09/26/2022 - Biden Administration Status Update - Environmental Justice

Environmental Justice and Equity

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Environmental Justice and Equity

By Hannah Perls

In this section we outline the Biden administration’s environmental justice policy goals and actions taken to achieve those goals. This section does not reflect, and should not be substituted for, analysis from frontline communities or environmental justice organizations.

More than any previous administration, the Biden team has prioritized environmental justice (EJ) and equity at the highest levels of government. Notably, President Biden issued a series of executive orders establishing specific policy priorities, set deadlines to increase federal funding and programmatic resources for communities with EJ concerns, and is working to improve enforcement of environmental laws in areas overburdened by pollution. (Click here for a table summarizing Biden’s Environmental Justice Executive Order Mandates and Progress Made.)

Prior to the passage of the Inflation Reduction Act (IRA), the administration’s EJ strategy relied solely on existing laws and discretionary authorities, including federal investment, policies and programs established via executive order, and priorities set by political appointees. While this means Biden’s EJ programs can be implemented relatively quickly, it also means another administration can immediately stop, revoke, or defund these programs, and that communities have no legal enforcement mechanism to compel action on these priorities when the White House or agencies miss self-imposed deadlines, as compared to citizen suits available under environmental statutes like the Clean Air Act.

The IRA’s EJ-related provisions represent the first time the Biden administration’s EJ agenda has been included in a statute. However, the IRA only mandates spending and other benefits; the law leaves it to federal agencies to define key terms, processes, and criteria, which will determine how these benefits reach intended communities. There are several proposals in Congress to strengthen civil rights and environmental protections for communities overburdened by pollution, most notably the Environmental Justice For All Act.[1] The House Natural Resources Committee passed portions of the Act out of Committee in July 2022.[2]

To advance the administration’s EJ objectives, the White House and executive agencies must move quickly to design durable programs. However, agencies have to balance speed and meaningful engagement with impacted communities in the design, implementation, and review of those programs. In addition, agencies are working to address the significant regulatory rollbacks of the Trump administration while rebuilding their scientific, regulatory, and enforcement capacities. This rebuilding is particularly relevant to the administration’s EJ agenda, which includes the creation of new advisory boards and staff positions to implement that agenda, and addressing ingrained agency cultures and decision-making practices that run counter to the administration’s equity goals.

In this section, we summarize and review progress made on the administration’s EJ commitments both across the federal government (e.g., the Justice40 Initiative) and at specific agencies. We also assess the durability of those actions, and identify next steps the administration must take to forward its EJ goals, including opportunities to enshrine these priorities in more resilient ways.

[1] S. 872, 117th Cong. (2022); H.R. 2021, 117th Cong. (2022).

[2] Environmental Justice For All Act, H.R.2021, 117th Cong. (2022), https://www.congress.gov/bill/117th-congress/house-bill/2021/all-actions-without-amendments (last visited Aug. 22, 2022) [https://perma.cc/MGA7-3W6Z].

Government-Wide Initiatives

In his first week in office, President Biden set EJ priorities affecting the distribution of federal funds, agency regulatory and enforcement priorities, new advisory bodies and agency offices, and international policy. These priorities were all established via executive order, and include establishing the Justice40 Initiative, requiring all federal agencies to issue equity plans, and requiring EPA and DOJ to establish a comprehensive EJ enforcement strategy. (For more details on these executive orders, see our report: Biden’s Week One: Mapping Ambitious Climate Action). In issuing these orders, President Biden elevated EJ concerns to the highest levels of government and set both broad and specific requirements for non-environmental agencies to integrate EJ priorities into their existing programs.

The administration’s EJ agenda is supported by new advisory bodies and new personnel with extensive EJ experience across almost all federal agencies. Because this agenda depends on discretionary executive authority, personnel play a critical role in the design and implementation of agency policies and programs. These officials hold a broad range of leadership, advisory, and staff positions, as opposed to prior administrations in which EJ officials were often siloed within their own offices at EPA. For example, at EPA, David Uhlmann serves as “top cop” at the Office of Enforcement Compliance and Assurance (OECA),[3] civil rights attorney Marianne Engelman-Lado serves as the acting principal deputy assistant administrator for the new Office of Environmental Justice and External Civil Rights (OEJECR), and several EJ leaders serve as regional administrators, including Dr. Earthea Nance (Region 6), Martha Guzman (Region 9), and Lisa Garcia (Region 2). At the Department of the Interior (DOI), President Biden has appointed an unprecedented number of Native officials to hold top spots in the agency, including Secretary Deb Haaland (member of the Pueblo of Laguna), Solicitor Robert Anderson (member of the Bois Forte Band of the Minnesota Chippewa Tribe), Chief of Staff Lawrence “Larry” Roberts (member of the Oneida Nation), and National Park Service Director Charles “Chuck” Sams III (member of the Cayuse and Walla Walla Tribes).

For more information on the White House’s new EJ-focused advisory bodies, see the White House page in our Federal EJ Tracker. For more on EJ-related personnel, see each Agency page in our Federal EJ Tracker, and click the “Personnel” tab.

[3] Uhlmann brought the first environmental justice criminal trial working as a federal prosecutor in DOJ’s environmental crimes section.

Justice40 and the Climate and Economic Justice Screening Tool (CEJST)

There are currently 454 programs across 16 agencies covered under the Justice40 Initiative, with over $29 billion in funding released as of May 23, 2022. The Screening Tool is now online and continues to be updated.

The Justice40 Initiative is designed to direct significant federal investments to communities with a history of disinvestment or discrimination, or that bear a disproportionate share of environmental and climate change-related burdens. Specifically, President Biden’s Executive Order 14008 required the Council on Environmental Quality (CEQ) and other agencies to issue recommendations within 120 days on how to direct “certain Federal investments” such that “40 percent of the overall benefits flow to disadvantaged communities.” While the order did not define “benefits,” it named as examples clean energy investments, transit, affordable and sustainable housing, training and workforce development, remediation and reduction of legacy pollution, and clean water infrastructure. However, the program’s effectiveness hinges on several factors: how each agency defines “disadvantaged community” and “federal benefits,” and to what extent the administration can ensure such benefits are achieved in a meaningful and timely way.

Notably, the IRA’s EJ provisions targeting “disadvantaged” communities and other EJ groups marks the first time that elements of Biden’s EJ agenda are expressly included in a statute. This means that states and other non-federal entities receiving funds under those provisions must comply with the law’s mandates. There are few legal levers advocates can pull to hold states and local governments accountable. However, the law shifts the burden onto funding recipients to justify spending that conflicts with these provisions. Also, like Justice40, federal agencies have discretion to define key terms under the IRA, including who counts as “disadvantaged”, design grant application processes and criteria, and make other key decisions that will determine how benefits reach communities.

For more analysis of the IRA’s EJ-related provisions and agency implementation, see our analysis here.

In addition to establishing the Justice40 Initiative, Executive Order 14008 also created several new EJ advisory bodies to inform the procedural design and implementation of the administration’s EJ goals. These bodies include the new White House Environmental Justice Advisory Council (WHEJAC), made up of some of the nation’s leading EJ experts and advocates, including Dr. Robert Bullard, Maria Lopez-Nuñez, and Catherine Flowers. The WHEJAC and other advisory bodies serve to elevate and integrate EJ concerns across federal agencies, informing executive policy as it is developed.

The WHEJAC submitted final recommendations on Justice40 implementation to CEQ on May 21, 2021. The White House Office of Management and Budget, Council on Environmental Quality, and Office of Domestic Policy released interim Justice40 implementation guidance on July 20, 2021. The guidance provided an example definition of disadvantaged communities and directed each agency to develop their own definition. The guidance also outlined 21 pilot programs to immediately begin implementing Justice40.[4] The guidance however, does not define specifically which “benefits” will count under Justice40; each agency must identify what constitutes a benefit based on seven broad categories, including remediation legacy pollution and affordable and sustainable housing. The guidance also directed all federal agencies to identify additional benefits to be included, propose methods to calculate qualifying allocations, and develop community engagement plans. However, because the Justice40 Initiative relies completely on executive discretionary authority, communities have no legal mechanism to force federal agencies to comply.[5]

As mentioned above, the Justice40 Initiative’s effectiveness depends, in part, on how the federal government defines “disadvantaged communities.” Some agencies, including the Department of Energy (DOE) and the Department of Transportation (DOT), have developed their own interim definitions to account for specific burdens. For example, DOT’s definition accounts for walkability, transportation burden, traffic proximity, and private vehicle access. DOE’s definition looks at fossil dependence and energy burden, and includes the top 20 percent of census tracts in each state to ensure each state is represented. In addition, as required under Executive Order 14008, on February 18, 2022, the Biden administration released a beta version of its Climate & Economic Justice Screening Tool (CEJST—described below) spatially defining “disadvantaged communities” based on 21 different climate, public health, transportation and energy justice indicators.[6]

Notably, the CEJST does not use race and ethnicity data to define “disadvantaged communities.” This approach may help shield the program from legal challenges arguing that the tool intentionally discriminates on the basis of race and therefore violates the equal protection component of the Fifth Amendment’s Due Process Clause.[7]

These concerns regarding legal liability under the Fifth Amendment likely framed the administration’s interim Justice40 guidance. The guidance did not include the WHEJAC’s recommendation to define “disadvantaged communities” as “majority minority communities,” but as communities with “racial and ethnic segregation, particularly where the segregation stems from discrimination by government entities.”

Advocates have argued that the administration is being overly cautious, pointing to other mapping tools (such as the CDC’s Social Vulnerability Index) relied on by federal agencies that do include race and ethnicity. However, while agencies may rely on such tools as part of their decision-making processes, the CEJST’s definition of “disadvantaged communities” will determine which communities are prioritized for federal investments and other benefits. As a result, majority-white communities could argue that they were denied such benefits based on the federal government’s race-based classifications in violation of the Fifth Amendment. These legal risks are particularly relevant to the Justice40 Initiative because, as an exercise of discretionary executive authority, it can be immediately withdrawn by a subsequent administration. Thus, if the program were to be struck down or paused by a federal court, it would severely limit the program’s potential impact.

Independent analyses also suggest that though the CEJST does not include race or ethnicity indicators, it nevertheless “implicitly account[s] for race”[8] by using proxy indicators that strongly correlate with a community’s racial or ethnic composition.[9] For example, communities of color are more likely to live close to hazardous facilities, experience linguistic isolation, or be exposed to lead paint, all of which are indicators used to define “disadvantaged communities.” CEQ officials have also committed to regularly update the CEJST based on community feedback and new research

The effectiveness of Justice40 will also depend on states, which receive and have discretion over how to allocate a large amount of federal funds. Many EJ leaders, including WHEJAC members, have criticized the administration for not providing more guidance for states on how to spend federal infrastructure funding consistent with the Justice40 Initiative. Though President Biden issued an executive order requiring federal agencies to “invest[] public [Infrastructure Act] dollars equitably, including through the Justice40 Initiative,” the order gave no further details. Thus, while the executive order does not apply to states, states retain significant flexibility in deciding how to allocate non-competitive grant funding and may choose to allocate funds consistent with the Biden administration’s guidance to implement Justice40 though they are not required to do so.

[4] According to the White House, the 21 pilot programs developed stakeholder engagement plans in August, 2021 and implementation plans in September, 2021. Agencies’ calculation and tracking methodologies were due in mid-December, 2021. However, none of these documents have been released publicly. Dr. Cecilia Martinez and Dr. Candace Vahlsing, Delivering on Justice40, The White House (Dec. 2, 2021), https://www.whitehouse.gov/ceq/news-updates/2021/12/02/delivering-on-justice40/ [https://perma.cc/CF6J-PQWQ].

[5] By comparison, the New York Climate Leadership and Community Protection Act (CLCPA), on which Justice40 was based, requires “no less than 35 percent” of “overall benefits of spending” or “investments” in clean energy and energy efficiency programs, workforce development and other initiatives must be directed towards “disadvantaged communities.” S. 6599, 2019-2020 Sen., Reg. Sess. §§ 2, 7 (N.Y. 2019). The CLCPA also creates several statutory mandates to address prior disinvestment and environmental burdens in “disadvantaged communities,” including requiring the state Department of Environmental Conservation (DEC) to “prioritize measures to maximize net reductions of [greenhouse gas] emissions and co-pollutants in disadvantaged communities” in rules issued pursuant to the CLCPA. These mandates in turn create opportunities for communities to either inform rulemakings through public comment, or use litigation to challenge agency rulemakings that allegedly fail to satisfy the CLCPA’s mandates.

[6] While the Screening Tool is in beta, the Department of Transportation will use its own mapping tool and definition of disadvantaged communities to implement Justice40. DOT’s definition identifies six categories of transportation disadvantage: transportation access disadvantage, health disadvantage, environmental disadvantage, economic disadvantage, resilience disadvantage, and social disadvantage. This definition will be applied to five DOT grant programs: RAISE, the Port Infrastructure Development Program, the National Electric Vehicle Infrastructure formula program, America’s Marine Highway Program, and Low or No Emission and Grants for Buses and Bus Facilities Program. Justice40 Initiative, Dep’t of Transportation, https://www.transportation.gov/equity-Justice40 (last updated March 10, 2022) [https://perma.cc/XP4X-PCUR].

[7] White farmers used a similar argument in June 2021 to block a USDA loan relief program that sought to provide debt relief to farmers and ranchers that had been “subjected to racial or ethnic prejudice” under the American Rescue Plan Act. The District Court for the Middle District of Florida agreed with the farmers’ arguments and issued a preliminary injunction preventing the relief program from going into effect. Wynn v. Vilsack, 545 F.Supp.3d 1271 (M.D. Fla. 2021). See also Faust v. Vilsack, 519 F.Supp.3d 470 (E.D. Wis. 2021) (granting plaintiffs’ motion for a temporary restraining order blocking implementation of the USDA loan-forgiveness program); Miller v. Vilsack, No. 21-cv-00595 (N.D. Tex. 2021) (granting a preliminary injunction in class action suit brought by white farmers).

[8] Naveena Sadasivam & Clayton Aldern, The White House excluded race from its environmental justice tool. We put it back in., Grist, Feb. 24, 2022, https://grist.org/equity/climate-and-economic-justice-screening-tool-race/.

[9] Emma Rutkowski et al., Justice40 Initiative: Mapping Race and Ethnicity, Rhodium Group (Feb. 24, 2022),  https://rhg.com/research/justice40-initiative-mapping-race-and-ethnicity/ (finding that 64% of the people in disadvantaged communities are either Hispanic/Latino, Black, or American Indian/Alaskan Native).

REVISING THE ENVIRONMENTAL JUSTICE EXECUTIVE ORDER

The Council on Environmental Quality pledged to submit a draft update to Executive Order 12898 to President Biden in the summer of 2022, though that draft has not been made public.

Executive Order 12898, signed by President Clinton in 1994, requires all agencies to “make achieving environmental justice part of [their] mission.” However, the order is not judicially enforceable, includes no metrics or reporting mechanisms, and has not been significantly updated since it was issued. As a result, the 1994 order has led to more rhetoric than results.

In Executive Order 14008, President Biden established a new White House Environmental Justice Interagency Council and ordered the council to submit recommended changes to Executive Order 12898 to the National Climate Advisor within 120 days (by May 27, 2021). The council includes representatives from the attorney general’s office and the secretaries of Agriculture, Commerce, Defense, Energy, Health and Human Services, Housing and Urban Development, DOI, Labor, and Transportation, plus EPA. The White House reported that the Interagency Council met this internal deadline, but the recommendations have not been made public. CEQ committed to submit a draft update to Executive Order 12898 to President Biden in the summer of 2022, but that draft has not released publicly.

The WHEJAC publicly submitted its own proposed revisions to Executive Order 12898 to CEQ on May 21, 2021. In its report, the WHEJAC offered new definitions for key terms including “environmental justice community,” “just treatment,” and “meaningful participation;” outlined new mandates for the Interagency Council; and proposed new agency requirements regarding agencies’ strategic plans, human health and environmental research, public participation, and reporting.

If President Biden amends Executive Order 12898, he will do so with a new executive order. Therefore, a subsequent administration can also immediately rescind or revise those changes via executive order. However, any changes made in the interim will trigger new mandates for federal agencies that could contribute significantly to addressing past and present environmental injustices. An updated Executive Order 12898 could support agencies by specifying which EJ considerations agencies must address when engaged in decision making, including notice-and-comment rulemaking. For example, requiring agencies to consider the particular and cumulative impacts of a rule on impacted communities could provide additional support in the administrative record for more robust environmental regulations.

agencies’ equity plans

Federal agencies released equity plans for the first time in March 2022.

On his first day in office, President Biden issued Executive Order 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” The order instructed all federal agencies to determine “whether underserved communities and their members face systemic barriers in accessing benefits and opportunities available” pursuant to selected policies and programs.[10] Agencies then were required to report to the assistant to the president for domestic policy within 200 days (by Aug. 8, 2021) and identify barriers underserved communities may face in accessing funds, benefits, and services; procurement and contracting opportunities; and new policies or regulations that could improve their access. Within one year (by Jan. 20, 2022), agencies had to create a plan to address those barriers. On March 14, 2022, the White House announced that over 90 federal agencies have developed Equity Agency Plans, and released Equity Plan Snapshots for 24 of those agencies.

To access these snapshots, visit whitehouse.gov/equity. See more information, including agencies’ full-length action plans, on our EJ Tracker, under “Agency Equity Plans.”

In the administration’s first year, many agencies put out requests for information (RFIs) seeking public comments on how the agencies could address equity concerns particular to their own programs. These included the US Department of Agriculture (USDA), DOT, the Federal Emergency Management Agency (FEMA), the National Aeronautics and Space Administration (NASA), and the Office of Management and Budget (OMB). Some agencies have used these comments to inform changes to existing policies over which the agencies can exercise immediate discretion. For example, FEMA has expanded the types of documentation renters and homeowners can use to demonstrate residency or homeownership when seeking federal disaster assistance; the agency also recently sought comment on its proposal to ask aid recipients to voluntarily disclose race and other demographic data. OMB also released a report identifying methods agencies could use to assess equity. In their report, OMB found that administrative burdens exacerbate inequity, agencies must expand opportunities for meaningful stakeholder engagement, and that long-term change will require internal cultural changes.[11]

Many agencies’ equity plans rely on existing discretionary authorities to advance their goals. For example, EPA’s Equity Action Plan includes goals to invest in building capacity both in underserved communities and within the agency to facilitate meaningful engagement processes. The plan also suggests that EPA will invest heavily in the External Civil Rights Compliance Office (ECRCO), while seeking to integrate civil rights compliance agency wide. These strategies will likely rely on discretionary authority, including internal guidance, executive budgeting, and grant-allocation decisions. However, some activities may be integrated into agency rulemaking, including EPA’s plan to “develop a comprehensive framework for considering cumulative impacts . . . throughout the environmental and public health regulatory endeavor.” EPA also plans to apply this framework to “permit conditions, mitigation, and potential denial of permits.”

The administration has recognized that “advancing equity . . . is a generational commitment that will require sustained leadership and partnership with all communities.”[12] The tools that agencies use to implement these new equity plans will play a significant role in their durability. New advisory bodies and teams created within agencies can quickly be defunded or removed. Equity programs can likewise be revoked, or even prohibited by a subsequent administration, as former President Trump did under Executive Order 13950 (“Combating Race and Sex Stereotyping”), which effectively barred federal agencies from conducting internal trainings on anti-racism.

Regardless of each initiative’s durability, these equity plans mark the first time that an administration has prioritized equity across the whole of government and required agencies to self-assess ways to make their programs more accessible to underserved communities. Many agencies’ action plans include goals that address internal agency decision making, data collection, grant allocation, and program design. Thus, these plans also have the potential to cement an enduring cultural shift within the agencies themselves.

[10] Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, Exec. Order 13,985, 86 Fed. Reg. 7,009, 7,010 (Jan. 25, 2021).

[11] Study to Identify Methods to Assess Equity: Report to the President, Office of Mgmt. & Budget (July 20, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/08/OMB-Report-on-E013985-Implementation_508-Compliant-Secure-v1.1.pdf [https://perma.cc/T7A8-2EK6].

[12] Advancing Equity and Racial Justice Through the Federal Government, The White House, whitehouse.gov/equity (last visited Aug. 24, 2022) [https://perma.cc/44UC-KLN7].

Agency action

Agencies, including non-environmental agencies, are leveraging their spending, enforcement, and regulatory authorities to address EJ mandates in President Biden’s executive orders, including creating new EJ offices and implementing the administration’s Justice40 Initiative. Most of these actions rely on agencies’ discretionary authority and therefore can be quickly revoked, amended, or defunded by a subsequent administration.

Many of President Biden’s EJ goals, especially those related to addressing disparities in pollution burdens and human health outcomes, hinge on EPA’s programmatic, regulatory, monitoring, and enforcement capacities. However, many non-public health agencies have also instituted new policy, funding, and enforcement priorities consistent with the administration’s equity and EJ commitments. In issuing mandates impacting all federal agencies and appointing key leadership with significant EJ or equity experience, the Biden administration’s efforts represent a significant departure from past administrations in which EJ efforts were siloed within EPA’s Office of Environmental Justice with limited carryover to the agency’s broader programmatic priorities, let alone other federal agencies.

We track the federal government’s environmental justice efforts across 11 agencies with our Federal Environmental Justice Tracker, as well as activities at the White House, including CEQ, OMB, and White House Advisory Bodies. We highlight some of the most significant programmatic, funding, and enforcement actions taken in Biden’s first year below. For more details on each agency’s activities–including public participation opportunities, funding opportunities, key personnel changes, new policy priorities and initiatives, and major enforcement decisions and rulemakings affecting communities–please see the agency pages on our Federal EJ Tracker.

new policies and initiatives

Many of the new EJ initiatives across agencies stem from new policy established at the start of the Biden administration. Several agencies, including FEMA and EPA, have announced far-reaching EJ and equity priorities in their strategic plans.[13] In implementing these new priorities, agencies have relied on their discretionary authority to prioritize enforcement, funding, and programmatic decisions in communities affected by EJ concerns. For example, many agencies, including EPA, the Department of Justice (DOJ), the Federal Energy Regulatory Commission (FERC), DOE, and the Department of Health and Human Services (HHS), have created new offices with an EJ focus. Others have integrated equity considerations into existing federal funding streams, consistent with the administration’s Justice40 Initiative. As detailed in many equity action plans (discussed above), federal agencies are also reevaluating internal processes to improve community consultation and engagement, including investments in community’s technical capacities to participate in agency decision-making and compete in federal grant competitions.

Because these new initiatives rely on agencies’ discretionary authority or one-time federal funding allocations, they can easily be reversed or defunded by a subsequent administration with different policy priorities. Nevertheless, many of these enforcement decisions and investments have the potential to address persistent EJ concerns.

Here are some examples of new agency EJ policies and initiatives. For a more comprehensive list visit each agency’s page in our Federal EJ Tracker:

In addition to these discretionary initiatives, agencies can make their EJ priorities more durable by including them or other equity concerns as part of agency rulemaking under their traditional statutory authorities. For example, on November 15, 2021, EPA issued a proposed rule regulating methane emissions from the oil and gas sector using its authority under section 111 of the Clean Air Act. The proposal included a request for comment on potential mechanisms to incorporate community-sourced data to detect unlawful emissions and guide EPA enforcement actions.[14] If finalized, this provision could represent a first-of-its-kind validation of community oversight and science as an independent investigation or enforcement mechanism. While such programs can be challenged in litigation, an incoming administration will only be able to revoke or amend these programs using the proper procedures under the Administrative Procedure Act.

For an overview of EPA’s proposed methane rule, see our EPA methane section in the Oil and Natural Gas Sector section in this report.

[13] FY 2022-2026 EPA Strategic Plan, EPA (Mar. 28, 2022) https://www.epa.gov/system/files/documents/2022-03/fy-2022-2026-epa-strategic-plan.pdf (parenthetical quote); 2022–2026

FEMA Strategic Plan, FEMA (Dec. 16, 2021), https://www.fema.gov/sites/default/files/documents/fema_2022-2026-strategic-plan.pdf (parenthetical quote).

[14] Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review, 86 Fed. Reg. 63,110, 63,178 (Nov. 15, 2021) (to be codified at 40 C.F.R. § 60).

Environmental Justice Enforcement Efforts at EPA and DOJ

Both EPA and DOJ officials are seeking to use existing enforcement authorities in novel ways and prioritizing those enforcement efforts within communities disproportionately burdened by environmental harms. The longevity of these initiatives will depend on continued funding for new programs and offices, and the extent to which the Biden administration can ingrain its priorities as agency practice.

Enforcement of Environmental Laws at EPA and DOJ

EPA’s Office of Enforcement and Compliance Assurance has increased enforcement of environmental violations, especially in environmental justice communities, following a significant decrease during the Trump administration and the COVID-19 pandemic (see our podcast episodes here and here on COVID-19, EJ, and enforcement). EPA also released new guidance, EPA Legal Tools to Advance Environmental Justice, for agency lawyers and policymakers. The document provides new guidance on implementing environmental laws and adds a chapter on civil rights enforcement, including the need to consider community input when investigating and resolving complaints. The guidance also expressly prohibits “discriminatory siting,” and “provides authority for EPA to address impacts on communities that are disproportionately impacted due to the siting of multiple polluting sources.”

At DOJ, the Environment and Natural Resources Division (ENRD) and Civil Rights Division (CRD) have begun new efforts consistent with President Biden’s mandate to establish a “comprehensive environmental justice enforcement strategy.” These efforts culminated in an announcement on June 5, 2022, in which DOJ released that strategy, developed in partnership with EPA’s OECA. In the document, DOJ commits to prioritizing cases that will reduce public health and environmental harms in overburdened or underserved communities; use “all available legal tools” to address EJ concerns; and structure remedies to limit harms, ensure future compliance, and prioritize relief in communities that have borne the most impacts.

Both ENRD and CRD, under the leadership of Todd Kim and Kristen Clarke respectively, have sought to prioritize EJ in their enforcement efforts. These efforts largely rely on prosecutorial discretion to focus enforcement within specific communities, and in some cases, apply existing authorities in novel ways. For example, in June 2021, EPA and ENRD announced the new interagency Environmental Crime Victim Assistance Program, encouraging prosecutors to invoke crime victim statutes to obtain compensation for environmental crime victims.[15] And on November 9, 2021, CRD announced its first-ever EJ investigation into the wastewater disposal and infectious disease and outbreaks programs of the Alabama Department of Public Health and the Lowndes County, Alabama, Health Department.

DOJ also announced a new Office of Environmental Justice within ENRD, and issued a new memo and interim final rule reviving the use of supplemental environmental projects (SEPs) in civil and criminal actions department-wide. SEPs are projects that a defendant voluntarily agrees to fund as part of a settlement, and often seek to mitigate impacts on communities affected by the violation. SEPs can be an effective tool to directly redress the harm of environmental violations on surrounding communities as part of environmental enforcement actions. For more, see my analysis DOJ Revives Supplemental Environmental Projects (SEPs) as Part of EJ Agenda.

Because enforcement efforts rely on prosecutorial discretion, they can be immediately reversed or defunded by a subsequent administration. The Biden administration may seek to make these initiatives more resilient by investing in new offices (like DOJ’s Office of Environmental Justice) or interagency collaborations. The longevity of these initiatives will also depend on the extent to which new guidance and practices are fully integrated into routine agency practice, including state agencies that must comply with EPA’s Title VI regulations. This is particularly urgent given the significant funding allocated as part of the Bipartisan Infrastructure Law, which also permanently authorized Title 41 of the Fast Act (“FAST-41”), which accelerates the environmental review and authorization process for certain infrastructure projects. Current federal guidance and best practices under FAST-41 currently do not address compliance with Title VI.

For more information on specific enforcement actions and priorities see our tracker pages on Environmental Justice at DOJ and Environmental Justice at EPA.

For EJ-related enforcement affecting tribal lands and water rights, see our page on Environmental Justice at Interior.

Title VI Enforcement at EPA

EPA’s ECRCO (now part of the new Office of Environmental Justice and External Civil Rights) is responsible for enforcing Title VI of the Civil Rights Act of 1964,[16] and has committed to addressing longstanding issues in its enforcement program, including promises to rely on the office’s affirmative authority to ensure compliance before violations occur. While the office has yet to issue new compliance guidance, ECRCO has accepted a record number of Title VI complaints and created a public database of Title VI complaints received, including complaints accepted for investigation and the outcomes of those compliance reviews.

EPA’s regulations implementing Title VI, issued in 1973 and revised in 1984, prohibit recipients of EPA funding from “taking actions in their programs or activities that are intentionally discriminatory and/or have a discriminatory effect,” even if those policies are facially neutral.[17] These regulations provide the sole avenue for communities to challenge permits and other actions that would impose a disproportionate burden on communities of color.[18] However, ECRCO has long been criticized for failing to enforce these regulations, including in a 2020 report from EPA’s Office of Inspector General (OIG) identifying multiple failings in the office’s compliance program.[19]

EPA responded to the OIG’s report on September 20, 2021, committing to address these issues through improved guidance and establishing an affirmative compliance review program.[20] ECRCO released initial guidance for selecting sites for affirmative compliance review on January 6, 2022,[21] but has not yet released guidance on what that compliance review will require, nor how recipients should conduct cumulative impact assessments. ECRCO officials have also said they are working with DOJ to clarify the relationship between compliance with Title VI and NEPA, but have yet to release any related guidance. ECRCO also released National Program Guidance (NPG) for the first time, with the Office of Environmental Justice (OEJ). However, the Guidance does not include details on Title VI enforcement.

For more on ECRCO enforcement of Title VI, visit “Title VI and ECRCO” on our EPA EJ Tracker page.

[15] Simone Jones, Prosecutors Will Turn to Crime Victim Laws in Environmental Justice Cases, Bloomberg L., June 9, 2021, https://www.bloomberglaw.com/bloomberglawnews/environment-and-energy/X4DCAMU4000000?bna_news_filter=environment-and-energy#jcite.

[16] Title VI prohibits discrimination based on race, color, or national origin. 42 U.S.C. § 2000(d). The Supreme Court has expanded Title VI to also require recipients of federal funding to “take affirmative steps” to provide people with limited English proficiency (LEP) access to federally funded programs and activities. See Lau v. Nichols, 414 U.S. 563, 568 (1974).

[17] According to the ECRCO Toolkit, released in Jan. 2017, to establish a prima facie case of adverse disparate impact, EPA must (1) identify the specific policy or practice at issue, (2) establish adversity/harm, (3) establish disparity, and (4) establish causation. The agency’s analysis focuses on “the consequences of the [funding] recipient’s policies or decisions, rather than the recipient’s intent.” EPA, U.S. EPA’s External Civil Rights Compliance Office Compliance Toolkit 8–9 (Jan. 18, 2017).

[18] In Alexander v. Sandoval, the Supreme Court held that private rights of action under Title VI only apply to claims addressing intentional discrimination only. 532 U.S. 275, 280 (2001). The Supreme Court did not, however, impose the same restrictions on agencies implementing Title VI. See Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 592–93 (1983); Alexander v. Sandoval, 469 U.S. at 292–94. As a result, impacted communities are dependent on EPA enforcing its own Title VI regulations to address disparate impacts of environmental permitting and other decisions.

[19] Improved EPA Oversight of Funding Recipients’ Title VI Programs Could Prevent Discrimination, EPA (Sep. 28, 2020), https://legacy-assets.eenews.net/open_files/assets/2020/09/28/document_pm_02.pdf.

[20] Letter from Melissa Hoffer et al. to Renee McGhee Lenart (Sep. 20, 2021) https://www.epa.gov/system/files/documents/2021-10/_epaoig_20-e-0333_agency_response2.pdf [https://perma.cc/2VLS-T2SY].

[21] External Civil Rights Compliance Office – New Developments, EPA, https://www.epa.gov/ogc/external-civil-rights-compliance-office-new-developments (last visited Aug. 24, 2022) [https://perma.cc/6H4V-FN9M].

funding

Agencies, in particular EPA, DOI, DOE, and DOT, have issued significant funds for communities with EJ concerns, either through new grant programs or with new guidance on the allocation of existing funds. These include the 21 agency programs designated to participate in the Justice40 pilot program, and the more than 200 programs identified at EPA, DOI, USDA, and HHS in June 2022 that will be covered by Justice40. At EPA, these include the Drinking Water State Revolving Fund, Clean Water State Revolving Fund, Brownfields Program, and Superfund Remedial Program. CEQ has yet to release the Justice40 Scorecard, which will track agencies’ spending consistent with the Initiative.[22] However, DOE is tracking their Justice40 investments using the Energy Justice Dashboard (BETA).

While many of the larger spending allocations come from Congress, and therefore represent one-off spending measures, these allocations present new opportunities to address persistent environmental harms in disproportionately burdened communities, including investments in lead pipe replacement, Superfund remediation, community air monitoring, and highway removals. In addition to the immediate benefits of these unprecedented investments, enhanced fenceline and community air and water monitoring can lead to more granular data and demonstrate a need for more robust public health protections via environmental regulation.

Like Justice40, many of the agencies’ funding decisions rely on discretionary authorities to allocate existing funding streams using new guidance prioritizing equity and EJ outcomes. In some cases, including much of the funding issued under the Bipartisan Infrastructure Law, states and other recipients are not obligated to follow agency funding guidance. Many conservative governors have already opposed agencies’ guidance on equitable investments as an overreach of executive authority.[23] The administration’s policies and programs can also be immediately reversed or defunded by a subsequent administration. The impact of these programs will, therefore, depend on how quickly and effectively federal agencies can allocate funds consistent with these policies.

For agency-specific funding consistent with the Justice40 Initiative, see “Funding Opportunities” on each agency page in our Federal EJ Tracker.

[22] On August 3, 2022, CEQ issued a request for information (RFI) seeking public comment on various aspects of the scorecard, including reporting categories and public engagement. Environmental Justice Scorecard Feedback, 87 Fed.Reg. 47,397 (Aug. 3, 2022).

[23] For example, on January 19, 2022, 16 Republican governors sent a letter to President Biden stating the “administration should not attempt to push a social agenda through hard infrastructure investments.” Letter from Gov. Bill Lee et al. to President Biden (Jan. 19, 2022), https://www.rga.org/wp-content/uploads/2022/01/Joint-Letter-to-President-Biden-Requesting-IIJA-State-Flexibility-1-19-22.pdf [https://perma.cc/HH75-6ZZG].