By Karen Bennett, a partner in the Washington, DC office of E&W Law.

The Environmental Protection Agency (EPA) seeks public comment on revised Technical Guidance for Assessing Environmental Justice (EJ) in Regulatory Analysis.1  The Technical Guidance2 updates EPA’s 2016 version and incorporates the Biden Executive Order 14096 “Revitalizing our Nation’s Commitment to Environmental Justice for All.”3 Comments are due January 15, 2024.

Embeds EJ Analysis in EPA Regulatory Decisions

EPA’s draft revisions would embed EJ analyses into all EPA regulatory decisions, even where the underlying environmental statutes and existing regulatory impact analyses do not require such an analysis.  The Guidance asks “analysts” to characterize the effects of EPA actions on vulnerable populations in relation to a comparison population group where the focus is on identifying “disproportionate and adverse health effects” that may exist before or be created by the proposed regulatory action.4  The Guidance requires “some level of quantitative analysis” of at least three alternatives of the regulatory action under consideration.5 EPA views its authority to address EJ concerns under environmental statutes as broad.  The Guidance concludes that determining disproportionate impact is a policy decision and thus the agency need not make an actual “finding” of disproportionate impact.6  Future EPA EJ reviews will consider low income, tribal affiliation, and disability when justifying its EJ initiatives under this Guidance—a significant expansion of the characteristics EPA contemplates when looking at protected classes under Title VI of the Civil Rights Act.  Additionally, EPA requires consideration of factors that go beyond environmental exposure risks such as economic and social factors, vulnerability to climate change, multiple stressors and cumulative impacts, while recognizing the high degree of uncertainty that accompanies including such extrinsic factors.7

Avoids Important Legal Questions

By incorporating disproportionate effects into guidance, EPA avoids questions about its authority to enforce claims of unintentional discriminatory effect.  The Supreme Court has determined that Title VI protects against intentional discrimination8 and questioned whether the type of EPA regulations that prohibit programs or activities that have the effect of subjecting individuals to discrimination are legally valid.9  But the Guidance is void of any discussion of how EPA squares consideration of such disparate effects in regulatory outcomes within the statutory boundaries of the agency’s authority.

Focuses on Site-specific Data for Use in Nationwide Regulatory Actions  

The Guidance recommends using location-specific data to generate vulnerability and health-risk assessments and includes a broad list of extrinsic factors that are mostly site specific.  For example, proximity, unique exposure pathways, physical infrastructure (housing, water), cumulative exposures, and extrinsic factors such as labor market, real estate, education, cultural and societal values to reinforce social hierarchies based on race, ethnicity, income, occupation, age, or other characteristics must be incorporated into regulatory decision-making.10 EPA has not explained how it will use generation of mostly local data to determine nationwide regulatory actions.  Questions also arise regarding the quality of the data.  On the one hand, the Guidance touts the use of high quality, scientific peer-reviewed data and encourages adherence to Office of Management and Budget and EPA data quality guidelines.  On the other hand, EPA recognizes much of the data will either be unavailable or will be highly uncertain.

The Guidance Imposes a Significant Regulatory Burden

The Guidance would impose a hefty regulatory burden on federal agencies and regulated entities and seems to go way beyond what any regulatory impact analysis or environmental analysis under federal statutes already requires.  EPA has not provided any discussion of the additional regulatory burden that will result from implementation of the Guidance in federal regulatory actions.  Commenters should request that a final Guidance include an EPA assessment of the additional cost associated with regulatory actions.


EPA’s draft revisions to the 2016 Technical Guidance will significantly increase the cost and regulatory burden associated with EPA regulatory decision-making.  The draft Guidance focuses on addressing complex public health issues that are geographically influenced and site-specific and not well suited for nationwide decisions.


  1. 88 Fed. Reg. 78358 (Nov. 15, 2023).
  2. Available at: EPA Draft Revision of Technical Guidance for Assessing Environmental Justice in Regulatory Analysis | US EPA.
  3. 88 Fed. Reg. 25251 (Apr. 26, 2023).
  4. Technical Guidance, p. 5.
  5. Id. at 51.
  6. Id. at 5, fn9.
  7. Id. at 20, fn 34; pp. 20-23.
  8. Alexander v. Sandoval, 532 U.S. 275, 280 (2001).
  9. Id. at 282.
  10. See Technical Guidance, p. 54, for the level of data EPA recommends.