On April 21, 2023, President Biden signed an executive order (EO) purporting to strengthen environmental justice (EJ)—“Revitalizing Our Nation’s Commitment to Environmental Justice for All.” This is the first revamp of President Bill Clinton’s 1994 EO 12898 which has guided agencies for nearly two decades. Biden’s EO directs the Environmental Protection Agency (EPA) and other agencies to focus on the disproportionate impacts to low-income and other disadvantaged communities. According to the White House fact sheet, these agencies must address cumulative impacts of pollution and climate change when promulgating agency action. The fact sheet lists three key initiatives that the Administration says will “make meaningful changes in communities” and build on Biden’s environmental “progress” thus far. The initiatives are as follows:

  1. Launching the White House Campaign for Environmental Justice. Biden announced the creation of the White House Office of Environmental Justice, housed within the White House Council on Environmental Quality, on the same day as signing the EO. As part of the Campaign, President Biden established a 25-member White House Environmental Justice Advisory Council. President Biden has directed federal agencies to develop plans to address the disproportionate impact of pollution and climate change on minority and tribal communities, and to report their progress on such action. The EO also directs agencies to address gaps in data regarding the cumulative effects of pollution on communities of color, among other things. Moreover, federal facilities must notify nearby communities if a toxic substance is released and hold public meetings to share information and potential health risks.
  2. Announcing new Justice40 covered programs. The Justice40 program directs 40% of benefits from certain federal investments, such as in climate action, from new legislation flow to disadvantaged communities. This EO added three new agencies to the initiative: the Department of Commerce, the National Science Foundation, and NASA.
  3. Taking new steps to combat plastic pollution. The same day it released the EO, the EPA released a draft National Strategy on Preventing Plastic Pollution to combat the disparate impacts on communities affected by plastic from production to waste. The Administration also announced a new Interagency Policy Committee (IPC) on Plastic Pollution and a Circular Economy that will coordinate federal efforts on plastic pollution.

This is the latest development in the Biden Administration’s ongoing efforts to prioritize EJ issues.  This, like prior Administration pronouncements leaves more questions than answers for the regulated community.  The practical question is: how will these efforts address permits, projects, rules, and enforcement?  The answers are not yet clear.

To date, we have seen some targeted federal enforcement.  We also have seen EPA assert itself in local proceedings.  For example, we previously have reported on how Title VI of the Civil Rights Act of 1964 has impacted permitting decisions at the state and local level, citing the RMG case in Chicago.  We expect that EPA will facilitate additional participation from representatives of disadvantaged communities in federal and state permitting efforts as well as agency rulemaking, but that is yet to be fully realized.

Fundamentally, as the RMJ case suggests, EJ issues most often arise at the local level, with communities adjacent to facilities expressing concern regarding current or planned future operations.  These conversations play out primarily in permitting efforts, where addressing community concerns can delay or stall a project and much of the process is driven at the state or local level.  Thus, federal EJ initiatives do little to change that dynamic, but may amplify the need to address community concerns.

Companies with facilities in areas with EJ matters should consider how best to understand and address community concerns outside any formal government-driven process.  Squire attorneys have assisted companies with EJ policies, stakeholder outreach plans, and community advisory committees.  Ultimately, credible, responsive communication with community members is key to an effective EJ policy.  An effective EJ policy is a significant part of a company’s overall ESG efforts.  Implementing that policy before it is necessary is good risk management.

For more information on EJ topics, contact the authors.