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Karen Bennett, Cameron Dorais Publish Law360 Expert Analysis on EPA Guidance Incorporating Environmental Justice into Permitting Programs

Washington, D.C. (October 4, 2022) - Washington, D.C. Partner Karen C. Bennett and Summer Associate Cameron Dorais recently authored an Expert Analysis article for Law360, titled “EPA's Permitting FAQ Goes Beyond The Letter Of The Law,” which discusses the Environmental Protection Agency’s (EPA) latest thinking on how to incorporate environmental justice into permitting programs.

The authors open the article by describing the contents of EPA’s August 2022 “Environmental Justice and Civil Rights in Permitting Frequently Asked Questions.” Ms. Bennett and Mr. Dorais explain that the publication “announces the agency’s intent to broadly ‘use the full extent of its enforcement authority over federal civil rights laws, including Title VI of the Civil Rights Act of 1964’’’ to address environmental justice, including deficits in public health and environmental protection. They posit that “the way in which civil rights and environmental justice concerns are addressed in permitting processes must be consistent with statutory authority and judicial precedent, and provide investment certainty to the regulated community.”

Next, the authors review EPA’s specific recommendations included in its August FAQ, including that state regulatory authorities should screen for civil rights concerns early in the permitting process. They also detail the procedures that EPA sets forth for situations where permitting authorities discover adverse disproportionate impacts upon health, environmental, and/or quality of life based on race, color, or national origin. Moreover, Ms. Bennett and Mr. Dorais outline the issues that EPA has not yet addressed on this topic, but which will likely arise as authorities seek to incorporate environmental justice into permitting programs. The authors close the article by observing that although EPA’s recent FAQ is not a legally binding document, “the question is whether it will have a coercive effect — and if so, to what degree will regulatory authorities feel pressured to adopt the agency's recommendations.”

Ms. Bennett is co-chair of Lewis Brisbois' Sustainability and Environmental, Social, and Governance (ESG) Practice, its Environment, Land, & Natural Resources Law Practice, its Administrative Law & Regulatory Practice, and its Government Relations Group. She works with clients to resolve regulatory issues, focusing primarily on permitting, compliance, litigation, and legislative policy. She is a frequent publisher of thought leadership on environmental law and regulatory policy.

Mr. Dorais is a second year law student at the Georgetown University Law Center. He worked as a summer associate in Lewis Brisbois’ Washington, D.C. office during Summer 2022.

You can read the full Expert Analysis as a PDF here or on Law360 here (subscription may be required).

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