Biden’s Science and Environmental Justice Orders Foretell a New Era of Rulemaking and Enforcement That Go Beyond Climate

Akin Gump Strauss Hauer & Feld LLP

Last week’s “Climate Day” actions grabbed headlines primarily for how they respond to climate risk through increased federal coordination. Equally important may be the actions the Biden administration took that day to combat environmental injustice, in large part by expanding the role of science and equity considerations in rulemaking and other agency actions. This change in focus will color how agencies regulate and enforce regulations concerning air emissions as well as other media, including emerging chemicals of concern, like per- and polyfluoroalkyl substances (PFAS). First, the Executive Order on the President’s Council of Advisors on Science and Technology and the President’s Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking re-committed the federal government to science-based decision-making through the establishment of a Council of Advisors on Science and Technology and the issuance of directives to key executive branch agencies and their leadership. This likely comes as a direct response to what the new administration sees as past political interference in scientific assessments and likely will manifest itself in the form of greater representation of academics and non-governmental organization (NGOs) on the Environmental Protection Agency’s (EPA) Science Advisory Board and similar advisory committees.

Second, the Executive Order on Tackling the Climate Crisis at Home and Abroad emphasizes consideration of environmental justice in agency decision-making through the creation of White House Environmental Justice Interagency and Advisory Councils. While the Order focuses on addressing climate change, we expect that environmental justice concerns may drive enhanced scrutiny of PFAS contamination, abandoned mines and industrial sites, and coal ash disposal facilities, all of which are often found in underserved communities. For example, the Order provides that the new Justice40 Initiative—aiming to deliver 40 percent of the overall benefits of relevant federal investments to disadvantaged communities—will deploy a new “Climate and Economic Justice Screening Tool” to help prioritize “remediation and reduction of legacy pollution” and “development of critical clean water infrastructure.” These priorities, and the tools they produce, will shift federal attention (including both enforcement and spending) to the communities that played significant roles in the manufacturing and energy booms of the 20th and early 21st centuries.

While some of the Biden administration’s science and environmental justice prerogatives may appear nebulous at the outset, the administration plans to use them to effect real changes in agency decision-making, rulemaking, spending and enforcement.

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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