Biden’s Reinvigoration of Environmental Justice in the Administrative State
Nate Lyon
The nation first turned its eyes to environmental justice when an African-American community in North Carolina protested the siting of a hazardous waste landfill in its neighborhood.[1] When the National Association for the Advancement of Colored People staged a massive protest, the concept of environmental justice, which is the guarantee that all people have the right to the same environmental protections and benefits regardless of race, color, or income, came to the front of the national conscious.[2] After these events, the role of environmental justice grew in the administrative state during the 1970s and 1990s with National Environmental Policy Act (“NEPA”) requirements and executive orders. The future of securing just environmental protections for all communities starts with a modern return and strengthening of those standards.
Environmental justice (“EJ”) is rooted in a history of socioeconomic, social, and racial disparities in environmental impacts of government and industry actions. In 1994, President Clinton issued Executive Order (“EO”) 12898 as the first official recognition and implementation of environmental justice in the federal government by laying out guidelines for federal agencies to address EJ issues.[3] Clinton’s EO developed a strategy that promoted enforcement of environmental statutes for the benefit of minority and low-income populations while additionally improving research on the health and environment of those groups.[4] Ultimately, EO 12898 set a foundation for creating and implementing administrative policies through the Council on Environmental Equality’s (“CEQ”) guidance on addressing EJ through the NEPA environmental review process.[5]
EO 12898 provides that “each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.”[6] The directive was implemented through the NEPA environmental review process under the White House Council on Environmental Quality’s (CEQ) 1997 guidance which provided further detail on how federal agencies should identify and address the noted effects during federal environmental review processes.[7] Since the issuance of the EO and CEQ guidance, federal agencies have generally followed and implemented NEPA processes through issuing guidelines, incorporating EJ measures into policies, and included metrics and data analysis in their reports.[8]
The promotion of environmental justice in federal agencies has recently returned to the forefront of government policymaking. In 2020 President Trump instructed the CEQ to adopt certain NEPA rule changes.[9] The purpose of these rule changes was to “streamline the development of infrastructure projects and promote better decision making by the Federal government.”[10] This restricted NEPA review to narrow procedural requirements and broadly restricted agencies’ ability to extensively consider a variety of environmental impacts, including environmental justice, in the required procedures.[11] However, in 2021 and 2023, President Biden issued a series of executive orders[12] and directed the CEQ to publish an update to the 2020 rules[13] that looked to return to and build upon the initial 1978 NEPA regulations, which directed federal agencies to continually implement informed and science-based decision making, among other things.[14] The EO issued in 2021, EO 14096, is entitled “Revitalizing Our Nation’s Commitment to Environmental Justice for All”[15] and intends to broaden the scope of President Clinton’s 1994 EO by offering agencies more comprehensive guidance on how to take EJ-related concerns into consideration during the environmental review processes.[16]
The 2023 EO extends the application and scope of review of NEPA towards environmental justice outcomes.[17] Specifically, it expands EJ consideration requirements to all executive federal agencies and more of their activities, extends EJ analysis requirements to previously uncovered communities, and lowers the threshold and broadens the scope of covered effects on the environment and human health.[18] Additionally, and potentially most importantly for solidifying the role of environmental justice considerations in decision making in the modern administrative state, EO 14096 defines environmental justice as “the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin so that people … are fully protected from disproportionate and adverse human health and environmental effects… and have equitable access to a healthy, sustainable, and resilient environment.”[19] It also provides a clear understanding of a policy for executive agencies to consider while promulgating rules and policies.[20]
How has agency decision-making changed with the new emphasis on environmental justice in the administrative state? Between January 1, 2024 and February 4, 2024, fifteen Environmental Impact Statements (“EIS”) were published on the EPA’s EIS database,[21] and all of these incorporate an environmental justice consideration. A notable example of this incorporation can be found in a Bureau of Land Management (“BLM”) report on the modification of the general plan of operations for a mine in Alaska.[22] The EIS contains a standalone section titled “Environmental Justice” which includes sections on the existing and baseline conditions of the study area, communication and outreach, geographic communities, and an EJ risk screening tool.[23] This section also includes a brief but comprehensive analysis of the repercussions of each agency action alternative on both environmental degradation and human health.[24] In the baseline conditions section, the BLM provides an extensive overview of the considerations required by the NEPA process post- EO 14096 and the fundamental requirement of considering environmental justice implications in any modern agency decision.[25]
Another example that demonstrates agencies’ increased consideration of environmental justice post-EO 14096 is an EIS on the feasibility of managing tidal flooding in a stretch of the San Francisco waterfront led by the US Army Corps of Engineers (“USACE”).[26] In this report, the USACE provide seven alternative plans of action to reduce the risk of flooding from bay water during storms and extreme tides.[27] The report contains a dedicated EJ section in a larger “Human Environment” chapter that is grouped with analysis of the socioeconomic and community profile of the affected area as well as any public health and safety impacts.[28] However, this report takes a modified approach compared to the Alaska mining EIS by simply determining that the affected census tracts “meet the minority criteria for environmental justice in the study.”[29] The study produces a series of tables discussing the summary of potential impacts of each agency alternative and includes significant discussion of environmental justice in each.[30] These inclusions provide a comprehensive analysis of EJ-specific impacts from each of the possible alternative actions, including a final bold-text conclusion on any disproportionate impacts on EJ communities.[31]
Recent Environmental Impact Statements reveal a conscious effort by administrative agencies to prioritize environmental justice outcomes, but also show only a small part of this modern agenda. President Biden’s EO 14096 represents his administration’s attempt to rejuvenate NEPA requirements from the 1970s and 1990s that were meant to serve the environmental justice communities that inspired them. These requirements will ensure that federal agencies, often those responsible for injustices, make transparent decisions and engage with the public and, hopefully, this will usher in a new era of just and fair environmental impacts.
[1] Environmental Justice History, Department of Energy Office of Legacy Management, https://www.energy.gov/lm/environmental-justice-history (last visited Mar. 9, 2024).
[2] Renee Skelton and Vernice Miller, The Environmental Justice Movement, Natural Resources Defense Council (Aug. 22, 2023), https://www.nrdc.org/stories/environmental-justice-movement.
[3] Hilary L. Zarin, Environmental Justice, before and after Executive Order 12898: What are agencies doing, how well are they doing it, and what else can be done?, at 2-3 (Duke Nicholas Institute, 2016).
[4] Id. at 3.
[5] See Council on Environmental Quality, Environmental Justice: Guidance Under the National Environmental Policy Act (Dec. 10, 1997) [hereinafter Environmental Justice Guidance].
[6] Administration of William J. Clinton, Memorandum from the President of the U.S. on Fed. Actions to Address Env’t Just. for the Heads of all Dept’s and Agencies (Feb. 11, 1994).
[7] See Council on Environmental Quality, supra note 5.
[8] Zarin, supra note 3, at 3.
[9] Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 43304 (Jul. 16, 2020).
[10] Council on Environmental Quality, NEPA Modernization, https://trumpwhitehouse.archives.gov/ceq/nepa-modernization/#:~:text=On%20July%2015%2C%202020%2C%20CEQ,making%20by%20the%20Federal%20government (last visited Mar. 9, 2024).
[11] Id.; See also Xan Fishman and Owen Minott, Key Takeaways from CEQ’s Recent NEPA Rule Changes, Bipartisan Policy Center (Apr. 22, 2022), https://bipartisanpolicy.org/blog/key-takeaways-from-ceqs-recent-nepa-rule-changes/.
[12] Exec. Order No. 14096, 88 Fed. Reg. 25251 (Apr. 26, 2023); Exec. Order No. 13990, 86 Fed. Reg. 7037 (Jan. 20, 2021).
[13] National Environmental Policy Act Implementing Regulations Revisions, 87 Fed. Reg. 23453 (Apr. 20, 2022).
[14] Id. at 23454.
[15] Exec. Order No. 14096, supra note 12, at 25251.
[16] Hannah Perls, President Biden Issues Long-Awaited Update to Clinton-era Environmental Justice Executive Order, Harvard Environmental and Energy Law Program (August, 23, 2023), https://eelp.law.harvard.edu/2023/08/nepa-phase2-proposal/.
[17] See Exec. Order No. 14096, supra note 12, at 25253-25256.
[18] Perls, supra note 16.
[19] Exec. Order No. 14096, supra note 12, at 25253.
[20] See generally Id.
[21] Environmental Impact Statement (EIS) Database, Environmental Protection Agency, https://cdxapps.epa.gov/cdx-enepa-II/public/action/eis/search?search=&commonSearch=lastWeek#results (last visited March 9, 2024) (filter results in “Federal Register Publication Date” to “From 1/01/2024” through “To 02/04/2024”).
[22] U.S. Dep. of Agric. Forest Serv., Greens Creek Mine North Extension Project: Supplemental Environmental Impact Statement: Volume 1 (2024).
[23] Id. at 3-312 – 3-317.
[24] Id. at 3-317 – 3-318.
[25] Id. at 3-314.
[26] U.S. Army Corps of Eng’rs, San Francisco Waterfront Coastal Flood Study Draft Integrated Feasibility Report and Environmental Impact Statement (2024).
[27] Id. at ES-1, ES-3.
[28] Id. at 32-36.
[29] Id. at 36.
[30] Id. at 101, 129, 149.
[31] Id. at 129-130.