Environmental Justice

Biden Administration Promises to Double Down on Environmental Justice.

By Megan McLean

Seemingly overnight, the topic of environmental justice is popping up in board rooms and zoom meetings around the country. Everyone wants to know what the Biden administration is going to do about it and how companies can stay ahead of this issue.

The U.S. Environmental Protection Agency (EPA) defines environmental justice as 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.” Likewise, environmental justice communities are typically considered to be communities of color and low-income communities that deal with higher amounts of pollution and health risks.

President Biden on Environmental Justice
Buoyed by the recent rise in social justice efforts and the recognition of health disparities underscored by the COVID-19 pandemic, President Biden’s July 2020 Plan to Secure Environmental Justice and Equitable Opportunity promised to prioritize environmental justice in a “whole-of-government” approach if elected president.

True to his word, President Joe Biden has put more focus on environmental justice in his first 100 days than any president before him, devoting time and energy to put the issue at the forefront of many agency decisions and signaling even greater ambitions for the future.

In his first month in office, Biden issued two important executive orders that feature strong environmental justice components, including the creation of the first ever White House Environmental Justice Advisory Council and direction to agencies to consider and account for the issue as they plan projects, develop regulations, and engage in other activities that could impact environmental justice communities. The executive orders also emphasize an increased focus on environmental justice in government spending, enforcement actions, and project development permitting.

Following President Biden’s lead, EPA Administrator Michael Regan has directed all EPA offices to clearly integrate environmental justice considerations into their plans and actions. He called EPA offices to (1) strengthen enforcement efforts in environmental justice communities and Tribal Nations; (2) increase engagement with environmental justice communities and Tribal Officials affected by permitting decisions; and (3) prioritize environmental justice communities in making grant award decisions.

EPA’s Office of Enforcement and Compliance Assurance is also ramping up its environmental justice work. Lawrence Starfield, the office’s acting assistant administrator, has come up with new approaches to strengthen enforcement in environmental justice communities. In a recent memo, Starfield outlined the following plan:

  1. Increased Inspections. The EPA is planning to increase the number of inspections in environmental justice communities.
  2. Innovative Relief. The agency is also seeking to emphasize remedies that benefit communities. EPA plans to prioritize the prevention of further pollution, mitigation of past pollution, as well as some more innovative forms of relief, including fence line monitoring, transparency initiatives, supplemental environmental projects (SEPs), and restitution for victims of environmental crimes when seeking relief in enforcement actions.
  3. Early Relief. Similarly, EPA is looking for ways to obtain early relief for communities. Typically resolving environmental violations in communities takes a long time, but EPA is hoping resolve more matters quickly through the increased use of administrative orders and preliminary injunctions.
  4. Increased Communication. EPA expects to start sharing more information with environmental justice communities about the facilities in their area, the types of pollution they are exposed to, and the enforcement activities underway. In his memo, Starfield also encouraged EPA to involve environmental justice communities in developing cleanup and reuse agreements in order to make sure their concerns are properly addressed.
  5. Picking Up Slack. Finally, in situations where EPA feels an environmental justice community’s health may be impacted and state and local regulators are not taking timely or appropriate action, Starfield encouraged EPA to step in and bring enforcement actions on their own.

In addition to enforcement, environmental justice also is taking on a more important role in siting projects, so companies should expect that the traditional processes for pursuing the issuance of permits to start to change to incorporate more community participation and a great focus on the affected communities.

What This Means For You
Under this administration, you can expect to see increased enforcement activity in environmental justice communities so it will be more important than ever to mitigate foreseeable risks. But, in the event of an enforcement action, the agency’s focus on innovative relief, including its renewed emphasis on SEPs may create unique opportunities to resolve compliance issues in a way that benefits both companies and their communities.

Going forward, reaching out to communities, including tribal governments, is going to be key for companies, especially when looking for a path to approval for a project. Environmental justice issues often arise when a company seeking a permit does not engage with the community enough. If companies increase and improve their outreach going forward, they may be able to address residents’ concerns enough to mitigate costly delays, litigation, and even project termination. Moreover, increased engagement helps improve a company’s reputation within local communities, is looked upon favorably by agencies, and can have a positive effect on its brand overall.

Megan E. McLeanis an associate at Husch Blackwell LLP. She confidently handles a variety of legal matters involving environmental permitting and compliance with state and federal environmental laws and regulations, as well as health and safety requirements under OSHA. McLean can be reached at [email protected].

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