Washington, D.C. (February 12, 2021) - The Biden Administration has left no doubt that it intends to prioritize environmental justice (EJ) in implementing energy and environmental policy. While EJ is not new – in fact, President Clinton signed the first EJ Executive Order (EO 12898) in 1994 – the new Administration's plan to expand the concept to include "climate justice" and "health equity" is both novel and undefined. Similar to actions taken on climate change (see our previous alert from January 28), President Biden has announced plans for elevating EJ by designating new Cabinet level offices, intensifying enforcement, and advocating for Congressional action. Given the likelihood of serious impacts from these sweeping changes, industry will need to step up engagement as these concepts are integrated into regulatory decisions and U.S. positions globally.

Authority for addressing injustice caused by environmental pollution that disproportionately affects certain communities is found in Title VI of the Civil Rights Act of 1964. The Act imposed a responsibility on the Environmental Protection Agency (EPA or Agency) to ensure that its funds are not being used to subsidize discrimination, based on race, color, or national origin, making EPA's Office of Civil Rights responsible for the investigation and enforcement of Title VI within the Agency. President Clinton relied on this authority in signing EO 12898, which directed federal agencies to identify and address disproportionately high adverse human health and environmental effects of their programs, policies, and activities on minority and, going beyond the protections covered by Title VI, low-income populations.

EPA enlarged the scope of EJ by defining it to include "the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies" (emphasis added). And the recently issued Biden EO 13990 goes even further by mandating the advancement of environmental justice, ensuring access to clean air and water, and holding polluters accountable for harm to low-income communities and those of color.

The Biden Administration is in sync with advocates who have criticized federal enforcement of EJ criteria as insufficient and are pressing hard for action. Among other things, the Administration promises enhanced enforcement by holding corporate polluters responsible for contributing to disproportionate rates of illness and death from COVID-19. While it is not clear how such a legal theory could be sustained, other potential actions include:

  • Creating a new Environmental and Climate Justice Division within the Department of Justice;
  • Elevating EJ considerations by establishing the White House Environmental Justice Advisory Council and the White House Interagency Council, both of which will report directly to Gina McCarthy, White House National Climate Advisor;
  • Overhauling EPA's Civil Rights compliance office;
  • Seeking legislation to provide a private right of action to sue under Title VI;
  • Ordering the development of a Climate and Environmental Justice Screening Tool, which will be used to identify communities that are particularly susceptible to climate change; and
  • Committing to deliver 40% of the overall benefits of new clean energy investments to disadvantaged communities.

What does this mean for industries that may be affected by the Administration's ambitious EJ-related objectives? First, companies should expect increased engagement from well-organized EJ groups in regulatory permit proceedings. Similarly, there is likely to be an uptick in administrative and legal challenges based on claims that EJ issues were either ignored or inadequately considered. In addition, risks of stepped-up enforcement will mean companies should examine their policies and procedures to ensure compliance with Title VI and other current and expected EJ enforcement measures.

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