The Biden administration continues to make many major environmental policy actions aimed at climate change, enforcement, and several other issues. GT continues to track these changes in key areas on our E2 Law Blog, including this one on environmental justice through our “Transition Thoughts” series.

President Joe Biden is expected to sign an executive order that will elevate environmental justice within the U.S. Environmental Protection Agency (EPA) by establishing two environmental groups: The White House Environmental Justice Advisory Council and the White House Environmental Justice Interagency Council. Both groups are expected to report to the Chair of the White House Council on Environmental Quality, which will report directly to the president. The two groups will revisit the Executive Order 12898 on environmental justice, signed in 1994 by former President Bill Clinton.

As you may recall from my previous posts, Executive Order 12898 does not create any legal cause of action; however, it does weave environmental justice awareness throughout the federal government, requiring EPA to consider how its siting, permitting, and enforcement decisions impact the health of poor people and people of color. The regulated community should expect an overhaul of the EPA’s External Civil Rights Compliance Office and a prioritization of investigations of complaints under Title VI of the 1964 Civil Rights Act by “fenceline communities,” those minority and poor communities located adjacent to pollution sources.

Regarding the EPA cleanup and redevelopment programs such as the Brownfields, Superfund, and RCRA programs, businesses should expect EPA to create regulatory incentives to promote more equitable distribution of economic benefits in minority and low-income communities where cleanup and redevelopment projects are proposed. In addition to economic benefits, EPA will have a renewed focus on enforcement of environmental cleanup standards and regulations within poor and minority communities.

Industry should also expect a “reboot” of the EPA’s EJSCREEN tool, which is an EPA internet database, readily available to the public, that identifies communities living proximately to multiple, permitted pollution sources. Business can access this tool to identify “fenceline communities” located adjacent to existing or proposed permitted facilities such as manufacturing facilities, gas stations, power plants, paper mills, and other permitted operations that are sources of permitted air and water pollution.

Finally, the regulated community should expect to see more state legislation focused on environmental justice and siting decisions such as in New Jersey and proposed federal environmental justice legislation to reinstitute Title VI private right of action written out in the United States Supreme Court’s 2001 decision in Alexander v. Sandoval. Prudent businesses should take certain precautionary actions now to prepare for the potential impact of state and federal environmental justice policy on permitted facilities and redevelopment projects.