During his campaign and with several executive orders issued in his first week in office, President Biden has made it clear that environmental justice (EJ) reforms are a priority for his administration. So where are we a year after his presidency? This article provides a brief update on federal programs, initiatives, and policies aimed at environmental justice that have been announced or implemented by the Biden administration over the past year.
On January 20, 2021 – his first day in office – President Biden signed several executive orders that included specific initiatives focused on environmental justice. Executive Order 13985: “Advancing Racial Equity and Support for Underserved Communities through the Federal Government” directed executive departments and agencies to work to correct inequities in their policies and programs that constitute barriers to equal opportunities. Executive Order 13990: “Protecting Public Health and the Environment and Restoring Science to Combat the Climate Crisis” announced that his administration “must advance environmental justice” and the “Modernizing Regulatory Review” memorandum called for recommendations to “ensure that regulatory initiatives benefit and do not inappropriately burden disadvantaged, vulnerable or marginalized communities.
However, the most sweeping environmental justice reforms were included in Executive Order 14008: “Tackling the Climate Crisis At Home and Abroad” issued January 27, 2021. EO 14008 is the most significant executive order that outlined how the Biden administration would embed environmental justice across “government.” It provides that “[t]To ensure a fair economic future, the United States must ensure that environmental and economic justice are a core consideration in how we govern. . . . Agencies must integrate the achievement of environmental justice into their missions by developing programs, policies and activities to address the disproportionate and adverse cumulative human health, environmental, climate and other effects on disadvantaged communities, as well as the resulting economic challenges. impacts.” EO 14008 created the “Justice40 Initiative,” an inter-agency initiative setting a goal that at least 40% of overall benefits from federal climate and clean energy investments flow to disadvantaged communities. He also asked the chairman of the White House Environmental Quality Council to develop a climate and economic justice screening tool within 6 months (that is to say, by July 2021) which “will shine a light on disadvantaged communities”. EO 14008 also established two White House-level environmental justice councils to coordinate environmental strategies and policies: the White House Interagency Environmental Justice Council and the White House Environmental Justice Advisory Council.
A year later, the Climate and Economic Justice Screening Tool (per EO 14008 to be released by July 2021) is still under development. According to the White House’s “Fact Sheet: A Year to Advance Environmental Justice” released on January 26, 2022, a “beta version of the Climate and Economic Justice Screening Tool will be released for public review and comment. early this year.” The two White House-level EJ councils were formed, met, and issued recommendations. The White House Environmental Justice Advisory Council released its final recommendations on May 13, 2021 aimed at implementing the Justice40 initiative, the development of the Climate and Economic Justice Screening Tool, and other policies and programs. Regarding the Justice40 initiative, the White House announced that “hundreds of federal programs, representing billions of dollars in annual investments – including programs that were funded or created in the Presidential Infrastructure Act bipartisan – are being redesigned and transformed to maximize benefits for the disadvantaged”. communities through the Justice40 initiative. New programs implemented by the agencies include the Communities Local Energy Action Program (LEAP) Pilot Program, the Inclusive Energy Innovation Award, and the Energy Storage for Social Equity Initiative. The White House plans to release an annual Environmental Justice Scorecard in 2022 that provides a report on the agencies’ progress in implementing the Justice40 initiative and other key environmental justice priorities.
On April 30, 2021, the US EPA’s Office of Enforcement and Compliance Assistance (OECA) released a memorandum titled “Strengthening Enforcement in Communities with Environmental Justice Concerns.” environmental justice) calling for increased inspections, enforcement and engagement. A few months later, the OECA released another memorandum titled “Strengthening Environmental Justice Through Criminal Law Enforcement” focusing on “strengthening tools for detecting environmental crimes in overburdened communities, improving educating victims of these crimes and ensuring that our investigations are structured providing maximum assistance to the Department of Justice (DOJ) in exercising its prosecutorial discretion and in pursuing remedies that will ensure adequate protection to these communities.
On October 1, 2021, the US EPA released its draft strategic plan for fiscal year 2022-2026. This plan included various environmental justice initiatives to be implemented by the US EPA, including increased inspections and enforcement. The draft 2022-2026 strategic plan called for the US EPA to complete several environmental justice actions by September 2026, including: (1) completing 55% of inspections per year at facilities that affect communities with potential EJ issues; (2) include commitments to address disproportionate impacts in GE communities in all written agreements between the US EPA and states and tribes implementing delegated authorities; (3) all states receiving US EPA financial assistance will have basic civil rights programs in place and the US EPA will conduct 100 audits per year of these recipients; and (4) publicly identify and begin implementing at least 10 commitments for communities with CY concerns.
In its December 28, 2021 document titled “EPA Concludes a Year of Significant Accomplishments,” the US EPA highlighted the following environmental justice achievements in 2021: (1) directing all US EPA offices clearly integrate environmental justice considerations into their plans and actions; (2) announcing $100 million in US bailout funding for environmental justice initiatives and air monitoring in overburdened communities; (3) embark on a first-of-its-kind “Journey to Justice” tour, traveling the Southeast to highlight long-standing environmental justice concerns in historically marginalized communities and hear first-hand from residents facing pollution impacts; and (4) leverage enforcement authority to protect overburdened communities from pollution.
On January 5, 2022, the US EPA released a draft “EJ Action Plan: Building Up Environmental Justice in EPA’s Land Protection and Cleanup Programs” highlighting projects, tools, and practices to be applied to the Office of Land and Emergency Management (OLEM) from the US EPA. programs. These programs include Superfund, Brownfields, Emergency Response, Solid Waste Management and Corrective Action, and Underground Storage Tanks. The EJ Action Plan focuses on four main objectives: (1) strengthen compliance; (2) incorporate environmental justice considerations; (3) improve community engagement; and (4) the implementation of the Justice Initiative40.
On January 26, 2022, US EPA Administrator Michael Regan announced the first in a series of policy actions reflecting the US EPA’s commitment to environmental justice. These actions include: (1) directing the US EPA to aggressively use its authority to conduct unannounced inspections of facilities suspected of non-compliance, as needed to protect public health, and when facilities are found to be non-compliant, the US EPA will use all the tools to hold them accountable; (2) deploy a new program to expand air surveillance capability, using assets such as the ASPECT aircraft, GMAP mobile air surveillance vehicle, and additional air pollution inspectors to bolster the ‘application ; (3) mobilize agency resources to invest in community air monitoring to better protect people and public health in vulnerable areas; (4) urge state and local elected officials to take urgent action to better protect the most overburdened communities; (5) holding companies more accountable for their actions in overburdened communities with increased monitoring and surveillance of polluting facilities; and (6) apply the best available science to the development of agency policies to protect public health and protect the environment.
Just weeks ago, two officials who held leadership positions implementing the Biden administration’s environmental justice reforms announced their resignations. On January 7, 2022, Cecilia Martinez, Senior Director of Environmental Justice at the Environmental Quality Council, announced her resignation. A few days later, on January 10, 2022, David Kieve, director of public engagement for the Environmental Quality Council, announced his resignation. These positions are not filled to date.
What next for environmental justice initiatives under the Biden administration in 2022? Based on recent priority announcements and the US EPA’s draft action plan, it is likely that we will see the following EJ actions this year: (1) release of the Climate Justice Screening Tool and economic; (2) increased US EPA enforcement of violations that disproportionately impact underserved communities; (3) US EPA and other agencies to review permit applications to assess EJ considerations in disadvantaged communities; (4) increased public participation in sites with JE concerns and more information based on data from JE screening tools; (5) requirements for increased surveillance in “front-line and fence-line communities”; (6) more citizen and third-party tort lawsuits aimed at environmental exposure in disadvantaged and overburdened communities; and (7) CY laws, regulations, and programs implemented at national and local levels. We will continue to monitor these environmental justice developments in 2022 and provide additional updates in future articles.
© Copyright 2022 Squire Patton Boggs (USA) LLPNational Law Review, Volume XII, Number 39