The U.S. Environmental Protection Agency’s (“EPA’s”) new Draft Strategic Plan (“Draft Plan”) for 2022-2026 amplifies the Biden Administration’s commitment to environmental justice by outlining, throughout the 100+ page document, how vulnerable communities will be prioritized in the agency’s regulatory programs and enforcement efforts. Identifying seven strategic goals (with four cross-agency strategies), the Draft Plan confirms the already announced agency-wide effort to enhance protections for communities most impacted by poor air and water quality, hazardous waste sites, and a lack of enforcement attention, a point emphasized by EPA Administrator Regan in distributing the plan to over 12,000 EPA career staff. EPA is also placing greater emphasis on community engagement and input in EPA decision making. Departing from the prior administration’s emphasis in its’ 2018-2022 plan on “Back to Basics” environmental regulation and cooperative federalism, EPA’s Draft Plan charts a new course in several areas, especially with regard to the Biden Administration’s “whole of government” approach to environmental justice.

Looking ahead, companies are well served by undertaking their own proactive assessment of their environmental justice activities and community relationships, in addition to raising their awareness of permitting and expansion activities at neighboring facilities. Conducting these activities with counsel under privilege can be an important approach when enforcement and litigation may be on the horizon. Baker Botts’ environmental justice resources, and our ACELAS tool adaptable for any company assessing these important issues, are available for this important work.

Elevated Fenceline Community Engagement

The Draft Plan proposes to increase fenceline community involvement in EPA decision-making processes and in compliance monitoring. EPA would facilitate greater community involvement by taking steps to increase community access to compliance data, increasing opportunities for community input, and focusing on the concentration of industrial facilities in a geographic area. Companies operating in highly industrialized areas will face greater expectation that robust information about their emissions and releases is easily available to the public. This expectation will be accompanied by further calls for facility data transparency and for regular communication with, and accountability to, neighboring communities and local advocacy groups.

Increased Use of Civil Rights Tools in Enforcement

EPA is responsible under Title VI of the Civil Rights Act for ensuring that recipients of EPA funding, such as state environmental permitting agencies, do not use those funds to take actions with intentional or unintentional discriminatory effects. The Draft Plan announces EPA’s intent to deploy a more proactive approach to Title VI cases, particularly by increasing compliance reviews in environmental justice communities. EPA also will step up its audits of EPA funding recipients and more timely investigate civil rights complaints. Companies operating near disadvantaged communities can expect, as a result, to see increased federal and state inspection activity, greater scrutiny of new and renewed permit applications, as well as more robust investigation into upsets, bypasses, and accidents.

Focus on Cumulative Impacts

The Draft Plan emphasizes the importance of focusing permitting decisions and monitoring in vulnerable communities on cumulative risks and impacts. Companies located in areas with significant industrialization and more concentrated levels of pollution can expect to see more inspections and more aggressive enforcement efforts, particularly where children’s health may be implicated. EPA will be aided in its assessment of cumulative risks by the finalization and release of its long delayed cumulative risk guidance document in late 2021.

EPA is accepting comment on the Draft Plan from stakeholders – including companies and trade groups – through November 12, 2021, although the Final Plan is not expected to deviate significantly from the Draft’s core themes.

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