Winston’s Environmental Law Update

A recent decision by the Supreme Court of the United States—to deny requests from states and industry groups to stay enforcement of the EPA’s rulemaking on methane and volatile organic compound (VOC) emissions—was deemed a success by the EPA in its efforts to curb emissions from the oil and gas industry.

A district court in Louisiana has barred the EPA and the Department of Justice from imposing disparate-impact-based requirements against the State of Louisiana or its State agencies in civil rights cases under Title VI of the Civil Rights Act of 1964. This decision is likely to serve as a template for other states to oppose the EPA’s use of disparate impact analyses when advancing environmental justice policies and investigations.

On November 15, 2023, the Environmental Protection Agency (EPA) released a draft revision of the Technical Guidance for Assessing Environmental Justice in Regulatory Analysis (Guidance). The draft Guidance updates EPA’s original environmental justice (EJ) technical guidance published in 2016. The Guidance is an internal EPA policy that outlines and refines how EPA should evaluate EJ concerns in regulatory actions. While it is an internal-facing document, the Guidance is the latest example of the Biden Administration’s continued focus on advancing EJ.

The Federal Energy Regulatory Commission (FERC) has changed the standards it applies when approving a natural gas project. Going forward, FERC’s approval framework will consider downstream environmental effects from the use of transported natural gas—including putative impacts on climate change and environmental justice communities. There are, however, legal questions regarding FERC’s expanded view of its authority.

The Environmental Protection Agency (“EPA”) is “taking a fresh look” at its authority to prioritize environmental justice.  This includes the EPA’s “affirmative authority” to use Title VI of the Civil Rights Act to address disparate impacts.  This has significant implications for entities seeking federal environmental permits or funding.  Questions exist, however, regarding whether the EPA’s—or any federal agency’s—statutory authority under Title VI is so broad. 

The concept of environmental justice (EJ) is often talked about. But tracking the tangible steps the Biden administration is taking to advance EJ can be difficult. In its early days, the Biden administration issued the (Executive Order 14008).