Editor’s Note: Brooke F. Dickerson, an attorney with Atlanta-based law firm Arnall Golden Gregory (AGG) specializing in environmental and construction law, is the author of this article. The article appears as part of AGG’s annual sponsorship of Global Atlanta.
Beware of foreign investors and companies looking to set up or expand Georgia: Don’t let new environmental justice considerations surprise you.
âEnvironmental justiceâ is an effort to address the disproportionately harmful effects of pollution on disadvantaged communities mainly made up of minorities and low-income people. The move has gained media attention in recent times, but international companies may not fully understand its impact on their ability to operate existing businesses or develop new businesses in the world. United States. Knowing about environmental justice concerns and requirements will help businesses control costs, reduce liability, and avoid future litigation.
US environmental laws already seem particularly onerous for foreign companies, as they are very different from regulations in the rest of the world. I have already wrote an article educate foreign companies on how to manage the risks posed by American environmental laws to avoid additional expense, time and liability. Governments, environmental groups and citizens now have additional grounds to challenge companies on the basis of environmental justice claims.
President Biden‘s emphasis on environmental justice since taking office in January, adds additional considerations to business decision-making regarding site selection and business operations. The businesses most affected will be those located in urban rather than rural areas, where there is typically a greater concentration of environmental justice communities located near industrial facilities. However, environmental justice will be an important factor wherever communities primarily made up of people of color, indigenous peoples or low-income families reside nearby.
Environmental justice has been part of official U.S. policy since the 1990s, when the Clinton administration began to address concerns about the unfair effects of pollution on some communities. While the The Trump administration tended to be more “hands off” in terms of enforcing environmental requirements, the Biden administration has now made environmental justice a priority in decision-making for all federal agencies, such as the Environmental Protection Agency (EPA), the Department of Housing and Town Planning (HUD), the Department of Energy (DOE) and the Ministry of Justice (MJ).
We expect the EPA to have the most significant impact on businesses in Georgia. Although many state governments, such as the Georgia Department of Natural Resources Environmental Protection Division (EPD), have the power to issue or deny certain environmental permits and to make enforcement decisions, the federal government will increasingly engage in “over-declaration”, or take over state authority, to pursue actions against private industry instead.
Whether applying for new permits or renewing existing permits for operation or construction, companies should allow for potentially longer approval times, higher consultant costs, and possible rejection of applications. permit. Companies established or already established nearby Environmental justice communities will face increased monitoring of potential air emissions, releases to water, waste generation, increased water use, increased noise and construction issues. Further testing and analysis will be required to assess future impacts.
The government can issue a public notice and hold public meetings before rendering any decision. As a condition of approval, the government can require these companies to deal more rigorously with any negative effects their activities may have on these communities, including potential impacts on health and impacts on their environment. For example, facilities may be required to install additional pollution controls, implement community health monitoring programs, or share more environmental information with the local community, which dramatically increases the cost. operating.
One of the reasons for the additional time and expense is that the government will now consider not only the potential pollution caused by the applicant, but also how its impact, combined with other potential sources nearby, could create an unacceptable cumulative risk to the applicant. an environmental justice community. .
Ongoing urban operations are likely to see an increase in environmental compliance inspections, oversight, and stricter enforcement actions by regulators. Penalty amounts may increase and businesses may be required to complete additional environmental projects (SEPs) or community service projects that benefit neighboring communities. Some companies may even be required to pay restitution or mitigation fees to communities that have been harmed by past broadcasts or other violations. A big change from the previous administration will be an increase in criminal prosecutions that could result in jail terms for individual offenders in the areas of environmental justice.
All of these considerations could influence the choices of international companies on where and how to operate. Some states, like Washington, have passed their own environmental justice laws, but others are in the hands of federal authority. In Georgia, a state Environmental justice bill failed in the last legislative session. Georgia is unlikely to enact environmental justice laws.
On the other hand, we expect to see a significant increase in citizen lawsuits filed by nonprofit groups. For example, the Renewable Biomass Groupthe wood pellet plant proposed in Adel, georgia, has been contested by citizens and environmental groups. Georgia’s EPD approved a building permit for the plant’s air emissions, but many public interest organizations petitioned the federal EPA to step in and review the permit, as the site is upstream of a “particularly vulnerable environmental justice community.” The region is 94 percent minority and 86 percent low-income, according to EJ SCREEN, an EPA environmental justice scouting tool.
Other From South States see similar cases. In Alabama, state-approved environmental permits for a chemical plant and power plant are now in question over environmental justice issues, and the EPA is deciding whether or not to intervene. In Louisiana, the U.S. Army Corps of Engineers recently refused wetland permit needed to build a new plastics factory near a vulnerable community. Similarly, the EPA intervened to deny an operating permit for air emissions to a refinery on the basis of a petition on environmental justice concerns.
Other examples are coming. So what can international companies do to protect their investments and operations in Georgia?
- When choosing a site for a new installation, identify if an environmental justice community is located nearby. Speak to a local real estate or business broker, review the EPA’s EJSCREEN tool, and check out the Georgia EPD.
- Integrated extra time and dollars address environmental justice issues to cover negotiations with government, additional testing, pollution checks, emissions monitoring or discussions with community stakeholders.
- Remember to enter into dialogue with the surrounding community. Even if an investment has potential negative impacts, growing a new business benefits communities in terms of increased investment and employment opportunities. Allow community members to speak out and listen to their concerns; they can conclude that the benefits of a proposed investment outweigh the potential costs and become an ally.
- If you are already working near an environmental justice community, be prepared in advance for an inspection and notice of potential violations. Make sure you know the requirements, perform internal audits, and document any compliance.
- Get the right advice from a lawyer and / or an environmental consultant on rights and obligations under environmental laws. If you are applying for a permit to build a new facility or expand an operation, or if you receive a notice of violation, find out about the legal parameters and the real environmental facts. The authority of the EPA does not go further.
See how your site measures up to environmental justice issues here: https://ejscreen.epa.gov/mapper/.
For more information on preparing and managing environmental justice issues, please contact me at (404) 873-8632 or to [email protected].