US President Joseph Biden recently issued an executive order (EO) announcing additional environmental justice (EJ) initiatives. Most notably, the EO directs all agencies to take affirmative steps to identify and address EJ concerns within their control and mandates checkpoints to ensure progress and public accountability—a more active posture than previous EJ efforts.
The April 21, 2023 EO is designed to build on (and in some cases amend) prior EOs focused on environmental issues and EJ concerns.
Prior to this administration, the only major EO on EJ dated back to February 16, 1994 when US President Bill Clinton enacted EO 12898, an order which directed agencies to “identify and address the disproportionally high and adverse human health or environmental effects of their actions on minority and low-income populations.”
Twenty-five years later, on his first day in office, President Biden signed two EOs aimed at addressing EJ and related issues: EO 13990 (Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis) and EO 13985 (Advancing Racial Equity and Support for Underserved Communities Through the Federal Government).
Together, these EOs signaled a commitment to addressing inequities through an ambitious whole-of-government approach and directed agencies to review actions to promote President Biden’s EJ goals.
Just seven days later, on January 27, 2021, President Biden signed EO 14008 (Tackling the Climate Crisis at Home and Abroad), which went even further by directing agencies to take action (as opposed to merely reviewing prior agency actions) regarding EJ concerns.
EO 14008 specifically directed the US Environmental Protection Agency (EPA) to strengthen enforcement of environmental violations that disproportionally impacted underserved communities and recommended the US Department of Justice (DOJ) create an Office of Environmental Justice to coordinate DOJ’s EJ activities nationwide.
President Biden has signed four other EOs aimed at advancing EJ, among other goals:
With eight substantive sections, the April 21 EO extends the administration’s commitment to EJ primarily by (1) directing agencies to address EJ issues, (2) mandating the development of strategic plans and assessments to track EJ implementation, and (3) enabling more executive branch oversight of federal EJ efforts.
Section 3(a) directs all federal executive agencies, excluding the Government Accountability Office and independent regulatory agencies, to take affirmative steps to address disproportionate and adverse human health and environmental risks of federal and nonfederal activities.
This direction—to affirmatively address EJ impacts—marks a further shift from the prior direction to agencies under EO 12898 of 1994. While EO 12898 directed agencies to avoid disproportionally high and adverse effects, the new EO instructs agencies to take steps to address impacts and removes the requirement that such effects must be “disproportionally high.”
Section 3(a) also directs agencies to carry out environmental reviews under the National Environmental Policy Act (NEPA) in a manner that analyzes direct, indirect, and cumulative effects of federal actions on communities with EJ concerns.
Section 3(b) directs EPA, in carrying out its responsibilities under Section 309 of the Clean Air Act, to “assess whether each agency analyzes and avoids or mitigates disproportionate human health and environmental effects on communities with environmental justice concerns.”
EPA must also submit an annual report to the Council on Environmental Quality (CEQ) and the White House Environmental Justice Interagency Council (Interagency Council) regarding communities with EJ concerns and recommendations on legislative, regulatory, or policy options to advance EJ in federal decision-making.
Finally, Section 3(c) directs the US attorney general to ensure compliance with civil rights laws in federally funded programs and activities that potentially affect human health or the environment.
Section 4 mandates that each agency submit an environmental justice strategic plan to the chair of CEQ (and be made public) within 18 months of the EO and every four years thereafter, which plan must set forth each agency’s vision, goals, priority actions, and metrics it will use to advance EJ.
In addition, Section 4 requires agencies to submit an environmental justice assessment two years after the plan submission that evaluates the effectiveness of their plans. Section 4 also encourages independent regulatory agencies to comply with the EO and notify the chair of CEQ if they intend to do so.
Section 5 requires the director of the Office of Science and Technology Policy to establish an Environmental Justice Subcommittee of the National Science and Technology Council, which shall then hold annual summits on the connection of science, data, and research with policy and action and prepare an annual research plan to identify gaps in data collection, opportunities for coordination, and recommendations to address data gaps and encourage EJ data collection.
Section 6 requires timely notifications to the public about toxic chemical releases—likely a response to the recent events in East Palestine, Ohio.
Section 7 provides five amendments to EO 12898 (as later amended by EOs 14008 and 14082), which amendments (1) added the executive director of the White House Gender Policy Council to the Interagency Council; (2) instructed the Interagency Council to facilitate interagency collaboration related to EJ, including through training materials for federal employees; (3) directed each agency’s environmental justice officer to be responsible for that agency’s environmental justice strategy plan; (4) directed the Interagency Council to adopt a memorandum of understanding to guide its operations, hold a public meeting at least annually, and, in coordination with the administrator of the EPA, establish a website to provide public access to EJ initiatives; and (5) provided that the public may submit recommendations to agencies relating to the incorporation of EJ principles into agency programs or policies.
Section 8 establishes the White House Office of Environmental Justice to be housed within the CEQ and led by a presidentially appointed federal chief environmental justice officer to advance EJ initiatives.
Section 9 directs the chair of CEQ to issue interim guidance on agency implementation of the EO within six months of the order to then be finalized within 18 months after considering recommendations of the White House Environmental Justice Advisory Council.
Section 10 implements direct executive oversight of the EJ initiatives by requiring the chair of CEQ to submit to the president a report describing the efforts to comply with the EO and each agency’s strategic plan.
The most immediate effect of the April EO will likely come from the modified direction to agencies in Section 3(a). The instruction that agencies actively identify and address—as opposed to avoid—“disproportionate and adverse human health and environmental effects” should provide support for federal agencies that are prioritizing and undertaking more aggressive enforcement actions where such actions will redress EJ effects.
In addition, the NEPA review provision’s cumulative pollution approach may result in delaying or impacting projects on the grounds of cumulative impacts even if a proposed project’s anticipated pollutive effect is not substantial considered in isolation.
Longer term, the various requirements to create strategic plans, issue reports, and assess EJ initiatives will provide the public with greater insight into how federal agencies are conceptualizing and implementing this and prior EJ EOs.
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