Quarterly Review: Biden Administration’s Advancement of Environmental Justice

In the second quarter of 2022, the Biden administration took steps to implement the President’s whole-of-government environmental justice (EJ) strategy. Specifically, the U.S. Department of Justice (DOJ or the Department), U.S. Environmental Protection Agency (EPA or the Agency), and U.S. Department of Health & Human Services (DHHS) each announced initiatives to address EJ in a variety of agency functions. Additionally, the White House provided an update on funding available to disadvantaged communities.

1. DOJ: Release of Enforcement Strategy to Address EJ

On May 5, 2022, DOJ unveiled a comprehensive EJ enforcement strategy (the Strategy) pursuant to Executive Order 14008, Tackling the Climate Crisis at Home and Abroad (EO 14008). EO 14008 directed the Attorney General to “develop a comprehensive environmental justice enforcement strategy, which shall seek to provide timely remedies for systemic environmental violations and contaminations, and injury to natural resources….”

The Strategy, which DOJ drafted with input from EPA, EJ advocates, and community organizations, directs the Department to partner with offices within DOJ, each U.S. Attorney’s  Office, and federal agencies in addressing EJ. Specifically, DOJ must prioritize cases that will reduce public health and environmental harms to overburdened and underserved communities; make strategic use of all available legal tools to address EJ concerns; meaningfully engage with affected communities; and promote transparency regarding EJ enforcement efforts and their results.

To assist these goals, the Department created and tasked a new office dedicated to EJ within the Environmental and Natural Resources Division — the Office of Environmental Justice — and announced the reversal of the Trump administration’s prohibition of Supplemental Environmental Projects in DOJ settlements (SEPs Reversal).

We discussed the Strategy in more detail here and the SEPs reversal here.

2. White House: Justice40 Week of Action

On May 23, 2022, the White House announced a Justice40 Week of Action to document progress on the administration’s Justice40 Initiative — a governmentwide plan established by EO 14008 to deliver 40% of the overall benefits of climate investments to disadvantaged communities and track performance toward that goal through the establishment of an EJ Scorecard. Within the Justice40 Week of Action, the White House announced the following:

• a new White House EJ website, which provides a centralized location dedicated to the administration’s EJ priorities
• a Justice40 stakeholder engagement series to discuss and receive feedback on the delivery of Justice40 benefits to disadvantaged communities
• $500 million Bipartisan Infrastructure Law funding to EPA for the replacement of the national bus fleet with American-made, zero-emissions buses
• a summary of the $29 billion funding opportunities provided by Justice40 initiative
• a May 23, 2022, report submitted by the White House Council of Environmental Quality to Congress, which outlines the administration’s response to recommendations by the White House Environmental Justice Advisory Council — a council established by EO 14008 and formed to “ensure that [the] administration’s work is informed by the insights, expertise, and lived experience of environmental justice leaders from across the nation”

3. EPA: Publication of Expanded Legal Toolkit to Advance EJ and Civil Rights

On May 26, 2022, EPA released a guidance document, entitled the EPA Legal Tools to Advance Environmental Justice (Legal Tools) — an update to Plan EJ 2014 Legal Tools — where the Agency identifies legal authorities that EPA contends “mandate or provide the [A]gency with discretion to consider the environmental justice-related impacts of its actions.” According to EPA, the purpose of the guidance is to “help [EPA] decisionmakers understand their authorities to consider and address environmental justice and equity in decision-making, and to promote meaningful engagement.”

Legal Tools covers a broad spectrum of regulatory programs by media (e.g., air, water, waste) as well as other programs such as grant and assistance programs. The guidance identifies EPA authority to address EJ in regulatory functions such as rulemaking, permitting, and contracting. For example, in the permitting context, EPA outlines authority to review cumulative effects, require additional monitoring of emissions from regulated facilities, and expand community outreach and public engagement opportunities.

4. DHHS: Launch of EJ Office

On May 31, 2022, DHHS established an Office of Environmental Justice within the Office of the Assistant Secretary for Health. Per DHHS, EO 14008 “directs agencies, including [DHHS] to make achieving environmental justice part of its mission by developing programs, policies, and activities to address the disproportionately high and adverse human health, environmental, and climate related and other cumulative impacts on disadvantaged communities.” According to the announcement, the newly formed office is tasked with “protect[ing] the health of disadvantaged communities and vulnerable populations on the frontlines of pollution, and other environmental hazards that affect health.”

DHHS reports that the OEJ’s functions include the following:

• lead initiatives that integrate EJ into the DHHS mission to improve health in disadvantaged communities and vulnerable populations across the nation
• develop and implement a DHHS-wide strategy on EJ and health
• coordinate annual DHHS EJ reports
• provide DHHS’ Office of Civil Rights with EJ expertise to support compliance under Title VI of the Civil Rights Act of 1964
• promote training opportunities to build an EJ workforce

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.