The Nickel Report

One of the most frequent terms heard in conjunction with President-Elect Biden’s energy and environmental agenda is “environmental justice,” which is often described as an overarching objective as well as a key component of the incoming administration’s climate agenda.  This post looks at how the Biden Administration may translate environmental justice principles into concrete executive actions, and how project proponents can prepare for increased focus on environmental justice in their permitting.

In 1994, President Clinton signed Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.”  EO 12898 requires federal agencies to identify and address disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations.  EO 12898 also provides for access to information by and public participation of EJ communities in the federal decision-making process.  Since the 1990s, federal agencies have taken various steps to implement EO 12898 and address EJ issues.  The Council on Environmental Quality (CEQ) and U.S. Environmental Protection Agency (EPA), in particular, have issued guidance on incorporating environmental justice goals into federal agency actions and studies, including National Environmental Policy Act (NEPA) reviews.

While EO 12898 expressly creates no right to judicial review, many courts have held that an agency’s EJ analysis can be reviewed under the Administrative Procedure Act (APA) arbitrary and capricious standard.  For an in-depth look at the history of environmental justice, the role of EJ in permitting, and recent cases, events, and changes to the NEPA regulations that may impact how EJ is addressed in federal permitting and related environmental reviews, see our previous post.

If Republicans maintain control of the Senate, there will be a divided government until at least the 2022 congressional elections.  In that setting, major environmental legislation is less likely and President-Elect Biden is expected to rely primarily on Executive branch powers and functions to implement his environmental agenda, including a renewed focus on the impacts of federally regulated activities and federal programs on minority and low-income populations.

The Biden-Harris transition team has stated that a Biden Administration will “ensure that environmental justice is a key consideration in where, how, and with whom we build — creating good, union, middle-class jobs in communities left behind, righting wrongs in communities that bear the brunt of pollution, and lifting up the best ideas from across our great nation — rural, urban, and tribal.” Plans released during the Biden campaign, Vice President-Elect Harris’s proposed Environmental Justice for All Act, the personnel selected for the transition team, and public statements about EJ priorities from the Biden team and its supporters, all give some indication of what executive actions a Biden Administration may undertake to address EJ issues.  Further, there is significant development at the state-level on EJ (e.g., a newly enacted New Jersey law that integrates EJ into permitting decisions) that have been cited by the Biden transition team as a model.

In particular, a Biden Administration may take the following actions:

• Revise Executive Order 12898 and Develop Performance Metrics
  • President-Elect Biden is likely to revise and/or supplement EO 12898 to provide more direction to federal agencies on addressing EJ issues, including in NEPA and other environmental reviews.
  • Biden has also indicated an intent to develop clear performance metrics to ensure accountability in the implementation of EO 12898 and publish performance scorecards on its implementation.

• Select Personnel With Experience on EJ Issues
  • Many members of the transition team have a background in EJ issues, including EPA Transition Team Lead Patrice Simms (currently Earthjustice’s VP for Healthy Communities, served as Deputy Assistant Attorney General in DOJ’s Environment and Natural Resources Division during the Obama Administration), Lisa Garcia (former Associate Assistant Administrator for Environmental Justice within EPA’s Office of Enforcement and Compliance Assurance (OECA)), and Cynthia Giles (former head of OECA during the Obama Administration).
  • Likewise, many of the people discussed as potential candidates for key cabinet positions have experience with EJ issues, such as potential candidate for EPA Administrator Heather McTeer Toney (national field director for Mom’s Clean Air Force and served as EPA Region 4 Administrator during Obama Administration), and potential candidate for CEQ Chair, Mustafa Ali, a former assistant associate administrator for environmental justice at EPA.

• Restructure Federal Agencies and Offices With Jurisdiction Over EJ Issues
  • President-Elect Biden has stated he would establish an Environmental and Climate Justice Division at DOJ.
  • Biden has also indicated that he plans to elevate and reestablish current interagency EJ working groups as one or more White House advisory councils that would report to the CEQ Chair.
  • To accomplish the Biden-Harris EJ goals, the Administration likely would need to devote increased funding and resources, including for dedicated EJ staff within the White House, CEQ, EPA, and DOJ.

• Increase Enforcement Focus on Facilities and Projects in Minority and Low Income Communities
  • President-Elect Biden has indicated that the new Environmental and Climate Justice Division he plans to establish at DOJ would increase enforcement and address legacy pollution in EJ communities, in partnership with EPA's Office of Civil Rights.
  • Under President-Elect Biden, EPA is likely to increase focus on enforcement for noncompliance by projects and facilities located within or that impact minority or low-income communities.

• Increase Focus on EJ in Permitting, Compliance Plans, and Environmental Reviews
  • Further guidance is expected from CEQ, EPA, and other agencies with more specifics on how to consider EJ in federal agency reviews and decisionmaking.
  • Federal agencies will likely place a greater emphasis on EJ considerations in NEPA reviews, both as part of consideration of environmental background or baseline conditions, and where appropriate, effects of the proposed agency action (including effects traditionally considered in an indirect or cumulative effects analysis).
  • Federal agencies will likely bring an increased focus to consultation under the National Historic Preservation Act section 106 for federally authorized projects with potential impacts to tribal and other cultural and historic resources.
  • Federal agencies will likely provide increased consideration of EJ impacts in public interest reviews and alternatives analyses for Clean Water Act 404 permits for discharges of dredged or fill material.
  • Enhanced consideration of EJ issues, including using EJ as decision criteria to the maximum extent allowed under current enabling statutes, such as the Clean Air Act (CAA), to address disproportionate impacts on sensitive populations in setting regulatory standards (e.g., NAAQS).
  • More focus is expected on legacy impacts to EJ communities as part of the Superfund process, including enhanced outreach and increased focus for cleanup priority and funding.
  • More focus is expected on EJ communities in siting and permitting of landfills and hazardous waste sites under the Resource Conservation Recovery Act (RCRA).

• Increase Opportunities for Public Input and Engagement with EJ Communities
  • Increased opportunities for public input on rulemaking and environmental reviews are anticipated – with opportunities for participation not limited to electronic means, notices and information provided in multiple languages, and additional time for review where appropriate.
  • Public notices for federal actions are likely to provide more information and seek further input on potential EJ considerations and impacts.
  • President-Elect Biden stated he would direct EPA to create a community notification program, requiring industries to provide real-time notice of hazardous or toxic releases. This will likely align with an emphasis on increasing transparency and public access to data associated with the Emergency Planning and Community Right-to-Know Act (EPCRA).
  • Increased stakeholder outreach to facilitate equitable Superfund cleanups and site redevelopment is expected.

• Revamp of EJSCREEN and Other Tools
  • A Biden EPA is likely to revamp EPA’s EJSCREEN, which is an EJ mapping and screening tool that provides demographic and environmental information for a given geographic area to inform EJ analyses or build on EJSCREEN to develop new tools to identify communities affected by climate change, economic and racial inequality, and pollution.

Companies, government organizations, and other entities subject to federal environmental regulation or permitting can take action now to increase their awareness and consideration of EJ issues, and to otherwise prepare for an increased focus on EJ by the Biden Administration, including the following actions:

• Conduct Environmental Justice Audits
  • Review and update environmental justice policies and goals
  • Review current and planned projects and facilities located within or that potentially impact minority, low income or other EJ communities for compliance with federal laws and regulations as well as internal EJ policies and goals

• Tailor Project Design and Execution to Address Environmental Justice Considerations
  • Analyze potential impacts on EJ communities and consider alternatives that avoid adverse impacts to—or increase environmental or economic benefits for–EJ communities
  • Assist permitting agencies in considering and documenting EJ analyses

• Plan Project Timelines to Account for Increased EJ Focus
  • Develop strategy early in project timeline for EJ outreach, analysis, and design considerations, and thereby account for potentially lengthier consideration of EJ issues
  • Conduct outreach to and engage EJ communities early in project timelines

• Increase Public Outreach to EJ Communities
  • Review public notices, such as federal agency notices of permit applications, for opportunities to increase effective outreach to and engagement by EJ communities including through:
    • Methods of publishing notices
    • Location and timing of public meetings or hearings
    • Use of multilingual communications and interpreters
  • Consider opportunities for meetings or site visits with EJ community representatives
  • Review company press releases and other public communications for opportunities to increase effective outreach to EJ communities

For more information, please contact Kerry McGrath at kmcgrath@huntonAK.com or Andrew Turner at aturner@huntonAK.com.