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Environmental Edge
June 2, 2021

What Environmental Justice Could Mean in the Biden Administration

Environmental Edge: Climate Change & Regulatory Insights

The White House Environmental Justice Advisory Council (WHEJAC) released an interim final report on May 13, 2021 outlining recommendations for the Biden-Harris Administration’s approach to environmental justice. WHEJAC is an advisory council made up mostly of nongovernmental individuals, and therefore, these recommendations do not purport to reflect the policies of the Biden-Harris Administration. However, as was made clear during the campaign and over the past few months, environmental justice is top of mind for President Biden and his team. With the elevation of this advisory council to the White House, WHEJAC’s recommendations provide an important look into how advocates are pushing and advising the administration on its whole-of-government approach to environmental justice.

President Biden established WHEJAC via Executive Order 14008 (Tackling the Climate Crisis at Home and Abroad) to advise the White House Environmental Justice Interagency Council (WHEJIC) and the Chair of the Council on Environmental Quality (CEQ). The interim final report released May 13 is the first major component of WHEJAC’s efforts to advise the development of a government-wide approach to environmental justice. One of the most anticipated aspects of the report was recommendations for the federal government’s implementation of the Justice40 initiative. First discussed during President Biden’s campaign, Justice40 sets a goal that 40 percent of the overall benefits of federal investments flow to disadvantaged communities. While praised by advocates, President Biden’s Justice40 announcement left many questions, including how to define “disadvantaged communities” and how to quantify “investment benefits.” The interim report provides WHEJAC’s recommendations for answering these and other questions.

As required by EO 14008, WHEJAC’s recommendations address Justice40, the Climate and Economic Justice Screening Tool, and suggest revisions to President Clinton’s Executive Order 12898. The following discussion highlights the major recommendations contained in WHEJAC’s report and outlines what comes next for the advisory council.


WHEJAC provided recommendations regarding Justice40 investments and incentives in several areas, including clean energy and energy efficiency, clean transit, affordable housing, workforce development, remediation and reduction of legacy pollution, clean water infrastructure, and climate mitigation and resiliency. Many of the council’s recommendations involve expanding and refining existing programs at several agencies. For example, WHEJAC recommended establishing a grant program at the Energy Department to incentivize community solar projects that prioritize households with the greatest energy burden. (Energy burden refers to the percentage of gross household income spent on energy costs.) The council recommended investing in electrified fleets of school buses and sanitation trucks and other public vehicles. In addition, WHEJAC made several policy and investment recommendations to deal with legacy pollution, such as requiring that EPA conduct civil rights compliance reviews under Title VI of the Civil Rights Act of states with delegated environmental authorities.

In addition to recommendations regarding where to invest federal dollars, WHEJAC recommended definitions and parameters for “investment benefits,” a major question left open by President Biden’s executive order. Ultimately, WHEJAC’s report likely leaves more questions than answers. The council provided examples of what it believes should and should not be considered a “benefit.” Chief among the recommendations is that “100% of investments must do no harm to Environmental Justice communities.” Examples of investment benefits include renewable energy projects, clean energy jobs training, lead water pipe replacement, public transportation, community microgrids, and community and green housing. WHEJAC also urged federal agencies to establish outreach offices to promote awareness of federal program funding opportunities among environmental justice organizations and communities, while also requiring environmental justice and stakeholder engagement before entities can receive federal program grants and other financial support.

Perhaps of greater interest is what WHEJAC does not consider to be benefits. For example, WHEJAC explicitly recommended that carbon capture and storage (CCS); direct air capture; nuclear power procurement; and the establishment or advancement of carbon markets (e.g., cap and trade) should not be considered benefits for purposes of the Justice40 initiative. The report incorporated by reference an article by Jacqueline Patterson, the director of the environmental and climate justice program at the NAACP, who urged avoiding carbon pricing as a “false solution.” The advisory council also rejected “incentives for investor-owned utilities” as benefits.

Significantly, in response to these recommendations, National Climate Advisor Gina McCarthy spoke at a May 18 event that the President is “not taking anything off the table,” including nuclear and CCS. While McCarthy acknowledged WHEJAC’s concerns with these technologies, she made clear “the president is interested in all-of-the-above strategy.” McCarthy indicated that concerns regarding market mechanisms such as cap-and-trade would need to be thoughtfully addressed, but she stopped short of ruling such programs out. Secretary Granholm similarly touted the inclusion of CCS funding in President Biden’s American Jobs Plan while visiting Houston, Texas on May 28. The comments of leading federal officials already show that, while the administration is grappling with WHEJAC’s recommendations, it is nonetheless forging ahead with its climate-related agenda. Nonetheless, the Biden-Harris Administration will likely address these issues carefully as they frame their policy proposals moving forward.

Climate and Economic Justice Screening Tool

Executive Order 14008 requires CEQ to create a geospatial Climate and Economic Justice Screening Tool. WHEJAC provided recommendations regarding how such a tool should be developed and deployed by federal agencies. Importantly, WHEJAC identifies the indicators that it believes should be included in the screening tool, including:

  • Exposure burdens, such as air quality and drinking water contamination;
  • Proximity to potential hazards, such as Superfund sites and industrial facilities;
  • Sensitive populations, which could include data about rates of maternal death and lung disease;
  • Demographic and socioeconomic status factors, such as racial and ethnic demographics and homeownership rates;
  • Energy, which refers to data about energy shut-offs and community access to solar and other renewable energy sources for household energy needs;
  • Economic development and investment, such as the number of minority-owned businesses and average debt rates for communities;
  • Climate vulnerability, which includes data such as the percentage of elderly persons living alone and the amount of green space in communities; and
  • Infrastructure, such as data regarding access to Internet and broadband, affordable housing, and banking services.

Clinton Executive Order 12898

In the final section of WHEJAC’s report, the advisory council provided suggested language for an executive order that would update the policies contained in President Clinton’s 1994 environmental justice order. President Clinton issued Executive Order 12898 to focus federal attention on federal actions’ environmental and human health effects on minority and low-income populations. Per directives in President Biden’s EO 14008, the advisory council developed recommended language to update EO 12898. Those recommendations include adding language to cement the policy that “affirmatively advancing equity, civil rights, racial justice, equal opportunity, and environmental justice is the responsibility of the whole of our Government.”

WHEJAC also recommended expanding EO 12898’s section on subsistence consumption of fish and wildlife to include cultural practices reliant on biota, requiring that agencies—to the maximum extent practicable—consider and communicate the consumption practices and cultural practices of environmental justice communities that may be impacted by agency action. The recommendations include requiring that the Department of the Interior, in coordination with WHEJAC and after consultation with tribal leaders, coordinate steps to ensure the revised order’s provisions “apply equally to Native American programs.”

What’s Next

The co-chairs of WHEJAC stated in the report’s cover letter that the advisory council will consider and develop recommendations over the next few months regarding the EJ Scorecard, which is required by Executive Order 14008 and would measure agencies’ progress on incorporating and implementing environmental justice policies and programs and the administration and implementation of Justice40, as well as final recommendations on the Climate and Economic Justice Screening Tool.

In the meantime, WHEJAC sent its interim recommendations to Brenda Mallory, the Chair of CEQ. Mallory is tasked with reviewing the recommendations and developing a government-wide environmental justice strategy, which includes the Justice40 initiative and the Climate and Economic Justice Screening Tool. CEQ, the Office of Management and Budget, and the National Climate Advisor have 120 days from the date of EO 14008 to publish their recommendations for Justice40. CEQ has six months from the date of the order to create the Screening Tool. Whether and to what extent the recommendations of groups like WHEJAC will influence administration policy remains to be seen. Undoubtedly, the issue of environmental justice is front and center in the minds of Biden-Harris appointees across the federal family, and all stakeholders should be considering what these principles mean for their own advocacy strategies and operations on the ground.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.