Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions August 2022


Environmental Protection Agency

Interim

Environmental Justice and Civil Rights in

Permitting
Frequently Asked Questions

August 2022

Office of General Counsel
Office of Policy

U.S. Environmental Protection Agency
Washington, D.C. 20460

This document discusses a variety of federal statutory and regulatory provisions, but does not itself have
legal effect, and is not a substitute for those provisions and any legally binding requirements that they may
impose. It does not expressly or implicitly create, expand, or limit any legal rights, obligations,
responsibilities, expectations or benefits to any person. To the extent there is any inconsistency
between this document and any statutes, regulations or guidance, the latter take precedence. EPA
retains discretion to use or deviate from this document as appropriate.

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Acknowledgements

The EPA Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions (FAQs)
benefitted from significant input from across the Agency. This effort spawned from questions and topics
raised from within the agency, from external partners such as National Environmental Justice Advisory
Council (NEJAC) and from states. It was informed by earlier NEJAC recommendations and experience
with state partners and was coordinated through the Environmental Justice and Civil Rights in
Permitting Community of Practice (Permitting CoP), led by EPA's Office of Policy (OP) and Office of
General Counsel (OGC). The subcommittee on FAQs from the Permitting CoP was comprised of
representatives of OP, OGC, External Civil Rights Compliance Office (ECRCO), Office of Water, Office of
Air and Radiation, Office of Land and Emergency Management, and Regions 2, 5, 8 and 9. OGC, ECRCO
and Region 5's Tribal and Multimedia Programs Office and Air and Radiation Division took a leadership
role, working with OP (including Office of Environmental Justice and Office of Federal Activities-
Permitting Policy Division) and expert staff from the Permitting CoP to carry the work through fruition.
Many thanks, also, to staff in EPA programs and regions for their input, and to all EPA staff who
contributed to this valuable resource. We look forward to continued engagement and refinement on
this iterative living document, including with our state partners and the NEJAC.

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Table of Contents

1.	Why is it important for permitting programs to ensure consideration of environmental justice
and comply with federal civil rights laws, including Title VI of the Civil Rights Act of 1964, as

well as state civil rights and environmental justice laws?	1

2.	What are EPA's responsibilities under federal environmental justice policy, including with
respect to permitting?	2

3.	What responsibilities do EPA staff and managers with permit issuance and review
responsibilities have to ensure compliance with civil rights laws by recipients of EPA financial
assistance?	3

4.	What is the relationship between EJ and civil rights compliance, particularly in the context of
environmental permitting?	4

5.	Does an entity's full compliance with the federal environmental laws in carrying out its
permitting programs and decisions equate to compliance with the federal civil rights laws?	6

6.	How could a permitting decision raise a statutory civil rights compliance concern about
intentional discrimination, or have a discriminatory effect?	6

7.	In addition to federal civil rights laws, what other laws and regulations support consideration

of environmental justice in permitting?	7

8.	How can states and other recipients screen for EJ and civil rights concerns with respect to their
permitting programs and decisions?	8

9.	If the screening analysis indicates that a proposed permitting action raises civil rights and/or
environmental justice concerns, what additional steps can a permitting program consider to
address EJ concerns and ensure compliance with Title VI?	10

10.	What are promising practices in conducting an EJ analysis?	11

11.	What is a disparate impact analysis under Title VI?	12

12.	How would EPA consider "cumulative impacts" within the Title VI disparate impact analysis?	13

13.	What if a Title VI disparate impact analysis by a permitting program concludes that the permit
decision will have adverse disparate impacts on the basis of race, color, or national origin
(including LEP status)?	14

14.	What are some examples of measures that a permitting program may be able to take to
mitigate adverse and disproportionate impacts and/or develop and implement less
discriminatory alternatives?	15

15.	When and how should permitting programs conduct community engagement?	16

16.	How does tribal consultation differ from community engagement?	19

17.	What are some resources on environmental justice, civil rights, and tribal consultation?	20

18.	How do I get additional information or provide feedback on the FAQs?	22

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Introduction

These Frequently Asked Questions (FAQs) provide information to federal, state, and local environmental
permitting programs to help them meet their responsibilities to integrate environmental justice (EJ) and
civil rights into relevant environmental permitting processes. They do not change obligations to comply
with applicable environmental and civil rights laws or create any new legal rights or responsibilities.1
This is a "living document" that EPA will update and refine as the practice of integrating EJ and civil
rights into permitting advances.

EPA's mission is to protect human health and the environment. EPA is committed to achieving our
mission for all people in the United States, regardless of race, color, national origin (including limited
English proficiency [LEP] status), disability, age, sex, or income. For decades, many people of color, as
well as low-income and indigenous populations, have been disproportionately burdened by pollution
and denied equal access to a healthy environment.3 This legacy of environmental injustice represents a
systemic deficit in public health and environmental protection. Finding solutions is not only the right
thing to do; it is also our collective obligation.

Federal environmental justice policy directs EPA to address environmental injustices to the full extent
authorized by law.4 This policy was based, in part, on the nation's civil rights laws, which were enacted

1 EPA is committed to issuing additional guidance in the near future to update and clarify information about investigative and legal standards
applicable to external civil rights claims, including those concerning permitting.

2 As discussed below, Title VI and EPA Title VI implementing regulations do not apply to the federal government itself. Moreover, these FAQs
provide general information about integrating environmental justice and civil rights obligations, where applicable, recognizing that the
implementation of these principles by permitting programs will vary depending on their statutory and regulatory authority. See generally EPA
Legal Tools to Advance Environmental Justice (2022), https://www.epa.gov/ogc/epa-legal-tools-advance-environmental-iustice.

3 See, e.g., Tessum, C.W., Paolella, D.A., Chambliss, S.E., Apte, J.S., Hill, J.D., & Marshall, J.D. PM2.5 polluters disproportionately and systemically
affect people of color in the United States, Science Advances 7(18) (2021), 10.1126/sciadv.abf4491; lhab Mikati, Adam F. Benson, Thomas J.
Luben, Jason D. Sacks, & Jennifer Richmond-Bryant, Disparities in Distribution of Particulate Matter Emission Sources by Race and Poverty
Status, Am J Public Health. 108(4): 480-485 (2018), 10.2105/AJPH.2017.304297; U.S. Env't Prot. Agency, Technical Guidance for Assessing
Environmental Justice in Regulatory Analysis, Section 4, https://www.epa.gov/sites/default/files/2016-06/documents/eitg 5 6 16 v5.1.pdf):
Catherine Jampel, Intersections of Disability Justice, Racial Justice, and Environmental Justice, Environmental Sociology (2018);

10.1080/23251042.2018.1424497; USGCRP, Impacts, Risks, and Adaptation in the United States: Fourth National Climate Assessment, Volume
II, Chapter 19 (discussing rural communities) [Reidmiller, D.R., C.W. Avery, D.R. Easterling, K.E. Kunkel, K.L.M. Lewis, T.K. Maycock, and B.C.
Stewart (eds.)], U.S. Global Change Research Program, Washington, DC, USA, 1515 pp. doi: 10.7930/NCA4.2018 (2018),
https://nca2018.globalchange.gov.

4 Executive Order 12898: "Federal actions to address environmental justice in minority populations and low-income populations,"

https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf.

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to address all forms of discrimination.5 To date, most federal enforcement action in the civil rights arena
has focused on other sectors, e.g., education, employment, housing, and transportation—and not on
environmental protection. EPA recognizes that it is time to use the full extent of its enforcement
authority under federal civil rights laws, including Title VI of the Civil Rights Act of 1964.

EPA also recognizes that it does not and need not stand alone in pursuing environmental justice. More
than 40 states and the District of Columbia have laws, policies, or programs pertaining to environmental
justice. Several states (e.g., California, Minnesota, and New Jersey) and municipalities have enacted laws
to address cumulative and disproportionate impacts in the permitting context, and others are
considering such legislation.6 In addition, most states and many local jurisdictions also have civil rights
laws. These state and local laws may provide independent authority to advance environmental justice
and ensure protection of civil rights. EPA greatly values the contribution of its partners in this critical
effort.

Historically, industrial facilities have been sited, have expanded, and have added to the pollution burden
in already vulnerable communities without due consideration of whether, either intentionally or in
effect, the decisions allowing such outcomes are discriminatory under civil rights law or unfair under
environmental justice policies. By considering the principles of environmental justice, complying with
federal civil rights laws, and complying with applicable state environmental justice and civil rights
policies and laws, environmental permitting programs can better identify and address discriminatory or
unfair permitting processes and outcomes. EPA intends these FAQs to help permitting programs
consider these critical issues.

What are EPA's responsibilities under federal environmental justice
policy, including with respect to permitting?

Three Executive Orders (E.O.s) establish federal policy on equity and environmental justice:

• E.O. 12898 Federal Actions to Address Environmental Justice in Minority Populations and Low-
Income Populations (1994) lays the foundation of EPA's EJ policy. It directs each listed federal
agency, including EPA, to "make achieving environmental justice part of its mission by
identifying and addressing, as appropriate, disproportionately high and adverse human health or
environmental effects of its programs, policies, and activities on minority populations and low-
income populations." Agencies must do this to the "greatest extent practicable and permitted

5 See Memorandum on Environmental Justice (Feb. 11, 1994), https://www.govinfo.gov/content/pkg/WCPD-1994-02-14/pdf/WCPD-1994-02-
14~Pg279.pdf (requiring federal agencies to ensure that all programs or activities receiving federal financial assistance that affect human health
or the environment do not "use criteria, methods, or practices that discriminate on the basis of race, color, or national origin"). See also Title VI
of the Civil Rights Act of 1964, 42 United States Code §§ 2000d to 2000d-7 (Title VI); Section 504 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. § 794; Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. §§ 1681 etseq.; Age Discrimination Act of 1975, 42 U.S.C.
§§ 6101 etseq.; Federal Water Pollution Control Act Amendments of 1972, Pub. L. 92-500 § 13, 86 Stat. 903 (codified as amended at 33 U.S.C.

§ 1251 (1972)); 40 C.F.R. Parts 5 and 7.

6 See generally Environmental Justice for All: A Fifty State Survey of Environmental Justice Legislation, Policies and Cases (2007),

https://www.issuelab.org/resources/3124/3124.pdf.

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by law." The Presidential memorandum accompanying E.O. 12898 notes that existing
environmental and civil rights statutes provide many opportunities to ensure that all
communities and persons live in a safe and healthful environment.

•	E.O. 14008 Tackling the Climate Crisis at Home and Abroad (2021) reaffirms the importance of
environmental justice and makes explicit that agencies should address "climate-related and
other cumulative impacts on disadvantaged communities, as well as the accompanying
economic challenges of such impacts." It also establishes a federal policy "to secure
environmental justice and spur economic opportunity for disadvantaged communities that have
been historically marginalized and overburdened by pollution and underinvestment in housing,
transportation, water and wastewater infrastructure, and health care."

•	E.O. 13985 Advancing Racial Equity and Support for Underserved Communities Through the
Federal Government (2021) establishes a whole-of-government equity agenda to address
entrenched disparities in our laws and policies and to promote equal opportunity for
underserved communities that have been denied fair, just, and impartial treatment.

What responsibilities do EPA staff and managers with permit issuance
and review responsibilities have to ensure compliance with civil rights
laws by recipients of EPA financial assistance?

As a federal agency, EPA is responsible for civil rights enforcement. EPA is also committed to carrying
out its permitting processes in a nondiscriminatory manner and improving the accessibility of its
programs and activities to ensure meaningful access for persons with disabilities and persons with
limited English proficiency.7

As discussed below, EPA civil rights regulations prohibit state, local, or other entities that receive federal
financial assistance, either directly or indirectly from EPA ("recipients"), from taking actions that are
intentionally discriminatory as well as practices that have an unjustified discriminatory effect, including
on the basis of race, color, or national origin. Two provisions of EPA's civil rights regulations are
particularly relevant to recipients' permitting processes:

"A recipient shall not use criteria or methods of administering its program or activity
which have the effect of subjecting individuals to discrimination because of their race,
color, national origin, ...or have the effect of defeating or substantially impairing

7 Title VI is inapplicable to EPA actions because it only applies to programs and activities of recipients of federal financial assistance, not to
federal agencies. Nonetheless, EPA is committed to a policy of nondiscrimination in its own permitting programs. The equal protection
guarantee in the Due Process Clause of the U.S. Constitution prohibits the federal government from engaging in intentional discrimination.
Moreover, section 2-2 of Executive Order 12898, Federal Actions To Address Environmental Justice in Minority Populations and Low-Income
Populations, directs federal agencies to ensure, in part, that federal actions substantially affecting human health or the environment do not
have discriminatory effects based on race, color, or national origin. See 40 C.F.R. Part 12: "NONDISCRIMINATION ON THE BASIS OF HANDICAP
IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE ENVIRONMENTAL PROTECTION AGENCY; Executive Order 13166, Improving Access to
Services for Persons With Limited English Proficiency, https://www.govinfo.gov/content/pkg/FR-2Q00-08-16/pdf/00-2Q938.pdf; EPA LEP
Guidance and Materials, https://www.epa.gov/ogc/assisting-people-limited-english-proficiencv.

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accomplishment of the objectives of the program or activity with respect to individuals of
a particular race, color, [or] national origin ..."8

"A recipient shall not choose a site or location of a facility that has the purpose or effect
of excluding individuals from, denying them the benefits of or subjecting them to
discrimination under any program or activity to which this part applies on the grounds of
race, color, or national origin...; or with the purpose or effect of defeating or
substantially impairing the accomplishment of the objectives of this subpart."9

When accepting assistance, recipients of EPA funding acknowledge that they have an affirmative
obligation "to implement effective Title VI compliance programs" and to ensure that their actions "do
not involve discriminatory treatment and do not have discriminatory effects even when facially
neutral."10 When reviewing environmental permits issued by states and other recipients, EPA staff and
managers with permit review responsibilities have authority and are encouraged to work with their
servicing legal office as needed to provide comments on environmental justice and civil rights issues
raised by such permits, including the potential for adverse and disproportionate impacts from a permit
decision, as well as issues regarding meaningful involvement and fair treatment of any population
adversely and disproportionately affected by a permit. EPA also offers technical assistance on civil rights
compliance.

What is the relationship between EJ and civil rights compliance,
particularly in the context of environmental permitting?

Environmental justice and civil rights compliance are complementary. Integrating environmental justice
in decision-making and ensuring compliance with civil rights laws can together address the strong
correlation between the distribution of environmental burdens and benefits and the racial and ethnic
composition, as well as income level, of communities.

EPA 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. Environmental justice policies and
laws, provisions requiring that cumulative impacts be identified and addressed in a permit decision, and
many other measures that ensure fair treatment and empower communities affected by government
decisions all represent pathways to fairer distribution of environmental burdens and benefits. Executive
Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income
Populations, establishes executive branch policy on environmental justice on the federal level.

8	40 C.F.R. § 7.35(b).

9	40 C.F.R. § 7.35(c).

10	EPA, General Terms and Conditions Effective October 1, 2021, at 26, https://www.epa.gov/svstem/files/documents/2021-
09/fv 2022 epa general terms and conditions effective October 1 2021.pdf.

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For recipients of federal financial assistance, civil rights compliance is mandatory—and it is a critical tool
for achieving environmental justice when a permitting action is likely to have an adverse and
disproportionate impact, particularly on the basis of race, color, or national origin. Title VI of the Civil
Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin by
recipients of federal funds, is the civil rights law that is most frequently invoked in the permitting
context. It applies to public and private entities that receive federal financial assistance but does not
apply to the federal government itself. It covers all of the operations of programs or activities that
receive federal financial assistance without regard to whether specific portions of the program or
activity are federally funded. The term "program or activity" means all of the operations of a
department, agency, or the entity to which federal financial assistance is extended.11 Title VI covers both
intentional discrimination and acts that have an unjustified disparate impact on the basis of race, color,
or national origin. The disparate impact analysis under Title VI of the Civil Rights Act of 1964 and EPA
regulations includes not only an assessment of whether a permit will have a disproportionate impact on
the basis of race, color, or national origin, but also whether there is a substantial and legitimate
justification for any such disproportionate impact, as well as whether there is a less discriminatory
alternative. See FAQ #11.

As discussed at more length below, environmental justice and civil rights analyses undertaken by
permitting authorities may overlap substantially. Environmental justice policies and laws and civil rights
laws generally incorporate procedural requirements, and EPA has long recognized the value of "early,
inclusive and meaningful public involvement throughout the entire permitting process."12 See FAQ #15.
As noted above, both environmental justice policies at the federal level—and, in many cases, at state
and local levels—and civil rights laws call on decision-makers to identify and address whether programs
and activities, including permitting decisions, have adverse disproportionate impacts on the basis of
race, color and national origin (including LEP status). At the federal level, Executive Order 12898 and
environmental justice policies more generally also address disproportionate impacts on the basis of
income. In both contexts, decision-makers should consider the potential impacts of a permitted activity
in light of cumulative impacts in overburdened communities. Methodologies for conducting
environmental justice analyses, such as health impact assessments (HIAs), create opportunities for
considering a range of mitigations that can be pursued if appropriate under federal or state
environmental and environmental justice laws and can also be relevant to consideration of civil rights
compliance. See FAQ#10.

11	See DOJ, Title VI Legal Manual, https://www.iustice.gov/crt/fcs/T6manual5 (discussing "Program or Activity").

12	Title VI Public Involvement Guidance, 71 Fed. Reg. at 14210 (discussing belief that meaningful public involvement will help ensure compliance
with Title VI and EPA's Title VI implementing regulations); see also EPA, Learn About Environmental Justice,
https://www.epa.gov/environmentaliustice/learn-about-environmental-iustice (defining "meaningful involvement").

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5 Does an entity's full compliance with the federal environmental laws in
carrying out its permitting programs and decisions equate to
compliance with the federal civil rights laws?

State, local, and other recipients of federal financial assistance have an independent obligation to
comply with federal civil rights laws with respect to all of their programs and activities, including
environmental permitting programs.13

A recipient's compliance with the requirements of federal environmental laws with respect to
permitting activities and decisions does not necessarily mean that the recipient is complying with
federal civil rights laws. Federal civil rights laws prohibit recipients of federal financial assistance from
taking actions that discriminate based on race, color, national origin, disability, age, and sex.
Enforcement of federal civil rights laws and implementation of environmental laws are complementary.
Used together, these laws help to ensure the non-discriminatory protection of human health and the
environment.

6 How could a permitting decision raise a statutory civil rights

compliance concern about intentional discrimination, or have a
discriminatory effect?

Intentional discrimination can occur when a recipient makes a permitting decision or takes an action
that deliberately treats individuals differently or otherwise knowingly causes them harm because of
their race, color, national origin (including LEP status), disability, age, or sex. Evidence of intentional
discrimination can be direct, such as a comment by a decision-maker that expresses a discriminatory
motive. A claim of intentional discrimination can also be shown with different types of indirect or
circumstantial evidence that, taken together, allow an inference that the recipient acted, at least in part,
because of race, color, national origin (including LEP status), disability, age, or sex.

For example, intentional discrimination may be present in the following scenario: a recipient decides to
hold public hearings about a proposed permit for a facility in a town that has racially identifiable
neighborhoods. The facility is to be sited in the west section of a town, which has a population that is
predominantly Black. The east section of town is predominantly White. The recipient holds two hearings
in the east section of town and provides opportunities to participate in both the daytime and in the
evening after work hours. By contrast, the recipient holds only one daytime hearing in the west section
of town—and that hearing is shorter. Armed security officers also attend the west section hearing. The
differences in the time for community comment, when the hearings are scheduled, and how the

13 See EPA, U.S. EPA's External Civil Rights Compliance Office Compliance Toolkit (EPA ERCO's Toolkit) Chapter I (January 18, 2017),

https://www.epa.gov/sites/default/files/2017-01/documents/toolkit-chapterl-transmittal letter-faqs.pdf.

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hearings are staffed in the predominantly White community compared to the predominantly Black
community raise different treatment concerns.14

Discrimination may also occur under Title VI and EPA's implementing regulation when a recipient's
permitting decision has an adverse and disproportionate impact based on race, color, or national origin
(including LEP status). The focus in a "disparate impact" case of discrimination15 is on whether the
consequences of the recipient's permitting policies, decisions, and actions, or failure to act, has had or
will have the effect of subjecting persons to discrimination, regardless of the recipient's intent. For
example, a recipient approves a Clean Air Act permit for a power plant. The population living in
proximity to the plant ("residents") is disproportionately Black, as compared to the rest of the town,
county, or state. If those residents have reason to believe that the recipient's permitting of the power
plant will cause them to suffer adverse health and/or non-health impacts, such as odor, noise, or
decrease in property values, at comparatively higher rates as compared to the larger population of
persons not adversely impacted, then this may potentially raise a viable disparate impact claim and
provide a reason to file a federal civil rights complaint.16 As discussed in FAQ #11. the question of
whether there is a disparate impact is not the end of the inquiry in evaluating whether the permit
approval might violate civil rights law.

In addition to federal civil rights laws, what other laws and regulations
support consideration of environmental justice in permitting?

Specific provisions of the nation's environmental statutes authorize and may require consideration of
environmental justice in permitting, including the National Environmental Policy Act and state policy
review laws, Clean Air Act, Clean Water Act, Safe Drinking Water Act, and Resource Conservation and
Recovery Act. EPA's 2022 Legal Tools to Advance Environmental Justice provides an overview of these
authorities, among others.17

As noted at FAQ#1. many states and municipalities have also enacted laws that support consideration
of environmental justice, including in the environmental permitting process. Permitting programs should
carefully review applicable authorities for opportunities to incorporate environmental justice
considerations and to ensure that such considerations are adequately and appropriately incorporated
into permitting decisions.

14 See EPA ECRCO's Toolkit Chapter I at p. 4, supro note 13. If a prima facie case of disparate treatment is established, the recipient then has the
burden of producing a legitimate, non-discriminatory reason for the challenged policy or decision and the different treatment. If the recipient
articulates such a reason, EPA must then determine if there is evidence that the proffered reason is false, i.e., that the nondiscriminatory
reason(s) the defendant gives for its actions are a pretext for discriminatory intent. See DOJ, supro note 11.

15 The terms "disparate impact" and "discriminatory effect" are used interchangeably in this document.

16 See generally DOJ, supro note 11.

17 See EPA, EPA Legal Tools to Advance Environmental Justice (2022), https://www.epa.gov/ogc/epa-legal-tools-advance-environmental-iustice.

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How can states and other recipients screen for EJ and civil rights
concerns with respect to their permitting programs and decisions?

States and other recipients administering environmental permitting programs can adopt a routine
process of screening for EJ and civil rights concerns early in the permitting process.18 If a permit
applicant initiates pre-application discussions, knowledge gained from conducting an early EJScreen can
make early discussions more meaningful and productive and add predictability and efficiency to the
permitting process.

This type of screening will indicate whether a permitting decision has the potential to cause or
contribute to significant public health or environmental impacts, whether the community may be
particularly vulnerable to any adverse effects of the proposed permitting action, and whether the
community is already disproportionately bearing public health or environmental burdens. A sound
screening practice will also provide important information to states and other recipients as to whether
there are residents of the affected community who could be disproportionately subjected to adverse
health, environmental, and/or quality of life impacts on the basis of race, color, or national origin
(including LEP status).

This screening process will also provide valuable information for the development of plans to
meaningfully involve the affected community. For example, demographic information gathered during
this screening process will help inform action to ensure meaningful access for persons with limited
English proficiency, persons with disabilities, persons of different ages, and persons who are low-income
who may lack access to the internet or necessary equipment. For more information about meaningful
community engagement, see FAQ #15.

Finally, and critically, screening may inform recipients as to whether a more extensive analysis of
potential disproportionate impacts would aid them in avoiding a violation of Title VI. See FAQs #9-10.

Best Practices for Screening:

• Geographic Information System (GIS) tools such as EPA's EJScreen19 or state EJ mapping tools20
can be used as a starting point to assess whether the permitting action raises environmental
justice or civil rights concerns, using indicators of community characteristics and existing
conditions in the potentially affected community. Considered together with readily available
information on community concerns, these tools can help the permitting program quickly assess
and document the extent of community vulnerability and pollution burden and the associated
potential for disproportionate impacts. They can also support consistent approaches by using
standard benchmarks to characterize the potential for disproportionate impacts. EJScreen

18	The term "EJ concerns" is used to indicate the "actual or potential lack of fair treatment or meaningful involvement of minority populations,
low-income populations, tribes, and indigenous peoples in the development, implementation and enforcement of environmental laws,
regulations and policies." https://www.epa.gov/sites/default/files/2015-06/documents/considering-ei-in-rulemaking-guide-final.pdf at p. 9.

19	EPA, EJScreen: Environmental Justice Screening and Mapping Tool, https://www.epa.gov/eiscreen.

20	A number of state EJ mapping tools are linked at https://www.epa.gov/eiscreen/additional-resources-and-tools-related-eiscreen#other-

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indices simplify the use of benchmarks for initial screening by highlighting indices at the 80th,
90th, and 95th percentiles in terms of the potential for disproportionate impacts relative to state,
regional, and national averages.

•	Identify and record responses to key questions such as: is there the potential that the affected
population already experiences disproportionate impacts? How likely are the potential impacts
of the permit under consideration to cause or contribute to disproportionate impacts?

•	Especially when GIS tools or known community concerns suggest a potential for
disproportionate impacts, review other readily available data. For example, EJScreen makes a
range of demographic and environmental data layers readily available for review. It also
identifies additional resources and tools for further analysis.21 State databases or GIS tools may
also include additional data. Other information relevant to screening for disproportionate
impacts includes:

o Other permitted facilities in the area, including whether these facilities are major or minor
sources of pollution and contribute to community risk. An area with an above average
number of sources, especially if those sources are large or close to people in the area, is a
sign of concern.22

o Applicant compliance record.

o Demographic data including race and national origin,23 age (percent less than 5 years, older
than 64 years), percent non-English speakers, income, and education.24

o Environmental data that reflects pollutant measurements (e.g., ambient concentrations,
total loadings in waterbody, etc.), presence of other significant emissions sources (e.g.,
woodstoves, ports, freight facilities, highways), facilities handling hazardous materials, etc.

o Health data such as mortality rates, asthma, incidence of infant mortality, and incidence of
low birth weight. Data on unhoused populations and healthcare access.

•	Local knowledge and information from past community engagement are important components
of the screening process for potential environmental justice or civil rights concerns. This is best

22	EPA's ECHO mapping tool (https://echo.epa.gov/) can be used to identify all regulated facilities in a given area together with information on
their permits and compliance monitoring and enforcement history.

23	EJSCREEN defines "people of color" as people "who list their racial status as a race other than white alone and/or list their ethnicity as
Hispanic or Latino" in the U.S. Census. The Census Bureau provides the following choices for people to self-identify racial status: American
Indian or Alaska Native, Asian, Black or African American, Native Hawaiian or Other Pacific Islander, White, or "Some Other Race." People may
report multiple races. For ethnicity, the Census Bureau, based on the Office of Management and Budget standards, classifies individuals in one
of two categories: "Hispanic or Latino" or "Not Hispanic or Latino." The Census Bureau uses the term "Hispanic or Latino" interchangeably with
the term "Hispanic," and also refers to this concept as "ethnicity." See https://www.census.gov/programs-surveys/decennial-
census/decade/2020/planning-management/release/fa qs-race-ethnicitv.htm I.

24	The Centers for Disease Control also considers factors such as the experience of racism to be "social determinants of health." See CDC,
NCHHSTP Social Determinants of Health, https://www.cdc.gov/nchhstp/socialdeterminants/index.html. "The social determinants of health are
the conditions in which people are born, grow, live, work and age as well as the complex, interrelated social structures and economic systems
that shape these conditions. Social determinants of health include aspects of the social environment (e.g., discrimination, income, education
level, marital status), the physical environment (e.g., place of residence, crowding conditions, built environment [i.e., buildings, spaces,
transportation systems, and products that are created or modified by people]), and health services (e.g., access to and quality of care, insurance
status)" (citations omitted).

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accomplished by establishing early and ongoing relationships in a community, particularly those
with a history of EJ and civil rights concerns. Such relationships assist in the trust and
communication needed to gain input from impacted residents, stakeholders, local agencies,
tribal governments, and others. For more information about community engagement, see FAQ
#15.

• Relevant information may be found in public complaints to federal, state, tribal, and local
authorities; media reports; and national, state, or local environmental or health data.
Complaints may directly relate to the permitting action at issue (e.g., anticipated facility traffic
or emissions) or reflect conditions in the community (e.g., high rates of asthma, unemployment,
or elderly populations).

If the screening analysis indicates that a proposed permitting action
raises civil rights and/or environmental justice concerns, what
additional steps can a permitting program consider to address EJ
concerns and ensure compliance with Title VI?

The screening analysis identified in FAQ #8 may identify EJ concerns and possible issues of civil rights
compliance, i.e., questions about whether a state's or other recipient's permitting decision may violate
Title VI and EPA implementing regulations by disproportionately subjecting persons to adverse health,
environmental, and/or quality of life impacts on the basis of race, color, or national origin (including LEP
status). In such cases, states and other recipients can consider conducting additional analysis.

In the EJ context, EPA has generally referred to this additional consideration as an EJ analysis. Although
they may overlap, conducting an EJ analysis will not satisfy Title VI requirements. In the civil rights
context, the analysis used to evaluate whether a recipient's action has an adverse and disproportionate
impact on the basis of race or national origin is generally referred to as a disparate impact analysis. In
many respects, the line of inquiry is similar to the environmental justice analysis: Who is being affected
by the action? How, and how much? Compared to whom? Can we and how do we mitigate the effects?
There are, however, several particular considerations in the civil rights context. In FAQs #11-13. we
explain these unique considerations.

When a screening analysis identifies potential EJ or civil rights concerns, the permitting program can
consider the following steps:

• Conducting an appropriately scoped EJ analysis or disparate impact analysis as needed to
further evaluate and address adverse and disproportionate impacts, and to inform and support
enhanced community engagement - see FAQ #15;

• Exercising relevant statutory and regulatory authority and discretion under federal, state, and
local environmental laws, as well as applicable environmental justice and civil rights laws, to
prevent or mitigate any adverse disproportionate impacts that would otherwise violate Title VI;
and

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• To the extent mitigation included in the permit is not sufficient to address adverse and
disproportionate impacts that would otherwise violate Title VI; consider
implementing mitigation outside the context of the permit, coordinating across agency
programs, state agencies, community organizations, NGOs, etc. See FAQ #14.

10

What are promising practices in conducting an EJ analysis?

There is a significant body of practice, policy, and caselaw about EJ analysis in permitting upon which
permitting programs can draw when developing and conducting an EJ analysis.

First, additional EJ analysis should be tailored to the specific permitting decision. The scope may depend
on several factors, including but not limited to the potential for adverse and disproportionate impacts
associated with a given facility, community concerns, and potential cumulative impacts. EPA recognizes
that permits vary widely in purpose and effect, and that there is no "one size fits all" approach to EJ
analysis. Appropriately scoped, additional EJ analysis should accomplish two purposes: (1) it should
address the principle of fair treatment by further evaluating adverse and disproportionate impacts
beyond the screening results and identifying ways to prevent or mitigate such impacts; and (2) it should
address the principle of meaningful involvement by fostering enhanced community engagement in the
permitting decision.

One promising practice for conducting EJ analyses is the Health Impact Assessment (HIA), which
systematically evaluates how a proposed action may impact health and well-being.25 HIAs explicitly
consider potential distributive effects (e.g., whether there will be disproportionate impacts) and inform
decision-makers of potential outcomes before the decision is made. HIAs generally:

•	Determine the potential effects of a proposed decision on the health of a population and the
distribution of those effects within the population;

•	Consider input from stakeholders, including those impacted by the decision;

•	Use different types of qualitative and quantitative evidence and analytical methods;

•	Are flexible based on available time and resources; and

•	Provide evidence and recommendations to decision-makers in a timely manner.26

25	See EPA, The Health Impact Assessment (HIA) Resource and Tool Compilation (2016), https://www.epa.gov/sites/default/files/2017~
07/documerits/hia resource arid tool compilation.pdf: see also HIA report issued by the City of Chicago, Chicago Department of Public Health,
Health Impact Report, RMG/Southside Recycling Permit Application (February 2022), https://www.chicago.gov/content/dam/city/sites/rgm-
expansion/documents/RMG RecyclingPermit HealthlmpactAssessment Feb2022.pdf; see also different HIA applications at
https://www.epa.gov/healthresearch/epa-health-impact-assessment-case-studies.

26	See EPA, Health Impact Assessments, https://www.epa.gov/healthresea rch/health-im pact-assessments.

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A permitting program may find it helpful to organize an EJ analysis by applying HIA practice standards
and elements, including by adapting the six key steps that guide the HIA process:

1. Screening. Determines the need for and value of an HIA. (See FAQ#8 for application to an EJ
analysis.)

2. Scoping. Identifies the project partners, health and social impacts requiring assessment,
methodology for the analysis, and a work plan.

3. Assessment. Provides an analysis of existing conditions; an assessment of the policy, plan,
project, or program under study; and an evaluation of the potential impacts of the policy, plan,
project, or program on existing conditions.

4. Recommendations. Develops a set of recommendations for maximizing health outcomes.

5. Reporting. Develops a report and communicates findings and recommendations.

6. Monitoring. Tracks the impact of the HIA on the proposed policy, plan, project, or program and
the impacts of the final policy, plan, project, or program on existing conditions.27

What is a disparate impact analysis under Title VI?

Title VI disparate impact regulations ensure that federal financial assistance is not spent in any fashion
which encourages, entrenches, subsidizes, or results in racial discrimination. Recipients are prohibited
from practices having a discriminatory effect on members of a group identified by race, color, or
national origin, even if the actions or practices are not intentionally discriminatory. The disparate impact
analysis under Title VI examines a number of critical questions to evaluate whether a recipient's policy
or practice has an unjustified disparate impact prohibited by Title VI.28

• Disparate impact: Does a recipient's criteria or method of administering its program or activities
adversely and disparately affect members of a group identified by race, color, or national origin?

o Adverse Impacts: Is there an adverse impact of the policy or practice? Adverse impacts
could include harmful health effects, odor, noise, decrease in property values, etc.

27 See EPA, A Review of Health Impact Assessments in the U.S.: Current State-of-Science, Best Practices, and Areas of Improvement (2014),
https://www.epa.gov/sites/default/files/2013-12/documerits/health-impact-assessmerit-factsheet O.pdf: HIP, HIA Minimum Elements and
Practice Standards for HIA, https://humanimpact.org/hipproiects/hia-minimum-elements-and-practice-standards.

28 Courts have developed analytical frameworks to assess disparate impact claims in litigation that inform agencies' investigative process. See
DOJ, supra note 11. The disparate impact analysis described in FAQ#11 is used not only by EPA, but also by twenty-five other federal agencies
that also have Title VI regulations that include provisions addressing the discriminatory effects/impacts standard.

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o Disproportionality: Is a disproportionate share of the adversity borne based on race,
color, or national origin (including LEP status)? Disparity is a fact-specific inquiry that
involves identifying an appropriate measure.29

o Causation: Is there a causal link between the recipient's policy or practice and the
disparate impact?30

• Justification: If so, is there a substantial legitimate justification for the policy or practice? This
question is unique to a disparate impact analysis. See FAQ #13.

• Less discriminatory alternative: Even if there is a substantial legitimate justification for the
policy or practice causing the disparate impact, is there an alternative practice that may be
comparably effective with less disparate impact?31

Questions about the disparate impact and less discriminatory alternative may have been evaluated, at
least in part, during the EJ analysis. See FAQs #9-10. The "less discriminatory alternative" inquiry,
however, may go beyond mitigation measures usually examined in an EJ analysis. See FAQ #13.

In the context of Title VI investigations, EPA considers cumulative impacts when evaluating whether
there is an adverse impact from the recipient's policy or practice.32 That is, EPA considers whether any
adverse impact caused by the permitting decision—and borne disproportionately by persons on the
basis of race, color, or national origin (including LEP status)—may be even greater considering
cumulative impacts from other chemical and non-chemical stressors.

As EPA notes in guidance on considering cumulative impacts in the NEPA context, "cumulative impacts
result when the effects of an action are added to or interact with other effects in a particular place and
within a particular time."33 EPA's Office of Research and Development recently offered an operational

29 See, e.g., S. Camden Citizens in Action v. New Jersey Dept. of Envtl. Protec., 145 F. Supp. 2d 446, 493 (D.N.J. 2001), opinion modified and
supplemented, 145 F. Supp. 2d 505 (D.N.J. 2001), rev'd, 274 F.3d 771 (3d Cir. 2001) (disparity analysis); see also DOJ, supra note 11.

30 Texas Dep't of Hour. & Cmty. Affairs v. Inclusive Communities, 135 S. Ct. 2507, 2523 (citing Wards Cove, 490 U.S. at 653); See also U.S. DOJ,
supra note 11.

31 Id. See also ECRCO's Toolkit Chapter I and FAQ, supra note 13; see also U.S. DOJ, supra note 11.

32 See, e.g., Final Genesee Complaint Letter to Director Grether, 19-23 (Jan. 19, 2017), https://www.epa.gov/sites/default/files/2017-
01/documents/final~genesee~complaint~letter~to~director~grether~l~19~2017.pdf) (consideration of cumulative air toxics data from point
sources countywide); see also S. Camden Citizens in Action v. New Jersey Dept. of Envtl. Protec., 145 F. Supp. 2d 446, 490 (D.N.J. 2001), opinion
modified and supplemented, 145 F. Supp. 2d 505 (D.N.J. 2001), rev'd, 274 F.3d 771 (3d Cir. 2001) (interpreting EPA methodology as requiring
consideration of the totality of the circumstances and cumulative environmental burdens and finding that plaintiffs demonstrated that
permitting and operation of a facility was likely to have adverse impacts in context of "current health conditions and existing environmental
burdens" in the community).

33 U.S. EPA Office of Federal Activities, Consideration of Cumulative Impacts in EPA Review of NEPA Documents, (2252A) EPA 315-R-99-002/May
1999 (1999), https://www.epa.gov/sites/default/files/2014-08/documents/cumulative.pdf.

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definition of "cumulative impacts" based on definitions developed by various state and federal agencies,
as follows:

"Cumulative impacts" refers to the total burden -positive¦, neutralor negative -from
chemical and non-chemical stressors and their interactions that affect the health, well-
being, and quality of life of an individualcommunity, or population at a given point in
time or over a period of time. Cumulative impacts include contemporary exposures in
various environments where individuals spend time and past exposures that have
lingering effects. Total burden encompasses direct health effects and indirect effects to
people through impacts on resources and the environment that affect human health
and well-being. Cumulative impacts provide context for characterizing the potential
state of vulnerability or resilience of the community, i.e., their ability to withstand or
recover from additional exposures under consideration.34

What if a Title VI disparate impact analysis by a permitting program
concludes that the permit decision will have adverse disparate
impacts on the basis of race, color, or national origin (including LEP
status)?

If the permitting action will have a disparate impact on the basis of race, color, or national origin
(including LEP status) (i.e., it raises a possible violation of Title VI), then the next steps in a civil rights
disparate impact framework discussed in FAQs #9 and #11-12 include:

•	Identify a substantial legitimate justification for the challenged policy or practice.35That is, can
the recipient show that the challenged policy was "necessary to meet a goal that was legitimate,
important, and integral to the [recipient's] institutional mission" in order to establish a
"substantial legitimate justification"?36

•	Even if the recipient identifies a substantial legitimate justification, a sufficient Title VI analysis
evaluates whether there are any comparably effective alternative practices that would achieve
the same legitimate objective but with a less discriminatory effect. That is, is there a comparably
effective alternative decision or action that would result in less adverse impact? For example,
can the recipient prevent any adverse and disproportionate effects by requiring that the facility
be operated in a manner that would eliminate or mitigate its disproportionate impact, e.g., by

34	Cumulative Impacts Recommendation for ORD Research EXTERNAL REVIEW DRAFT at p. 6, January 2022.

35	ECRCO's Toolkit Chapter I and FAQs at pp. 9-10, supro note 13.

36	EPA will evaluate whether the policy was "necessary" by requiring that the justification bear a "manifest demonstrable relationship" to the
challenged policy. As part of its assessment, EPA will generally consider not only the recipient's perspective, but the views of the affected
community in its assessment of whether a permitted facility, for example, will provide direct, economic benefits to that community. ECRCO's
Toolkit Chapter I and FAQs, supra note 13. See also U.S. DOJ, supro note 11.

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modifying permit operating conditions, employing practicable mitigation measures to lessen or
eliminate the demonstrated adverse impacts, or by not renewing the permit?37

• If there are no mitigation measures the permitting authority can take, whether within or outside
the permitting program, that can address the disparate impacts, and there is no legally sufficient
justification for the disparate impacts, denial of the permit may be the only way to avoid a Title
VI violation. Whether denial of a permit is required to avoid a Title VI violation is a fact-specific
determination that would take into account an array of circumstances, including whether the
facility will have an unjustified racially disproportionate impact, as well as the less discriminatory
alternatives available.38

Under a civil rights analysis pursuant to Title VI and EPA's implementing regulations, recipients are
obligated to adopt a comparably effective less discriminatory alternative to address an unjustified
disparate impact on the basis of race, color, or national origin (including LEP status). If a permitting
program's decision is likely to have an adverse and disproportionate effect on the basis of race, color, or
national origin (including LEP status), then the program should consider broadly the availability of less
discriminatory alternatives. This might include the range of mitigation measures discussed below or
working with the permit applicant for alternative siting. However, as discussed in FAQ #13. if there are
no mitigation measures that can address the unjustified disparate impacts, denial of the permit may be
the only means of avoiding a Title VI violation. This will be a fact-specific determination.

EJ principles and practices call for consideration of whether mitigation measures will reduce or eliminate
unfair treatment. Whether mitigation will effectively address adverse and disproportionate impacts will
depend on the unique circumstances of each permit, the community in which the pollution source is or
will be located, and other factors.

Some proactive mitigation measures that a state or other recipient might explore include the following:
Permit terms:

• Enforceable requirements for continuous compliance monitoring equipment (e.g., opacity
cameras) to ensure proper operation of control devices, compliance with permitted limits, and
adherence to industry best practices.

37	ECRCO's Toolkit Chapter I and FAQs at p. 15, supra note 13.

38	See generally ECRCO's Toolkit Chapter I and FAQs at 14-15, supra note 13 (discussing disparate impact- municipal solid waste landfill permit

example).

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•	Enhancements to compliance assurance provisions, including additional continuous or periodic
monitoring, recordkeeping, or reporting requirements.

•	Establishment of a public-facing website with all relevant compliance information about the
facility and real-time data measurements.

•	Additional pollution controls or more stringent limits.

•	Inclusion of enforceable work practices, operating plans, and/or best practices for minimizing
emissions and/or discharges (e.g., a fugitive emission plan).

•	Incorporating modeling assumptions as legally and practically enforceable limits or work
practices (e.g., hours of operation).

•	Expansion of buffers or modification of operational hours.

The use of non-environmental authorities:

•	Use public health authority to implement a mobile health monitoring program in the affected
community.

•	Use transportation authority to develop new traffic plan to reduce diesel emissions in the
affected community.

•	Use public health authority to establish a citizen hotline with a 24-hour response time.

Other potential commitments:

•	Third-party monitoring of community complaints.

•	Support for public transparency of monitoring information, including community-driven
monitoring.

•	Other enforceable agreements (e.g., community benefit agreements).

15

When and how should permitting programs conduct community
engagement?

Community engagement should occur as soon as possible and should go far beyond simply posting
public notices. With respect to permitting actions that could result in significant health, environmental
and quality of life impacts, the stakes are often that much higher for communities with EJ concerns. The
goal of community engagement is to ensure that the people most affected by the permit have input into
the decisions that will impact their lives. Community engagement is an active process that requires
permitting programs to be proactive in outreach to the public. While some of these activities are
required to satisfy statutory obligations and comply with environmental justice directives, going beyond
such requirements when called for is good government practice. Among other things, it builds ongoing

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relationships with community leaders necessary for a deeper level of engagement. Robust community
engagement is crucial for making informed permitting decisions that meaningfully consider the site-
specific circumstances of the permitting action.39

In addition, it is important that states and other recipients ensure that community engagement and
other public participation actions be conducted consistent with the federal civil rights law, which require
that no person shall be excluded on the basis of race, color, national origin, or other prohibited grounds
from participation in any program or activity receiving EPA financial assistance.40 Meaningful
involvement consists of informing, consulting, and working with potentially affected communities at
various stages of the environmental decision-making process to address their questions and concerns. 41
This includes:

•	Ensuring that public involvement processes are available to all persons regardless of race, color,
national origin (including LEP status), disability, sex, and age, or prior exercise of rights or
opposition to actions protected by 40 C.F.R. Parts 5 and 7 and the federal non-discrimination
laws;

•	Ensuring that the factors used to determine the appropriate time, place, location, duration, and
security at public meetings are developed and applied in a non-discriminatory manner; and

•	Ensuring that public participation processes specifically address the needs of persons with
limited English proficiency, persons with disabilities, and persons of different ages. Best practice
and environmental justice policy would also call for ensuring that processes are accessible to
persons without access to digital communication, and other members of the recipient's
communities who may have limited access to information.

Best practice to demonstrate compliance is to have in place a public involvement plan, yet EPA
recognizes that a recipient's staff size, available resources, and the nature of its programs and activities
may dictate the type and scope of written public involvement policies and procedures. EPA guidance
identifies as a best practice that all government entities - for example, state, regional, county, and local
government entities - have written and published public involvement procedures that are consistent
with the federal civil rights laws and EPA's Public Participation Guidance.42

By implementing the following steps, states and other recipients will be in a better position to provide
opportunities for effective public participation that is meaningfully accessible to all persons regardless of
race, color, national origin (including LEP status), disability, age, and sex each time they engage in a
process involving public participation:

•	Develop a description of the relevant/affected community (including demographics, history, and
background, such as: percentage of the area that includes people of color, has less than a high

39	"Community engagement/' "public involvement/' and "public participation" are used interchangeably in this document.

40	See Title VI of the Civil Rights Act of 1964, 42 United States Code §§ 2000d to 2000d-7 (Title VI); Section 504 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. § 794; Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. §§ 1681 et seq.; Age Discrimination Act of
1975, 42 U.S.C. §§ 6101 et seq.; Federal Water Pollution Control Act Amendments of 1972, Pub. L. 92-500 § 13, 86 Stat. 903 (codified as
amended at 33 U.S.C. § 1251 (1972)); 40 C.F.R. Parts 5 and 7. See also EPA, supra note 12.

41	"Meaningful involvement" and "meaningful participation" are used interchangeably for purposes of this document.

42	See EPA, supra note 12.

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school education, has members of households who speak a language other than English and/or
speak English less than very well, has a history of filing complaints, has an inability to access
traditional communication channels, internet, etc.);43

•	Provide a contact list for relevant staff members on the recipient's website, including phone
numbers and email addresses, to allow the public to communicate via phone or internet;

•	Develop a list of past and present community civil rights concerns (including any complaints filed
under the federal non-discrimination laws), and actions undertaken in response to such
concerns;

•	Develop and implement a detailed plan of action (including outreach activities) the recipient will
take to address concerns raised by the public;

•	Develop and implement a contingency plan for unexpected events that impact public meetings
or other public participation avenues;

•	Identify location(s) where public meetings will be held (considering the availability and
schedules of public transportation), and ensure that public meetings are held at times and in
locations that allow for meaningful involvement by individuals with LEP and individuals with
disabilities;

•	Develop and maintain a plan for providing reasonable modifications and auxiliary aids and
services at no cost for individuals with disabilities and language assistance services for limited
English proficient persons, including translation of documents and/or interpreters for meetings;

•	Develop and maintain a list of appropriate local media contacts (based on the cultural and
linguistic needs of the community);

•	Develop guidance to help ensure the meaningful involvement of individuals with limited English
proficiency and individuals with disabilities at any in-person public meetings and when in-person
meetings are not possible due to national, state, or local emergencies; and

•	In addition, develop public involvement plans with public input. The plans should be
prominently highlighted online for the benefit of interested residents and should explain how
interested residents can participate in the permitting process under various environmental laws.

•	The public involvement plan and other plans to provide meaningful access should also be made
available for the public in areas that would be easily accessible to the community (e.g., libraries,
community centers, etc.).

43 See EPA, Guidance to Environmental Protection Agency Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin
Discrimination Affecting Limited English Proficient Persons (2004), https://www.federalregister.gov/documerits/2004/06/25/04~
14464/guidance-to-environmental-protection-agencv-financial-assistance-recipients-regarding-title-vi.

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Also, to be most effective, recipients' public involvement plans should incorporate the following
elements:

•	How the recipient will meaningfully engage the public prior to and during significant activities
(e.g., how the public can request a public hearing and criteria for determining whether public
hearings will be held);

•	How the recipient will effectively communicate and engage with the public regarding its
programs, activities, and services (e.g., public notice procedures for submitting public comment
during permit comment periods); and

•	What methods the recipient will implement to ensure the public can access publicly available
information and documents regarding its programs, activities, and services.

How does tribal consultation differ from community engagement?

Tribal consultation is a process of meaningful communication and coordination between EPA and tribal
officials prior to EPA taking actions or implementing decisions that may affect tribes.44 Executive Order
13175: Consultation and Coordination with Indian Tribal Governments (November 6, 2000) describes
important elements of the federal government's consultation with federally recognized tribes and calls
for federal agencies to have an accountable process to ensure meaningful and timely input by tribal
officials in the development of certain regulatory actions and policies that have tribal implications. EPA's
tribal consultation policy calls for EPA to consult on a government-to-government basis with federally
recognized tribes on a broad range of EPA actions and decisions that may affect tribal interests. Tribal
consultation is an important element of fulfilling the federal government's trust responsibility that arises
from treaties, statutes, executive orders, and the historical relations between the United States and
tribes. Conducting government-to-government tribal consultation is separate and distinct from EPA's
obligations to involve the public as required by environmental laws. Conducting community
engagement, including with tribal and indigenous communities, cannot replace tribal consultation, and
tribal consultation cannot replace community engagement.

Apart from EPA consultation with tribes, it is also appropriate for States to consider tribal interests in
their permitting processes by reaching out to and coordinating with affected tribal governments to
ensure their views are obtained and appropriately factored into permitting decisions.

44 See EPA, Response to Tribal Consultation & Coordination Comments on Plan EJ 2014 Strategy and Implementation Plans. EPA Policy on
Consultation and Coordination with Indian Tribes (2011) (https://www.epa.gov/tribal/epa-policy-consultation-and-coordination-indian-tribes).
See also EPA, Plan for Implementing Executive Order 13175: Consultation and Coordination with Indian Tribal Governments,

https://www.epa.gov/svstem/files/documents/2021-08/epa-plan-to-implement-eo-13175.pdf.

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What are some resources on environmental justice, civil rights, and
tribal consultation?

EPA has many tools to help permitting programs engage in public outreach. The following additional
resources and references on Community Engagement and Tribal Consultation may be helpful:

Environmental Justice

•	Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations
and Low-Income Populations (1994): https://www.archives.gov/files/federal-register/executive-
orders/pdf/12898.pdf

•	Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities
Through the Federal Government (2021): https://www.whitehouse.gov/briefing-
room/presidential-actions/2021/01/20/executive-order-advancing-racial-equity-and-support-
for-underserved-communities-through-the-federal-government/

•	Executive Order 14008, Tackling the Climate Crisis at Home and Abroad
(2021): https://www.whitehouse.gov/briefing-room/presidential-

actions/2021/01/27/executive-order-on-tackling-the-climate-crisis-at-home-and-abroad/

•	EPA Activities to Promote Environmental Justice in the Permit Application Process, 78 Fed. Reg.
27220 (May 9, 2013): https://www.federalregister.gov/documents/2013/05/09/2Q13-
10945/epa-activities-to-promote-environmental-iustice-in-the-permit-application-process

•	Regional Environmental Justice Implementation Plans:
https://www.epa.gov/environmentaliustice/environmental-iustice-your-communitv

•	EPA Legal Tools to Advance Environmental Justice (2022): https://www.epa.gov/ogc/epa-legal-
tools-advance-environmental-iustice

•	Promising Practices for Environmental Justice Methodologies in NEPA Reviews (2016):
https://www.epa.gov/sites/default/files/2016-

08/documents/nepa promising practices document 2016.pdf (focusing on the agency
practices identified by the EJ IWG NEPA Committee concerning the interface of environmental
justice considerations through NEPA processes)

•	Guidance on Considering Environmental Justice During the Development of a Regulatory Action
(2015): https://www.epa.gov/sites/default/files/2015-Q6/documents/considering-ei-in-
rulemaking-guide-final.pdf; and Technical Guidance for Assessing Environmental Justice in
Regulatory Analysis (2016): https://www.epa.gov/sites/default/files/2016-
06/documents/ejtg 5 6 16 v5.1.pdf (while focused on the rulemaking process, these guidance
documents provide useful information when considering and addressing disproportionate
impacts in other contexts as well).

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In addition, the National Environmental Justice Advisory Council (NEJAC) provides independent advice
and recommendations to the EPA Administrator on a broad range of issues related to environmental
justice. NEJAC produced three recommendations related to EJ in permitting:

•	Environmental Justice in the Permitting Process (2000):
https://www.epa.gov/sites/default/files/2015-02/documents/permit-recom-report-070Q.pdf

•	Enhancing Environmental Justice in EPA Permitting Programs (2011):
https://www.epa.gov/sites/default/files/2015-02/documents/ei-in-permitting-report-2011.pdf

•	Recommendations Regarding EPA Activities to Promote Environmental Justice in the Permit
Application Process (2013): https://www.epa.gov/sites/default/files/2015-02/documents/2Q13-
ej-in-permitting.pdf.

Civil Rights

•	Guidance to Environmental Protection Agency Financial Assistance Recipients Regarding Title VI
Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons,
69 Fed. Reg. 35602 (June 25, 2004): https://www.govinfo.gov/content/pkg/FR-2004-Q6-
25/pdf/04-14464.pdf

•	The Title VI Public Involvement Guidance for EPA Assistance Recipients Administering
Environmental Permitting Programs (Recipient Guidance), 54 Fed. Reg. 14207 (Mar. 21, 2006):
https://www.epa.gov/sites/default/files/2020-

02/documents/title vi public involvement guidance for epa recipients 2006.03.21.pdf

•	EPA's External Civil Rights Compliance Office Toolkit at
https://www.epa.gov/sites/default/files/2Q17-01/documents/toolkit-chapterl-
transmittal letter-faqs.pdf

•	DOJ Title VI Legal Manual (Updated April 22, 2021):
https://www.iustice.gOv/crt/fcs/T6Manual7#W

Tribal Consultation

•	EPA Policy for the Administration of Environmental Programs on Indian Reservations (1984):
https://www.epa.gov/sites/default/files/2015-04/documents/indian-policv-84.pdf

•	EPA Policy on Consultation and Coordination with Indian Tribes: Guidance for Discussing Tribal
Treaty Rights (2016): https://www.epa.gov/tribal/forms/consultation-and-coordination-
tribes#policy consultation coordination

•	U.S. Environmental Protection Agency (EPA) Response to Tribal Consultation & Coordination
Comments on Plan EJ 2014 Strategy and Implementation Plans (2012):
https://www.epa.gov/sites/default/files/2015-Q2/documents/plan-ei-tribal-consult-
responses.pdf

•	Policy on Environmental Justice for Working with Federally Recognized Tribes and Indigenous
Peoples (2014) : https://www.epa.gov/environmentaliustice/epa-policy-environmental-iustice-
working-federally-recognized-tribes-and

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• EPA Plan for Implementing Policies & Directives of E.O. 13175 (2021):

https://www.epa.gov/tribal/epa-plan-implementing-policies-ancl-directives-eo-13175-
consultation-coordination-indian

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How do I get additional information or provide feedback on the
FAQs?

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