The Biden Administration is seeking to advance "environmental justice" (EJ) through its policy and regulatory priorities in a way that no administration has before. Environmental justice-which seeks to address disproportionate environmental impacts on racial minorities, Native American tribes, and disadvantaged communities-is hardly a new concept. But in recent months, a variety of political, social, and economic forces has combined to underscore EJ concerns. The Black Lives Matter movement and COVID-19 pandemic have highlighted the damaging consequences of systemic racism and the heightened risks that low-income and minority populations bear, including from environmental pollution sources. These movements reignited a drive to address the excessive incidence of environmental contamination and pollution in disadvantaged communities. Some citizens, corporate shareholders, and the Biden Administration appear to share a common interest in elevating EJ as a national priority.
Moving forward, the executive and legislative branches are expected to incorporate EJ as they develop and revise regulatory mandates and national policy. In light of the wide-ranging potential impacts of this policy focus, we suggest methods through which stakeholders can proactively engage with EJ initiatives. Our upcoming February 17 webinar will provide an in-depth review of the development of EJ policies and discuss best practices in light of a rapidly changing regulatory and enforcement landscape. Request to attend the webinar.
I. Environmental Justice
Broadly, EJ refers to the unequal distribution of environmental negatives (e.g., water and air pollution) among minority, low-income, tribal, and indigenous communities compared with wealthy, white communities. For example, industrial facilities are frequently located in communities of color and low-income areas, where resulting pollution may impose health burdens on neighboring residents. Burdened populations suffer disproportionately from asthma, cancer, COVID-19, water pollution, climate change, and other health and environmental risks.
The EJ movement seeks to correct these inequities. Environmental advocacy groups, states, and the federal government have already identified the issues, but progress on implementing solutions has been slow over the past several decades. The federal government first outlined an approach to EJ when then-President Clinton signed Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, in 1994. This executive order (EO) created the White House Interagency Council on Environmental Justice, composed of Cabinet-level members from relevant agencies, and directed federal agencies to integrate EJ into their missions. As required by the EO, the US Environmental Protection Agency (EPA), US Department of Justice (DOJ), and other relevant agencies established offices and working groups focused on EJ.
Substantive federal EJ initiatives, however, have been few and far between, and the federal government's modest EJ efforts to date have been broadly criticized as ineffective. The EPA defines EJ as the "[f]air 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." Achieving this will require government investment, legislative and regulatory changes, new enforcement approaches, and corporate involvement. As discussed below, the Biden Administration is already demonstrating its intent to make progress on these issues.
II. Implications of the Environmental Justice Agenda for Stakeholders
EJ is expected to be an increased focus over the next four years at the White House and federal agencies, and in Congress. Policy and regulatory changes will likely affect stakeholders in multiple ways and will ultimately require regulated entities to analyze the environmental effects of their business operations on disproportionately impacted communities and develop concrete measures to address inequities.
President Biden expressed his commitment to EJ as a candidate for President in his Plan to Secure Environmental Justice and Equitable Economic Opportunity in a Clean Energy Future, released in July 2020. Environmentalists and EJ advocates have praised the Biden plan as a comprehensive strategy for addressing environmental injustices at the federal level. In his first week in office, President Biden issued EOs that formalized the promises he made on the campaign trail and demonstrated the Administration's commitment to EJ as a priority issue.
On January 20, 2021, President Biden signed the Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. The order's goals include ensuring access to clean air and water; holding polluters accountable, with a focus on pollution that disproportionately harms people of color and low-income communities; reducing greenhouse gas emissions; and prioritizing EJ.
One week later, President Biden signed the Executive Order on Tackling the Climate Crisis at Home and Abroad, which outlines his plan to take a government-wide approach to climate change with an emphasis on EJ. The EO strengthens the focus on EJ within the White House by revitalizing the existing Interagency Council on Environmental Justice and creating a new White House Environmental Justice Advisory Council. The advisory council will be composed of members with expertise in EJ and related issues who will provide recommendations to the White House on how to improve federal government efforts to redress environmental injustices.
The EO also takes a number of actions to advance EJ, including:
- Calling on the EPA Administrator to strengthen environmental enforcement to address violations that disproportionately impact underserved communities;
- Directing the EPA to create a community notification program to provide real-time emissions data to communities located near pollution sources;
- Ordering the DOJ to coordinate with the EPA and other federal agencies to develop a comprehensive EJ enforcement strategy and "ensure comprehensive attention to environmental justice throughout the Department of Justice"; and
- Directing the Council on Environmental Quality (CEQ), the Office of Management and Budget, and the National Climate Advisor to jointly publish recommendations for how the Administration's planned $2 trillion federal investment in clean energy can be made so that 40 percent of the benefits flow to disadvantaged communities.
President Biden's Cabinet appointments include notable EJ advocates expected to further support and bolster the Administration's EJ objectives. Michael Regan, North Carolina's top environmental regulator, is Biden's nominee for Administrator of the EPA. Regan has been praised for his EJ work, including efforts to clean up coal ash pollution and enhance environmental protections. Regan also created a board within North Carolina's environmental agency dedicated to advancing EJ and equity in the state. Deb Haaland, Biden's nominee for Secretary of the Interior, is a member of the Laguna Pueblo tribe and a vocal EJ advocate. As the first Native American Cabinet Secretary, Haaland is expected to increase the Interior Department's focus on solutions to EJ and Native American issues.
In addition to these Cabinet appointments, Biden has assembled a team of climate experts in the White House whose focus includes EJ. Brenda Mallory, a long-time environmental law expert with significant EJ experience, will lead the Council on Environmental Quality (CEQ), and Cecilia Martinez, a prominent advocate for racial equity, will serve as the Senior Director for Environmental Justice at CEQ. And in her role as National Climate Advisor, former EPA Administrator Gina McCarthy plans to develop climate policy that advances EJ.
Regulatory Levers for Environmental Justice
Administration officials can advance EJ in the executive branch through enforcement, permitting, and regulations.
- Enforcement: Regulated entities should be prepared for increased enforcement in areas where low-income or minority populations are affected, and for increased monitoring, reporting, and notification requirements. Additionally, Administrator-Nominee Regan could seek to reinvigorate the External Civil Rights Compliance Office, which is charged with investigating citizens' Title VI discrimination claims but has been criticized for neglecting this duty. Similarly, DOJ could prioritize enforcement actions in which environmental harms disproportionately impact certain populations. The Biden Administration may resurrect the long-standing practice of allowing the inclusion of environmentally beneficial projects in legal settlements with the EPA. These projects, called "Supplemental Environmental Projects" (SEPs), offset the harm caused by defendants by providing direct environmental benefits to the affected local community. Historically, the EPA and DOJ often used SEPs to remedy disproportionate impacts of pollution on communities of color and low-income communities. Given the potential EJ benefits of these projects, the DOJ may seek to reverse its March 2020 decision ending the decades-long use of SEPs as part of settlements.
- Permitting and Environmental Review: Agency leadership throughout the federal government can also leverage the permitting and environmental review processes to promote environmental equity. The National Environmental Policy Act (NEPA) review process allows for consideration of EJ impacts before agencies approve any major federal action; stakeholders should expect a heightened emphasis on EJ in the NEPA process under the Biden Administration. We also anticipate a renewed focus on community outreach during the NEPA process and related permitting reviews, with an emphasis on meaningful engagement with Native American tribes and other impacted communities. Therefore, businesses should prepare for heightened public engagement, consideration of EJ impacts, and new mitigation requirements when seeking permits and authorizations from the federal government.
- New and Revised Regulations: President Biden has instructed federal agencies to reexamine the Trump Administration's environmental regulatory and policy rollbacks; it is expected that a significant number of rules will be replaced by policies more protective of the environment. The Administration will likely craft these policies with an eye toward environmental equity. The anticipated flurry of rulemaking will provide opportunities for stakeholders to engage with the Administration on EJ.
Weeks into the term, the new Democratically led Congress has already taken up EJ legislation. Senators Ed Markey (D-MA) and Tammy Duckworth (D-IL) and Representative Cori Bush (D-MO) introduced the Environmental Justice Mapping and Data Collection Act. The bill would establish an interagency committee, led by the EPA, to create an interactive mapping tool to locate communities facing EJ concerns. Among other things, this tool could prove useful in the Administration's efforts to direct at least 40 percent of sustainability spending to disadvantaged communities and enhance environmental enforcement in underserved neighborhoods.
Only time will tell whether the bill will pass, as other EJ legislative measures have failed to gain momentum in years past. With Democrats in control in both the House and Senate, and a heightened public awareness of these issues, such legislation may receive more support.
Additional EJ legislation may resemble past bills that have attempted to strengthen the federal government's approach by codifying existing non-binding guidance, requiring agencies to analyze EJ concerns in the NEPA process (such analysis is currently not mandatory), and mandating consideration of cumulative impacts in permitting decisions. Other recent bills have sought to address EJ more directly, for instance by prohibiting the issuance or renewal of Clean Air Act permits in disproportionately impacted communities, providing funding for cleanups in such communities, and allocating money for research and programs.
Given a crowded legislative schedule and limited political capital in a closely divided Congress, we may see some EJ efforts incorporated into broader legislation, such as legislation seeking to address two of the Administration's top priorities: climate change and the COVID-19 pandemic.
Congressional committees, which have started focusing on EJ in recent years, may also hold hearings to explore these issues. Past hearings featured testimony by scientists and advocates aimed at drawing attention to EJ issues, often with a focus on impacts from industrial operations.
In anticipation of possible congressional action, regulated entities should at a minimum develop procedures for assessing the effects of their operations on the communities in which they operate and providing mitigation measures.
III. Looking Ahead
The EJ movement is gaining support across government, society, and the business community. It is likely that executive agencies will elevate these issues through internal secretarial orders and guidance as well as through regulatory changes requiring additional analysis, monitoring, and mitigation of impacts in minority and low-income communities. Similar congressional action is likely.
Businesses should reexamine their approaches to EJ in anticipation of these broad changes. Developing EJ policies can help companies better understand how operations impact the communities where they are located and identify opportunities to mitigate those impacts. In addition to facilitating regulatory compliance, these policies can contribute to effective environmental, social, and governance (ESG) management. As the investment community increasingly considers social and environmental factors in investment decisions, sound EJ policies increase corporate value.
WilmerHale is closely following these developments and is experienced in helping businesses navigate their compliance obligations with a focus on environmental justice.
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