*Chelsey Noble is a law clerk in the Richmond office and is not licensed to practice law in any jurisdiction.
On April 21, President Biden signed Executive Order No. 14096 (EO), titled “Revitalizing Our Nation’s Commitment to Environmental Justice For All.” The EO builds on prior executive orders by President Biden related to environmental justice, racial equity, and climate change, as well as on the original executive order on environmental justice issued in 1994 by President Clinton (Executive Order No. 12898). Overall, the EO establishes a stronger framework with specific milestones for implementing environmental justice across federal agencies. Below is a summary of the EO’s key provisions.
The EO reaffirms the whole-of-government approach to environmental justice (EJ). Several aspects of the new order stand out. First, it stresses the enforcement of environmental and civil rights laws as important tools to achieve EJ. Second, the order provides a new, broader definition of EJ, which expands the protected categories to include Indigenous populations and individuals with disability, and it includes affordable housing as an element of achieving EJ. Third, the order shifts the standard for EJ from preventing disproportionate and significant/high adverse human health and environmental effects to disproportionate and adverse effects. Fourth, the EO explicitly identifies climate change and cumulative impacts as effects that must be addressed.
Reporting requirements are established by the EO for EPA and DOJ. EPA is required to report annually to the Council on Environmental Quality (CEQ) and the White House Environmental Justice Interagency Council on its reviews of state air permitting actions. DOJ is required to assess agency efforts to ensure compliance with civil rights laws and report annually to CEQ regarding pending or closed litigation.
The EO requires each federal agency to develop an EJ Strategic Plan within 18 months, and such plans must be posted online. EJ Strategic Plans are to establish agency goals, vision, and priority action items, and outline how regulations, policies, or permits could be used to improve accountability. The EJ Strategic Plans should consider requiring public reporting by regulated entities, expanding the use of pollution measurement tools (e.g., fenceline monitoring), and removing exemptions and waivers that may undermine EJ goals. After submitting their EJ Strategic Plans, agencies will be required to submit an EJ Assessment to CEQ evaluating the effectiveness of the plans.
The EO establishes the White House Office of Environmental Justice within CEQ. This office will be led by a Federal Chief Environmental Justice Officer to be appointed by President Biden. This office is in addition to the already existing White House Environmental Justice Advisory Council. The EO also establishes an EJ subcommittee of the National Science and Technology Council, which is an advisory agency within the White House. The EJ subcommittee will focus on research and data sharing and will prepare an annual EJ Science, Data, and Research Plan. The purpose of the plan is to analyze gaps in the science, identify opportunities, and provide recommendations to agencies. The EO also adds extra members to the existing White House Environmental Justice Interagency Council and requires it to create a public, internet-based clearinghouse containing EJ materials.
Within six months, CEQ must issue interim guidance for agencies regarding implementation of the EO.