In June 2016, the EPA issued its final version of the Technical Guidance for Assessing Environmental Justice in Regulatory Analysis. EPA has defined the concept of Environmental Justice (or “EJ”) 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.” The guidance, which is intended for use by federal agencies proposing regulations or preparing environmental assessments, highlights potential EJ issues that contribute to the uneven distribution of environmental health risks across population groups, and offers qualitative and quantitative assessment methods for investigating these concerns to best integrate them when planning a Human Health Risk Assessment (“HHRA”) or conducting regulatory analyses.

“The technical guidance presents key analytic principles and definitions, best practices, and technical questions to frame the consideration of environmental justice in regulatory actions,” EPA Administrator Gina McCarthy states in her introduction. “It also includes recommendations that are designed to enhance the consistency of our assessment of potential environmental-justice concerns across all regulatory actions.”

The analysis for EJ concerns focuses on three key questions:

  1. Are there potential EJ concerns with environmental stressors affected by the regulatory action for population groups of concern in the baseline (defined as the “the best assessment of the way the world would look absent the proposed action”)?
  2. Are there potential EJ concerns associated with environmental stressors affected by the regulatory action for population groups of concern for the regulatory option under consideration?
  3. For the regulatory option under consideration, are potential EJ concerns created or mitigated compared to the baseline?

To answer these questions, analysts should characterize differential impacts for different population groups to determine if there are discernible differences in impacts or risks to minority, low-income, or indigenous populations that may result from the proposed regulatory action. Key factors for assessing EJ concerns include proximity of sources to these population groups of concern, unique exposure pathways, and history of EJ concerns associated with the pollutant being regulated. This analysis is useful when planning HHRAs and conducting regulatory analyses.

The EJ Technical Guidance stresses that the evaluation of EJ concerns be integrated into an HHRA or regulatory action early on, rather than evaluated separately, to best account for differential health risks for population groups of concern. This guidance also explains how to assess whether a regulatory action raises potential EJ concerns to determine if a more in-depth analysis is necessary.

The Technical Guidance for Assessing Environmental Justice in Regulatory Analysis provides valuable insight into the EPA’s approach to assessing impacts and promoting equality through regulatory analysis. Moving forward, those engaged in environmental review—whether an agency promulgating a rule or a project sponsor seeking a permit approval—will be required to address these concerns head-on consistent with the approach outlined in this Technical guidance.

Leah Pall* contributed to this blog post.
*Not admitted to the practice of law.