement, ERCO recently announced plans to develop a formal guidance document for permitting entities to clarify interpretations of requirements and expectations around how “cumulative impacts are considered when evaluating disparate impacts under civil rights law.”¹³ At the center of this development are environmental justice mapping tools, which have the potential to revolutionize the way cumulative and disparate impacts are quantified in environmental permitting decisions.

What is an Environmental Justice Mapping Tool?

Environmental justice (EJ) mapping tools utilize the latest advancements in interactive mapping and data aggregation technologies to identify and operationalize the link between environmental burdens and demographic and other vulnerability factors for a given location. EJSCREEN, publicly released by the EPA in 2015 and now in its second iteration, is an interactive, web-based tool that allows for the screening of user-defined areas and provides data sets that can be easily imported for use with ArcGIS or other geospatial mapping platforms. EJSCREEN uses 12 environmental indicators (e.g., ozone, lead paint, proximity to waste-water discharges, air toxics cancer risk) and seven demographic indicators (e.g., income, educational attainment, race, linguistic isolation) maintained by various federal agencies to provide detailed information at the hyper-local level.¹⁴ Combining the environmental and demographic indicators to create an “EJ Index” for each environmental indicator, EJSCREEN allows users the ability to generate standard reports that compare rankings on a national, regional and state basis for each EJ index. Updated annually with the most recently available data, EJSCREEN reflects a balance between easily accessible screening-level information and high-quality data.

The Climate and Economic Justice Screening Tool (CEJST), developed by the White House Council on Environmental Quality, is another web-based mapping tool shaping environmental justice efforts at the federal level.¹⁵ Released in a beta version in February 2022 as a tool to aid in the identification of communities that are disadvantaged for the purposes of Justice 40, the CEJST assesses census tracts along eight different environmental metrics: climate change, clean energy and energy efficiency, clean transportation, affordable and sustainable housing, remediation and reduction of legacy pollution, critical clean water and waste infrastructure, health burdens, and training and workforce development. Any tract that exceeds certain levels in at least one of those environmental metrics, and that also exceeds a socioeconomic indicator—primarily a combination of income and educational attainment thresholds, is considered disadvantaged and thus eligible for Justice 40 consideration in subsequent federal funding allocation decision-making. Although the EPA and other federal agencies have endorsed process flexibility and declined to mandate use of the CEJST in making disadvantaged community determinations at the state level, it is clear the CEJST will serve an integral role in the allocation of hundreds of billions of dollars in federal investment to marginalized communities across the United States.

EJ mapping tool innovation is not limited to the federal government, as several states have recently developed state-specific screening tools, often utilizing state-maintained data to provide additional demographic indicators and more granular reporting capabilities.¹⁶ CalEnviroScreen, developed by the California Office of Environmental Health Hazard Assessment in partnership with environmental activists, academics, and state policy makers, combines 20 indicator data sets categorized into four broad groups—pollution exposure, environmental effects, sensitive populations and socioeconomic status.¹⁷ These indicator sets are analyzed at a census tract level to rank cumulative EJ impacts by area across the entire state. Now in its fourth version, CalEnviroScreen has received broad public buy-in from a diverse set of stakeholders and become an integral tool in promoting compliance with state laws dealing with environmental justice concerns and equitable resource allocation in environmental decision-making. Fifteen states currently have state-specific EJ mapping tools in various stages of development, underscoring the increasingly important role quantifying disproportionate environmental burdens will play in state permitting decisions across the country.¹⁸

EJ Mapping Tools and the Future of Title VI Compliance

The EPA has long maintained that the use of EJSCREEN, and environmental justice mapping tools in general, should be limited to highlighting “places that may be candidates for further review, analysis or outreach to support the agency’s environmental justice work,” and that “no mandate or guidance expressed or implied that state governments or other entities should use the tool or its underlying data.”¹⁹ However, the EPA’s recent interventions in state permitting decisions, along with its recent cumulative impacts guidance announcement, suggest that Title VI compliance may play an increasingly important role in environmental permitting decisions moving forward. As evaluating disproportionate environmental impacts to surrounding communities becomes a critical step in determining the success or failure of an environmental permit request, EJ mapping tools offer an invaluable ability to identify and quantify these environmental impacts.

EJ Mapping Tools in Tennessee

In addition to providing Tennesseans with access to robust environmental and demographic datasets and the ability to visualize environmental burdens at the hyper-local level, EJ mapping tools serve as information resources for state regulators. Although the Tennessee Department of Environment and Conservation (TDEC) does not have a central EJ policy or regulation in place, federal EJ mapping tools serve as useful, albeit discretionary, resources in TDEC decision-making. For example, EJSCREEN data may be used by TDEC to identify communities and proposed projects that may benefit from enhanced public participation and outreach opportunities, particularly when TDEC anticipates potential EJ concerns around a particular issue.

EJ mapping tools are also likely to play an important role in ensuring future state funding allocations comply with Justice 40. Tennessee is slated to receive nearly $8 billion in federal funding from the BIL to pay for a variety of infrastructure projects like highway and bridge repairs, electric vehicle charging station construction and lead pipe replacement.²⁰ As Justice 40 requires that 40% of the benefits from these investments go toward disadvantaged communities, Tennessee state agencies tasked with spending this federal funding should consider adopting plans to ensure funding decisions align with Justice 40.  The CEJST, as a federally endorsed tool for identifying disadvantaged communities for the purposes of Justice 40, is poised to become a critical tool for promoting equitable investment and environmental justice in future state and local government funding decisions.

The recent proliferation of EJ mapping tools at the federal and state level represents a promising development in the ongoing effort to minimize harm to overburdened communities and promote environmental justice across all facets of regulatory decision-making. These publicly accessible tools democratize sophisticated environmental and sociodemographic information and allow users to easily identify environmental burdens at a neighborhood level. For example, regulated entities can use these online tools to inform their siting decisions. As the federal government adopts a more proactive approach to advancing environmental justice in both regulatory enforcement and resource allocation decision-making, environmental practitioners of all types should seek to understand and utilize EJ mapping tools as a data-driven means of ensuring Title VI and Justice 40 compliance. |||

BRYAN DAVIDSON is a policy analyst with the Tennessee Department of Environment and Conservation Office of Policy and Planning. He is a 2021 graduate of Vanderbilt Law School and currently resides in Nashville.

NOTES

1. Michigan Department of Environment, Great Lakes and Energy, Proposed Project Summary for Ajax Materials Corp. APP-2021-0019.
2. United States Environmental Protection Agency. 2020 version. EJSCREEN. Retrieved Oct. 26, 2021, from https://ejscreen.epa.gov/mapper/ejscreen_SOE.aspx.
3. United States Environmental Protection Agency, Detailed Permit Comments Ajax Materials Corporation PTI APP-2021-0019.
4. See Oct. 15, 2019, Acceptance of Administrative Complaint No. 02R-21-R6, https://insideepa.com/sites/insideepa.com/files/documents/2021/oct/epa2021_1985.pdf; Letter from the EPA Administrator Michael Regan to Chicago Mayor Lori E. Lightfoot (May 7, 2021), https://insideepa.com/sites/insideepa.com/files/documents/2021/may/epa2021_0948a.pdf.
5. Exec. Order No.12898, 59 Fed. Reg. 39 (Feb. 16, 1994).
6. 42 U.S.C. 2000d.
7. 0 CFR § 7.35—Specific Prohibitions., LII / Legal Information Institute, accessed Oct. 27, 2021, https://www.law.cornell.edu/cfr/text/40/7.35.
8. Draft Title VI Guidance for the EPA Assistance Recipients Administering Environmental Permitting Programs.
9. Dawn Reeves, the EPA Lawyer Vows Use Of  ‘Affirmative Authority’  To Enforce Civil Rights Law, InsideEPA.com, Oct. 15, 2021, https://insideepa.com/daily-news/epa-lawyer-vows-use-affirmative-authority-enforce-civil-rights-law.
10. United States Environmental Protection Agency, Draft FY 2022-2026 the EPA Strategic Plan 22 (2021), www.epa.gov/system/files/documents/2021-10/fy-2022-2026-epa-draft-strategic-plan.pdf.
11. Exec. Order No.14008, 86 Fed. Reg. 19 (Jan. 27, 2021).
12. Text—H.R.3684—117th Congress (2021-2022): Infrastructure Investment and Jobs Act, H.R.3684, 117th Cong. (2021), www.congress.gov.
13. U.S. the EPA Office of General Counsel, OGC Revised Responses to OIG Recommendations, Sept. 20 2021, https://insideepa.com/sites/insideepa.com/files/documents/2021/oct/epa2021_1924a.pdf.
14. See U.S. the EPA, EJSCREEN: Environmental Justice Screening and Mapping Tool, www.epa.gov/ejscreen (last updated Aug. 2, 2018).
15. See https://screeningtool.geoplatform.gov/en/#3/33.47/-97.5.
16. Lee, Charles. “A Game Changer in the Making? Lessons from States Advancing Environmental Justice through Mapping and Cumulative Impact Strategies,” 50 ENVTL. L. REP. 10203 (2020).
17. See OEHHA, CalEnviroScreen 4.0, https://oehha.ca.gov/calenviroscreen/report/calenviroscreen-40 (last updated Oct 2021).
18. Charles Konisky et al., Mapping for Environmental Justice: An Analysis of State Level Tools 3, (2021), https://eri.iu.edu/research/ej-mapping-tools-report.pdf.
19. See U.S. the EPA, EJSCREEN: Environmental Justice Screening and Mapping Tool—Limitations and Caveats in Using EJSCREEN, www.epa.gov/ejscreen/limitations-and-caveats-using-ejscreen.
20. The White House, Tennessee Infrastructure Investment and Jobs Act State Fact Sheet, Aug. 4 2021,  www.whitehouse.gov/wp-content/uploads/2021/08/Tennessee_Infrastructure-Investment-and-Jobs-Act-State-Fact-Sheet.pdf.