Encourages Cumulative Impacts Analysis and Expands Public Participation
Executive Order 14096, Revitalizing Our Nation’s Commitment to Environmental Justice for All, seeks to deepen the Biden administration’s “whole-of-government” approach to environmental justice (EJ) by fully integrating the consideration of unserved and overburdened communities and populations into all aspects of federal agency planning and delivery of services. The Executive Order (EO), which was released on April 21, 2023, builds on prior EJ initiatives strengthening the role of scientific, data-based research and analysis, along with the integration of EJ considerations within administrative functions. Each agency shall now make achieving EJ part of its mission.
There are several key changes, impacts and implementation deadlines to be aware of moving forward.
A New Definition of EJ
The EO revises the long-standing definition of “Environmental Justice” as:
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.
Changing EJ Impact Analysis
Several important changes are embedded in this new definition. For those seeking a federal permit, the most important change is that the new definition replaces the phrase “disproportionately high and adverse” (EO 12898) with “disproportionate and adverse.” The Fact Sheet on the EO notes that “removing the word ‘high’ eliminates potential misunderstanding that agencies should only be considering larger disproportionate effects.” This change will effectively lower the bar for the types of impacts that must be avoided or mitigated.
This broader definition incorporates climate change, health risks and cumulative impacts. These changes likely signal the need to incorporate new data and tools into EJ analyses for the National Environmental Policy Act (NEPA). EPA has expressed interest in incorporating cumulative measure into its EJScreen tool. The Center for Disease Control (CDC) has developed its EJ Index, which does offer a cumulative EJ ranking (score)
Expansion of EJ Communities
The EO also moves beyond low-income and minority communities to include a broader “communities with environmental justice concerns.” Such communities, according to the EO, can include:
- “Geographic locations that have a significant proportion of people who have low incomes or are otherwise adversely affected by persistent poverty or inequality”
- “Places with a significant proportion of people of color”
- “Geographically dispersed and mobile populations, such as migrant farmworkers”
- Those with “the legacy of racial discrimination and segregation, redlining, exclusionary zoning, and other discriminatory land use decisions or patterns”
To embed concentration on EJ needs within the delivery of services, the Biden Administration has modified existing programs and introduced additional oversight. Some of these modifications include the creation of subcommittees, establishment of EJ representatives and development of EJ strategic plans within federal agencies.
These changes also require and encourage public meetings and summits, which are vital to ensuring participation and oversight from engaged stakeholders. For instance, the Environmental Justice Subcommittee under the Office of Science and Technology Policy and the White House Environmental Justice Interagency Council shall hold an annual summit on the connection of science, data and research with policy and action on EJ.
What to Watch for Next
A number of anticipated actions will influence the evolution of EJ analysis. EPA is holding a May meeting to discuss potential revisions to its EJScreen tool, which the Agency uses to identify areas with potential EJ concerns. One topic for discussion is developing a cumulative impacts score. Such a move would align with the EO’s inclusion of “the cumulative impacts of environmental and other burdens” in the new EJ definition. EPA is also promoting the May webinars jointly hosted by the CDC and Health and Human Services (HHS) on the EJ Index (EJI) that was released last August. The EJI is the first national, place-based tool designed to measure the cumulative impact of environmental burden through the lens of human health and healthy equity. This webinar series may signal renewed interest in the EJ Index, which has received little attention.
The Federal Energy Regulatory Commission is also working to advance EJ for projects under its purview. At its March 2023 Roundtable on Environmental Justice and Equity in Infrastructure Permitting, cumulative impacts and expanded community engagement were topics of interest. Stakeholder and advocacy groups urged the Commission to begin to deny projects over EJ concerns. Written comments related to the Roundtable may be filed until May 15, 2023.
For projects with a federal permitting component, it will be important to watch upcoming CEQ actions. In addition to being charged with issuing interim guidance for the implementation of this EO by October 2023, CEQ is working toward proposing a set of broader “Phase 2” changes to the NEPA regulations. These regulations will aim to expand public involvement and “meet the nation’s…environmental justice challenges.”
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