Thought Leadership

Companies Should Expect Policy, Enforcement Changes After President’s EPA Budget and EPA Administrator’s Directive Spotlight Environmental Justice

Client Updates

On April 9, 2021, President Biden released his administration’s Fiscal Year 2022 Discretionary Funding Request, which seeks a $2 billion increase in the U.S. Environmental Protection Agency’s (“EPA[‘s]”) 2021 enacted budget level and seeks to invest more than $1.4 billion in environmental justice initiatives across the government.  Just days before the President’s discretionary funding request was released, on April 7, 2021, Administrator Michael Regan directed agency staff to take “immediate and affirmative steps to incorporate environmental justice considerations into their work” relating to enforcement, rulemakings, permitting, and other policies. 

In his email, Administrator Regan wrote, “Too many communities whose residents are predominantly of color, Indigenous, or low-income continue to suffer from disproportionately high pollution levels and the resulting adverse health and environmental impacts. We must do better.”

To address these problems, Administrator Regan directed all EPA offices to: (1) strengthen the enforcement of “cornerstone environmental statutes and civil rights laws” in overburdened communities, (2) assess impacts to “pollution-burdened, underserved, and Tribal communities in regulatory development processes” and consider regulatory options to maximize benefits to these communities, (3) take steps to “improve early and more frequent engagement” with communities affected by agency rulemaking, permitting, enforcement decisions, and policies, and (4) “consider and prioritize direct and indirect benefits to underserved communities in the development of requests for grants applications and in making grant award decisions, to the extent allowed by law.”

The Administrator’s directive aligns with President Biden’s prioritization of environmental justice across federal agencies, including the Justice40 Initiative, which has a goal of delivering 40% of climate investment benefits to disadvantaged communities. In turn, President Biden’s discretionary funding request seeks to support EPA’s environmental justice work by directing $936 million to EPA efforts to “create good-paying jobs, clean up pollution, implement Justice40 and advance racial equity” including “$100 million for a new community air quality monitoring and notification program and an additional $30 million to enforce existing laws meant to protect communities from hazardous pollution and hold polluters accountable.”  In addition, the President’s discretionary funding request seeks $5 million dedicated to the Department of Justice’s Environmental and Natural Resources Division to “tackle environmental justice issues,” which could support DOJ’s enforcement of EJ-focused referrals from EPA. 

In the coming months, EPA’s senior leadership  will work “to establish specific timelines, deliverables, and measures of accountability to ensure the agency makes significant and enduring progress on equity and environmental justice.”

Given the fast paced changes in the environmental justice arena, companies may find increased attention on their activities and operations, their statements regarding community impacts, and renewed governmental interest in supplemental enforcement projects, fenceline monitoring, and public disclosure. Baker Botts has reviewed many of these topics in our recent environmental justice webinar series, which can be accessed here. The March 25 webinar in particular contains suggestions for a proactive and engaged corporate approach to environmental justice.

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