President Biden has been very clear that environmental justice (“EJ”) will be a priority of his administration. His public plans employ a “whole of government” approach that seeks to use environmental justice, as well as climate, to drive decision-making across agencies and sectors. President Biden  first signaled his intent to implement this approach in his campaign plans, stating that he would instruct senior leaders to rely on environmental data, including pollution and climate change indicators, racial data, and economic data to shape priorities and decisions, including enforcement. See Biden Plan to Secure Environmental Justice and Equitable Economic Opportunity (stating intent to create a Climate and Economic Justice Tool to support executive decisions, which will “identify communities threatened by the cumulative impacts of the multiple stresses of climate change, economic and racial inequality, and multi-source environmental pollution”).  Following his inauguration, on January 27, 2021, President Biden initiated the process to deliver on these campaign promises in a sweeping executive order, “Tackling the Climate Crisis at Home and Abroad Executive Order,” which lays out the executive level framework and initial steps to implement his “whole of government approach” to environmental equity. This focus will drive not only enforcement, but also decisions on federal investment and strategy across sectors (e.g., transportation, agriculture, power, and technology), which will impact a variety of corporate operations in the coming years.

To understand the administration’s holistic approach, it is first helpful to briefly understand EJ’s history and its current role in federal decision making.  A nascent EJ movement began during the Civil Rights Movement in the 1960s as minority, low-income populations sought to address concerns and impacts posed by the frequent siting of waste disposal facilities in their communities. The movement gained traction in the 1980s with the publication of studies that used statistical data to document the high incidence of hazardous waste landfills and abandoned toxic waste sites in these communities.  In the 1990’s, following the rise of organized community action groups, the federal government launched several focus groups, including the National Environmental Justice Advisory Council (“NEJAC”), which were followed by President Clinton’s Executive Order (“EO”) 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations. Among other actions, EO 12898 directed federal agencies to develop strategies on how to identify and address adverse, disproportionate health and environmental impacts causes by agency actions on minority and low-income population.

Despite concerted executive focus under Clinton, existing legal requirements around EJ are not a hammer, and there is currently no private remedy for communities to enforce Title VI regulations that prohibit disparate impact in programs receiving federal assistance. Alexander v. Sandoval, 532 U.S. 275 (2001). Even so, requirements regarding the analysis of siting impacts, whether viewed under NEPA, similar state schemes, or permitting frameworks, can have a significant impact on project timing and scope. Recent federal court decisions demonstrate that courts are increasingly willing to remand analyses to agencies for further review with respect EJ communities and impacts. See, e.g., Friends of Buckingham v. State Air Pollution Control Board, 947 F.3d 68 (4th Cir. 2020) (vacating state air permit for Atlantic Coast Pipeline compressor station based on inadequate review of disproportionate impacts to minority, low-income community under Virginia law requiring consideration of site suitability); Standing Rock Sioux Tribe, et al. v. U.S. Army Corps of Engineers, 255 F. Supp. 3d 101 (D.D.C. 2017) (remanding Army Corps of Engineers’ NEPA analysis for the Dakota Access Pipeline to address inadequate consideration of spill impacts “on fishing rights, hunting rights, or environmental justice” for Standing Rock tribe). Cf. Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017) (noting that that “an agency is not required to select the course of action that best serves environmental justice,” so long as it “take[s] a ‘hard look’ at environmental justice issues.”).

Ultimately, while former President Clinton’s EO served to integrate EJ considerations in the executive and set the stage for more focused EJ review as a part of siting and permitting decisions, President Biden seeks to achieve a paradigm shift in governance. The administration’s approach recognizes EJ as an intersection between traditional environmental issues and social justice. In the years ahead, a huge driver of impacts in these areas will be changes to climate. EJ communities are at a greater risk for such climate impacts because they historically face greater food and housing insecurity, and often lack access to heating or cooling adaption.  Big picture, the Biden administration seeks to tie the overall economic health and climate well-being of these EJ communities into federal decisions from enforcement to procurement strategy. See Tackling the Climate Crisis at Home and Abroad Executive Order.

The Biden EO establishes a National Climate Advisor, a White House Environmental Justice Interagency Council and a White House Environmental Justice Advisory Council that are tasked with, among other actions, marshaling the government-wide efforts to address environmental justice, including:

• Creation of a government-wide Justice40 Initiative with the goal of delivering 40 percent of the overall benefits of relevant federal investments to disadvantaged communities and tracks performance toward that goal through the establishment of an Environmental Justice Scorecard.
  
  
• Development of a Climate and Environmental Justice Screening Tool, building off EPA’s EJSCREEN, to identify disadvantaged communities, support the Justice40 Initiative, and inform decision making across the federal government.
  
  
• Use of procurement authorities to facilitate “carbon pollution-free” electricity (by 2035) and clean emission federal vehicle fleets, as well as the revision of procurement regulations to promote increased contractor attention on the reduction of carbon emissions.

On the enforcement side, the Biden EO directs the Administrator of the Environmental Protection Agency (“EPA”) to strengthen enforcement of environmental violations with disproportionate impact on underserved communities and directs the Attorney General to have the Department of Justice’s Environment and Natural Resources Division coordinate with EPA on a comprehensive environmental justice enforcement strategy.

As the administration moves forward to implement the initiatives described above, Companies can look to existing state programs and initiatives regarding how many of the federal programs may work in practice.  For example, California’s existing data mapping tool, CalEnviroScreen may provide guidance on how the federal government will upgrade the existing federal EJScreen and incorporate data in policy and decision making. Similarly, New York’s Climate Leadership and Community Protection Act, which requires that requires 35% minimum of clean energy and energy efficiency investments benefit “disadvantaged communities,” may serve as a model for the administration’s roll out of the Justice40 initiative.  In addition, Companies should examine how existing and planned operations may be implicated by the new administration’s governmentwide priorities, not just with respect to permitting and siting, but also in connection with corporate EJ and climate profiles that may impact overall investor valuation.  Proactive approaches might include assessment and revision of ESG policies, the conduct of EJ and climate reviews for facilities, and the review of internal audit scopes to build in EJ and climate considerations.

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