President Joseph Biden Jr. has promised to up the ante for environmental justice communities (EJCs) by “rooting out the systemic racism in our laws, policies, institutions, and hearts.” Although a complete rollout of Biden’s plan has not yet been revealed, his campaign plans and initial actions allow for some educated analysis as to what industry can expect for future regulations and enforcement actions.

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To reach an understanding of likely industry impacts, it’s important to look at the evolution of environmental justice (EJ) regulations to date.

EJ history

“The environmental justice movement was started by individuals, primarily people of color, who sought to address the inequity of environmental protection in their communities,” according to the EPA. “The Civil Rights Movement of the 1960s sounded the alarm about the public health dangers for their families, their communities and themselves.”

Many believe the event that launched the EJ movement was a wave of protests in response to North Carolina’s announcement that it would move 210 miles of roadside soil contaminated with harmful polychlorinated biphenyl (PCB) chemicals to a Warren County landfill. Warren County was one of only a handful of counties in the state at the time whose population was primarily black. The state won that battle against the environmental advocates, but it brought to light the issue “that the nation's environmental problems disproportionately burden its low-income people of color,” according to the Natural Resources Defense Council (NRDC).

Although there had been previous protests about toxic environmental issues by communities of color, the Warren County protests marked the first time this issue gained national attention.

Studies were conducted and statistical data confirmed what the environmental advocates and communities of color had been protesting: “… [T]he General Accounting Office in 1983 confirmed that hazardous waste sites in three southeastern states were disproportionately located near black communities,” according to the NRDC. “Four years later, the United Church of Christ produced a landmark report (Toxic Waste and Race) showing that three out of five Latino and black Americans lived near a toxic waste site.”

In 1994, the federal government acted when President William J. Clinton signed Executive Order (EO) 12898, establishing EJ offices in the Department of Justice (DOJ), the EPA, and other federal agencies.

The framework for EJ programs is now well established.

“The Biden administration’s EJ focus will likely be evolutionary rather than revolutionary,” speculates an article by Houston-based Vison & Elkins published in Lexology. “The differentiators may prove to be the level of focus and resources devoted to EJ issues and the extent to which EJ practice and programs become further embedded throughout government. Past and ongoing EJ programs and picks for key environmental and policy roles help inform the direction of the Biden administration on EJ enforcement.”

The EPA’s stated goal “was to fully integrate EJ into compliance and enforcement by integrating EJ concerns ‘into the planning and implementation of the Office of Enforcement and Compliance Assurance’s (OECA) program strategies, case targeting strategies, and development of remedies in enforcement actions to benefit overburdened communities,’” according to Vinson & Elkins. “EPA planned to implement these goals by advancing EJ in:

• “its National Enforcement Initiatives”;
• “the targeting and development of compliance and enforcement actions”;
• “enhancing the use of enforcement and compliance tools to advance EJ in affected communities”;
• “seeking remedies”; and
• “enhancing communication with affected communities.”

The Obama administration released its EJ 2020 Action Agenda in October 2016, which included three goals:

1. Deepen EJ practice within EPA programs to improve the health and environment of overburdened communities.
2. Work with partners to expand our positive impact within overburdened communities.
3. Demonstrate progress on significant national EJ challenges.

Progress has been made in each of these areas, according to Vinson & Elkins.

Little data have been presented by the EPA over the years to discern EJ enforcement trends.

“In 2017, EPA added enforcement statistics, such as final administrative compliance orders, administrative penalty orders, consent decrees, and Supplemental Environmental Projects (SEPs), to its EJ progress report,” says Vinson & Elkins. “From 2018 through 2020, EPA shifted to providing statistics on how many EJ screenings it had performed in its enforcement and compliance work.… However, this could change under the Biden Administration. The EJ 2021 Progress Report could turn out to be a helpful summary of EJ enforcement trends.”

Biden’s plan

Biden’s campaign website contains details about his thoughts and stated goals for addressing EJ:

“Any sound energy and environmental policy must … recognize that communities of color and low-income communities have faced disproportionate harm from climate change and environmental contaminants for decades,” according to Biden’s campaign website. “It must also hold corporate polluters responsible for rampant pollution that creates the types of underlying conditions that are contributing to the disproportionate rates of illness, hospitalization, and death from COVID-19 among Black, Latino, and Native Americans. That means officials setting policy must be accountable to the people and communities they serve, not to polluters and corporations.”

Biden’s campaign website outlined the following actions:

• Revise and reinvigorate the 1994 EO 12898 on federal actions to address EJ in minority populations and low-income populations.
• Establish an environmental and climate justice division within the DOJ.
• Direct the EPA and DOJ to pursue EJ cases to the fullest extent permitted by law, and when needed, seek additional legislation to hold corporate executives personally accountable, including jail time where merited.
• Instruct the attorney general to implement Senator Cory Booker’s Environmental Justice Act of 2019; increase enforcement; strategically support ongoing plaintiff-driven climate litigation against polluters; address legacy pollution; and work hand in hand with the EPA’s Office of Civil Rights.
• Elevate and reestablish the groups as the White House Environmental Justice Advisory Council and White House Environmental Justice Interagency Council. These two councils will be charged with revising EO 12898 to address current and historic environmental injustice in collaboration with local EJ leaders. They will also be tasked with developing clear performance metrics to ensure accountability in the implementation of the EO.
• Once the revised EO is finalized, the White House Environmental Justice Advisory Council and White House Environmental Justice Interagency Council will publish an annual public performance scorecard on its implementation.
• Overhaul the EPA External Civil Rights Compliance Office, and ensure that it brings justice to frontline communities that experience the worst impacts of climate change and fence line communities that are located adjacent to pollution sources, beginning with the following actions:
• Revisit and rescind the EPA’s decision in Select Steel and its Angelita C. settlement, which allowed state environmental agencies to issue dangerous permits and allowed the Agency to conduct its business in a way that harmed communities.
• Conduct a rulemaking and open a public comment process to seek Americans’ input on agency guidance for investigating Title VI administrative complaints.
• Work with Congress to empower communities to bring these cases themselves by reinstituting a private right of action to sue Title VI, which was written out in the Supreme Court’s 2001 decision in Alexander v. Sandoval.

Additional support for increased enforcement matters comes from the Environmental Council of the States’ (ECOS) September 2020 letter to the EPA Office of Enforcement and Compliance Assurance (OECA) requesting that the OECA increase emphasis on EJ compliance efforts as new EPA National Compliance Initiatives (NCIs) are determined.

What to expect

Increased enforcement actions, including stiff penalties, for facilities located near EJ communities or whose operations impact EJ communities are likely.

Another tool in the EPA’s arsenal that is expected to be resurrected in settlements is the use of SEPs. These projects “provide tangible environmental or public health benefits to the affected community or environment,” according to the EPA.

Biden’s campaign goals clearly call for increased collaboration with EJ community activists, as well as definitive actions to improve EJ communities.

The Biden administration is also expected to expand and build upon the EPA’s EJSCREEN tool, which will provide industry with a helpful tool to “identify and track potential EJ matters,” according to Vinson & Elkins.

The article also offers the following proactive advice for industry:

• “Reviewing the compliance status of facilities or operations that are near or may be seen to be affecting EJ communities and considering the defensibility of the compliance status.”
• “Being proactive in creating or updating internal policies regarding EJ. Environmental justice policies and goals provide a way for regulated entities to both show that EJ is important and to help manage EJ issues.”
• “Identifying relevant community leaders and developing strategies for increased and effective EJ community outreach.”
• “Maintaining and strengthening lines of communications with federal and state agencies on EJ issues or monitoring ongoing EJ developments.”