Federal Environmental Justice Tracker

Background

In his Climate Crisis Executive Order, President Biden required 40 percent of federal “benefits” to flow to “disadvantaged communities,” especially regarding clean energy investments, transit, affordable and sustainable housing, training and workforce development, remediation and reduction of legacy pollution, and clean water infrastructure. These investments do not rely on new legal authorities, but are subject to agency discretion and based on recommendations made by CEQ, the Director of OMB, and the National Climate Advisor. 

Private donors are also issuing large grants to facilitate the federal government’s Justice40 commitments. On September 8, 2021, the Bezos Earth fund pledged $203.7 million in donations to organizations fighting climate change, including $6 million to WE ACT for Environmental Justice and $4 million to the Deep South Center for Environmental Justice. The money will be used to facilitate the local implementation of Justice40 initiatives by tracking federal funds, informing federal Justice40 policies, and building the capacities of community-based and EJ organizations to access federal funds.

What’s Next

The Justice40 program’s success will hinge on how the administration defines “benefits” and “disadvantaged communities”; to what extent communities are consulted and able to meaningfully participate in the project-design process; and the ease with which those communities are able to satisfy the often significant procedural hurdles agencies impose before grantees can access and spend federal funds. In this section, we track these kinds of initiative-wide definitions and procedural guidelines. For agency-specific funding decisions related to Justice40, click on the Agency Action Timelines above.

• December 15: The Chair of the House Oversight and Reform Committee, Carolyn Maloney, asks the Government Accountability Office (GAO) to provide periodic reports and briefings over the next five years on Justice40 to “review the Justice40 framework and agencies’ implementation plans, monitor guidance and assistance provided to agencies, and report on implementation” by agencies to determine whether the initiative is, in fact, directing federal investments to disadvantaged communities. Read Rep. Maloney’s letter here.
• December 2: The White House issues an update on Justice40, stating that “by mid-December, agencies will submit methodologies for calculating and tracking these benefits so we can ensure accountability and transparency.” That information will be publicly available as part of the Justice40 Scorecard to be released in February 2022.
• November 17: During the WHEJAC’s meeting, the chair of the WHEJAC’s Justice40 scorecard working group, Prof. Kyle Whyte, identifies five areas of agency action that will inform the scorecard: (1) engage in just treatment, full protection, and eliminating legacy pollution; (2) collect relevant qualitative and quantitative data at the beginning of agency activities; (3) improve human health and environmental quality outcomes in EJ communities; (4) collect data and measure level of “meaningful participation” in federal actions, and whether it results in better actions; and (5) generate strategic planning reports for each agency under FACA, and coordinate with governments receiving federal dollars.
• November 15: The White House confirms that the Infrastructure Investment and Jobs Act will prioritize equitable investments of public funds, including through the Justice40 Initiative. However, the White House has yet to issue final guidance on Justice40 spending.
• October 19: The WHEJAC convenes a working group to develop scorecard metrics to evaluate agencies’ progress in implementing Justice40. The Justice40 Scorecard is due in February.
• August: The 21 pilot programs designated under OMB’s interim implementation guidance for Justice40 develop stakeholder engagement plans. This includes EPA’s biweekly national environmental justice community engagement calls.
• July 20: The White House releases its interim implementation guidance for Justice40. The White House says it plans to release the final guidance, along with the Climate & Economic Justice Screening Tool, by the end of 2021. For top takeaways, see this Twitter thread from EELP’s Legal Fellow Hannah Perls. 
• June 30: Delaware’s legislature establishes a Justice40 Oversight Committee “to study and make findings and recommendations regarding environmental justice” in the state.
• May 13: The WHEJAC submits its interim final recommendations to CEQ on Justice40, including a “transformative and accountable process” to ensure federal resources reach frontline communities. The WHEJAC releases its final report and cover letter on May 21. For top takeaways and related resources, check out this Twitter thread from EELP’s Legal Fellow Hannah Perls. 
• March 30: An aide at the Office of Management and Budget says the Office is developing interim guidance for agencies on how to implement Justice40.

Background

The Climate Crisis Executive Order also directs the CEQ Chair to create a “geospatial Climate and Economic Justice Screening Tool” within six months (by July 27, 2021) and publish annual interactive maps highlighting “disadvantaged communities.” The Screening Tool is being developed by the United States Digital Service, and will likely modify and expand upon EJSCREEN, EPA’s current environmental justice mapping tool, incorporating more advanced capabilities like those in California’s EJ Mapping Tool (CalEnviroScreen), while adding climate change-related indicators like flood risk and sea level rise data, and an expanded list of social vulnerabilities. 

What’s Next

While CEQ Chair Brenda Mallory reportedly announced the Screening Tool would be available at the end of May, to-date CEQ has not shared any additional information regarding the Tool’s capabilities or release date. As a candidate, Biden promised the Tool would help identify communities threatened by the cumulative impacts of climate change, economic and racial inequality, and environmental pollution. However, the effectiveness of the Tool will depend in large part on the quality and granularity of available data, and if those data are used to notify community members of environmental health threats and inform permitting decisions at local and state levels.

• December 2: In a press release, the White House says it plans to release a beta version of the Climate and Economic Justice Screening Tool “in the next few weeks” which “will be continuously updated and refined based on public feedback and research.”
• November 30: A CEQ spokesperson says that, while the Tool is four months behind schedule, they are in the process of developing a beta or “Phase 1 version” that will be publicly available in the next few weeks providing “nationally consistent, up-to-date and high-quality data, and will be updated based on feedback from the public.”
• May 13: The WHEJAC submits its interim final recommendations to CEQ regarding the Screening Tool, including that the Tool integrate local community knowledge; acknowledge data gaps and uncertainties; and enable timely data sharing across relevant federal agencies. The WHEJAC releases its final report and cover letter on May 21.

Background

Biden’s Racial Equity Executive Order helps to address communities’ unequal access to federal funding by requiring each agency to assess its programs and policies to determine “whether underserved communities and their members face systemic barriers in accessing benefits and opportunities available pursuant to those policies and programs.” Agencies must then provide a report to the Assistant to the President for Domestic Policy within 200 days (by August 8, 2021). These include identifying barriers to accessing funds, benefits and services; procurement and contracting opportunities; and new policies, regulations, or guidance that may be necessary to enhance that access. These programmatic reviews are an important first step to enable agencies to meet the goals of the Justice40 program.

What’s Next

Several agencies have announced new offices or personnel to help them craft their equity plans. The Department of Transportation created a new Equity Leadership Team and Equity Task Force to implement EO 13895 across six areas, while EPA is reportedly developing its plan as of March 31. DOT and other agencies have also issued requests for information, seeking public comment on how they can better integrate equity considerations into existing programs. Links to these RFIs and comment deadlines are listed below:

• Department of Agriculture (comments due by August 14, 2021)
• Department of Transportation (comments due by June 24, 2021)
• Federal Emergency Management Agency (FEMA) (deadline extended, comments due July 21, 2021)
• NASA (comments due July 12, 2021)
• Office of Management and Budget (comments due July 6, 2021)

Also, on August 6, the Office of Management and Budget (OMB) submitted a report identifying methods to assess equity, finding that administrative burdens exacerbate inequity, the federal government must expand opportunities for meaningful stakeholder engagement, and that long-term change will require internal cultural changes. (Read the White House’s summary here). To inform its report, OMB issued a RFI seeking public comment. See OMB’s summary of responses here and read individual comments here.

Background

 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 1994.

In his Climate Crisis Executive Order, President Biden ordered the White House Environmental Justice Interagency Council to recommend changes to Executive Order 12898 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, HUD, Interior, Labor, and Transportation, plus EPA.

What’s Next

While the Council’s deadline has already passed, there is no requirement that their recommendations be made public. Rather, the Council must submit its recommendations to the National Climate Advisor. The WHEJAC publicly submitted its own proposed revisions to Order 12898 to CEQ on May 21 as a final report and cover letter. In that report, the WHEJAC offered new definitions for key terms including “environmental justice community,” “just treatment,” and “meaningful participation”; outlined new mandates for the Council; and drafted new agency mandates regarding environmental assessment, monitoring, and reporting among other provisions.  

Because President Biden will issue changes to Order 12898 via executive order, a subsequent administration is free to rescind or revise those changes. However, any changes made in the interim will trigger new federal mandates that could contribute significantly to addressing past and present environmental injustices within the purview of each agency.

In October, House Democrats also announced they are considering codifying EO 12898 via legislation in order to prevent EPA from issuing discretionary enforcement policies allowing regulated entities to skip monitoring and reporting requirements, as the Trump administration did at the beginning of the COVID-19 pandemic. The House Natural Resources Committee plans to host several hearings on the topic.