Source: The Federal Lawyer
Environmental justice (EJ) has been a central focus of the Biden Administration, which has encouraged a “whole-of-government” approach. Notably, this encouragement to address EJ issues, while backed by multiple executive orders (EOs), has lacked any federal law upon which agencies can enforce responsive action. Agencies, such as the Environmental Protection Agency (EPA) and Department of Justice (DOJ), have nevertheless sought creative avenues to enforce EJ problems. As EJ appears to be a continued focus of the Biden Administration, those that operate in the environmental space should be aware of recent developments and their impact on business operations and considerations.
What is Environmental Justice?
While the term “environmental justice” has not yet been defined by Congress or by the EPA in its regulations, the EPA and other federal agencies have often used the following definition in various policy statements: “Environmental Justice is 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.” It is, in short, a means to address and correct alleged racial discrimination by state or federal environmental regulatory (in)action. Nevertheless, the absence of a statutory or formal regulatory definition has been problematic in the incorporation of EJ principles into state or federal permitting and enforcement practices.
State of Environmental Justice in the United States
While legislation has been proposed to require federal agencies to address EJ, no legislation has successfully passed both chambers of Congress. Federal agencies, such as the EPA and DOJ, are utilizing currently available tools to pay heightened attention to EJ communities and to promote EJ priorities at the direction of the Biden Administration. Nevertheless, these actions are not mandated by federal law and a subsequent presidential administration could deprioritize EJ and limit EJ enforcement actions. Therefore, EJ enforcement exists in a tenuous place, as its implementation is largely reliant on the current administration’s policy priorities, which depend heavily on the use of presidential executive orders.
Recent environmental justice developments include the following:
Following on the heels of EO 14008, on February 16, 2023, President Biden issued EO 14091, “Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” EO 14091 lays out how the Administration has promoted equity throughout the government, including “deliver[ing] environmental justice and implement[ing] the Justice40 Initiative.” The EO also directs each federal agency to establish an Agency Equity Team, which would “build upon and coordinate with the agency’s existing structures and processes, including with the agency’s environmental justice officer.” Finally, federal agencies are required to submit an Equity Action Plan annually, which would provide an update on the agency’s equity actions.
Executive branch agencies have taken President Biden’s direction seriously and are moving forward with all deliberate speed to embed EJ principles and practices into agencies’ day-to-day operations and decision-making processes.
Shortly thereafter, the EPA’s Enforcement Office distributed a subsequent memorandum that outlined additional actions that can be taken to advance EJ goals, such as increasing community engagement (one of the long-time goals of the process) and utilizing the courts to obtain injunctive relief when necessary.
In its draft of the “FY 2022-2026 EPA Strategic Plan to Protect Human Health and the Environment,” the EPA included a new goal of advancing environmental justice and civil rights. This plan reflects a new “foundational principle” for the EPA to advance justice and equity and serves as a guide for agency actions. In late May 2022, the EPA’s Office of General Counsel released a 200-page document titled, “EPA’s Legal Tools to Advance Environmental Justice” to provide a thorough overview of the EPA’s legal authorities, highlight the lack of explicit statutory and regulatory authority, and to underscore the opportunity to advance EJ by rulemaking and other means. The EPA released an addendum in January 2023, specifically focusing on cumulative impacts. Through its statements and guidance, as well as enforcement discussed further below, the EPA has shown its intention to meet the Biden Administration’s goals on environmental justice.
More publicly, EPA Administrator Regan also embarked on the Journey to Justice tour in November 2021 to bring attention to persistent EJ community concerns in Mississippi, Louisiana and Texas. As a result of the tour, Administrator Regan has directed the EPA to:
- “Aggressively use” its authority to conduct unannounced inspections, and use every available tool to hold non-compliant facilities accountable;
- Deploy additional air-monitoring tools, such as the recently announced Multi-Scale Monitoring Project called the Pollution Accountability Team (PAT);
- Utilize EPA resources to invest in community air-monitoring programs;
- Apply pressure to state and local officials to do more to protect EJ communities;
- Hold polluting facilities “more accountable” with increased monitoring and oversight of their facilities; and
- Apply the best available science to policymaking.
In practice, this likely means industry will experience the following to achieve the EPA’s goal of more robust enforcement, especially in and near disproportionately impacted communities of color, rural and urban low-income communities, and indigenous communities:
- More frequent environmental compliance audits and inspections under all major federal environmental statutes—CERCLA, RCRA, CWA, SDWA, CAA, EPCRA, FIFRA and TSCA;
- Robust and coordinated criminal and civil administrative enforcement (except intra- and inter-agency) against companies and their corporate executives; and
- More frequent administrative actions and citizensuits, and perhaps even an expanded interpretation of a private party’s standing to bring enforcement actions against alleged corporate violators.
In making the EPA’s EJ goals public, the EPA released a report titled "Environmental Justice and External Civil Rights Implementation Plans,” which includes actions across EPA regions and offices that the Agency plans to take in the coming year. This includes collaboration with communities and external partners. The plan also discusses how to integrate civil rights and ensure compliance with civil rights law. Both the EPA and Attorney General have specified roles in strengthening environmental enforcement in underserved communities. For environmental legal practitioners, this relationship is also important because it is complementary, with the EPA often working enforcement cases with the DOJ. As a result, one of the most significant regulatory initiatives has been the Attorney General’s release of a Comprehensive Environmental Justice Enforcement Strategy on May 5, 2022. This new strategy, based on the President’s EO 14008, provides a roadmap for using the DOJ’s manifold civil and criminal enforcement authorities, working in conjunction with the EPA and other federal agencies to advance EJ through timely and effective remedies for “systemic” environmental violations and “contaminations,” and for injury to natural resources in “underserved communities” that have been historically marginalized and overburdened, including low-income communities, communities of color, and tribal and indigenous communities.
While this is not an exhaustive list of EJ initiatives undertaken at the EPA or other federal agencies, it is illustrative of the considered efforts of the Biden Administration to cement EJ practices throughout the federal government outside of the Administrative Procedures Act rulemaking process.
As the Biden Administration moves forward with its EJ agenda, states’ regulatory agencies and industry should take enhanced awareness of the communities that may be impacted by operational locations and choices and be informed of communities’ unique environmental concerns and histories. For any members of the regulated community who may be new to using EJ tools like EJScreen or CEJST and assessing the information they contain, it may be prudent to reach out to counsel who are familiar with the innerworkings of the federal government and can assist in creating an action plan to prioritize facilities facing the highest risk of scrutiny, and next steps to begin establishing positive working relationships with regulators and EJ communities.
Doing so will assist companies as they develop and maintain relationships and open communication with regulators and community leaders to help navigate additional regulatory scrutiny that may stem from EJ priorities, understand evolving environmental regulations, and preempt or respond to future enforcement actions.
Companies should also examine and audit their portfolios of legacy environmental liabilities with an eye toward those which may require greater resourcing or updated strategy to prepare for the effects that a robust federal EJ agenda is likely to have upon regulatory decision-making, permitting and enforcement actions. Companies should consider taking informed, proactive measures to mitigate risk as implementation of the Administration’s EJ policy continues apace. In doing so, a company may also simultaneously contribute to its environmental, social and governance (ESG) management efforts.