Biden EPA Starting to Make Environmental Justice Goals Concrete

According to the EPA, environmental justice is “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.”

Importantly, environmental justice concerns are not new. For example, in February 1994, President Clinton signed Executive Order 12898 entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.” Pursuant to EO 12898, “each Federal agency shall make achieving environmental justice part of its mission.”

Despite decades of awareness of environmental justice issues, both federal and state governments have struggled to identify concrete action to address the reality of persistent disproportionate impacts from environmental stressors.

Earlier this month, the Biden EPA undertook an effort to make environmental justice goals more concrete. EPA released its draft strategic plan on October 1, 2021, including a new foundational principle for the agency “to advance justice and equity” by “tak[ing] decisive action to advance environmental justice and civil rights.”

While many of the articulated goals of EPA’s new strategic plan are familiar—and there are numerous objectives that remain general and subject to further analysis—the document is noteworthy in its specificity. For example, EPA states that, by September 20, 2026, it will:

• Conduct 55% of inspections annually at facilities that “affect communities with potential environmental justice concerns.”
• “Reduce the number of community water systems in Indian country still in noncompliance with health-based standards … from 110 to 70.”
• “Provide 1,722 Tribal, small, rural, or underserved communities with technical, managerial, or financial training or assistance to improve operations of their drinking water or wastewater systems.”
• Ensure that each year, “40% of CERCLA, Oil, Homeland Security, and FEMA exercises with EPA participation address environmental justice concerns.”
• Undertake at least 40 “international climate engagements” that result in a “commitment or action to reduce greenhouse gas (GHG) emissions, adapt to climate change, or improve resilience in a manner that promotes equity.”

Interestingly, by design or mistake, in several instances, EPA indicated a desire to be specific but did not include the actual numerical goal (instead simply saying “X”). For instance, EPA stated:

• “By September 30, 2026, EPA programs with direct implementation authority will take at least X significant actions that will result in measurable improvements in Indian country.”
• “By September 30, 2026, provide assistance to XX states, territories, local governments, and communities with environmental justice concerns to take action to anticipate, prepare for, adapt to, or recover from the impacts of climate change.”
• “By September 30, 2026, XX% of all significant EPA actions with environmental justice implications will clearly demonstrate how the action is responsive to environmental justice concerns and addresses disproportionate impacts.”

The EPA is currently seeking comment on the draft plan. The comment period closes on November 12, 2021.

© 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.