Recent action by the Biden administration has made clear once more that advancing equity, environmental justice, and civil rights is a key component of the environmental agenda that it seeks to address through a “whole of government” approach.
US President Joseph Biden recently signed another executive order designed to help communities that have been disproportionately affected by pollution. The April 21, 2023 order includes more than a dozen specific tasks for agencies to perform to address disproportionate and adverse human health and environmental effects, implement and enforce environmental and civil rights laws, and advance environmental justice in impacted communities.
The executive order reinforces the administration’s mandate that each federal agency “should make achieving environmental justice part of its mission,” and is just the latest in a series of other actions the administration has taken to promote equity, environmental justice, and civil rights in the environmental arena. We discuss some key facets in the development, implementation, and enforcement of current environmental laws, regulations, and policies in the United States.
On his first day in office, President Biden signed an executive order on advancing racial equity and support for underserved communities. The order expanded the concept of environmental “equity” from reducing the environmental burden on low-income and minority communities to include requiring the impartial treatment of “all individuals” and redressing historic failures. It required all federal agencies to conduct equity assessments of their own operations and then allocate resources to “address the historic failure to invest sufficiently, justly, and equally in underserved communities.”
President Biden signed a second executive order a week later that directed all federal agencies to make achieving environmental justice part of their mission and created an environmental justice interagency council to help promote the administration’s “whole of government” approach to the cause.
To address the disproportionate effect of COVID-19 on communities historically overburdened by pollution, the administration directed federal funding in the form of grants and contracts to those communities as part of the American Rescue Plan. Relatedly, the Bipartisan Infrastructure Law set aside $1 billion to expand access to clean drinking water, $21 billion to clean up Superfund and brownfield sites, and $6 billion to enhance public transportation and reduce emissions, prioritizing in each instance investments in overburdened communities.
Further, through the Inflation Reduction Act, the administration has allocated nearly $400 billion toward clean energy, 40% of which is to be directed to environmental justice communities through the Justice40 Initiative.
The US Environmental Protection Agency (EPA) also issued a sweeping guidance document on May 26, 2022 identifying the legal tools currently available to the agency to promote environmental justice. The guidance seeks to advance environmental justice on numerous fronts, including redirecting permitting, funding, and enforcement actions to address environmental justice concerns.
The document also sets forth guiding principles for the agency, including (1) prioritizing cases that reduce risks to the overburdened and overserved; (2) using all available legal tools to address environmental justice; (3) fostering meaningful engagement with impacted communities; and (4) promoting transparency to allow the agency to keep affected communities informed.
Perhaps the most notable development, however, is the establishment of the EPA Office of Environmental Justice and External Rights. The new office is tasked with infusing equity, civil rights, and environmental justice principles into all EPA practices and is vested with substantial additional resources. It is to be headed by a Senate-confirmed assistant administrator.
In an April 2021 memo to EPA staff, Administrator Michael Regan laid out enforcement goals for the agency, including strengthening enforcement of violations in areas that have been encumbered by pollution and prioritizing enforcement and compliance actions in underserved communities.
Administrator Regan went on a “Journey to Justice” tour to spotlight environmental justice concerns, after which he (1) directed the Office of Enforcement and Compliance Assurance to aggressively use its authority to conduct unannounced inspections at suspected noncompliant facilities; (2) launched a boots-on-the-ground project to provide compliance- and pollution-monitoring in the South; (3) issued notices of violation to facilities with exajoule (EJ) concerns; (4) looked to require installation of fenceline monitors at certain regulated facilities with EJ concerns; and (5) expedited reviews of certain former landfill sites.
If you are interested in Environmental Justice and the E in ESG, as part of our Earth Day Webinar Series, we invite you to subscribe to Morgan Lewis publications to receive updates on trends, legal developments, and other relevant areas.