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. The White House issued interim implementation guidance on July 20, 2021, offering interim definitions for “disadvantaged communities” and identifying 21 pilot programs across nine agencies, including four programs at EPA. 

What’s Next

On May 23, 2022, the White House announced it has released over $29 billion in funding consistent with Justice40, including $500 million to electrify school buses, $1.3 billion to remediate and reduce pollution, and $725 million to reclaim abandoned mine lands. Currently, there are 454 covered programs at 16 agencies, including EPA (73 programs) and DOE (146 programs). For the full list of covered programs, click here.

The Biden administration has also released a beta version of its Climate & Economic Justice Screening Tool (described below) spatially defining “disadvantaged communities” based on 21 different climate, public health, transportation and energy justice indicators. CEQ promised to release an online Justice40 Scorecard in February, 2022 to facilitate a public accounting of federal spending towards the Justice40 goal. CEQ issued a request for public comment on the Scorecard on Aug. 3, 2022, with comments due by Nov. 3.

While the Screening Tool is in beta, some agencies are using their own definition of disadvantaged communities (DACs). Learn more about these definitions below:

• DOT defines DACs to account for walkability, transportation burden, traffic proximity, and private vehicle access.
• DOE defines DACs to account for fossil dependence and energy burden.

For agency-specific funding decisions related to Justice40, click on the Agency Action Timelines above.

• Sep. 30, 2022: The White House extends the Environmental Justice Scorecard public comment period by 30 days. Responses are now due by Nov. 3.
• Aug. 18, 2022: The White House publishes an updated list of Justice40 covered programs.
• Aug. 3, 2022: The White House issues a request for comment on the Environmental Justice Scorecard. Responses are due by Oct. 3.
• May 23, 2022: The White House launches a Justice40 Week of Action highlighting steps taken towards achieving the Justice40 goal, including $29 billion in funding that have been spent to-date on qualifying initiatives.
• Apr. 13, 2022: Three WHEJAC members announce a separate initiative to “supplement” the Justice40 Initiative and track its progress. Dr. Beverly Wright, founder and executive director of the Deep South Center for Environmental Justice, will focus on strengthening partnerships with HBCUs and developing educational tools and trainings on Justice40. Peggy Shepard, co-founder of WE ACT for Environmental Justice, will launch a pilot program to track Justice40 funds in five cities. And Dr. Robert Bullard, founder of the Bullard Center for Environmental and Climate Justice, will create a supplemental screening tool that will include racial demographic data to identify overburdened communities. The three projects will be funded by the Bezos Earth Fund.
• Feb. 18, 2022: CEQ announces the beta release of the Screening Tool, which defines “disadvantaged communities” based on 21 different indicators. Access the beta Climate and Economic Justice Screening Tool here.
• Dec. 15, 2021: 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.
• Dec. 2, 2021: 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.
• Nov. 17, 2021: 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.
• Nov. 15, 2021: 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.
• Oct. 19, 2021: The WHEJAC convenes a working group to develop scorecard metrics to evaluate agencies’ progress in implementing Justice40. The Justice40 Scorecard is due in February.
• Aug. 2021: 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, 2021: 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, 2021: Delaware’s legislature establishes a Justice40 Oversight Committee “to study and make findings and recommendations regarding environmental justice” in the state.
• May 13, 2021: 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, 2021: An aide at the Office of Management and Budget says the Office is developing interim guidance for agencies on how to implement Justice40.

CEQ announced the release of Version 1.0 of the Screening Tool on Nov. 22, 2022. Access the Climate and Economic Justice Screening Tool here.

Some agencies have developed their own definition of “disadvantaged community” to implement Justice40. For those definitions, click “Justice40” above.

Background

The Climate Crisis Executive Order directed the CEQ Chair to create a “geospatial Climate and Economic Justice Screening Tool” and publish annual interactive maps highlighting “disadvantaged communities.” The Screening Tool was developed by the United States Digital Service, and defines “disadvantaged communities” for purposes of the Justice40 Initiative (above). The tool expands on EJSCREEN, EPA’s current environmental justice mapping tool, and considers several “burden” indicators, including energy burdens, air quality, higher education enrollment, formerly redlined census tracts, expected agricultural loss, and traffic proximity. However, unlike California’s screening tool CalEnviroScreen, the Screening Tool does not consider the cumulative effects of these indicators.

Notably, the Screening Toold does not use race and ethnicity data to define “disadvantaged communities.” This approach seeks to avoid 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. (White farmers used a similar argument in June, 2021 to block a USDA loan relief program that provided debt relief to farmers that had been “subjected to racial or ethnic prejudice.” Three federal district courts have agreed with the farmers’ arguments and stopped the program from going into effect). However, the Screening Tool does consider formerly redlined census tracts.

• Jan. 27, 2023: OMB, CEQ, and the White House Climate Office direct federal agencies to begin using the CEJST to identify geographically defined “disadvantaged communities” for all Justice40-covered programs and for programs where a statute directs resources toward disadvantaged communities, such as the Inflation Reduction Act. Agencies must transition to using the CEJST by Oct. 2023.
• Jan. 24, 2023: An analysis by E&E News finds that the Biden Administration’s race-neutral CEJST strategy – which omitted racial and ethnic indicators in order to avoid legal challenges – nevertheless succeeds in prioritizing minority communities that have historically experienced disproportionate environmental injustice for federal funding. The demographic factors that were used – such as income levels and exposure to pollution – are, in many cases, closely correlated with race.
• Nov. 22, 2022: CEQ releases Version 1.0 of the Screening Tool, including new qualifying criteria based on public comment. Version 1.0 includes an additional 3,781 communities as compared to the beta version, including all Tribal Nations, and new burden indicators, such as redlining data, transportation barriers, and projected climate risks. While Version 1.0 does not include race explicitly as a qualifying “burden”, the tool now displays race and age demographics for census tracts.
• April 21, 2022: CEQ extends the public comment period for the Screening Tool until May 25.
• March 9, 2022: CEQ announces a series of public listening sessions and training webinars on the beta version of Screening Tool. The training webinars will be held at 4pm ET on March 9, 10, and 16. The listening sessions will be held at 4pm ET on March 22 and April 15. Learn more and register for these sessions online here.
• Feb. 18, 2022: CEQ announces the beta release of the Screening Tool. Access the beta Climate and Economic Justice Screening Tool here. People can submit feedback or ideas about data and information reflecting conditions in their community by emailing [email protected]. Users can also access the tool’s open source code here.
• Dec. 2, 2021: 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.”
• Nov. 30, 2021: 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, 2021: 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.

See federal agencies’ Equity Plan Snapshots on the White House website here. Key agencies’ full-length equity plans are linked below, with all plans linked here.

Background

Biden’s Racial Equity Executive Order sought to address underserved 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.” The order then required agencies to provide a report to the Assistant to the President for Domestic Policy within 200 days (by Aug. 8, 2021) 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 Initiative.

Several agencies publicly 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 was reportedly developing its plan as of March 31, 2021. DOT and other agencies, including USDA, DOT, FEMA, NASA, and OMB issued requests for information seeking public comment on how they can better integrate equity considerations into existing programs.

On Feb. 15, 2023, President Biden issued an Executive Order on Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government. The order requires that federal agencies assemble agency equity teams led by a senior official, to support equity training and leadership development for staff. The order also creates a new White House Steering Committee on Equity to coordinate government-wide efforts and review the implementation of agencies’ equity plans, among other requirements.

Also, on Aug. 6, 2021, 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.

Agency equity plans released

On April 14, 2022, the White House released agencies’ Equity Plan Snapshots, including a summary of the administration’s efforts to address equity issues in its first year. Agencies’ full-length equity plans are provided below.

• Council on Environmental Quality’s (CEQ) Equity Action Plan
• Department of Agriculture’s (USDA) Equity Action Plan
• Department of Commerce’s Equity Action Plan
• Department of Defense’s (DOD) Equity Action Plan
• Department of Energy’s (DOE) Equity Action Plan
• Department of Health and Human Service’s (HHS) Equity Action Plan
• Department of Homeland Security’s (DHS) Equity Action Plan
• Department of Housing and Urban Development’s (HUD) Equity Action Plan
• Department of the Interior’s (DOI) Equity Action Plan
• Department of Justice’s (DOJ) Equity Action Plan
• Department of Transportation’s (DOT) Equity Action Plan
• Department of the Treasury’s Equity Action Plan
• Environmental Protection Agency’s (EPA) Equity Action Plan
• Federal Emergency Management Agency’s (FEMA) Equity Action Plan
• Federal Energy Regulatory Commission’s (FERC) Equity Action Plan
• National Science Foundation’s (NSF) Equity Action Plan
• Office of Science and Technology Policy’s (OSTP) Equity Action Plan

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

The WHEJAC publicly submitted its own proposed revisions to Order 12898 to CEQ on May 21, 2021 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.  

On May 23, 2022 CEQ released a report submitted to Congress outlining steps taken to implement recommendations from the WHEJAC, stating that CEQ plans to submit a draft update to EO 12898 to President Biden in the summer.

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.