Following concerted efforts around environmental justice (“EJ”) during the first year of President Biden’s Administration (the “Administration”), EJ remains front-and-center for the Administration in 2022.  The Administration’s efforts will continue to focus on the policy, funding and enforcement priorities laid out in President Biden’s sweeping executive order, “Tackling the Climate Crisis at Home and Abroad,” which was issued in the early days of the Administration.  The order laid out an executive level framework and initial steps to implement a “whole of government approach” to environmental equity, including:

• Creating the Justice40 Initiative to deliver 40 percent of the overall benefits of relevant federal investments to disadvantaged communities and to track performance toward that goal through the establishment of an Environmental Justice Scorecard.
  
  
• Developing a Climate and Environmental Justice Screening Tool (“CJEST”), building off EPA’s EJSCREEN, to identify disadvantaged communities, support the Justice40 Initiative, and inform decision making across the federal government.
  
  
• Directing EPA and U.S. Department of Justice (“DOJ”) to strengthen enforcement of environmental violations with disproportionate impact on underserved communities and to develop a comprehensive environmental justice enforcement strategy, respectively.

In the last year, federal agencies have moved quickly to turn the Biden Administration’s ambitious goals into reality. 

Justice40 Initiative

In May 2021, the newly formed White House Environmental Justice Advisory Council (WHEJAC) issued interim final recommendations regarding two of President Biden’s Order goals, Justice40 and the Climate and Economic Justice Screening Tool. Building on these recommendations, in July 2021, the Office of Management and Budget (OMB), Council on Environmental Quality (CEQ), and the National Climate Advisor released interim implementation guidance on how federal agencies should define disadvantaged communities, calculate the benefits of federal investments, and otherwise implement the goals of Justice40.¹ The Administration also announced that 21 federal programs would serve as pilot programs to help inform best practices for Justice40 programs going forward. These pilot programs have developed stakeholder engagement plans to consult with disadvantaged communities, submitted plans on how to maximize the benefits to such communities and are developing methodologies for calculating and tracking benefits.

Some agencies have gone above-and-beyond the Justice40 Initiative framework with special programs to direct federal funding to EJ communities. One such program, the Department of Energy’s Community Local Energy Action Program (LEAP), will provide $16 million to EJ communities to develop locally-driven energy plans to reduce local air pollution, increase energy resilience, lower utility costs and energy burdens, and create jobs. As the Justice40 guidance is rolled out, companies can expect to see additional funding being directed to EJ communities across the country.

EJ Data Mapping and CJEST

CEQ continues to develop the new Climate and Economic Justice Screening Tool announced in President Biden’s executive order. While CJEST was initially slated for release in mid-2021, the release date has been repeatedly delayed, in part due to daunting expectations for its capabilities, and is now expected to be released in 2022. The tool is designed to “be continuously updated and refined based on public feedback and research” and will “improve consistency” of how agencies implement programs, such as Justice40.²  CJEST will likely build on EJSCREEN – EPA’s current environmental justice mapping tool—to reflect additional data, such as climate change impacts. The tool may also seek to incorporate similar capabilities to California’s mapping tool, CalEnviroScreen, which provides an overall EJ score for areas.

Increased Permit Scrutiny by EPA

EPA is taking a hard look at permits for both new and existing facilities operating in identified EJ communities. For example, in May 2021, the Agency used its emergency powers under the Clean Air Act (“CAA”) to stop operations at the Limetree Bay refinery in the U.S. Virgin Islands on the basis that the refinery was an “imminent and substantial danger to public health and the environment” following alleged ongoing CAA permit violations and other issues.  The agency touted the action, and the subsequent enforcement of remedial actions for the refinery, as advancing “EPA’s commitment to environmental justice and to protect clean air for those living in vulnerable and overburdened communities.”³

EPA has also taken an active interest in state-level permitting decisions. In September 2021, EPA asked the Michigan Department of Environment, Great Lakes and Energy (“EGLE”) to proactively consider a new location for a proposed asphalt plant due to pollution indicators based on EJSCREEN. EGLE, however, proceeded in November to issue the permit, citing its efforts to go above and beyond public notice and engagement requirements and stating that there was no legal reason to deny the permit. In a separate example, EPA asked the Mayor of Chicago, Illinois to consider the EJSCREEN results and cumulative impacts of siting a recycling facility in the City; that letter and subsequent pressure led to the permit’s pause as of 2022.

Title VI Complaints

EPA has also placed renewed focus on Title VI, which prohibits recipients of federal financial assistance from discriminating on the basis of race, color, or national origin in their programs or activities.  Over the last year, community groups actively leveraged the Act to vocalize concerns with facilities that allegedly impact EJ populations.  The majority of petitions filed with EPA under the Act contend that state environmental permitting agencies, as recipients of federal funding, inappropriately engage in permit actions that result in disparate impacts to EJ communities. EPA is tracking these complaints, which will generally reference specific facilities or permits of concern. In March 2021, EPA issued a rare preliminary finding of non-compliance under Title VI, finding that the Missouri Department of Natural Resources failed to comply with nondiscrimination laws by failing to have a nondiscrimination program.

Civil and Criminal Enforcement Focus

The EPA and DOJ made significant announcements in 2021 aimed at guiding resources to focus on potential environmental violations in EJ communities.  EPA has issued several memoranda⁴ identifying steps for the Office of Enforcement and Compliance Assurance (OECA) to advance EJ goals through criminal and civil enforcement and has made “Tak[ing] Decisive Action to Advance Environmental Justice and Civil Rights” an official Agency goal in its draft strategic plan for 2022-2026.  In January 2022, EPA announced that the agency would make more aggressive use of unannounced inspections for regulated facilities, hire additional inspectors to support enhanced enforcement, expand its air monitoring capacity, and continue to pressure state and local officials to implement efforts to address environmental issues in EJ communities.⁵

These efforts aim to increase detection of environmental violations in overburdened communities and strengthen EPA investigations in support of enforcement by DOJ.  In cooperation with OECA, DOJ leadership had publicly committed to the civil and criminal enforcement of environmental violations in EJ communities as a priority for the agency. DOJ will affirmatively assess violations in EJ communities for criminal enforcement and seek restitution for victims of environmental crimes.

This emphasis on enforcement is already being felt across the regulated community. EPA recently released data, for the first time, on enforcement accomplishments specifically in areas of potential EJ concern. For 2021, over a quarter of the total injunctive relief EPA received was in areas of potential EJ concern.

Other EJ Policy Efforts

EPA continues to advance other tools to support a focus on communities with EJ concerns. For example, EPA’s Office of Land and Emergency Management released a draft “EJ Action Plan: Building Up Environmental Justice in EPA’s Land Protection and Cleanup Programs” which outlines plans for, among other things, incorporating EJ considerations during the regulatory development process, including through the increased use of EJSCREEN. In January 2022, EPA released an air and water impacts screening tool focused on fence line communities for scientific peer review and public comment. Once finalized, the tool could be used to support EPA risk-oriented decisions and regulatory initiatives.  Also expected in 2022 is “cumulative risk assessment guidance,” which has been in various stages of development by EPA since 2013. This guidance, when released, may face challenges given that the scientific community has not reached consensus on how to conduct a cumulative risk analysis, nor has there been legislative or regulatory consensus on how to use the results of such analysis.

Next Steps for 2022

Now, a year out from President Biden’s executive order, federal agencies have set the stage for how they will address EJ going forward. As agencies continue to implement President Biden’s executive order, companies can expect more substantive actions as additional EJ guidance and tools are finalized and rolled out. It is important for companies to stay appraised of these developments and how they may implicate their operations. Companies should also leverage EPA’s data tools, public data sources from citizen groups and non-governmental organizations, and internal data to: 1) understand the communities they operate in; 2) mitigate potential liability and legal risk; and 3) proactively approach compliance and community engagement.

To assist in these efforts, Baker Botts has developed extensive resources and launched the ACELAS analytical tool to support organizations in the assessment of legal risk and compliance in connection with EJ concerns.

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