What Does the Biden Administration’s Focus on Environmental Justice Mean for the Regulated Community?

Since taking office, President Joe Biden has signaled that improving the health and environment of overburdened communities will be one of his top environmental priorities…

The federal government is about to follow New Jersey’s lead when it comes to environmental justice. Since taking office, President Joe Biden has signaled that improving the health and environment of overburdened communities will be one of his top environmental priorities. This means increased scrutiny for entities that operate in or near environmental justice communities.

Executive Order on Tackling the Climate Crisis at Home and Abroad

On January 27, 2021, President Biden signed an Executive Order on Tackling the Climate Crisis at Home and Abroad (Order). The Order establishes a whole-of-government approach to both climate issues and environmental justice.

The Order specifically provides that “agencies shall make achieving environmental justice part of their missions by developing programs, policies, and activities to address the disproportionately high and adverse human health, environmental, climate-related and other cumulative impacts on disadvantaged communities, as well as the accompanying economic challenges of such impacts.”  The Order further states that it is the Administration’s policy “to secure environmental justice and spur economic opportunity for disadvantaged communities that have been historically marginalized and overburdened by pollution and underinvestment in housing, transportation, water & wastewater infrastructure, and health care.” 

Below are several key provisions of the Order with regard to environmental justice:

• White House Environmental Justice Interagency Council: The Interagency Council is tasked with developing a strategy to address current and historic environmental injustice by consulting with the White House Environmental Justice Advisory Council and with local environmental justice leaders. Within 120 days of the Order, the council must submit to the President, through the National Climate Advisor, a set of recommendations for further updating Executive Order 12898. The 1994 order issued by President Bill Clinton directed federal agencies to: identify and address the disproportionately high and adverse human health or environmental effects of their actions on minority and low-income populations, to the greatest extent practicable and permitted by law; develop a strategy for implementing environmental justice; and promote nondiscrimination in federal programs that affect human health and the environment, as well as provide minority and low-income communities access to public information and public participation.
• White House Environmental Justice Advisory Council: The Advisory Council, which will advise the White House Environmental Justice Interagency Council and the Chair of the Council on Environmental Quality, must provide recommendations to the White House Environmental Justice Interagency Council on how to increase the Federal Government’s efforts to address current and historic environmental injustice, including recommendations for updating Executive Order 12898.
• Council on Environmental Quality (CEQ): The chair of CEQ must create a geospatial Climate and Economic Justice Screening Tool within six months of the Order and must also annually publish interactive maps highlighting disadvantaged communities.
• Environmental Protection Agency: The EPA Administrator must strengthen enforcement of environmental violations with a disproportionate impact on underserved communities through the Office of Enforcement and Compliance Assurance; and create a community notification program to monitor and provide real-time data to the public on current environmental pollution, including emissions, criteria pollutants, and toxins, in frontline and fenceline communities.
• Department of Justice: The Attorney General must consider renaming the Environment and Natural Resources Division the Environmental Justice and Natural Resources Division; direct that division to coordinate with the EPA Administrator, through the Office of Enforcement and Compliance Assurance, as well as with other client agencies as appropriate, to develop a comprehensive environmental justice enforcement strategy, which must seek to “provide timely remedies for systemic environmental violations and contaminations, and injury to natural resources”; and ensure comprehensive attention to environmental justice throughout the DOJ, including by considering creating an Office of Environmental Justice within the Department to coordinate environmental justice activities among DOJ components and United States Attorneys’ Offices nationwide.
• EJ Scorecard: By February 2022, the Director of the Office of Management and Budget (OMB), in coordination with the Chair of the CEQ, the Administrator of the United States Digital Service, and other relevant agency heads, must publish on a public website an annual Environmental Justice Scorecard detailing agency environmental justice performance measures.
• Justice40 Initiative: Within 120 days of the Order, the Chair of the CEQ, the Director of the OMB, and the National Climate Advisor, in consultation with the Advisory Council, must jointly publish recommendations on how certain Federal investments might be made toward a goal that 40 percent of the overall benefits flow to disadvantaged communities. Under the Order, the recommendations must focus on investments in the areas of clean energy and energy efficiency; clean transit; affordable and sustainable housing; training and workforce development; the remediation and reduction of legacy pollution; and the development of critical clean water infrastructure. The recommendations must also reflect existing authorities the agencies may possess for achieving the 40-percent goal as well as recommendations on any legislation needed to achieve the 40‑percent goal. 

Impact on Regulated Community

The Biden Administration’s increased focus on environmental justice will likely lead to greater scrutiny of permit and license approvals governed by federal environmental regulations. In terms of enforcement, violations of environmental laws that occur in and around overburdened communities are likely to generate greater attention and may face harsher penalties.

For the regulated community, it can be highly beneficial to be proactive. For instance, evaluating operations located near environmental justice communities for potential compliance issues can help avoid a costly enforcement action down the road. Entities should also continue to monitor environmental justice initiatives at both the state and federal level.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.