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Earlier this year, the PA Department of Environmental Protection (DEP) released its revised Environmental Justice Public Participation Policy. This policy, last released in 2004, is intended to help guide the Department in integrating Environmental Justice (EJ) into more aspects of the work within regulatory limits.
On May 11, 2022, PennFuture submitted two public comments on the proposed revision (see here and here). As I outline below, DEP’s Policy, while a great and necessary start, focuses only on informing the community of the potential for more pollution from a new facility while failing to do anything to prevent that increased pollution burden to the community. In short, DEP must make this policy a regulation and must deny permits that could disproportionately harm EJ communities.
What is Environmental Justice?
Environmental Justice is defined by the US EPA 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 purpose of EJ is to rectify and bring justice to those communities that have long suffered a disproportionate burden of pollution based on race, income, and other institutionalized factors such as redlining and environmental racism. Also known as “sacrifice zones,” EJ communities include the frontline and fence-line communities where there is a disproportionate concentration of toxic facilities and other pollution sources.
DEP defines an EJ Area as a community where at least 20% of the population have incomes below the federal poverty line and/or 30% identify as non-white. DEP has created an Environmental Justice Area Viewer to help communities, applicants, and agencies identify EJ Areas and “Areas of Concern” for which its Public Participation Policy applies. Under this policy DEP limits the Area of Concern in the EJ community to a 0.5-mile radius from the proposed facility.
What is DEP’s Environmental Justice Public Participation Policy?
First off, what is a DEP “policy”? DEP policies are written, nonbinding documents that outline procedures that Department and others may put in place and actions they may take to meet the requirements of an environmental law or outline key practices of an agency or organization. Policies can be viewed as guidance for the agency. As the DEP explains, the law (statutes, regulations) tells the agency what to do and the policy says how DEP should do it. Consequently, unlike laws, there is no legal recourse should DEP fail to follow its own policies.
As the name denotes, DEP’s EJ Public Participation Policy is limited to outlining the actions that DEP should take to reach out to and receive feedback from EJ communities. In short, this policy includes (but is not limited to) the following:
DEP Must Strengthen Its EJ Policy
The most fundamental problem with DEP’s Policy is that it does not specifically call on DEP to deny permits that would disproportionately harm or add to the already disproportionate pollution burden of EJ communities. DEP has clear statutory and constitutional authority and duty to shape the substantive outcomes of the permitting process and without recognizing and setting forth this authority, the Policy fails to promote the fair treatment or meaningful involvement of all Pennsylvanians.
This is not to say that we don’t encourage and support DEP doing everything it can to have a robust and inclusive public participation process regarding permitting of polluting facilities in EJ communities. Education, outreach, understanding, and listening are critical elements of the public participation process that for too long have been denied to frontline and fence-line communities. Making the process easier to understand and navigate is essential to overcome the long history of ignoring the health and concerns of these overburdened, under-resourced, and often dismissed communities. DEP must do everything it can to communicate with and listen to EJ communities.
However, if all DEP does is receive input from an EJ community, without changing the course based on that input, then it can only continue to perpetuate the disproportionate impact on the communities. DEP must give these communities the power to reject facilities and must be able to deny permits that will contribute additional pollution. To achieve “fair treatment” of “all people regardless of race, color, national origin, or income,” DEP must prevent (and reverse) the buildup of cumulative and disparate harms on black and brown communities, immigrant communities, and low-income communities, even if each application it receives appears to comply with other regulatory requirements. To achieve “meaningful involvement,” the public’s comments and opposition must be able to change the outcome of DEP’s decisionmaking.
Moreover, DEP must establish formal EJ regulations – which have the full force of law – that protect EJ communities from additional polluting facilities. Again, while this Policy is better than before, leaving EJ to a policy robs communities of the ability to hold DEP accountable for any failure to protect EJ communities. Additionally, industry will take such a rule more seriously than a policy, and DEP could actually require applicants to provide DEP with the information it needs to meaningfully advance environmental justice. Finally, a rule can empower Pennsylvanians suffering from environmental injustice to fight for their future: while a policy may encourage public comment, residents can enforce a rule through appeals or other legal action.
Barring these two critical factors to DEP truly protecting the health and environmental rights of EJ communities, our comments also offered a number of changes that could improve the Policy to better protect the health of EJ communities, including:
DEP is currently reviewing the comments it received from the public. We call on the Department to center the voices, concerns, and comments of frontline, fence-line, and environmental justice communities and organizations. We hope that DEP takes seriously its duty to protect EJ communities from further harm, and will continue to explore opportunities to elevate, coordinate with, and represent Environmental Justice communities in Pennsylvania.