Environmental Justice in the Biden Administration: Early Actions Draw First Bold Lines

This Holland & Knight alert is the first of several status updates on environmental justice (EJ) in the Biden Administration. It identifies early actions of the administration that are not only significant in their own right but point to programmatic, regulatory and budget initiatives likely to emerge over the coming months and years. Holland & Knight will continue to monitor and provide insights into these policies, priorities, regulatory actions and the inevitable, attendant litigation. Subsequent status updates will document these actions with the goal of helping clients better understand how they may be affected by (and can effect) environmental justice change.

Introduction

The Biden Administration in its first 90 days has unambiguously articulated a commitment to the issue of environmental justice.¹ The actions of the White House and the U.S. Environmental Protection Agency (EPA), in particular, are significant and portend further policy and legal changes that will shape the regulatory landscape over the coming years. In the first three months since taking office, the White House:

• issued Executive Order (E.O. 14008), addressing EJ, climate change and equity issues; notably, President Joe Biden signed the E.O. within first several days of taking office
• created two new White House councils to address EJ implementation and solicit expert advice and recommendations, and
• signed legislation providing significant funding for EJ-related programs in the recently enacted $1.9 trillion American Rescue Plan Act²

Moreover, in response to the Executive Order, the recently confirmed EPA Administrator Michael Regan directed all offices within the Agency to:

• [s]trengthen enforcement of violations of cornerstone environmental statutes and civil rights laws in communities overburdened by pollution
• [t]ake immediate … steps to incorporate environmental justice considerations into their work … in regulatory development processes
• [t]ake immediate and affirmative steps to improve early and more frequent engagement with pollution-burdened and underserved communities, and
• consider and prioritize direct and indirect benefits to underserved communities in the development of requests for grant applications and in making grant award decisions, to the extent allowed by law.³

Recognizing the central policy role that EJ will play in the Biden Administration and understanding how EJ issues can affect businesses and communities will be key to avoiding pitfalls and spotting opportunities.

EJ Actions to Date and Likely Next Steps

Raising the Profile of Environmental Justice Under the Biden Administration

Among the executive actions denominated as "environmental justice" within first 90 days, President Biden's issuance of E.O. 14008 stands out. The E.O. emphasizes EJ's integration into the actions of the U.S. government. The E.O.'s focus on issues of climate change, economic revitalization and job creation shows an evolution from the first – and still in effect – EJ Executive Order (E.O. 12898), signed by then-President Bill Clinton in 1994.⁴

Specifically related to EJ, and linking the issue to economic development and job creation in a way that E.O. 12898 did not, the new Executive Order aims to conserve public lands and waters and improve air and water quality, and in this effort "create well-paying union jobs and more opportunities for women and people of color in hard-hit communities."⁵

The E.O.'s attention to union jobs and opportunities in an inclusive workforce, recognizes the coalescence and new power of the "blue-green alliance" and "just transition" strategy within the administration and EJ movement, more generally. Themes of economic justice, union participation and economic revitalization of disadvantaged communities should be expected alongside or integrated with more traditional EJ goals, such as: environmental quality; protection of culturally important places (i.e., sacred sites); and community involvement in the decision-making process.

This expectation is largely confirmed by the E.O.'s creation of the "Justice40 Initiative." This cross-agency initiative sets a goal that 40 percent of the overall benefits from federal investments flow to disadvantaged communities.⁶ The announcement of the initiative in the E.O. clearly communicates the administration's attention to revitalization of, and prioritizing resources to, EJ communities. An early test of the of the Justice40 Initiative will be the role that it plays in the forthcoming infrastructure bill and the extent to which the infrastructure bill achieves the Justice40 Initiative's goal.

The E.O. also calls on the chair of the White House Council on Environmental Quality (CEQ) to develop a Climate and Economic Justice Screening Tool that will "highlight disadvantaged communities."⁷ Such EJ screening tools can be used to prioritize disadvantaged communities (e.g., for grantmaking purposes) and to evaluate outcomes (e.g., allocation trends, changes in environmental quality). CEQ is likely to consider the EPA's Environmental Justice Screening and Mapping Tool (EJSCREEN) and, potentially, the older Environmental Justice Strategic Enforcement Assessment Tool (EJSEAT) in the development of the tool. CEQ's screening tool is also likely to bear similarity to comparatively well-developed California Community Environmental Health Screening Tool (CalEnviroScreen), which is now in its fourth version, and that is used in the prioritization of certain state funding allocations as well as in the environmental permitting and site remediation context. It is foreseeable that the CEQ-developed tool or closely related screening tools will be used by other agencies to assure a level of consistency across the federal government in the implementation of EJ or other equity-related strategies (e.g., allocating enforcement/compliance resources, funding activities to improve health outcomes, prioritizing communities housing and infrastructure funds, etc.). Given the to-be-developed tool's potential importance and reach, it is reasonable to assume that it will receive substantial attention as it is adopted and implemented.

Finally, E.O. 14008 establishes institutional mechanisms to coordinate EJ strategies within the federal government and to engage with non-federal government stakeholders on EJ policy and programmatic issues. The E.O. establishes two White House-level EJ "councils" to achieve these goals, including the:

• White House Environmental Justice Interagency Council (WHEJIC), which is composed of federal agencies, and is tasked with developing a strategy to address current and past environmental injustices and developing clear performance metrics to ensure accountability,⁸ and
• White House Environmental Justice Advisory Council (WHEJAC),⁹ which is chartered under the Federal Advisory Committee Act and composed of non-federal stakeholders. This council is tasked with providing advice and recommendations to the chair of the CEQ and to the WHEJIC on how to address environmental injustices.¹⁰ Again, communicating the key position that environmental justice is being given early in the administration, the WHEJAC held its first meeting on March 30, 2021, approximately 60 days after the E.O. was issued. Presenters included: Vice President Kamala Harris; EPA Administrator Michael Regan; Senior Director of Environmental Justice at CEQ, Cecilia Martinez; and National Climate Advisor Gina McCarthy.

In addition to establishing new EJ policy initiatives through the E.O., last month President Biden signed the $1.9 trillion coronavirus economic stimulus relief package, the American Rescue Plan Act of 2021 (Act).¹¹ Consistent with the E.O.'s prioritization of funding for disadvantaged communities, Title VI, § 6002, of the Act appropriates $100 million to the EPA to address health outcome disparities from pollution and the COVID-19 pandemic.¹² The Act also designates $50 million to grants, contracts and other agency activities that identify and address disproportionate harms and risks on minority and low-income populations, and another $50 million to grants and activities in order to monitor and improve air quality.¹³

In sum, the Biden Administration's attention to EJ in the first 90 days is significant in terms of scope, speed and visibility. It is noted that the administration's grouping of EJ policy initiatives is consistent with the cross-cutting "comprehensive approach" to environmental justice, which includes: 1) a broad policy directive to address EJ; 2) a standard by which EJ communities can be defined and results measured (here, the CEQ EJ screening tool); 3) a strategic/coordinating body and mechanism to allow for representative engagement by the members of the EJ community and to allow for cross-agency coordination; and 4) funding for specific initiatives.¹⁴ The primary advantage of this organizational structure is that the policy directive can be implemented across a broad range of issues and agencies, while maintaining a relatively high degree of consistency and coordination. This policy approach is consistent with approaches employed by several states across the country.

Environmental Justice Likely Next Steps

The high-visibility EJ actions already taken place and the organizational structure established by the administration likely presage additional measures. Some of these "next steps" will almost certainly involve actions that align closely with traditional EJ principles (e.g., enhanced community engagement and public participation) in agency decision-making. Other actions are likely to involve funding and programmatic actions (e.g., prioritization of funding for Brownfields revitalization and drinking water infrastructure in EJ communities), while still others are likely to be of a regulatory nature (e.g., consideration of cumulative impacts in the permitting process). The following are EJ measures likely to be considered in the intermediate near term:

• requirements in grant applications to describe how community-based organizations will be part of a grant's implementation and funding disbursement
• prioritizing infrastructure bill funding toward the revitalization of, and investment in, EJ and other disadvantaged communities
• revisiting the Trump Administration's prohibition on Supplemental Environmental Projects (SEPs) – environmentally beneficial projects undertaken in consideration of a partial reduction of an enforcement penalty – in administrative and judicial settlements
• revisiting the Trump Administration's EPA rule prohibiting the Agency's Environmental Appeals Board from considering policy issues and E.O. mandates (including EJ issues) in permit review decisions
• renewed attention to measures designed to reduce lead exposure
• the development of the Climate and Economic Justice Screening Tool and updating existing tools, such as EJSCREEN, to facilitate and coordinate EJ activities across federal agencies

Given the renewed attention to environmental justice the authors are aware of several companies and nonprofits that are evaluating their policies with respect to environmental justice, considering their facilities' respective physical locations (including with respect to, e.g., demographics, proximity to current and former sources of pollutions), keeping an eye out for regulatory changes and opportunities (e.g., SEPs) and considering whether measures should be taken in response.

The Administration's Road to Environmental Justice Will Not Be Without Its Challenges

While some policy and funding actions can enlarge the "pie" (e.g., increasing the scope and amount of benefits conferred to EJ communities) and are not highly controversial, other EJ policy and adjudicatory decisions may require "management of change" (e.g., decisions involving permits, public engagement processes and timing, allocation of funding) and raise issues of federalism (e.g., state compliance with the disparate impact regulations implementing Title VI of Civil Right Act of 1964).

Over the coming months and years, the Biden Administration is likely to confront these more challenging and potentially fraught issues. By way of example only, issues the administration is likely to confront in the mid- and longer-term include:

• consideration of EJ in the permitting context, including but not limited to, considering: the physical location of the subject facility and its surrounding characteristics; and evaluation of changes in "GHG co-pollutants" in cap-and-trade programs under the Clean Air Act
• establishing clearer (and potentially more stringent guidance) on compliance with the "disparate impact" provisions of the regulations implementing Title VI of the Civil Rights Act of 1964
• heightened emphasis on EJ and cultural resource issues in the National Environment Policy Act (NEPA) review process
• focusing enforcement resources on facilities located in EJ communities

It is also anticipated that regulatory actions and policy decisions may raise tensions between the "mainstream" environmental groups and EJ organizations (e.g., around cap-and-trade policies, policies that tend to raise the cost of housing and utilities to achieve region-wide or national greenhouse-gas reduction goals).

Conclusions

The Biden Administration has been fast out of the gate in raising the profile of EJ, making commitments, taking renewed steps to address conditions in environmentally burdened communities and linking job creation to improving environmental quality. The administration's success around the issue of environmental justice is likely to be measured on the basis of its ability to make and document tangible improvements in EJ communities, to enhance community engagement and to resolve case-specific issues that are likely to arise (e.g., management of environmental crises especially impacting environmental justice communities) in a fair, transparent manner. The administration's success is surely also to be measured on its ability to negotiate the tensions inherent in regulatory change.

In forthcoming EJ status updates, Holland & Knight will track the administration's measures to address environmental justice, identify trends as they emerge and make recommendations. If you have questions about assessing environmental justice changes or need additional background, please contact Partners Nicholas Targ, Rich Gold or Jennifer Hernandez.

At the time of publication, Indigo Brown was a research law clerk at Holland & Knight and a rising third-year law student at the Howard University School of Law in Washington, D.C., where she focused on environmental and administrative law, and environmental justice.

Notes

¹ While many definitions of the term "environmental justice" exist, for the purposes of this alert the authors have adopted, as a working definition, the EPA statement of the issue:

"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."

² Exec. Order No. 14008, 86 Fed. Reg. 7619 (Feb. 1, 2021).; American Rescue Plan Act of 2021, H.R. 1319, 117th Cong. § 6002 (2021). 

³ EPA Administrator Announces Agency Action to Advance Environmental Justice, U.S. EPA, (April 7, 2021).

⁴ Exec. Order No. 14008, 86 Fed. Reg. 7619 (Feb. 1, 2021) (It is noted that the E.O., more generally, focuses on combating domestic and international climate change.)

⁵ Id.

⁶ Id. The Justice40 Initiative approach can be traced to California's Senate Bill 535 (Sen. Kevin de Leon), which allocates a minimum of 25 percent of the state's proceeds from the Greenhouse Gas Reduction Fund to benefit disadvantaged communities within the top 25 percent highest scoring census tracts designated by CalEnviroScreen. Subsequently, AB 1550 (Assembly Member Jimmy Gomez), modified the requirement, clarifying that 25 percent of proceeds go to projects located in disadvantaged communities.

⁷ Id.

⁸ Id.

⁹ Id.

¹⁰ U.S. Environmental Protection Agency Charter, White House Environmental Justice Advisory Council, (2021). The WHEJAC is separate from the National Environmental Justice Advisory Council (NEJAC), which provides recommendations about issues related to environmental justice to the EPA.

¹¹ American Rescue Plan Act of 2021, H.R. 1319, 117th Cong. § 6002 (2021).

¹² Id.

¹³ Id.

¹⁴ Nicholas Targ, "State Comprehensive Approaches to Environmental Justice" in Power, Justice and the Environment: A Critical Appraisal of the Environmental Justice Movement (MIT Press 2005).

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