From the earliest days, the Biden Administration has made environmental justice and equity a key pillar of its environmental policy, directing EPA to incorporate this concept at all levels of its decision-making process through a whole-of-government approach. On the eve of Earth Day, April 21, 2023, President Biden continued to reinforce his whole-of-government approach through the issuance of an executive order - Executive Order on Revitalizing Our Nation’s Commitment to Environmental Justice for All - proclaiming that environmental justice “is a duty of all executive branch agencies and should be incorporated into their missions.” and builds on the Justice40 initiative.

The Executive Order and the accompanying Fact Sheet are focused on improvements of executive branch agencies, heeding the Administration’s environmental justice call. While the Executive Order is high on rhetoric and aspirational goals, it does contain numerous tasks to be performed by all federal agencies to further the Administration’s environmental justice goals. Some more interesting items of the Executive Order and Fact Sheet include:

• Definition of Environmental Justice. The federal government’s focus on environmental equity and justice first gained traction with the Clinton Administration’s 1994 Executive Order, which directed that each federal agency make achieving environmental justice part of its mission “by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.”[1] The 1994 Executive Order did not actually define “environmental justice.” Rather, the terminology has been developed through the multitudes of guidance and policy documents that have followed over the past 30 years, each with their own definition of “environmental justice,” with many continuing to incorporate the concept of disproportionately “high” adverse effects from the 1994 Executive Order.
  
  The Biden Administration’s Executive Order contains a comprehensive definition of “environmental justice,” with some notable expansions of the 1994 concepts:[2]

o The Executive Order moves away from the 1994 Executive Order by eliminating the word “high” from the consideration of “disproportionate and adverse human health and environmental effects,” potentially lowering the bar of what is considered “actionable” environmental justice impacts. The Fact Sheet accompanying the Executive Order tries to explain away this change as “a simpler, modernized version of the phrase ‘disproportionately high and adverse’” and that “removing the word ‘high’ eliminates potential misunderstanding that agencies should only be considering large disproportionate effects.” However, despite the Administration’s ministrations that this is a distinction without a difference, any change is likely to add another complexity to the consideration of what constitutes an environmental justice community.

o The Executive Order’s “environmental justice” definition explicitly includes “tribal affiliation” and “disability” as categories to be included and considered in the evaluation of environmental justice.

o The definition also looks beyond just the direct impacts of a polluting or environmental activity, referring to “cumulative impacts of environmental and other burdens, and the legacy of racism or other structural or systemic barriers.”

• Scope of Agency Actions Covered. The Executive Order directs agencies to consider measures to address and prevent disproportionate and adverse environmental and health impacts on communities, including the cumulative impacts of pollution and other burdens like climate change. The Executive Order provides that federal activities subject to Environmental Justice considerations include rulemaking, guidance, policy, program, practice, or action that affects or has the potential to affect human health and the environment and as well as compliance, issuance and reissuance of federal permits and licenses and providing federal funding.
• New White House Office on Environmental Justice. The Executive Order creates a new White House Environmental Justice Office, which will be located within the White House Council of Environmental Quality (CEQ). The office will be led by a new “Federal Chief Environmental Justice Officer,” who will coordinate all environmental justice efforts across the federal government. Notably, the CEQ was created by and is responsible for implementing the National Environmental Policy Act (NEPA). Although CEQ has ample guidance regarding how to incorporate “environmental justice” into NEPA reviews, it will be interesting whether the elevation and creation of the Environmental Justice office in the CEQ will cause environmental justice considerations to find their way into regulations versus guidance. CEQ currently is reviewing and promulgating its NEPA Phase 2 regulations, which are currently under OMB review and will be published in the Federal Register in 2023.
• Civil Rights Act. The Executive Order requires consideration of Title VI of the Civil Rights Act when determining impacts on environmental justice communities. As discussed in an earlier KT blog post regarding the potential impacts of Title VI on environmental permitting and enforcement, Title VI contains two provisions EPA considers as the basis for environmental justice claims and policy - Section 601, which provides that no person shall “on the grounds of race, color, or national origin, be excluded from participating in, be denied the benefits of, or be subject to discrimination under any program or activity” covered by Title VI; and Section 602, which authorizes federal agencies to “effectuate the provisions of Section 601 by issuing rules, regulation or orders of general applicability.” EPA may utilize Title VI to impose requirements beyond the statutory and regulatory requirements when they find an action has a discriminatory effect. The Executive Order demonstrates the Administration’s intention to continue to use the Civil Rights Act as an alternative route to pursue their environmental justice goals.
• Environmental Scorecard. The Executive Order directs all federal agencies to assess their environmental justice implementation and update their environmental justice strategic plans. The Office of Management and Budget (OMB), CEQ and the U.S. Digital Service will make the results of the assessment available to the public through an “Environmental Justice Scorecard.” The Phase One Scorecard is now available and is intended to provide a baseline for tracking 24 federal agencies Environmental Justice progress in the following areas: Implementing the Justice40 Initiative;[3] implementing and enforcing civil rights laws and embedding environmental justice throughout government.
• Chemical Release Reporting. The Executive Order requires federal agencies notify surrounding communities in the event of a release of toxic substances from a federal facility. The Executive Order provides that, within six weeks following an EPCRA § 304 release of a hazardous substance from a federal facility, the notifying agency will hold a public meeting providing the information required under EPCRA§ 304(b)(2), including information on the nature of the release, known or anticipated health risks, and the proper precautions to take as a result. Notice of this meeting must be provide no later than 72 hours after a release.

The Executive Order demonstrates the Biden Administration’s continuing focus on environmental justice. While, as with numerous other broad and wide-ranging Environmental Justice proclamations and guidance, the actual impact is unclear, the current Executive Order raises a number of concerns:

• Lack of Administrative Procedures Act (APA) Notice-and-Comment Rulemaking. “Environmental Justice” concerns are addressed through a number of Executive Orders and federal guidance, issued over the past thirty years.[4] Notably, none has been issued for notice and comment rulemaking or review by the Office of Management and Budget.

• Federal “authority” for the called for actions. Many of the actions called for may not be within the Executive Branch’s authority under the federal agencies’ specific governing authorities.

• Problem purportedly being “fixed.” The Executive Order imposes at least a dozen action items on federal agencies. Neither the Executive Order nor the Fact Sheet identify any current agency environmental justice failures or deficiencies that require a future cure. Notably, the recently issued Scorecards indicate relatively robust environmental justice programs throughout most of the federal agencies. It is possible that the Executive Order will just add another layer of federal oversight of federal agencies.

[1] See Executive Order 12898 of February 11, 1994 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations).

[2] The Executive Order provides that "Environmental justice" means the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, Tribal affiliation, or disability, in agency decision-making and other Federal activities that affect human health and the environment so that people are fully protected from disproportionate and adverse human health and environmental effects (including risks) and hazards, including those related to climate change, the cumulative impacts of environmental and other burdens, and the legacy of racism or other structural or systemic barriers; and have equitable access to a healthy, sustainable, and resilient environment in which to live, play, work, learn, grow, worship, and engage in cultural and subsistence practices

[3]Under the Justice40 Initiative, the Federal Government has made it a goal that 40 percent of the overall benefits of certain Federal investments flow to disadvantaged communities that are marginalized, underserved, and overburdened by pollution.

[4] A January 2023 EPA Guidance Document outlines how environmental justice and cumulative impacts can be addressed by existing statutory authorities but does not identify any “explicit” environmental justice authority.