On Dec. 11, 2009, the Michigan DEQ (now DNRE) proposed an Environmental Justice Plan in response to an Executive Directive issued by Governor Granholm. “Environmental justice” means “the fair, non-discriminatory treatment and meaningful involvement of Michigan residents regarding the development, implementation, and enforcement of environmental laws, regulations and policies by this state.” Comments are being accepted through March 5, 2010. A copy of the plan is available on the DNRE Web site: http://www.michigan.gov/documents/deq/envjustplan_304917_7.pdf

Environmental justice is also a key focus of U.S. EPA and a draft Environmental Justice Methodology for the Definition of Solid Waste was recently released. See http://www.epa.gov/epawaste/hazard/dsw/ej.htm. EPA also posted fact sheets online Jan. 4-5 on the enforcement priorities under consideration. EPA reviews its enforcement priorities every three years. The current priority list covers the period 2008-2010. Areas being considered for national priority areas for 2011 through 2013 are air toxics, concentrated animal feeding operations, and communitybased approaches to environmental justice.

At the state level, the Michigan DEQ must examine decisions (such as permitting, siting, rule-making, etc.) which may cause an adverse disparate impact on a particular population. The actual method used to identify when the environmental justice concerns must be considered will be based on EPA Region 5 guidelines (Revised Region 5 Interim Guidelines for Identifying and Addressing a Potential EJ Case). Corrective measures must be considered if a regulatory decision may cause disparate adverse impacts on a population. However, this does not mean that a project will not go forward; the DEQ can approve a project or permit with an adverse impact “if the permit is reasonably necessary to meet a goal that is legitimate, important, and integral to the recipient’s institutional mission and there are no less discriminatory alternatives.”

As part of the enhanced public participation, the DEQ should encourage positive interactions between the permit applicant and the affected community to address environmental justice concerns. To provide ways for the public to assert adverse social, economic or environmental impacts and get a state response, the Plan creates an interdepartmental petition process which is not intended to “interfere with existing permitting or project timelines.” The basic elements of the petition process are listed in the Plan but the final petition process should be incorporated into an executive order to demonstrate support from the highest levels of state government.

In the areas of compliance and enforcement, DEQ divisions are encouraged to develop a plan that prioritizes these activities in environmental justice communities, encourages prompt responses to complaints of illegal activities in environmental justice communities and targets inspections for facilities in environmental justice areas. The DEQ will also give more consideration to undertaking remediation in environmental justice areas, and to awarding grants and loans to benefit environmental justice areas.

The implications to the regulated community are likely to play out over time. Because the Plan proposes no new substantive requirements with respect to getting or renewing permits, the biggest impact will probably be the time it takes to get a decision from DEQ. The greatest delays will likely be for new projects in geographic areas that are currently or may become environmental justice areas – new considerations will slow down DEQ decision-making. The regulated community can limit potential delays by voluntarily reaching out to potentially affected communities and becoming involved in the public participation process from the outset. There will certainly be some uncertainty about new projects in environmental justice areas as adverse disparate impacts are evaluated. However, the balance with “Brownfield” economic development and environmental justice considerations will be challenging. Other than potential permitting delays, the biggest impact will likely be on entities which have violated environmental laws or regulations in environmental justice areas – they may be targeted and prosecuted more harshly.

Permit applicants and developers would be well advised to continue community outreach efforts especially in areas of socio-economic disadvantage. Similarly, the regulated community may be subject to more stringent enforcement, and perhaps citizen’s suits in disadvantaged areas.