Biden Advisory Council Issues Recommendations on Justice40, Other Environmental Justice Policies

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On Jan. 27, 2021, President Biden established the White House Environmental Justice Advisory Council (WHEJAC) via Executive Order 14008, titled “Tackling the Climate Crisis at Home and Abroad,” to advise the White House Environmental Justice Interagency Council (WHEJIC) and the chair of the Council on Environmental Quality on an array of policies related to environmental justice. These policies include the Justice40 Initiative to deliver 40 percent of the overall benefits of climate investments to environmental justice communities, improvements to mapping the locations and characteristics of frontline communities, and changes to a 1994 executive order, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.”

On May 13, 2021, WHEJAC released an interim final report setting forth recommendations regarding the Biden administration’s environmental justice agenda, and it finalized those recommendations on May 21, 2021. WHEJAC’s recommendations provide insight into how the current administration may pursue its “whole-of-government” approach to environmental justice and climate change.

Regarding Justice40, WHEJAC’s recommendations include the following:

  1. The administration should establish a single unit or office to oversee President Biden’s Justice40 Initiative.
  2. Support for clean energy projects, clean energy jobs training, lead water pipe replacement, public transportation and community and green housing are of particular importance. Those projects include recommendations for solar grants for communities with an energy cost burden of 12.5 percent or greater and the expansion of USDA Rural Energy for America Program to tax-exempt entities, such as nonprofits and government agencies, with increased program funding to $100 million per year.
  3. Opposition to investments in activities that would extend the life span or capacity of fossil fuel-fired generation, carbon capture and storage, nuclear power, and the establishment or advancement of carbon markets.
  4. Expansion of tools to help communities impacted by the transition away from coal. That includes increased funding for the Partnerships for Opportunity and Workforce and Economic Revitalization and Assistance to Coal Communities programs, subsidized broadband construction in coal-impacted communities, and incentives for hiring remote workers in those communities by extending the Work Opportunity Tax Credit.

The committee’s recommendations regarding improvements to environmental justice screening and mapping tools focus on demographic and environmental risk data points that a new tool or tools should capture. Those data points include the following, among others:

  1. Exposure burdens (air quality, pesticide use, drinking water contamination, noise levels, etc.)
  2. Proximity to potential hazards (Superfund sites, brownfields, oil and gas wells/pipelines/refineries, landfills, traffic, incinerators, etc.)
  3. Sensitive populations (birth and death rates, diseases, opioid addiction, disabled population, tribal population, food insecurity, etc.)
  4. Demographic factors (crowding, racial/ethnic demographics, educational attainment, poverty, unemployment rate, etc.)
  5. Energy (energy shut-offs, percent of low- and middle-income households with access to energy efficiency programs, percent of household income that goes to paying for energy, etc.)

The report also contains recommendation for revisions to Executive Order 12898. The new text would establish that “[h]istorically, the Federal Government has taken actions that have perpetuated, institutionalized, or defended injustices that resulted in inequality in exposure to hazardous substances and unequal access to clean water, clean air, healthy food, safe housing, transportation, and other environmental benefits,” all with serious health consequences for impacted communities. It calls for a recommitment to the issues addressed in E.O. 12898, and “now adds that affirmatively advancing equity, civil rights, racial justice, equal opportunity, and environmental justice is the responsibility of the whole of our Government.”

The revised text also includes new key definitions. It defines the term “community of color” as a geographically distinct area in which the population of any of the following categories of individuals, individually or in combination, is higher than the average population of that category for the state in which the community is located: Black, African American, Asian, Pacific Islander, other non-white race, Hispanic, Latino, indigenous (members of a tribe) and linguistically isolated. The report defines the term “environmental justice community” as a geographic location with significant representation of persons of color, low-income persons, indigenous persons or members of tribal nations where such persons experience, or are at risk of experiencing, higher or more adverse human health or environmental outcomes.

The recommendations set forth a variety of substantive provisions, to the extent permitted by law, that maximize what each federal agency must do to support environmental justice as a part of its mission. Under the revised text, agencies would have to do the following:

  • Ensure meaningful participation in agency programs, policies, practices and activities
  • Conduct each program, policy, practice and activity so as not to subject any individual to discrimination or disparate impact
  • Ensure, to the maximum extent practicable, that mitigation measures outlined or analyzed under the National Environmental Policy Act (NEPA) address significant and adverse environmental effects on environmental justice communities

Agencies must also develop concrete plans to do the following:

  • Ensure consideration of persistent violations by applicants in permitting decisions
  • Reduce, prevent and eliminate emissions and releases of pollution in environmental justice communities
  • Strengthen environmental and civil rights protection and enforcement in environmental justice communities

WHEJAC’s recommendations are intended to inform the policy development President Biden has assigned to the various agencies that comprise the White House Environmental Justice Interagency Council. Deadlines for additional action are fast approaching, and a true measure of the extent of WHEJAC’s influence will unfold in short order.

Companies should evaluate the many specific policy recommendations described in the WHEJAC report to determine which proposed changes they are well-positioned to address and where current company practices might require changes. Shifts in the NEPA process and federal permitting are particularly likely to impact the manner in which companies will have to interact with regulators and the public. In addition, many companies are working to develop their own policies on environmental justice issues and may look to these recommendations for guidance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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