Prepare Now for the Inevitable EJ Questions: A Practitioner’s Guide to Regulatory Impacts of Environmental Justice

Faegre Drinker Biddle & Reath LLP

The incorporation of environmental justice (EJ) and civil rights into the environmental agenda of the Biden administration has not been confined to grant making and enhanced visibility. Through a series of executive orders, policies and guidance the administration has created a new regulatory approach to EJ and civil rights that will require the regulated community to examine current practices to fully understand this new regulatory structure. The below documents from the current administration and previous administrations are relevant to understanding the new regulatory structure and are “must reads” for EJ practitioners and stakeholders.

While it’s environmental justice that is addressed in most of these documents, more aggressive use of Title VI of the Civil Rights Act is equally as important. While Title VI generally does not directly impact the regulated community, it does apply to states because they receive federal funding and EPA may seek to compel states to change their permitting, inspection and enforcement practices to remedy alleged violations. The question that may soon be answered is whether EPA and DOJ believe that Title VI affords substantive authority that was not granted in any of the other environmental statutes. The Draft National Program Guidance issued by the Office of Environmental Justice and External Civil Rights Compliance Office for FY 2023-24, item 10 below, provides insight into Title VI and the direction EPA is taking.

Key Biden Administration Documents

1. EO 13985 on Advancing Racial Equity and Support for Underserved Communities through the Federal Government. Issued January 2021.

  1. Provides definitions of “equity” and “underserved communities.”
  2. Required federal agencies to develop Equity Action Plans. EPA released its plan in April 2022 along with the other federal agencies.

2. EO 13990 on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. Issued January 2021.

  1. Directs agencies to prioritize environmental justice.

3. EO 14008 – Tackling the Climate Crisis at Home and Abroad. Issued January 2021.

  1. Directed agencies to prioritize environmental justice by addressing, among other things, underinvestment in communities with environmental justice concerns.

4. EO 14057 – Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability. Issued December 2021.

  1. Recommends agencies incorporate environmental justice into climate planning and program implementation, including Justice40.

5. Comprehensive Environmental Justice Enforcement Strategy (DOJ). Issued May 2022.

  1. Cites EO 14008 as rationale for this memorandum.
  2. Prioritizes cases that address public health and environmental harms in overburdened communities (EPA definition).
  3. Makes strategic use of all legal authorities including Title VI of the Civil Rights Act and other authorities such as OSHA.
  4. Emphasizes increased DOJ engagement with communities with environmental justice concerns. Signals that DOJ will increase its outreach to these communities.
  5. Includes directive to track and make public results from DOJ efforts. Further signals that DOJ will be making public ongoing enforcement and results of enforcement efforts around the environmental benefits of their actions.

6. FY 2022 – 2026 EPA Strategic Plan. Issued May 2022.

  1. Serves as another example where enhanced Title VI enforcement is emphasized.
  2. Introduction emphasizes EPA’s focus on environmental justice and civil rights.
  3. Establishes environmental justice enforcement and imbeds environmental justice as goals in the Agency’s core work.

7. EPA Legal Tools to Advance Environmental Justice. May 2022.

  1. Outlines legal basis under environmental laws for EPA to address environmental justice.

8. EPA Office of Enforcement and Compliance Assurance (OECA) Draft National Program Guidance, Fiscal Years 2023 – 2024. Issued June 2022.

  1. Provides background on OECA activities taken to address environmental justice and outlines OECA policies for addressing environmental justice moving forward.

9. OECA has issued four directives to enhance its work in EJ communities:

  1.  Strengthening Enforcement in Communities with EJ Concerns. April 2021
  2. Memorandum Strengthening Environmental Justice Through Criminal Enforcement. June 2021
  3. Memorandum Strengthening Environmental Justice Through Cleanup Enforcement Actions. July 2021.
  4. Using All Appropriate Injunctive Relief Tools in Civil Enforcement Settlements. April 2021.

10. Office of Environmental Justice and External Civil Rights Compliance Office. Issued June 2022.

  1. Reinforces that EPA will be taking a “vigorous” approach to civil rights enforcement and integrating environmental justice into Agency activities.

Other Notable EJ Efforts of the Biden Administration

11. Interim Implementation Guidance for the Justice40 Initiative. Issued July 2021.

  1. Provides guidance to federal agencies on meeting the administration’s goal of having 40 percent of certain federal funds benefit disadvantaged communities.
  2. The interim guidance includes definitions of what constitutes “disadvantaged.”

12. EJScreen: Environmental Justice Screening and Mapping Tool | US EPA.

  1. EJScreen is a screening tool that can help determine if you are operating in a community with EJ concerns. This is a tool that EPA is using to prioritize inspections, enforcement, and related activities.

Notable Documents from Previous Administrations

While these are documents issued by previous administrations, they are still relevant in the current administration and should be carefully reviewed.

13. EO 12898 Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.

  1.  Requires federal agencies to “identify and address” negative impacts their actions have on “minority and low-income populations.”
  2. Mandates the development of a strategy to address environmental justice.
  3. Requires federal agencies to promote non-discrimination in their programs and ensure that information and public participation in decision making is available.

14. Technical Guidance for Assessing Environmental Justice in Regulatory Analysis. June 2016

  1. An internal tool to, “outline particular approach and methods to help Agency analysts … analyze potential EJ concerns for regulatory actions.” This document warrants review to understand how the Agency will be developing potential rules and can be a guide to writing effective comments to proposed rules.

15. EPA Activities to Promote Environmental Justice in the Permit Application Process. May 2013

  1. This document outlines activities for enhanced community outreach for permits directly issued by the Agency.

Looking Around the Corner

Environmental justice continues to grab headlines and spur debate amongst supporters, critics, states and the federal government alike. Despite varying opinions on the subject, the Biden administration’s emphasis on, and implementation of, EJ has been unrelenting. Understanding the evolution of EPA’s and DOJ’s engagement with the regulated community on EJ is crucial to being better prepared for inspections, permitting and commenting on rules. The regulated community should also understand how EPA and DOJ are executing oversight of federal grantees under Title VI of the Civil Rights Act to help manage potential exposure, including being ensnared in a civil rights investigation.

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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