View the full letter pdf here.
US Environmental Protection Agency
Office of Policy
1200 Pennsylvania Avenue, NW
Washington, DC 20460
January 30, 2024
RE: Revised Technical Guidance for Assessing Environmental Justice in Regulatory Analysis
We, the undersigned organizations and individuals, commend EPA on its recent efforts to implement Executive Order 14096, including this draft update to the 2016 Technical Guidance. We strongly support EPA’s efforts to strengthen the analysis and early integration of environmental justice (EJ) concerns in all activities, including rulemaking.
In this comment, we highlight seven ways EPA can strengthen the draft Technical Guidance:
1. Applicability: EPA should specify which regulatory actions are subject to the Guidance;
2. Outcome-Driven: the agency’s EJ analysis should drive regulatory standards as permissible by law;
3. Alternatives: EPA must explain when and how to consider regulatory alternatives to minimize EJ concerns;
4. Data Gaps: there should be a clear plan when data needed for an EJ analysis are limited or unavailable;
5. Risk-Based Decision-Making:The Guidance should give recommendations on how to address the acknowledged limits of risk-based decision-making;
6. Considering Cumulative Impacts: The Guidance should account for recent developments in assessing cumulative impacts and non-chemical stressors, including climate change-related impacts; and
7. Meaningful Engagement: The Guidance’s meaningful engagement requirements should reference and be consistent with EPA’s Meaningful Involvement Policy.
Thank you for your consideration. For further clarification, contact Sofia Owen at sofia@ace-ej.org or Edward Quevedo at edward.quevedo@asu.edu.
1. EPA should clarify which regulatory actions are subject to the Technical Guidance
It is not clear from the draft technical guidance what triggers the use of the guidance. Will the guidance merely be an optional resource that offices may reference, or will it have defined applications where reliance on the guidance is mandatory?
EPA acknowledges that the guidance applies to “regulatory actions,” which are defined in footnote 2 as “‘any substantive action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking.’” Elsewhere in the document however, EPA uses vague language such as “the purpose of this document…is to outline analytic expectations and particular technical approaches and methods that can be used by Agency analysts…for regulatory actions.” To enable consistent application of the guidance and help protect all communities across all EPA Regions, EPA should more clearly state that the guidance document should be used early in the process for all regulatory actions. EPA should also clearly state that if an analyst chooses not to use the guidance, the analyst should specify exactly what methods they are using. Finally, the guidance should specify that EPA should conduct an EJ analysis even if the regulatory action would only bring benefits, not costs or harms, to communities with EJ concerns.
EPA’s Office of the Inspector General (OIG) has previously noted concerns regarding inconsistent use of these guidance documents. In 2015, after the Process Guidance was finalized but before the Technical Guidance was finalized, the OIG reported “the EJ in Rulemaking Guide’s impact is uneven across the agency due to its inconsistent use during the rulemaking process.” Further, the OIG noted “EPA does not currently have an agencywide process for assessing the extent to which the EJ in Rulemaking Guide is applied in the rulemaking process.” The OIG then recommended that the Associate Administrator for the Office of Policy “implement a process to measure the use of the EJ guides in the rulemaking process.”
For the revised Technical Guidance to have any real effect, its scope of applicability should be clearly defined, and the guidance should require consistent application, and provide for such application to be tracked and evaluated. These are the minimum conditions for transparency and accountability and to ensure equal treatment of communities around the country. EPA should also include a clear discussion of the Guidance’s use in conjunction with other relevant Agency guidance, at a minimum with regard to the “Process” or “Action Development Process (ADP)” guidance. Further, the Office of Policy should describe in the Technical Guidance how it is addressing the OIG’s recommendations regarding consistency and accountability in applying both the process and technical guidance.
2. Where permitted by statute, the agency’s EJ analysis should drive substantive regulatory outcomes.
Achieving environmental justice requires both procedural and substantive reforms. We commend EPA for its efforts to ensure robust analysis of EJ concerns in rulemaking activities, including advancing procedural justice through meaningful engagement with impacted communities (addressed below). However, the draft guidance fails to articulate when and how that analysis should drive substantive outcomes in the rulemaking itself.
Recognizing that each regulatory activity is subject to unique statutory authorizations, we encourage EPA to require program offices to consider, as part of their EJ analysis, the relevant statutory authority or authorities that empower the Agency to advance EJ outcomes via regulatory requirements, e.g., setting stricter pollution standards or requiring more robust reporting to mitigate disproportionate and adverse public health and environmental impacts. Program offices can rely on the EPA Office of General Counsel’s May 2022 report: EPA Legal Tools to Advance Environmental Justice to quickly and efficiently identify such opportunities.
Further, EPA should clarify that the EJ analysis, including recognition of data and methodology gaps in assessing EJ concerns, will be used to inform any cost-benefit analysis (CBA) required as part of the rulemaking process. CBAs’ limited scope typically results in a failure to adequately account for EJ-related benefits and harms when establishing a baseline, the design of options, and how those options are compared. Further, CBAs typically fail to consider distributional concerns by assessing non-disaggregated population averages. Finally, CBAs tend to assume full compliance, despite persistent evidence to the contrary for most environmental regulations. We specifically recommend that agencies expand their scope of assessment when conducting CBAs to include parameters and aspects which are applicable to EJ concerns.
3. EPA should clarify when and how program offices should analyze regulatory alternatives to address EJ concerns.
EPA must ensure that the consideration of regulatory options contains meaningfully distinct and substantively varied regulatory options to ensure that there is a proper consideration of alternatives. The draft guidance quotes Administrator Regan, stating that in order to accomplish the Agency’s goals with regard to public health and environmental justice “in the context of rulemaking” the Agency should proceed by “considering regulatory options to maximize benefits to these communities.” However, while the draft guidance makes several references to the assessment of regulatory options, it is silent on what kinds of options should be considered. To adhere to the Administrator’s commitment, the guidance must discuss in further detail the implications of the three core questions laid out in the guidance:
1. Baseline: Are there existing (baseline) EJ concerns associated with environmental stressors affected by the regulatory action for population groups of concern?
2. Regulatory options: Are there potential EJ concerns associated with environmental stressors that are affected by the regulatory action for population groups of concern for the regulatory option(s) under consideration?
3. Mitigation or exacerbation of impacts: For the regulatory option(s) under consideration, are EJ concerns exacerbated, mitigated, or unchanged compared to the baseline?
Specifically, if the answer to Question #2 is affirmative, then there must be consideration of options to meet the Administrator’s priority of “maximizing benefits” to those overburdened communities. This is compelled not only by the several EJ-related Executive Orders, but by the analogous principle embedded in federal civil rights policy and guidance, that there be systematic consideration of “less discriminatory alternatives”. In the context of this guidance, a meaningful regulatory evaluation with regard to environmental justice must, at a minimum, consider a full range of reasonable alternatives that can maximize the benefits to overburdened communities. The guidance should also specify that each regulatory option should include information on EJ impacts so they can be compared. This concept of “reasonable alternatives” runs throughout the Agency’s guidance documents such as the Economic Analyses guidance listed in Appendix A of the draft Technical Guidance.
4. The Guidance should articulate a clear policy for how program offices should address and consider data gaps in its EJ analysis.
The Guidance should clearly articulate how agencies should respond to a lack of available data on EJ concerns. We commend the Biden administration’s recognition of and commitment to address data gaps in environmental justice-related science, data, and research. However, in the interim, it is essential to guide agencies on how to respond to existing data gaps in rulemaking activities. In the past, federal agencies have responded to a lack of data by either doing nothing or doing less.
We encourage EPA to adopt a precautionary approach when it encounters data gaps related to environmental justice concerns in rulemaking activities. Specifically, and consistent with applicable statutory authority, EPA should not permit uncertainty related to such data gaps as a basis for failing to take reasonable actions to protect members of structurally marginalized communities. Absence of proof of environmental inequities is not the proof of absence of environmental inequities. Any decisions of non-action should have to be justified with proof that there is an absence of environmental inequities. Further, the Guidance should require agency staff to identify at the outset of its EJ analysis any data or methodological gaps and other sources of uncertainty in the analysis, thereby enabling EPA to formulate a strategy for how to address those uncertainties in later steps of the decision-making process.
Further, while we appreciate EPA’s mention of using traditional Indigenous knowledge in the context of gathering and using data, we believe the Guidance does not articulate processes that fully and meaningfully integrate traditional knowledge into agency decision-making. We encourage EPA to more fully develop guidance, in consultation with Indigenous communities, that explains when and how traditional Indigenous knowledge may be used. For example, traditional Indigenous knowledge is invaluable in situations where projects are proposed adjacent to or nearby Indigenous lands or in areas that are considered culturally important, but are no longer within Indigenous communities or nations because of conquest, colonization and land theft. Indigenous knowledge in those cases can inform decisions regarding hydrology, geology, archaeology and current cultural practices, among other issues.
We also encourage EPA to provide guidance on how the agency will work with Indigenous nations to both integrate their knowledge into decision-making and protect their knowledge from exploitation. Any final Guidance should clearly articulate how EPA intends to engage with Indigenous communities, including central tribal governments, the communities that would be most impacted by agency decisions and local tribal governments.
Finally, we appreciate the Technical Guidance’s detailed discussion of research priorities to address key gaps in data and methodologies in Chapter 7. We agree that filling these gaps will be essential if environmental justice is to be effectively accounted for in EPA’s regulatory analyses. We were struck, however, that the Technical Guidance did not mention the Agency’s ongoing implementation efforts of the Foundations for Evidence-Based Policymaking Act of 2018 (“Evidence Act”). The implementation framework for this statute seems well-suited for pursuing the research priorities outlined in Chapter 7. Accordingly, we urge EPA to specifically address how implementation of the Technical Guidance can be effectively integrated into its existing responsibilities under the Evidence Act.
