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2 May 20237 minute read

New Executive Order advances federal environmental justice strategy and action: Impact on the regulated community

In another watershed moment for federal environmental justice (EJ) efforts, President Joe Biden has issued an Executive Order, Revitalizing Our Nation’s Commitment to Environmental Justice for All (the EO), in observance of Earth Day.

Consistent with previous presidential actions on environmental justice, the EO, issued on April 21, 2023, builds on the foundation laid by Executive Order 12898 in 1994 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations). It deepens this Administration’s commitment to a whole-of-government approach and makes clear how the federal government will uphold its fundamental duty to restore and protect a healthy environment for all people no matter where they “live, play, work, learn, grow and worship.”

The regulated community can expect a significant impact as agencies implement the EO in their activities related to rulemaking, guidance documents, policies, programs, practices, and other actions that “affect[] or ha[ve] the potential to affect human health and the environment, including … climate change.”

Executive Order mobilizes federal agencies to develop and operationalize environmental justice strategies

First and foremost, the EO mandates that each federal agency make advancing EJ part of its mission consistent with that agency’s statutory authority. This commitment, as well as the goals, priority actions and metrics to operationalize it must be captured in an Environmental Justice Strategic Plan, as originally required in EO 12898, and benchmarked against regular Environmental Justice Assessments to determine progress in eliminating environmental injustices and increasing benefits to overburdened and underserved communities. Each agency’s resulting success or identified gaps in progress are to be included in the Environmental Justice Scorecard established by EO 14008 (Tackling the Climate Crisis at Home and Abroad) earlier in Biden’s term.

The new EO also calls for 24 agencies and offices comprising a slightly reconstituted White House Environmental Justice Interagency Council to designate an Environmental Justice Officer (EJO) to lead the agency’s planning and implementation efforts, work collaboratively with other EJO’s to develop training material for the federal workforce, establish a public online clearinghouse of environmental justice information, and host a public meeting annually.

The EO also creates a new White House Office of Environmental Justice within the Council on Environmental Quality (CEQ), to be led by a Federal Chief Environmental Justice Officer selected by the President, and an Environmental Justice Subcommittee of the National Science and Technology Council. The Subcommittee is tasked with creating and biennially updating an Environmental Justice Science, Data, and Research Plan, coordinating research efforts with academic institutions, the nonprofit and private sectors, and government officials at all levels to address data gaps and deficiencies, conduct EJ-related research, and hold an annual summit to share the Subcommittee’s work with the public.

In addition, the EO outlines specific actions for the Attorney General and the Administrator of the Environmental Protection Agency on implementing Title VI of the Civil Rights Act, provisions of Section 309 of the Clean Air Act, which empowers EPA to review and publicly comment on the environmental impacts of federal activities and several sections of the Emergency Planning and Community Right-to-Know Act (EPCRA). EPCRA’s emergency provisions require Local and Tribal Emergency Planning Committees to prepare and annually review chemical emergency response plans, and mandates that facilities maintaining on-site EPCRA Extremely Hazardous Substances (EHSs) in large quantities cooperate with local tribal and state agencies in emergency plan preparation. This includes emergency notifications requiring facilities to report to state, tribal, and local officials when EPCRA EHS’s are released in quantities that are equal to or exceed the minimum reportable quantities.

These reports are to be made available to the public, and covered facilities must also annually submit toxic chemical release inventory forms. Notably, the EO calls for federal agencies to notice and hold a public meeting within six weeks of any toxic chemical release to share details about health risks and precautions to take.

The EO also prioritizes the opportunity to build a sustainable economy focused on workforce training and facilitating an equitable transition to a clean energy future.

Impact on the regulated community

Several of the new environmental justice mandates for federal agencies are expected to have an impact on the regulated community as agencies look to better redress EJ concerns by publicly sharing information from regulated entities, promoting data gathering through environmental impact or compliance assessments, enabling access to remedies, and potentially removing waivers or exemptions linked to human health and environment. 

Specifically, agency Environmental Justice Strategic Plans could result in 1) increased and more transparent reporting requirements; 2) an expanded use of fenceline monitoring; 3) stiffer penalties to deter future violations; and 4) companies adjusting audit and other facility performance evaluation tools to capture data not previously reported due in compliance with now outdated waivers or exemptions.

In addition, projects qualifying for review under that National Environmental Policy Act (NEPA), will require the incorporation of “best available science and information” to assess and understand the direct, indirect, and cumulative impacts on the environmental and human health conditions of surrounding communities. This information should include details related to the race, national origin, socioeconomic status, age, disability, and sex of the individuals exposed. Regulated entities may consider tracking public information related to land and EJ communities near their facilities and enhance data gathering through independent assessments to identify and address EJ concerns. A corporate EJ strategy in line with the EO would support regulated entities in overcoming permitting concerns and ensure uninterrupted operations.

A fundamental theme throughout the EO is its emphasis on enhanced and meaningful involvement of environmental justice community members. This is intended to amplify the voices of people of color, including those of the Black, Latino, Indigenous, Asian American, Native Hawaiian, and Pacific Islander, as well as low-income community members.

The federal government’s efforts to double down on meaningful engagement with underserved and overburdened communities will likely facilitate heightened participation from local EJ community groups and organizations. Companies will have to develop processes for engaging with community groups and federal agencies undertaking EJ assessments. In particular, companies with industrial or manufacturing facilities near EJ communities should focus on their EJ priorities, strategy, and efforts to identify, analyze, and address disproportionate and adverse human health and environmental impacts from their operations. These internal findings will be critical for businesses to examine their EJ performance in order to improve their access to federal benefits and funding and to address enforcement scrutiny by federal departments.

Because the EO highlights the goal of offering economic and workforce benefits to EJ communities, businesses providing these opportunities should be prepared to summarize their progress, particularly if they have plans to capitalize on the increased federal investments targeting EJ communities under programs like Justice40 or other direct spending benefits for projects addressing climate change, clean energy, clean transportation, affordable and sustainable housing, and clean water.

The EO is a significant development that solidifies the participation of EJ communities in federal policy making and projects, implementation of EJ considerations, reliance on science and data to understand impacts, and investment in EJ communities. President Biden’s Administration continues to prioritize EJ to address harms stemming from disproportionate health, environmental, and economic impacts borne by overburdened and vulnerable communities. All signs suggest that this push will continue.

If you have any questions or would like more information about how the EO will impact your organization or operations, please do not hesitate to contact the authors of this note.