The Nickel Report

President Biden signed a new Executive Order (E.O.) to advance environmental justice (EJ) late last week, just in time for Earth Day. E.O. 14096, Revitalizing Our Nation’s Commitment to Environmental Justice for All, aims to carry out its title through a bevy of actions, including requiring agencies to create EJ strategic plans, directing research on EJ issues, expanding notifications for toxic chemical releases, and increasing coordination on EJ by establishing a new EJ Interagency Council and White House Office of Environmental Justice. The new E.O. builds on the Biden Administration’s “whole-of-government” approach to EJ, making clear that the obligation to consider and address EJ applies across federal agencies. The E.O.’s directives are likely to guide federal agency permitting, funding grants, and other authorizations for projects or activities that may have implications for EJ communities. On the same day as the E.O. was signed, the administration also announced a handful of other steps to further its EJ priorities.

Building on EO 12898: E.O. 14096 builds on E.O. 12898 issued by President Clinton that, for nearly three decades, has been the primary basis for consideration of EJ in federal actions. E.O. 12898 aimed to achieve environmental protection for all communities by urging each federal agency to “identify[] and address[], as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.” EJ advocates had long called for further action to supplement and add more teeth to that directive. President Biden’s latest E.O. at least partially answers that call. For instance, rather than merely urging agencies to avoid disproportionate impacts, the new E.O. “directs agencies to consider measures to address and prevent disproportionate and adverse environmental health and impacts on communities, including the cumulative impacts of pollution and other burdens like climate change,” as well as to consider including mitigation measures, where existing legal authorities allow, or other measures to address cumulative impacts. Although the E.O. provides no direction on precisely how agencies should consider cumulative impacts, the inclusion of the concept in its directive reflects an expansion beyond E.O. 12898 that appears to require more of federal agencies, specifically to evaluate cumulative effects and identify potential avoidance and mitigation measures. Guidance on cumulative impacts may be forthcoming, as the E.O. directs the White House Council on Environmental Quality (CEQ) to provide guidance to help inform agency implementation of the order.

Adding Agency Accountability: The new E.O. also institutes accountability measures. While E.O. 12898 has long required agencies to develop EJ strategies, the new E.O. builds on that obligation by requiring agencies not only to create EJ strategic plans but also to assess their efforts biannually. Consistent with Civil Rights Act Title VI, the E.O. also directs agencies to ensure that all federally funded programs or activities do not use criteria, policies, practices, or methods of administration that discriminate based on race, color, or national origin and requires the Attorney General to report annually to CEQ on relevant Title VI litigation.

New Definitions and Terminology: The new E.O. also provides a broader definition of “environmental justice” than the current EPA definition often used by federal agencies. The E.O. defines “environmental justice” as:

the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, Tribal affiliation, or disability, in agency decision-making and other Federal activities that affect human health and the environment so that people:+

(i) are fully protected from disproportionate and adverse human health and environmental effects (including risks) and hazards, including those related to climate change, the cumulative impacts of environmental and other burdens, and the legacy of racism or other structural or systemic barriers; and

(ii) have equitable access to a healthy, sustainable, and resilient environment in which to live, play, work, learn, grow, worship, and engage in cultural and subsistence practices.

Notably, this new definition eliminates the “disproportionately high” threshold for disproportionate and adverse effects under E.O. 12898, effectively lowering the bar for what EJ impacts must be addressed or prevented.

One question that often arises in EJ analyses for the purpose of federal permitting is what qualifies as an EJ community. The E.O. does not explicitly define what constitutes an EJ community, but signals that a wide range of communities across the country may face EJ concerns, including in geographic locations with “a significant proportion of people who have low incomes or are otherwise adversely affected by persistent poverty or inequality,” “a significant proportion of people of color,” or even “geographically dispersed and mobile populations, such as migrant farmworkers.”

Emphasizing the Role of National Environmental Policy Act (NEPA): Other aspects of the E.O. signal that the National Environmental Policy Act (NEPA) will play a significant role in how federal agencies evaluate EJ. For instance, the E.O. establishes a White House Office of Environmental Justice within CEQ, which is charged with ensuring federal agencies satisfy their NEPA duties. Further, the E.O. directs agencies to conduct NEPA reviews in a manner that:  evaluates direct, indirect, and cumulative effects on EJ communities; considers best available science on disparate health effects arising from exposure to pollution or other environmental hazards; and provides opportunities in the NEPA process for early and meaningful involvement of EJ communities. These directives are likely to be reiterated in CEQ’s forthcoming rulemaking to amend its NEPA regulations, for which the proposal is expected in the next couple of months. Project proponents anticipating NEPA reviews associated with environmental permits should keep apprised of these developments to anticipate how federal agencies will evaluate EJ impacts for their projects. Further, the E.O. requires EPA to consider whether an agency appropriately analyzes and avoids or mitigates EJ impacts in carrying out its duty to review NEPA Environmental Impact Statements under Clean Air Act Section 309, and to report annually to CEQ on those reviews. In practice, EPA has actively commented on NEPA reviews for major infrastructure projects and facilities in the past couple of years, and the new directive under the E.O. signals that trend will continue. 

Providing More Specific Directives for Public Involvement and Access to EJ Information: The E.O. also seeks to spur meaningful public involvement in agency decision-making, obligating federal agencies to identify and remove barriers  to such involvement “including those related to disability, language access, and lack of resources” and “ensuring that Tribal Nations are consulted on Federal policies that have Tribal implications.” Specifically, agencies must:  provide timely opportunities for members of the public to participate in decision-making and share information or concerns; fully consider public input; seek out and encourage involvement by potentially affected communities and address barriers to participation with notice and access other accommodations; and provide technical assistance, tools, or other resources to facilitate participation.

The new E.O. also advances several other priorities to further EJ goals. For instance, in support of the “whole-of-government” approach to EJ, the E.O. expands on the White House EJ Interagency Council established under E.O. 12898, adding new members and requiring the creation of an online public “clearinghouse” to make available “culturally and linguistically appropriate and accessible materials related to environmental justice” by March 31, 2024. The E.O. also directs additional research and data development to advance cumulative impacts analysis and establishes a new EJ subcommittee within the National Science & Technology Council, led by the White House Office of Science & Technology Policy, that is charged with developing an EJ Science, Data, and Research Plan and advising CEQ on data sources for its EJ screening tool. Additionally, the new E.O. requires agencies to notify nearby communities of toxic releases from federal facilities and hold public meetings regarding the related health risks and necessary precautions.

Agency EJ Scorecards: In addition to signing the E.O., the Biden Administration announced a number of other EJ-related developments last Friday, including CEQ’s release of an “Environmental Justice Scorecard” for federal agencies, launching a White House Campaign for EJ, adding more programs to the Justice40 Initiative, and adding new efforts to address plastic pollution. The EJ Scorecard requirement was created under an earlier Biden Administration directive – E.O. 14008,  Tackling the Climate Crisis at Home and Abroad – assessing agencies’ efforts to advance EJ and implement the Justice40 Initiative that aims to see at least 40 percent of the overall benefits of certain Federal investments flow to disadvantaged communities. Last week, CEQ released “phase one” of the EJ Scorecard, which provides a “baseline” for tracking 24 agencies’ EJ efforts.

State-Level EJ Developments: The latest E.O. and CEQ’s EJ Scorecard are the latest articulations of federal priorities surrounding EJ, but momentum for EJ continues to build at the state level, as well. For example, last week, New Jersey finalized a rule on EJ in permitting that could lead to permit denials for certain facilities that cause disparate impacts in overburdened areas. Specifically, the rule promulgated by the Department of Environmental Protection (DEP) and signed by New Jersey Governor Phil Murphy on April 17, 2023, requires facilities in certain categories that seek environmental permits for facilities in overburdened communities to prepare EJ impact statements and conduct public hearings, and new facilities even need to show that they would “serve a compelling public interest in the overburdened community” to receive permit authorization. The rule also authorizes DEP to impose permit conditions to avoid increased environmental and public health stressors.

For companies, the new E.O. and other recent EJ actions all signal the continually increasing importance of EJ considerations in project planning, permitting, and operations. At the federal level, the E.O. makes clear the Administration’s intent for EJ to be a central issue to be considered across federal agencies and their respective programs. Project proponents seeking federal permits are likely to see permitting agencies tailor their EJ analyses to be consistent with the new E.O.