A conversation about environmental justice with Attorney Sean McGovern

Pittsburgh Business Times

(By Sean M. McGovern)

Babst Calland Shareholder Sean McGovern takes a closer look at Pennsylvania Governor Tom Wolf’s executive order to develop a stronger environmental justice policy and what local business and industry can expect.

Pennsylvania businesses can expect 2022 to become the year of environmental justice, thanks largely to Executive Order 2021-7 issued by Pennsylvania Governor Tom Wolf on October 28.

So said Sean McGovern, a shareholder with Pittsburgh law firm Babst Calland’s environmental practice, who suggested the executive order will, indeed, change Pennsylvania’s approach to environmental justice significantly ahead.

“Certainly, this is a very current development,” McGovern said. “There’s no statute or explicit regulation here in the state. We already have an environmental justice policy, but this new environmental justice order, as well as the Executive Order 14008 from President Biden earlier this year, will further establish the rights and duties under the Environmental Rights Amendment to protect all people in Pennsylvania.”

McGovern shared his insights on environmental justice in Pennsylvania recently with the Pittsburgh Business Times as part of the law firm’s ongoing Business Insights series. Babst Calland is one of the Pittsburgh region’s largest law firms. McGovern is considered one of Babst Calland’s environmental counselors on issues surrounding environmental justice and other matters of environmental law.

Environmental justice defined

So, what is it? The U.S. Environmental Protection Agency defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”

While the issue has been around for decades, it took center stage earlier this year when President Biden signed an executive order prioritizing for the federal government “environmental justice on a fairly systemic federal level,” McGovern said.

“It set forth a policy that the agencies under the federal government’s purview will make achieving environmental justice as part of their missions,” he continued, “by developing programs, policies, activities to address disproportionately high human health, environmental and climate-related and other cumulative impacts on disadvantaged environmental justice communities.”

Federal and state guidance

A key reason for the order: “To spur economic opportunity for disadvantaged communities,” McGovern said. “We’re seeing quite a bit now in the press regarding [President Biden’s] Build Back Better plan.” Among its provisions: it gives all people the same degree of protection from environmental and health hazards, and it gives all people equal access to the decision-making process to have a healthy environment in which to live, learn, and work.

The Biden administration also has begun to establish the White House Environmental Justice Interagency Council which, McGovern said, not only includes traditional environmental agencies, but also the U.S. Departments of Commerce, Labor, Justice, Health and Human Services, Transportation, and other federal departments and agencies.

President Biden’s actions to prioritize environmental justice includes a directive to set aside 40 percent of federal funding “investments” for the benefit of disadvantaged communities, McGovern said.

Seeking improved environmental justice in Pennsylvania

This is important background information, McGovern said, because Pennsylvania’s governor largely followed the Biden administration in issuing his own executive order for the Commonwealth to foster greater equity for all Pennsylvania citizens when it comes particularly to environmental health and safety.

“A lot of language in the recitals of the executive order almost directly mirror the executive order from President Biden, so clearly, I would say, the support — inspiration — for the executive order was placed here,” he said.

McGovern said the Pennsylvania Department of Environmental Protection is working on a revised environmental justice policy that currently is being reviewed by an environmental justice advisory board, although the “guidance document … is not a statute, law, or regulation, but really a policy for the [Pennsylvania Department of Environmental Protection] to evaluate permit applications.”

He expects a final policy to be completed in 2022.

Expanding disadvantaged populations

Among the proposed policy’s key provisions, he said: an expansion of the definition of what should be considered an “environmental justice area.” That is, 30 percent or greater of a population that is considered minority, or 20 percent or greater of a population living below twice the poverty level as defined by the U.S. Census Bureau, as proposed in the department’s current working draft.

McGovern also said Wolf’s order will include populations where at least 10 percent of the households have limited English language proficiency.

“This is a broadening of the current definition of an environmental justice area,” McGovern said.

An impact on well permits

The executive order also includes what McGovern referred to as an unconventional well permit section that would “require the DEP’s Office of Oil and Gas to collaborate with the Office of Environmental Justice to conduct an annual assessment of anticipated or actual drilling operations.

“This is important,” he continued, “because it effectively moves the environmental justice policy into a retroactive document for permits that have already been issued historically.”

McGovern described the potential impact on the oil and gas industry as significant.

“The working draft is likely going to impact all of the DEP’s permitting operations as it spreads across industries,” McGovern said. “It’s going to require a significant amount of collaboration between the Office of Environmental Justice and these individual bureaus under the DEP, and it will consider, as part of permit applications, in some cases, past permit approvals — further analysis that companies may not have had to consider before.

“Also, there’s going to be a broadening of environmental justice guidelines here in Pennsylvania, to include a variety of new data, including potential health impacts,” he added.

Like its federal counterpart, Wolf’s executive order also creates an Environmental Justice Interagency Council, in addition to an advisory board, McGovern explained. The council will include the Pennsylvania Department of Conservation and Natural Resources, as well as the Commonwealth’s Departments of Education, Agriculture, Health, Transportation, Community and Economic Development, and several cabinet members “at the discretion of the governor to be part of a periodic meeting to discuss environmental justice across agencies.”

In addition to the executive order, McGovern said, other state legislators have proposed bills that would establish as law the Office of Environmental Justice and an Environmental Justice Advisory Board, as well as an Environmental Justice Task Force and regional committees.

“There’s quite a bit going on as of late here in Pennsylvania … that further establishes, along with the environmental justice policy, that there are critical aspects moving forward in Pennsylvania with permitting industrial activities and how those permit applications are going to proceed,” McGovern said.

An environmental counseling role

McGovern said Babst Calland “has a strong, vibrant environmental practice, and we do handle all aspects of permitting, compliance, enforcement litigation, and transactional work. But environmental justice considerations would probably fall in the counseling area, in that prior to applying for a permit for a development or new industrial activity, for example, an applicant should seek knowledgeable counsel regarding impacts of the environmental justice policy, especially if constructing or operating in an environmental justice area.”

Without question, McGovern said, the forthcoming new policy will require businesses to build in extra time to complete the permitting process and, even then, prepare for hurdles, depending on the location of environmental justice areas.

He added: “As the policy proceeds … it becomes more and more critical for businesses and industries in Pennsylvania to be cognizant of the updated policy during the application process.”

More aggressive enforcement anticipated

To support environmental justice policy and principles, local business and industry can expect more aggressive enforcement at both the federal and state levels, including Pennsylvania, where there’s going to be more enforcement that may likely result in more penalties.

Babst Calland will continue to track these developments and their potential impact across various industries. If you have any questions about the environmental justice, please contact Sean McGovern at smcgovern@babstcalland.com.

Business Insights is presented by Babst Calland and the Pittsburgh Business Times. To learn more about Babst Calland and its environmental practice, go to www.babstcalland.com.