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Karen Bennett Speaks with InsideEPA on EPA Guidance Incorporating Environmental Justice Into Permitting Process

Washington, D.C. (October 19, 2022) - Washington, D.C. Partner Karen C. Bennett recently spoke with InsideEPA – a news service that reports on environmental regulation and policy – for an article on the U.S. Environmental Protection Agency’s (EPA) landmark new guidance on addressing environmental justice considerations in the permitting process.

The article, titled “EPA Guide May Complicate Permitting Under Rights Law, Lawyer Warns,” explains that the EPA laid out new guidance in a Frequently Asked Questions (FAQ) document released in August 2022. The document allows for a permit to be denied under civils rights law even if it meets all environmental requirements. Ms. Bennett told InsideEPA that the FAQ provisions are not legally enforceable, but that they still could have a “coercive effect” on states. Ms. Bennett explained, “Most of this is policy that EPA is writing and acting as if it’s enforceable . . . EPA has created this cloud of uncertainty, but they are really leveraging the states, and in a very real way, you’re seeing permits being sent back for reconsideration.”

Ms. Bennett further noted that the FAQ document will complicate the permitting process in many ways, including causing challenges for states. She elaborated, “The states are in a really hard place” because if they fail to issue a permit, “it could be seen as arbitrary and capricious and the state could be sued by the permittee. . . But if they do issue that permit and some third party alleges discrimination,” the state could be open to Title VI investigations by EPA and the Department of Justice. Ms. Bennett added, “No state wants to have to defend themselves, it’s expensive, and there’s negative connotations associated with that, so they’re really trying to avoid that at all costs.” She also told InsideEPA that the FAQ document did not provide a sufficient legal basis for denying a permit under the civil rights law and urged EPA to clarify the limits of its authority.

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. A frequent publisher of thought leadership on environmental law and regulatory policy, Ms. Bennett recently co-authored an Expert Analysis article for Law360, titled “EPA's Permitting FAQ Goes Beyond The Letter Of The Law,” which discusses the EPA’s recent guidance on incorporating environmental justice into the permitting process.

Read the full InsideEPA article here (subscription may be required).

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