Biden Administration Reaffirms and Reflects on Commitment to Environmental Justice

The Biden administration has recently reinforced the President’s environmental justice (EJ) agenda through two actions. Stakeholders who engage with the federal government should be aware of how the administration is expanding these efforts, which inform the government’s enforcement actions and review of projects under the National Environmental Policy Act (NEPA).

On April 21, 2023, U.S. Department of Justice (DOJ or Department) Environment and Natural Resources Division (ENRD or the Division) released ENRD FY 2022 Accomplishments Report (FY 2022 Report). In it, ENRD summarized the Division’s key accomplishments and efforts to implement DOJ’s May 2022 Comprehensive EJ Enforcement Strategy  — the strategy that directs the Department to prioritize EJ cases, use legal tools to address EJ concerns, and engage with EJ communities (discussed in this previous Sidley Update).

On the same day, President Biden issued Executive Order 14096: Revitalizing our Nation’s Commitment to EJ for All (EO 14096 or the Order), which the Order states is building upon the EJ strategies and directives to federal agencies in the set of executive orders issued by Biden in January 2021 — Executive Order 13990: Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis and Executive Order 14008: Executive Order on Tackling the Climate Crisis at Home and Abroad. Five key aspects of the Order:

1. Expanded Definition of EJ: EO 14096 expands the federal government’s definition of EJ to include additional demographic groups, such as those affiliated with tribes and those who are disabled. The broader definition also sets a higher standard for government EJ efforts by requiring “full” protection from disproportionate and adverse human health and environmental effects, including those related to climate change and cumulative effects.
2. Establishment of a New Office of EJ Within the White House: In addition to expanding the membership and duties of the EJ Interagency Council, EO 14096 establishes a new office of EJ within the White House’s Council on Environmental Quality (CEQ). CEQ joins a growing list of agencies that have established an office dedicated to the advancement of EJ during the Biden administration. This list includes DOJ and the U.S. Department of Health and Human Services.
3. Heighted Agency Requirements for EJ Strategic Planning: Starting 18 months after the issuance of the Order, and every four years thereafter, each federal agency must submit an EJ strategic plan to CEQ. The plan must identify and address opportunities through regulations, policies, permits, or other means to improve accountability and compliance with any statute the agency administers that affects the health and environment of communities with EJ concerns. Two years after the submission of its EJ strategic plan, each agency must publish an EJ assessment that evaluates the effectiveness of the plan.
4. Expanded EJ Considerations in NEPA Reviews: EO 14096 requires agencies to conduct NEPA reviews such that they (1) evaluate direct, indirect, and cumulative effects on burdened communities; (2) consider best available science on disparate health effects arising from exposure to pollution or other environmental hazards; and (3) provide opportunities for early and meaningful involvement of burdened communities.
5. Community Notification of Toxic Releases: EO 14096 reiterates federal agencies’ obligations under the Emergency Planning and Community Right-to-Know Act to notify nearby communities of toxic releases from federal facilities and requires agencies to hold public meetings within six weeks of such releases regarding the related health risks and certain precautions.

There is no public comment taken on these directions, but stakeholders should watch for agency rollout of these expanded EJ policies.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.