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The Takeaway

Illinois’s Environmental Protection Agency is drafting statutory language to codify its current environmental justice practices. Businesses need to monitor these developments closely. Rules on where and how companies can build or expand may soon shift—again—and early preparation can prevent costly surprises.

What is Environmental Justice and Why Does It Matter?

Environmental Justice, or EJ, has been a challenging concept in environmental law. Unlike the panoply of environmental laws and regulations, with highly specific, technically complex requirements, EJ is far less precise. “Areas of EJ concern,” or similar nomenclature used in various state and federal programs, identify areas where regulators apply increased permitting scrutiny to prevent residents from bearing a disproportionate burden of industrial activity. For businesses, this increased scrutiny can mean delayed or denied permits and costly conditions. How jurisdictions define EJ areas and apply program requirements is critical for any business pursuing new development or expansion.

A Decade of Confusion

For more than a decade, Illinois businesses planning new projects have faced uncertainty in identifying “areas of EJ concern.” The United States Environmental Protection Agency (USEPA) has its own criteria and map, while the Illinois EPA applies different criteria and produced a different map. Illinois even created another map under a different state program with yet another set of criteria. In addition, Illinois entered into an Informal Resolution Agreement with the USEPA that’s meant to bolster Illinois EPA’s environmental justice program by adding specific requirements demanded by USEPA. Notably, neither state maps nor the USEPA agreement had statutory authority to establish a mapping methodology or set program guardrails.

No wonder businesses struggle to know which rules apply and how they will be applied.

Legislative Proposals Add More Complexity

Businesses in Illinois—like businesses everywhere—seek certainty and transparency. Unfortunately, regulations may become more complex before they improve. In recent years, lawmakers introduced numerous EJ proposals. Some were so expansive they would apply to all permits statewide, regardless of EJ requirements, location, or potential environmental impact. Others created new appeal rights for advocates or local interest groups— rights never before granted.

The Pollution Control Board Enters the Debate

Against this backdrop of legislative uncertainty, the Illinois Pollution Control Board—the state’s quasi-legislative and quasi-judicial body that adopts environmental regulations and decides contested enforcement cases—launched a proceeding inviting public proposals for EJ procedural regulations, including which screening tools to use to identify areas of EJ concern.

Currently, environmental groups are using the legislature’s failed efforts as a rationale to urge the Board to adopt regulations without statutory authority. (You can follow the Board’s docket at https://pcb.illinois.gov/Cases/GetCaseDetailsById?caseId=17537.)

Illinois EPA Drafts a Statutory Framework

Some clarity finally seems within reach. Concerned that legislation could prove unworkable, Illinois EPA is drafting statutory language to codify its current practices. The focus is on scoring each Illinois census tract by environmental indicators and subjecting only those areas in the 25^th percentile or above to enhanced scrutiny, thus limiting permitting reviews. Further, restricting reviews to new emissions or expansions that increase emissions would give Illinois businesses more clarity when planning projects.

Key Concerns with the Draft

While these changes could improve existing EJ approaches, Illinois EPA’s draft still raises key issues. The Agency proposes updating the data used to determine the 25^th percentile every three years. But project development—from conception to engaging consultants, coordinating with local governments, getting engineering proposals, and obtaining financing—typically takes far more than three years. The Agency’s maps could change halfway through the planning process and alter permitting outcomes.

Further, the proposal allows the Illinois EPA to impose “permit enhancements” for EJ-area projects, even though the Illinois Environmental Protection Act already bars permits that violate the Act. Also, the draft allows denying permits based on an applicant’s compliance history, raising concerns about how the Agency would apply such a provision.

Looking Ahead: Prepare for Change

Even with these concerns, Illinois EPA has made a clear step toward creating a statutory foundation for EJ. Illinois businesses should monitor legislative and regulatory developments to avoid disruptions to planning for the future.