144. Environmental Justice: What It Is and Why It’s Important to Power Projects

The U.S. Department of Energy (DOE) defines environmental justice as: “The fair treatment and meaningful involvement of all people, regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” It says “fair treatment” means that no population bears a disproportionate share of negative environmental consequences resulting from industrial, municipal, and commercial operations or from the execution of federal, state, and local laws; regulations; and policies. “Meaningful involvement,” meanwhile, “requires effective access to decision makers for all, and the ability in all communities to make informed decisions and take positive actions to produce environmental justice for themselves,” according to the DOE. Environmental justice (EJ) has become a very important consideration when it comes to siting and/or expanding energy projects, including power plants. While many people associated with the power industry tend to focus on the benefits provided to communities when a project is developed, such as well-paying jobs and an increase in the tax base, people in the affected community may have a different view. They may be more focused on the negative effects, which could include an increase in harmful emissions, water usage, and heavy-haul traffic. “Communities are weighing the pros and cons of having industry there—having a job creator—and that, of course, generating additional economic activity. On the flip side, there are actual or perceived environmental or health issues,” Erich Almonte, a senior associate with King and Spalding, said as a guest on The POWER Podcast. King and Spalding is a full-service law firm with more than 1,300 lawyers and 23 offices globally, including a large team focused on energy-related matters. “It’s important to note that there really isn’t any ‘Environmental Justice Law.’ What we have instead are a use of current statutes and regulations that were perhaps designed for something else to try to achieve environmental justice ends,” Almonte said. The impact EJ could have on a project is quite substantial. “A company could meet all of its environmental permitting requirements, but still have a permit denied, if there were disparate impacts that weren’t mitigated properly, under Title VI of the Civil Rights Act,” Almonte explained. “This came out in a guidance document in April 2022, and since, it’s featured a couple of times in subsequent guidance documents that the administration has put out,” he added. While Almonte said he wasn’t aware of a permit being denied in that fashion to date, it’s a major consideration for companies when planning projects. Another potential show-stopper could be trigger through Section 303 of the Clean Air Act. This section provides “emergency powers” to the Environmental Protection Agency (EPA). “When there’s an environmental threat that poses an imminent and substantial endangerment to the public, or to the environmental welfare, then EPA can essentially stop that activity or file a lawsuit against it,” Almonte explained. “This is true even if the activity that’s causing the supposed endangerment is allowed by the permit.” According to Almonte, the EPA has only used this authority 14 times in the past five decades, but four of those occurrences have been in the past two years. This suggests it could become a regular tool used by the administration to achieve its EJ goals.