Wednesday, February 17, 2021

Biden Administration Executive Order Further Signals Environmental Justice Focus. (Vinson & Elkins)

 As further evidence that the Biden Administration is serious about Environmental Justice, here is an article from the corporate law firm Vinson & Elkins:

On January 27, 2021, President Biden released an “Executive Order on Tackling the Climate Crisis at Home and Abroad.” Among a host of sweeping proclamations and orders involving foreign and domestic policy on climate change, the Biden administration has reaffirmed that Environmental Justice (“EJ”) is one of its core concerns. As we noted in our recent article, the Biden administration has strongly signaled that EJ enforcement matters will be a priority and has clearly laid out a framework of plans to strengthen its enforcement response regarding environmental matters involving EJ. This recent Executive Order will further those goals by coordinating government strategies, providing additional oversight within the executive branch, providing environmental data to monitoring at fenceline communities, and increasing engagement with affected communities, among other things.

Here are the highlights of the Executive Order as pertains to EJ and enforcement:

Section 220 of the Order creates through the Executive Office of the President a White House Environmental Justice Interagency Council (Interagency Council), chaired by the Chair of the Council on Environmental Quality (likely nominee Brenda Mallory) and a White House Environmental Justice Advisory Council (Advisory Council).

  1. The Interagency Council and Advisory Council will, among other things, “ensure a whole-of-government approach to addressing current and historical environmental injustices, including strengthening environmental justice monitoring and enforcement through new or strengthened offices at the Environmental Protection Agency, Department of Justice, and Department of Health and Human Services.”1
  2. The Interagency Council and Advisory Council will also provide recommendations on how to expand and strengthen Executive Order 12898 — which directs federal agencies to address health and environmental effects disproportionately affecting low-income populations, develop a strategy for EJ, and promote federal programs and increase public participation regarding EJ.

In Section 222, the Order goes on to, among other things:

  1. Direct the CEQ Chair to create a “Climate and Economic Justice Screening Tool and . . . annually publish interactive maps highlighting disadvantaged communities.”2 This tool will build off of EPA’s EJSCREEN tool and will help identify disadvantaged communities.
  2. Direct the EPA Administrator to:
    • “strengthen enforcement of environmental violations with disproportionate impact on underserved communities through the Office of Enforcement and Compliance Assurance”; and
    • “create a community notification program to monitor and provide real-time data to the public on current environmental pollution, including emissions, criteria pollutants, and toxins, in frontline and fenceline communities.”

“Frontline communities” is a phrase that has been used to describe communities that experience the “first and worst” consequences of climate change, and a “fenceline community” describes a neighborhood that is immediately adjacent to a facility and is directly affected by the operations of the facility.

  1. Direct the Attorney General at the DOJ to:
    • Consider renaming the “Environment and Natural Resources Division” the “Environmental Justice and Natural Resources Division”;
    • Coordinate with the Office of Enforcement and Compliance Assurance of EPA to “develop a comprehensive environmental justice enforcement strategy, which shall seek to provide timely remedies for systemic environmental violations and contaminations, and injury to natural resources”; and
    • Coordinate EJ issues throughout the DOJ by creating an Office of Environmental Justice.

This Executive Order appears to be the beginning of a serious and sustained effort to elevate EJ issues. This Order is one more indication that EJ issues will likely be prioritized in environmental enforcement matters, which could mean increased scrutiny on facilities that impact EJ communities, and increased legal risk for environmental enforcement matters where there are EJ concerns.



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