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| Hilary Jacobs |
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| Julius Redd |
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| Stacey Halliday |
Environmental justice — defined by the U.S. Environmental Protection Agency as 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" — has gained new momentum in recent years.
Biden's Plan to Secure Environmental Justice and Equitable Opportunity, issued in July, promises to build on this momentum in significant and unprecedented ways, prioritizing environmental justice in a whole-of-government approach to the full extent of executive branch power. Since November, the actions of the Biden team unequivocally signal that the new administration will double down on its environmental justice aspirations, alongside ambitious climate goals — and will do so with or without Congress.
Biden made big environmental justice promises long before Election Day, and all signs suggest that he intends to keep them. The incoming administration's inclusion of long-standing environmental justice advocates on their transition team signals continued dedication to advancing stated environmental justice policy goals — particularly with respect to the work of the EPA and the White House Council on Environmental Quality.
These early staffing decisions suggest that the Biden team is planning to hit the ground running, using the full extent of executive branch authority to achieve its primary goals, including environmental and climate justice.
Notably, many of the specific policy proposals outlined in the Biden-Harris environmental justice platform — including enhancing agency accountability, reversing certain Trump-era policies, expanding enforcement and increasing monitoring — are achievable solely through executive action. This will have important repercussions if the Republican Party retains U.S. Senate control following the upcoming Georgia runoff election.
Senior Leadership and Transition Picks With Environmental Justice Expertise
The Biden administration's slew of staffing announcements in recent weeks shows a governmentwide emphasis on environmental justice and equity principles. Notably, environmental justice is a key theme for the Biden EPA agency review team, led by Patrice Simms, vice president for healthy communities at Earthjustice and former environmental justice professor at the Howard University School of Law.
Similarly, the Council on Environmental Quality's team is led by another long-standing environmental justice advocate, Cecilia Martinez, co-founder of the Center for Earth, Energy and Democracy, who was recently recognized by Time Magazine as one of the 100 most influential people of 2020 for her "pursuit of environmental justice and the inclusion of equity and justice in environmental policy."
Though Biden's pick for EPA administrator has not yet been announced by the transition team, candidates rumored to be under consideration include many with environmental justice expertise — including Heather McTeer Toney, former EPA regional administrator for Region 4 and current senior director of the Moms Clean Air Force. Outgoing California Air Resources Board head Mary Nichols is also a leading candidate for the role, though she faces criticism from environmental justice advocacy organizations for failing to address the needs of California's most vulnerable communities.
Maximizing Executive Authority
With the likelihood of comprehensive environmental justice legislation unlikely to pass in what may remain a divided Congress, the Biden administration is expected to lean heavily on executive orders to achieve its environmental justice objectives. Executive orders are powerful — albeit easily reversible — tools, with scope that can vary from creating new environmental justice-focused roles across the federal government, to directing federal agencies to prioritize environmental justice goals. Actions likely to feature heavily in these environmental justice-targeted Biden executive orders include:
"Revising and Reinvigorating" E.O. No. 12898
This order, signed by former President Bill Clinton in 1994, directs federal agencies to identify and address disproportionately high and adverse human health or environmental effects of their programs, policies and activities on minority and low-income populations. The Biden White House plans to collaborate with local environmental justice leaders to develop performance metrics for ensuring accountability and implementation of E.O. No. 12898, and establish regular performance reviews of agencies to track progress.
Rescinding or Amending Trump-Era Actions Affecting Environmental Justice
The Biden administration is expected to rescind or amend Trump-era executive orders, rulemakings, policies and other actions that implicate environmental justice, including those seeking to streamline permitting processes, encourage deregulatory action, limit enforcement — including prohibiting the use of supplemental environmental projects — and remove consideration of impacts in the implementation of environmental regulations. This may not be easy, as the outgoing administration has put in place several obstacles, including administrative procedures, effective Nov. 18, that now require notice and comment to modify or withdraw active EPA guidance documents.
Enhanced Enforcement
Biden has stated that he will create a new Environmental and Climate Justice Division within the U.S. Department of Justice that will be charged with implementing the Environmental Justice Act, legislation sponsored by Sen. Cory Booker, D-N.J., in 2019, "to the extent possible by executive action," supporting plaintiff-led climate litigation, and addressing legacy pollution impacting overburdened communities. In addition, the incoming administration is likely to employ enforcement of civil rights laws, such as Title VI of the Civil Rights Act of 1964, to achieve environmental justice through directives to the DOJ and the EPA, and reform of the EPA's External Civil Rights and Compliance Office.
Increased Monitoring and Public Access to Data
The Biden-Harris environmental justice platform heavily emphasizes the use of science, including monitoring and mapping technology to enhance access to data concerning cumulative environmental impacts on communities. More specifically, the EPA will be required to mandate new monitoring requirements in fenceline and frontline communities, provide additional funding to support citizen science, and create new environmental justice data aggregation tools — such as a climate and economic justice screening tool — designed to identify overburdened communities.
Limited Legislative Avenues With Expanded State Partnerships
While the ultimate makeup of Congress may thwart the incoming administration from advancing broad environmental justice legislation, there may be bipartisan support for legislation that implicates, but does not entirely focus, on environmental justice.
For example, environmental justice advocates have predicted that the infrastructure reform could serve as a noncontroversial vehicle for investing in overburdened communities. Even so, the intensity of recent partisanship after a bitter election is likely to present an obstacle.
While action on Capitol Hill may be limited, we can certainly expect expanded state-federal coordination from the Biden administration, with environmental justice as a prime target. In recent years, states have led the charge in developing and implementing environmental justice policy in the absence of federal legislative activity.
If he faces a divided Congress, the president-elect may capitalize on this trend, and seek opportunities to partner with state attorneys general in targeted enforcement initiatives. Beyond enforcement, Biden's proposals include collaborating with states on several environmental justice issues, including testing for lead in drinking water, providing targeted funding for infrastructure improvements in disadvantaged rural communities, and providing funding for states to develop local climate disaster mitigation plans.
Bottom Line
While environmental justice has seen increased momentum in recent years, we are heading into new territory, with federal leadership placing unprecedented focus on achieving environmental justice priorities. While the new administration may not have the congressional support to pass a dedicated, overarching federal environmental justice law, stakeholders should expect to see transformative change beginning on day one.
Hilary T. Jacobs is an associate and Julius M. Redd is a principal at Beveridge & Diamond PC.
Stacey J. Halliday is an independent consultant and a former special counsel at the U.S. Environmental Protection Agency.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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