Troutman Pepper

Addressing environmental justice (EJ) has been an immediate priority for the Biden administration. Within a week of taking the oath of office, President Biden issued a sweeping executive order with a number of EJ initiatives, including creation of a White House Environmental Justice Interagency Council consisting of the heads of each Cabinet-level and independent federal agency. The order also directed federal agencies to “make achieving environmental justice part of their missions” through development of programs and policies aimed at addressing disproportionately high adverse environmental impacts on disadvantaged communities.

The Federal Energy Regulatory Commission (FERC or Commission) has initiated steps to include EJ priorities in its work. In February, Chairman Richard Glick announced plans to create a senior position at FERC to coordinate incorporation of EJ and equity concerns into the Commission’s decision-making process. In his announcement, Glick emphasized that the position “is not just a title,” and that the person who fills the role will be working with experts across all FERC program offices to ensure that EJ and equity concerns “finally get the attention they deserve.” On May 20, Chairman Glick announced the appointment of Montina Cole as Senior Counsel for Environmental Justice and Equity, effective June 1, 2021. FERC’s press release describes Cole as a “seasoned executive and attorney” with an active consulting and legal practice, “where she works at the intersection of climate policy, racial equity and resilience.”

The most likely immediate result of an increased focus on EJ at FERC is an elevated role for Native American tribes in the hydropower licensing process. There may also be greater attention on the scope of the tribes’ authority in the licensing process. Additionally, FERC has included EJ considerations in its establishment of an Office of Public Participation. This office is required by the Federal Power Act, for reasons outside of environmental justice. However, FERC has specifically sought input from EJ communities and tribal interests in a listening session about how this office should function.

Another priority for the Biden administration has been acceleration of permitting for new and expanded renewable energy projects. FERC will likely need to grapple with the tension between streamlining the permitting process to support promotion of renewable energy and meaningfully addressing EJ, which could mean lengthier and more detailed public participation processes and greater scrutiny of project location and impacts.

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