On April 28, 2023, President Biden signed an executive order entitled “Executive
Order on Revitalizing Our Nation’s Commitment to Environmental Justice for All”
(“the Order”). The purpose of the Order is to renew a pledge made in Executive
Order 12898 of February 11, 1994 (“the 1994 Order”) and more effectively implement
the tenets in the prior executive order. The Order also works in conjunction
with other executive orders President Bien has implemented during his time in
office. April’s Order describes its purpose as more evenly distributing the human-environmental
impact of government and business on people across race, income levels, and
other demographic considerations. The Order describes a basic framework by
which this is to be accomplished through regulatory and executive agencies.
The Order defines Environmental Justice:
“‘Environmental justice’ means the just treatment and meaningful involvement of
all people, regardless of income, race, color, national origin, Tribal
affiliation, or disability, in agency decision-making and other Federal
activities that affect human health and the environment so that people: (i) are
fully protected from disproportionate and adverse human health and
environmental effects (including risks) and hazards, including those related to
climate change, the cumulative impacts of environmental and other burdens, and
the legacy of racism or other structural or systemic barriers; and (ii) have equitable access to a healthy,
sustainable, and resilient environment in which to live, play, work, learn,
grow, worship, and engage in cultural and subsistence practices.”
The Order is meant to implement a
government-wide approach, requiring every agency to analyze its potential
rule-making, permitting, and other functions through the lens of environmental
justice. Each agency is meant to identify and address adverse impacts of
federal action and non-federal action on the environment specifically as they relate
to communities with environmental justice concerns. This includes analyzing
federal regulations and law for their impact on implicated communities. The Order
seeks to give communities with environmental justice concerns greater opportunities
to participate in deliberative processes that would affect their environment. The
Order also includes a mandate to provide economic opportunities more generally
to the individuals of the applicable communities.
The Order will require each executive
agency to develop an Environmental Justice Strategic Plan, to be made available
online to the public. A plan is to outline “the agency’s vision, goals,
priority actions, and metrics to address and advance environmental justice . .
. .” These may include: (i) “increasing public reporting by regulated entities;”
(ii) increasing pollution measurement and other environmental monitoring; (iii)
analyzing and altering potential remedies to penalize and deter non-compliance
with regulations; and (iv) “considering whether to remove exemptions or waivers
that may undermine the achievement of human health or environmental standards.”
The changes included in this Order will have far-reaching implications for businesses and government agencies alike. The Order will impact permitting processes, especially related to NEPA. The Order also repeatedly mentions cumulative impacts on the relevant communities but does not provide guidance on how to determine or analyze cumulative impacts. Cumulative impacts likely concern various and disparate causes of effects on the environment in certain places, both related to federal action and not. The key to navigating these analyses will likely be developed over time and will significantly affect the ways and locations in which entities do business.
