Warner Norcross + Judd LLP partner Kurt Kissling was interviewed by Recycling Today for the article “Environmental justice: Where are the rules?” Published in the April 2023 issue, the article addresses environmental justice policies and regulations that have led to confusion, especially for waste management and recycling businesses.
Kissling is interviewed throughout the article, with quotes on pages 3, 7, 8, 13 and 14.
When asked the question: Is it fair for the EPA to influence permitting decisions at the local level based on environmental justice concerns, Kissling responded:
“There’s a great deal of room for disagreement, depending on your point of view. If you’re living in a marginalized community that has suffered decades of pollution with very little voice, you’re probably saying, ‘This is overdue.’ If you’ve been operating a scrap yard for 50 years and now someone’s saying that you need to move or shut down because they don’t like you being in the neighborhood, that feels unfair.”
With respect to the number of states that have enacted legislation or issued rules to govern EJ implementation, Kissling shares: “In most jurisdictions, there are no EJ regulations. What you have ... in a lot of states and certainly at the federal government level are EJ policies. If you were to survey the states across the country, roughly half have an EJ policy. By contrast, there are states that seem content to wait until they’re dragged into EJ implementation.”
Kissling goes on to explain that regulators often lack precedent or clear legal authority to deny a company its permit based on EJ considerations alone. However, he says that regulators could use EJ policy motivations to deny a permit based on modified interpretations of existing law.
“[An EJ policy] might influence the way a regulator applies the law, even if the law didn’t change,” he says. “If I’m applying for an air permit or water permit ... EJ is often not going to play a direct role, but it might influence the regulators. You might have interesting twists and turns because you have a regulator that’s concerned about the environmental justice impacts. Laws ultimately need to govern regulatory approvals and permits.”
Kissling is an environmental attorney with decades of experience in all matters related to the Clean Air Act as well as its state and local counterparts, including permitting, compliance, enforcement and advocacy. Regional and national clients across a variety of industries rely on Kurt’s expertise to address complex regulatory and enforcement matters that impact their operations. Learn more about his practice here.
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