Revitalizing Our Nation’s Commitment to Environmental Justice for All — Gravel2Gavel Construction & Real Estate Law Blog — May 1, 2023
Law & Legal

Revitalizing Our Nation’s Commitment to Environmental Justice for All — Gravel2Gavel Construction & Real Estate Law Blog — May 1, 2023

The White House has released the text of the President’s new Executive Order strengthening the Federal Government’s commitment to taking new actions to enhance and promote environmental justice. The Order was published in the Federal Register on April 26, 2023 at 88 FR 25251. President Clinton’s pioneering 1994 Executive Order remains effective, but the Federal Government must, as part of a whole-of-government approach to environmental justice, “build upon and strengthen its commitment to deliver environmental justice to all communities across America.”

Unlike that Order, this Order defines “environmental justice.” For purposes of this new Order, “environmental justice” will also ensure that all adverse human health and environmental effects 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 systematic barriers; and have equitable access to a healthy, sustainable and resilient environment in which to live, play, work, learn, worship and engage in cultural and subsistence practices.

“Federal activity” is now broadly defined as “any agency rulemaking, guidance, policy, program, practice or action that affects or has the potential to affect human health and the environment, including any agency action related to climate change.” This Order references the seven previous Executive Orders devoted to climate change, clean energy and the Inflation Reduction Act.

Section 3 of the Order describes the new government-wide approach to environmental justice, which will apply to all federal executive agencies—independent regulatory agencies are specifically excepted from its requirements (although they will be encouraged to pursue its objective, nonetheless). They are ordered to review their existing statutory and regulatory requirements and consider making appropriate changes and revisions. All federal environmental reviews will be conducted in accordance with the National Environmental Policy Act (NEPA), which will ensure that direct, indirect and cumulative effects of federal actions will be analyzed. Recipients of federal funds will be encouraged to take steps to advance environmental justice. The Environmental Protection Agency (EPA) is specifically directed to use its power under Section 309 of the Clean Air Act to determine whether each agency analyzes and avoids or mitigates disproportionate impacts in environmental justice communities, and to provide annual reports to the CEQ and the White House Environmental Justice Interagency Council. Each agency now must develop and submit to the CEQ an Environmental Justice Strategic Plan that contains the information specified in this Order. Then, two years after the submission of its Environmental Justice Strategic Plan, each agency must provide an Environmental Justice Assessment Plan.

Section 5 of the Order directs the Office of Science and Technology Policy to address the data requirements needed to identify gaps in science, data and research related to environmental justice. An environmental justice Science, Data and Research Plan will be developed, which will provide the basis for recommendations that will be made to the agencies, which are required to take appropriate steps to promote the development of research and data related to environmental justice.

Section 6 is a provision that requires each agency, in accordance with the toxic release reporting provisions of the Emergency Planning and Community Right-to-Know Act (EPCRA), ensure that the public is advised on a timely basis of any releases that may affect them, and which measures are available to address such releases. These reports will be made without regard to the SIC or North American Industry Classification system delineations.

Section 7 discusses at length the function of the White House Environmental Justice Interagency Council and its duties and responsibilities. The membership is composed of 24 additional members.

Section 8 establishes the White House Office of Environmental Justice within the Council on Environmental Quality (CEQ).

Section 9 states that the Chair of CEQ will provide interim and then final guidance to inform agency implementation of this Order.

Section 10 requires that an annual report will be made to the President that describes the implementation of this Order, along with recommendations and insights.


RELATED ARTICLES

Executive Order 14091 and the EPA’s Amended Emergency Response Policies

A Court-Side Seat: An End-of-Year Environmental Update

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