Federal Infrastructure Policy and Funding Update: 2023 No. 6 - Environmental Justice in the Spotlight

On Friday, April 21, 2023, President Biden signed Executive Order (EO)14096, “Revitalizing Our Nation’s Commitment to Environmental Justice for All,” taking another substantial step as part of his administration to elevate the federal government’s focus on environmental justice. The EO establishes a policy for federal agencies to prioritize investment in environmental justice communities, consider the cumulative effects of legacy pollution and historic federal actions on environmental justice communities and integrate environmental justice into the core mission of each federal agency. This EO is a long-anticipated update and refresh of EO 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” signed by President Clinton in 1994. To amplify the EO announcement, the White House also published the Phase One Environmental Justice Scorecard which reports on the progress of 24 federal agencies in advancing the Justice40 Initiative, implementing and enforcing environmental and civil rights laws, and embedding environmental justice throughout the federal government.

EO 14096 – A New Look at Environmental Justice

The EO sets forth an ambitious policy to invest in and support “culturally vibrant, sustainable, and resilient communities in which every person has safe, clean, and affordable options for housing, energy, and transportation.” It prioritizes “meaningful engagement and collaboration with underserved and overburdened communities to address the adverse conditions they experience and ensure that do not face additional disproportionate burdens or underinvestment.” This policy statement is important as it expands the scope of environmental justice from considering the effects of federal actions on low-income and minority populations as defined in EO 12898 and instead looks at not only the burdens but also the benefits and investments, consistent with the President’s Justice40 Initiative.

Further, EO 14096 expands the application of environmental justice beyond low-income and minority populations to capture “communities with environmental justice concerns.” These communities have a “significant proportion of people who have low incomes or are otherwise adversely affected by persistent poverty or inequality” and “experience disproportionate and adverse human health or environmental burdens.” This definition expands the focus from EO 12898 on “low-income and minority” to encourage a more comprehensive look at communities — particularly where racial minorities may make up the majority of the population but still experience environmental injustice. Note the use of “health” in the definition as well — this could signal an increase in performing health impact assessments to determine human health effects from proposed projects.

Specifically, the EO 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:

• 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 structure or systemic barriers; and
• 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.

This substantially expands how the federal government will approach environmental justice in its routine actions — particularly as part of an environmental analysis performed in accordance with the National Environmental Policy Act and other environmental laws. Beyond changing the scope of environmental justice analysis, the EO 14096 also re-emphasizes the importance of meaningful public engagement. It re-affirms that “all people should be afforded the opportunity to meaningfully participate in agency decision-making processes that may affect the health of their community or environment” and commits the federal government to continuing to “remove barriers to the meaningful involvement of the public in such decision-making, particularly those barriers that affect members of communities with environmental justice concerns.”

Whole of Government Approach

Expanding on the foundational analysis required by EO 12898, the new EO directs federal agencies to:

• Identify, analyze and address disproportionate and adverse effects on communities with environmental justice concerns.
• Explore opportunities to address disproportionate, adverse effects unrelated to federal activities on communities with environmental justice concerns. This expands the purview of agency analysis to consider legacy effects outside of their direct control but that they nonetheless should consider and potentially address.
• Ensure that communities with environmental justice concerns have equitable access to human health or environmental benefits.
• Provide workforce training and support high-quality and well-paying jobs.
• Consider measures to avoid, minimize, or mitigate disproportionate and adverse effects on communities with environmental justice concerns and address any contribution of federal activities to adverse effects – including cumulative impacts of environmental and other burdens already experienced by such communities.
• Provide opportunities for meaningful engagement and timely opportunities for the public to share information or concerns, participate in decision-making processes, and seek out and encourage the involvement of persons and communities potentially affected by federal actions. Provide notice to and engage with communities who do not regularly engage in the decision-making process and provide tools and technical assistance to encourage and facilitate meaningful and informed public participation.
• Embed environmental justice considerations into grant agreements with recipients of federal funds.

New NEPA Considerations

Starting with EO 12898, federal agencies have incorporated environmental justice analysis into the environmental justice studies conducted in accordance with NEPA — with mixed results. EO 14096 tackles the confluence of NEPA and EJ head-on by directing agencies to:

• Analyze direct, indirect, and cumulative effects on communities with environmental justice concerns.
• Evaluate disparate health effects arising from exposure to pollution and other environmental hazards, considering the race, national origin, socioeconomic status, age, disability, and sect of the individuals exposed. This substantively expands the requirement to consider human health effects as part of NEPA — and may also reflect potential changes in upcoming NEPA regulations from CEQ.
• Provide for early and meaningful involvement in the environmental review process by communities with environmental justice concerns, including when establishing or revising agency procedures under NEPA. This is a big deal — when taken together with the direction to seek out input from EJ communities and solicit their comments, this line about EJ community input on agency NEPA procedures could be revelatory.
• The Environmental Protection Agency, under their responsibilities to review and rate the quality of environmental documents, is directed to include in their reviews an assessment of whether each agency analyzes and avoids or mitigates disproportionate effects on communities with environmental justice concerns. The EPA Administrator must then report annually on these reviews and provide recommendations on options to advance EJ in federal decision-making. Another big step — some see the EPA reviews under Section 309 of the Clean Air Act as unnecessary. This provision of the EO dismisses those objections. It doubles down on EPA’s responsibilities to evaluate their compliance with the EJ EO and then report on agency success with recommendations for legislative, regulatory or policy changes to enhance EJ considerations.

Environmental Justice Strategic Plans

By October 2024, each agency must submit an Environmental Justice Strategic Plan to the Chair of CEQ. These plans must then be updated at least every four years after initial submittal. This EJ Strategic Plan differs from the agency EJ strategy required by Section 103 of EO 12898. These plans will be developed in accordance with guidance forthcoming from CEQ (required by October 2023). In addition to developing new EJ Strategic Plans, agencies must also submit an Environmental Justice Assessment that evaluates the effectiveness of the EJ Strategic Plan. Note that the new EO is silent on what happens to some of the administrative requirements of the “old” EO, something that the CEQ guidance will likely address.

To support the planning and development of the EJ Strategic Plan, each agency will designate an Environmental Justice Officer. The agency EJ Officer will also be responsible for coordinating with CEQ and other agencies and advancing the agency’s environmental justice activities.

New Chief Environmental Justice Officer

In addition to EJ Officers named at each agency, the EO creates a new White House Office of Environmental Justice to be led by a Federal Chief Environmental Justice Officer appointed by the President. This new position will lead EJ initiatives for the White House and advise the Chair of CEQ on EJ matters. Presumably, the new Federal Chief EJ Officer will lead in developing the draft guidance required by October 2023 and the final guidance due by October 2024.

What Does It All Mean?

This Administration has elevated the discussion around environmental justice and equity more than any past administration. With numerous executive actions and integrating the concepts into funding announcements and programs, environmental justice, and equity have become a part of federal actions over the last two years. This latest EO responds to the need to modernize the federal government’s approach to evaluating and addressing environmental justice concerns by expanding the scope of what is considered an environmental justice community and directing agencies to consider past harms and their cumulative effect on communities today. The language emphasizes the importance of meaningful engagement and ensuring that all citizens have a voice in the federal decision-making process and directs agencies to seek out and engage those who have historically not participated. Implementing this EO may take some time, with guidance not expected for six months, but it also signals what’s to come with CEQ’s pending update to the NEPA regulations. I would not be surprised to see many of the concepts established in EO 14096 codified in the Phase II update. Maybe this EO was the last hurdle before the rule is finalized? Time will tell.