Achieving Biden's EJ Agenda

• Author: Paul Freeman, Tyler O'Connor, and Lynn Phan
• Position: Attorneys in Crowell & Moring's energy, environment, and natural resources practice
• Pages: 42-46

42 | THE ENVIRONMENTAL FORUM Reprinted by permission from The Environmental Forum®, May/June 2021.

Copyright © 2021, Environmental Law Institute®, Washington, D.C. www.eli.org.

COVER STORY 2

Achieving Biden’s EJ Agenda

e president annou nced an ambitious enironmental justice program on his r st day

in oce, taking several a dministrative actions. But durable, lasting policy will depend

on an all-of-goernment approach to bring equitable relief to vulnerable communities

One of the new administration’s

most ambitious goals is to reorient

federal policymaking to prioritize

environmental justice. President

Biden signed Executive Order

14008 on January 27 to “secure

environmental justice and spur

economic opportunity for disadvantaged communi-

ties that have been historically marginalized and over-

burdened by pollution and under investment.” Many

applauded the administration’s swift and comprehen-

sive commitment, including Robert Bullard, known

as “the father of environmental justice,” who said the

president’s “all in one” approach is an “advancement

in accepting what environmental justice really is.” Bul-

lard believes the order “sends a clear message that at the

highest level of government, these actions will be taken

seriously.” Yet he along with many other advocates of

what in this article we’ll call EJ acknowledge that the

road ahead will not be easy.

If the administration is to execute on EO 14008,

it will have to confront data and programmatic gaps

in the government’s ability to identify and map EJ

communities, assess the cumulative impacts of pro-

posed government actions, and make EJ an enforce-

ment priority. is article addresses the key challeng-

es to accomplishing the administration’s stated goal

and identies discrete actions that the government

could take to update its EJ data collection capabili-

ties; establish EJ as a key component of environmen-

tal enforcement strategy; and incorporate EJ criteria

into siting, rulemaking, and permitting.

e Environmental Protection Agency denes en-

vironmental justice as “the fair treatment and mean-

ingful 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.” In

regular parlance, it refers to government policies that

address disparate environmental and public health

impacts of pollution on minority and economically

disadvantaged communities.

e federal government rst began studying EJ

issues in the 1980s, after community organizers

brought nationwide attention to the landlls sited

in predominantly Black neighborhoods. However,

EJ didn’t become an important consideration in

government decisionmaking until 1994, when Presi-

dent Clinton signed EO 12898, requiring each fed-

eral agency to “make achieving environmental justice

part of its mission by identifying and addressing, as

appropriate, disproportionately high and adverse hu-

man health or environmental eects of its programs,

policies, and activities on minority populations and

low-income populations.” While the order brought

attention to the EJ movement, it had little substantive

force, as it did not require that EJ play a determining

factor in siting, rulemaking, or permitting decisions.

It left it to federal agencies to adopt and implement

their own EJ policies — a task some have yet to fulll.

In the nearly three decades since EO 12898 was

signed, presidential administrations have diered

in their approach to EJ. Some administrations have

strengthened environmental protection laws and ad-

Paul Freeman, Tyler O’Connor,

and Lynn Phan are attorneys i n Crowell

& Moring’s energ y, environme nt, and natural

resources practice.