This post is the eighth in a series about human rights and environmental, climate, and energy justice and is the second of two parts. The series builds on a forthcoming article, Environmental Justice as Environmental Human Rights, by Member Scholar John H. Knox and co-author Nicole Tronolone.
In his first term, President Biden issued executive orders committing the federal government to principles of environmental justice and encouraging federal agencies to take a “whole-of-government approach” as they implement policies with these principles in mind. In this two-part post, Professor Outka offers examples of two states, Louisiana and Alabama, that have adopted a stance in conflict with these priorities in distinct contexts. Part I looked at Louisiana’s attack on environmental justice policies; Part II examines Alabama’s refusal to correct issues raised by EPA about the state’s approach to handling waste from coal-fired power plants.
In Alabama, the EPA has proposed a denial of the state’s application for delegated authority to administer a coal ash permit program in the state under section RCRA Section 4005(d).12 Although the connection to environmental justice may not be as immediately clear as in Louisiana (see Part 1), the administration’s environmental justice commitments provide a critical backdrop to the agency’s stance.
In 2015, the EPA promulgated regulations for safer disposal for coal combustion residuals (CCRs) from coal-fired power plants.13 Since then, EPA has been under pressure to also address the inactive (“legacy”) coal ash impoundments originally exempted in the 2015 rule after environmental groups challenged that exemption, which was eventually vacated in federal court (to that end, a new proposed rule was published in May of this year.)14 At the same time, the agency has received significant feedback from the public about environmental justice concerns over exposure to coal ash toxics and groundwater contamination at unlined impoundments and landfills.15 It’s in the context of this litigation history and growing public concern that the EPA has proposed to reject Alabama’s application because the state interprets “its State regulations in a manner inconsistent with the plain language of the Federal requirements.”16 In EPA’s view, Alabama is using “permit terms that are neither the same as, nor as protective as, the Federal CCR regulations.”17
Although the basis for denying the application is strictly based on RCRA and relevant regulations, the stringency of review of coal ash disposal permits and program applications is important for environmental justice. In announcing the plan to deny Alabama’s application, EPA Administrator Michael Regan stressed environmental justice as a key focus in managing coal ash pollution: “Low-income and underserved communities are especially vulnerable to coal ash in waterways, groundwater, drinking water, and in the air,” he said, which “is why EPA works closely with states to ensure coal ash is disposed of safely, so that water sources remain free of this pollution and communities are protected from contamination.”18
With 32 coal ash disposal sites in Alabama, the stakes are high in assuring protective measures are applied per existing and pending federal law.19 According to the notice proposing denial, EPA informed Alabama of the flaws in its program and rather than correct them, Alabama attorney general Steve Marshall sent a Notice of Intent to Sue EPA for failing to approve the program in its current form.20 Public hearings on the proposed denial were held September 20 and 27, and written comments were accepted through October 13.21
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The examples of Louisiana and Alabama show the particular challenges for the Biden administration’s environmental justice agenda when state actors refuse to work with EPA or outright reject environmental justice as a worthy objective. Progress for environmental justice inevitably depends on federal, state, and local levels of government. The examples here highlight the significant role of states in critical environmental policy decisions, especially when permitting authority is delegated to states under federal environmental statutes designed for cooperative federalism. The proposed denial of Alabama’s application for authority to run the coal ash permit program shows EPA’s keen awareness of this fact.22
Even as more states are incorporating environmental justice into state law — see for example, the recently enacted Environmental Justice Law in the state of New York23 — the “overheated rhetoric” in Louisiana’s complaint shows how much ground there still is to cover.24 It’s common now for environmental justice to be characterized as a “hot topic” or a “new” trend, but that suggests there’s a time in the future when collective attention can move on — it disrespects what’s at stake and the years of work by movement leaders. The environmental harms motivating the movement are long-standing, and it’s been persistent, long-term grassroots advocacy that has brought environmental justice to the forefront of federal policy today.
As EPA works to employ the legal tools available to address pollution, communities and their advocates deserve credit in many instances for pushing the agency to do so — the litigation that prompted the CAA Section 112 rulemaking noted with regard to the Louisiana facility in Part I of this post is a relevant case in point.25
As much as so many of us hope federal environmental justice efforts continue — through the challenges and difficulties, and irrespective of the result of the next presidential election — we know from experience that is not guaranteed.26 These recent developments serve as a reminder that even with a clear focus on environmental justice at the federal level, the significant role of sub-federal governments in environmental decisions makes continued state and local advocacy, and support for such advocacy, as important now as ever.
12 See EPA, Notice of Availability; Request for Comment – Alabama: Denial of State Coal Combustion Residuals Permit Program, 88 Fed. Reg. 55220 (Aug. 14, 2023) (To date, EPA has only approved state programs in Georgia, Oklahoma, and Texas).
13 EPA, Final Rule – Hazardous and Solid Waste Management System; Disposal of Coal Combustion Residuals From Electric Utilities, 80 Fed. Reg. 21302 (Apr. 17, 2015) (setting national minimum criteria for existing and new CCR landfills and surface impoundments).
14 EPA, Proposed Rule – Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals from Electric Utilities; Legacy CCR Surface Impoundments), 88 Fed. Reg. 31982 (May 18, 2023). See Utility Solid Waste Activities Group v. EPA, 901 F.3d 414 (D.C. 2018) (in which the court agreed with environmental petitioners that the exemption was arbitrary and capricious).
15 See, e.g., Kari Kydersen, At rules hearing, U.S. EPA hears human toll of unaddressed coal ash pollution, Energy News Network (June 29, 2023) (reporting at an EPA hearing on new proposed coal ash rule, “The environmental injustice of coal ash was clear…as residents testified from Native American communities in New Mexico and Nevada, Latino communities in Midwestern cities, and Black communities in Alabama and Tennessee, among others. Multiple people told the EPA officials about their friends and family who had died or suffered from cancer or other illnesses they attribute to coal ash.”).
16 EPA, Notice of Availability; Request for Comment – Alabama, supra note 12 at 55222.
17 Id.
18 EPA, News Release: EPA Proposes to Deny Alabama’s Coal Ash Permit Program and Better Protect Local Communities from Pollution (Aug. 3, 2023) (calling decision “latest EPA action to protect overburdened communities and water sources from coal ash contamination, advancing environmental justice”). See also Peter McGuire, EPA to Deny Botched Ala. Coal Ash Permit Program, Law360 (Aug. 3, 2023).
19 See Earthjustice, “Toxic Coal Ash in Alabama: Addressing Coal Plants’ Hazardous Legacy” (May 3, 2023).
20 EPA, Notice of Availability; Request for Comment – Alabama, supra note 12 at 55224 (citing Letter from Alabama Attorney General Steve Marshall to EPA Administrator Michael Regan, Notice of Endangerment and Intent to Sue under Section 7002(a)(1)(A) and (1)(B) of the Resource Conservation and Recovery Act. December 9, 2022).
21 EPA, U.S. State of Alabama Coal Combustion Residuals Permit Program Proposed Denial – Public Hearings; se See EPA, Notice of Availability; Request for Comment, supra note 12.
22 EPA, Notice of Availability; Request for Comment – Alabama: Denial of State Coal Combustion Residuals Permit Program, supra note 12 at 55227. As EPA explains, if the agency “were to approve Alabama’s program now (i.e., after the deficient CCR permits were issued), the Alabama CCR program, including the facility-specific permits, would apply in lieu of the Federal CCR regulations pursuant to RCRA section 4005(d)(1)(A) and (3).”
23 For a summary discussion of the new law in relation to other environmental justice laws recently enacted in other states, see Michael B. Gerrard & Edward McTiernan, New York Adopts Nation’s Strongest Environmental Justice Law, N.Y. L.J. (May 10, 2023).
24 Defendants’ Combined Memorandum, supra note 3 at 2.
25 The litigation was brought by t.e.j.a.s., California Communities Against Toxics; Louisiana Environmental Action Network; Rise St. James; and Sierra Club, represented by Earthjustice, and the Environmental Integrity Project (representing itself). See EPA, New Source Performance Standards for the Synthetic Organic Chemical Manufacturing Industry and National Emission Standards for Hazardous Air Pollutants for the Synthetic Organic Chemical Manufacturing Industry and Group I & II Polymers and Resins Industry, 88 Fed. Reg. 25080 (Apr. 25, 2023). See also Defendants’ Notice of Resolution of Title VI Complaints, State of Louisiana v. EPA, No. 2:23-cv-00692 (W.D. of La. June 27, 2023)( Exhibit A and B). For community reactions to consent decree and the consent decree itself, see Earthjustice, “EPA agrees to update rules for cancer causing chemical plants” (Feb. 25, 2022).
26 See generally Uma Outka & Elizabeth Kronk Warner, Reversing Course on Environmental Justice under the Trump Administration, 54 Wake Forest Law Review 393 (2019). See also Heritage Fndtn., 2025 Presidential Transition Project (2023) (see, e.g., Chapter 13 proposing strategies for conservative reversal of environmental justice work at EPA).
