USA - EJ Evolution: New Environmental Justice Executive Order Expands Agency Directives
On April 21, 2023, the Biden administration reinforced and expanded its commitment to promoting environmental justice by signing new Executive Order 14096, "Revitalizing Our Nation's Commitment to Environmental Justice for All."
This executive order is the latest in a series of actions under the Biden Administration that build upon Executive Order 12898, signed in 1994, which established the consideration of environmental justice in federal government decision-making. Both new and established facilities will want to follow the developments under this new Executive Order, as it calls for a more unified approach in achieving environmental justice and directs agencies to analyze and address environmental justice issues more extensively.
Executive Order 14096
Executive Order 14096 notably expands the definition of environmental justice ("EJ") beyond the definition frequently used by EPA and other federal agencies of "the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies." The Executive Order 14096 definition adds Tribal affiliation and disability to the list of EJ indicators, explicitly provides for protection from disproportionate and adverse human health and environmental effects, and states that those effects include those from climate change, as well as cumulative impacts. The new definition reads as follows:
"Environmental justice" means 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:
(i) 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 structural or systemic barriers; and
(ii) 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.
Executive Order 14096 adopts a whole-of-government approach and directs federal agencies to address environmental justice concerns in several ways, including:
- In line with the new definition of EJ, identifying, analyzing, and addressing disproportionate and adverse human health and environmental effects and hazards of federal activities on communities with EJ concerns, including those related to climate change and cumulative impacts;
- In line with the new definition of EJ, identifying, analyzing, and addressing historical inequities and systemic barriers which have led to EJ concerns;
- Taking steps to provide opportunities for workforce training and support the creation of high-quality and well-paying jobs for people who are part of communities with EJ concerns;
- Avoiding, to the maximum extent possible, making federal action which disproportionately and adversely effect the health and environment of communities with EJ concerns;
- Providing opportunities for meaningful engagement of communities with EJ concerns;
- Conducting National Environmental Policy Act ("NEPA") reviews which analyze "direct, indirect, and cumulative effects of Federal actions on communities with environmental justice concerns"; consider the best available science and information on environmental justice concerns; and provide early and meaningful public involvement; and
- Ensuring that programs receiving federal assistance comply with Title VI of the Civil Rights Act.
Under the Order, the Council on Environmental Quality ("CEQ") will issue interim guidance on how agencies should implement its requirements within 6 months, and issue final guidance within 18 months. Under the CEQ guidance, and potentially other agency guidance and policies, the expanded definition of environmental justice and agency directives may lead to additional EJ guidelines for agencies to follow in the NEPA review process, including broader and more substantive EJ considerations when reviewing federal actions, such as permitting decisions.
Executive Order 14096 additionally establishes the Environmental Justice Subcommittee within the Office of Science and Technology, to collect and analyze data on EJ issues and creates the White House Office of Environmental Justice within the CEQ to advance EJ initiatives.
Impacts on Permitting Decisions
While it may take time for private persons to see effects from this Order, it sets the stage for solidifying the Biden administration's EJ initiatives. Currently, individual agencies have been issuing guidance on EJ concerns. For example, in August 2022, the Environmental Protection Agency issued interim guidance on EJ and permitting in which it suggested that some EJ issues may rise to such a level that a permit could be denied based on EJ issues alone.
Executive Order 14096 paves the way for a more unified and long-lasting approach on how federal agencies will consider EJ in their reviews of permits and other federal actions. And, as the Order is implemented, federal agencies are likely to have more extensive EJ requirements pertaining to data and analyses under the NEPA process.
The development of CEQ and other agency guidelines will be of particular importance when applying, modifying, and renewing federal licenses and permits for industrial projects in Louisiana, particularly as the Biden administration prioritizes EJ concerns in South Louisiana. These to-be-developed guidelines could lead to enhanced enforcement at facilities in EJ communities, and they could make permit modifications for such facilities more onerous. Facilities can prepare for such guidelines now by understanding whether they are in or near an EJ community (through the use of EPA's EJScreen tool) and by additionally establishing relationships and strong lines of communication with their surrounding communities.
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