With a historic election all but in the rear view mirror, a key question is whether and how President-elect Joseph R. Biden, Jr. and Vice President-elect Kamala Harris will deliver on the sweeping environmental justice (EJ) agenda advanced on the campaign trail. Defined by the EPA 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,” EJ has gained new momentum in recent years. See our recent article for additional pre-election background on federal and state EJ activity.

The President-elect’s July 2020 Plan to Secure Environmental Justice and Equitable Opportunity (Biden-Harris EJ Platform) promises to build on this momentum in significant and unprecedented ways, prioritizing EJ in a “whole-of-government” approach to the full extent of executive branch power. Since November, the actions of the Biden team unequivocally signal that the new administration will double down on its EJ aspirations, alongside ambitious climate goals, and will do so with or without Congress.

Key Takeaways

• Biden made big EJ promises long before Election Day and all signs suggest that he intends to keep them.
• The incoming administration’s inclusion of longstanding EJ advocates on their transition team signals continued dedication to advancing stated EJ policy goals – particularly with respect to the work of the U.S. Environmental Protection Agency (EPA) and the White House Council for Environmental Quality (CEQ).
• These early staffing decisions suggest that the Biden team is planning to hit the ground running on Day One, using the full extent of executive branch authority to achieve its primary goals, including environmental and climate justice.
• Notably, many of the specific policy proposals outlined in the Biden-Harris EJ Platform – including enhancing agency accountability, reversing certain Trump-era policies, expanding enforcement, and increasing monitoring – are achievable solely through executive action. This will have important repercussions if the Republican Party retains Senate control following the January 5, 2021 Georgia runoff election.

Senior Leadership and Transition Picks with Environmental Justice Expertise

The Biden Administration’s slew of staffing announcements in recent weeks shows a government-wide emphasis on EJ and equity principles. Notably, EJ is a key theme for the EPA Agency Review Team (read: transition team), led by Patrice Simms (Vice President, Healthy Communities, EarthJustice and former EJ professor at the Howard University School of Law). Similarly, CEQ’s team is led by another longstanding EJ advocate, Cecilia Martinez (co-founder for the Center for Earth, Energy and Democracy), who was most recently recognized by Time Magazine as one of the 100 most influential people of 2020 for her “pursuit of environmental justice and the inclusion of equity and justice in environmental policy.”

Though not yet announced by the transition team, rumored candidates for EPA Administrator prominently feature those with EJ expertise – including Heather McTeer Toney, former EPA Regional Administrator for Region 4 and current Senior Director of the Moms Clean Air Force. Outgoing California Air Resources Board head, Mary Nichols, is also a leading candidate for the role, though she faces criticism from EJ advocacy organizations for failing to address the needs of California’s most vulnerable communities.

Maximizing Executive Authority

With the likelihood of comprehensive EJ legislation unlikely to pass in what may remain a divided Congress, the Biden Administration is expected to lean heavily on executive orders (EOs) — signed, written, and published directives from the President that have the force of law — to achieve its EJ objectives from Day One. EOs are powerful, albeit easily reversible tools, with scope that can vary from creating new EJ-focused roles across the federal government, to directing federal agencies to prioritize EJ goals. Actions likely to feature heavily in these EJ-targeted Biden EOs include:

• “Revising and reinvigorating” Executive Order 12898: EO 12898, signed by President Bill Clinton in 1994, directs federal agencies to identify and address disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority and low-income populations. The Biden White House plans to collaborate with local EJ leaders to develop performance metrics for ensuring accountability and implementation of EO 12898, as well as establish regular performance reviews of agencies to track progress.

• Rescinding or Amending Trump-Era Actions Impacting EJ: The Biden Administration is expected to rescind or amend Trump-era EOs, rulemakings, policies, and other actions that implicate EJ, including those seeking to streamline permitting processes, encourage deregulatory action, limit enforcement (including prohibiting the use of supplemental environmental projects), and remove consideration of impacts in the implementation of environmental regulations. This may not be easy, as the outgoing administration has put in place several obstacles – including administrative procedures (effective November 18, 2020) that now require notice-and-comment to modify or withdraw active EPA guidance documents.

• Enhanced Enforcement: President-elect Biden has stated that he will create a new Environmental and Climate Justice Division within the Department of Justice that will be charged with implementing Senator Booker’s Environmental Justice Act of 2019 “to the extent possible by executive action,” supporting plaintiff-led climate litigation, and addressing legacy pollution impacting EJ communities. In addition, the incoming administration is likely to employ enforcement of civil rights laws, such as Title VI of the Civil Rights Act of 1964, to achieve EJ through directives to DOJ and EPA and reform of EPA’s External Civil Rights and Compliance Office.

• Increased Monitoring and Public Access to Data: The Biden-Harris EJ Platform heavily emphasizes the use of science, enhanced monitoring, and mapping technology to enhance the availability of and access to data on cumulative impacts to EJ communities. More specifically, EPA will be required to mandate new monitoring requirements in fenceline and frontline communities, provide additional funding to support citizen science, and create new EJ data aggregation tools (such as a Climate and Economic Justice Screening Tool) designed to identify EJ communities.

Limited Legislative Avenues with Expanded State Partnerships

While the ultimate makeup of Congress may thwart the incoming administration from advancing broad EJ legislation, including those recently introduced in 2020, there may be bi-partisan support for legislation that implicates, but does not entirely focus, on EJ. For example, EJ advocates have predicted that the infrastructure reform could serve as non-controversial vehicle for investing in EJ communities. Even so, the intensity of recent partisanship after a bitter election is likely to present unavoidable obstacles. While action on Capitol Hill may be limited, we can certainly expect expanded state-federal coordination from the Biden Administration, with EJ as a prime target. In recent years, states have led the charge in developing and implementing EJ laws in the absence of federal legislative activity. If he faces a divided Congress, the President-elect may capitalize on this trend, and seek opportunities to partner with state attorneys general in targeted enforcement initiatives. Beyond enforcement, Biden’s proposals include collaborating with states on several EJ issues, including testing for lead in drinking water, providing targeted funding for infrastructure improvements in disadvantaged rural communities, and providing funding for states to develop local climate disaster mitigation plans.

Bottom Line

While EJ has seen increased momentum in recent years, we are heading into new territory, with federal leadership placing unprecedented focus on achieving EJ priorities. While the new administration may not have the Congressional support to pass a dedicated, overarching federal EJ law, stakeholders should expect to see transformative change, beginning on Day One.

This article was re-published as an "Expert Analysis" by Law360 here (subscription required).

Beveridge & Diamond's Environmental Justice practice has been at the forefront of EJ issues for decades, bringing specialized private sector and government experience to bear. We represent multinational companies and municipal clients in complex disputes and high-profile project development, corporate ethics and governance, environmental compliance, and investigations related to EJ and Title VI of the Civil Rights Act of 1964 enforcement.