On October 1, 2021, the Environmental Protection Agency (EPA or Agency) issued for public comment its Draft Strategic Plan to Address Climate Change and Advance Environmental Justice and Equity (Draft Plan). Although the Draft Plan itself, once finalized, would be unenforceable against EPA and would not have binding impacts on regulated industry, it provides a comprehensive roadmap for how the Biden Administration intends to imbed its marquee environmental objectives of climate change and environmental justice (EJ) into virtually every existing Agency program for years to come.

For this reason, industry stakeholders should consider the Draft Plan’s overarching objectives’ impacts on their businesses and participate in the commenting process accordingly, either independently or as part of industry organizations. Comments on the Draft Plan are due on November 12, 2021.

Key Takeaways

• International Climate Change Collaboration: The Draft Plan announces EPA’s intention to continue working with the international community to align global approaches to tackling climate change. This likely lays the groundwork for additional global compacts related to addressing climate change.
• Integrating Civil Rights into EPA’s Mission: The Draft Plan would shift EPA’s mission from environmental protection in general to equitably distributed and enforced environmental protection, including for communities that have not historically benefitted from EPA’s efforts. The Draft Plan explicitly describes EPA’s intention to fulfill its duties under specified civil rights laws more proactively.
• Enhanced Coordination with Agency Partners: The Draft Plan reiterates that the country’s environmental regulatory scheme contemplates a cooperative relationship with other federal agencies and with states and tribes. As such, under the Draft Plan, EPA intends to align with these other authorities more than it has previously done.
• Enforcement Initiatives Will Have Staying Effect: President Biden’s objectives may have the most staying power through enforcement by setting National Enforcement Initiatives and bringing enforcement actions that will survive beyond his Administration. The extra-regulatory injunctive relief secured as a result of these enforcement initiatives could produce some of the most immediate, tangible results in EPA’s program areas.

Analysis and Outlook

The Draft Plan rests on four Agency principles – (1) follow the science; (2) follow the law; (3) be transparent; and (4) advance justice and equity. Guided by these principles, the plan would memorialize seven goals across agency-wide areas and specific programs, in addition to establishing four cross-cutting agency strategies. The ambitiousness of the Draft Plan comes as no surprise – President Biden and Vice President Kamala Harris prioritized climate change and EJ issues during their campaign and have taken implementation steps during the first ten months of the Administration. In some respects, the Draft Plan simply memorializes a strategy that was already well underway.[1]

Nonetheless, because the Draft Plan makes tangible the aspirations, scope, and architecture of EPA’s climate change and EJ agenda, it may face headwinds from both industry and environmental groups alike. There is no federal legislation specifically addressing EJ, nor has Congress passed comprehensive economy-wide legislation addressing climate change. Regulatory and programmatic actions borne from the plan must still comply with statutory requirements regarding costs and benefits, science, technological feasibility, procedures, and other considerations that underpin environmental statutes and administrative law. Resolving questions about the legal bases for the most ambitious programs may take years and—in a judicial climate that is increasingly skeptical of administrative action—are likely to face rigorous scrutiny.

From an environmental non-governmental organization (ENGO) perspective, the Plan may feel too generic and ephemeral, compounded by multiple Plan goals with target dates after President Biden’s first term ends, inviting questions regarding accountability and permanence. A new administration would have its own priorities, potentially subjecting the goals to revision or elimination. The Administration’s call for “infusion” of EJ and climate change into all aspects of the EPA’s actions will likely lead the agency to target and publicize even minor gains in those areas that ENGOs find inadequate. For instance, EPA is already adding greenhouse gas emission (GHG) or EJ “gloss” to press releases for its programs and enforcement actions that would otherwise seem fairly traditional, where the EJ and/or GHG benefits were never a key driver, or that are arguably overshadowed by environmental benefits in other areas. Additionally, Plan implementation rests on a heavy menu of other actions and plans (for example the state EJ Plans) that will have their own cadences and procedural encumbrances.

Stakeholders have relatively few opportunities to provide formal feedback to the Agency on its climate change and EJ goals. Evoking climate change and EJ as the driver for agency actions lends a level of political urgency and momentum. With this many objectives at play, at least some will come to fruition. Industry should use this opportunity to raise concerns or otherwise comment on the Draft Plan.

A Closer Look

The Draft Plan outlines overarching goals in the three agency-wide areas — climate change, EJ, and enforcement — and in four program-specific areas — clean air, clean water, clean land, and protection from chemicals. EPA outlines specific objectives, performance goals, and strategies that it aims to achieve and implement in furtherance of each of its seven sweeping goals. We summarize key elements of each goal in greater detail below, in addition to analyzing how EPA might implement the goals.

1.  Agency-Wide Goals

Climate Change. EPA promises to take “bold steps” that “aggressively tackle the climate crises” by reducing GHG emissions, and by taking steps to plan for and mitigate the effects of climate change. EPA explains that climate change is a “crisis for the United States and the world” that justifies the Agency in taking “all measures within its authorities” to move away from carbon-intensive systems. In the short term, EPA will likely evaluate all available legal tools, grant authorities, and public accountability mechanisms to drive GHG reductions from industry as rapidly as possible.

• For FY 2022-2023, EPA’s priority will be to effectuate the phasedown of hydrofluorocarbon production and consumption with its new authorities under the American Innovation and Manufacturing Act (AIM Act).
• Long term, EPA plans a bevy of new rules limiting GHGs, including additional GHG emission limits for light-duty, medium-duty, and heavy-duty vehicles, including policies encouraging zero-emission vehicles; limits for the electric power sector under Clean Air Act section 111(d); and for the oil and gas industry.
• EPA also expects to participate in “partnership programs” that will facilitate a transition to “a clean energy economy,” including through use of the ENERGY STAR program; through efforts targeting black carbon; and by promoting a circular economy through initiatives geared toward landfills and others. 

Embedding Civil Rights/Environmental Justice in EPA’s Core Work. A key focus of the Draft Plan is to integrate justice, civil rights, and equity, into the nation’s environmental protection enterprise, which EPA acknowledges “will require significant transformations” (p. 20, emphasis added) in how [it] understands and implements all aspects of its work. EPA’s overall emphasis on civil rights is novel, and represents a shift in EPA’s approach and mission: EPA states that it “must ensure the Agency is following and implementing the Civil Rights Act just as equally as environmental statutes.” (p. 25, emphasis added). EPA’s summary of its approach to infusing civil rights into its mission includes:

• EPA advances three objectives in support of its overarching civil rights goal: (1) promoting EJ and civil rights at all levels of government — federal, state, tribal, and local — through capacity building; (2) embedding EJ and civil rights into EPA’s programs, policies, and activities; and (3) strengthening civil rights enforcement in EJ communities. The Draft Strategic Plan also outlines specific performance goals with measurable targets and strategies underlying each of these objectives.
• EPA also outlines plans to overhaul its External Civil Rights Compliance Office (ECRCO), which is responsible for ensuring that any entity receiving EPA funds complies with non-discrimination laws, from a reactive to a proactive program. Pursuant to the Draft Strategic Plan, ECRCO will strive to use the agency’s authority to initiate affirmative investigations in overburdened communities, issue policy guidance, and secure timely and effective resolutions to discrimination, with support of the Agency’s Office of Environmental Justice to broaden these efforts. This would represent a significant shift in ECRCO’s function: since its 1996 establishment, ECRCO has been consistently marred by a backlog of Title VI complaints, and accompanying criticism, despite repeated recent efforts at reform. Accordingly, ECRCO is likely to play a much more prominent and visible role in carrying out EPA’s civil rights duties.

Enforce Environmental Laws and Ensure Compliance. EPA plans to “use vigorous and targeted” enforcement to “ensure accountability” and “clean up contamination.” Existing tools in EPA’s toolkit to advance these objectives include more frequently using its “imminent and substantial endangerment” enforcement authority, returning to using supplemental environmental projects in settlements in coordination with the Department of Justice, and relying more on third-party assurance for additional confidence that violations have been addressed. The Draft Plan further highlights additional EPA enforcement goals and strategies:

• EPA will use all tools available for injunctive relief and enforcement, including reliance on EJSCREEN for targeting enforcement efforts, invoking its authority under CERCLA to “protect overburdened communities,” and seeking restitution for victims of environmental crimes.
• EPA will expand and modernize its monitoring technology, particularly at the most likely sources of non-compliant emissions impacting climate change, such as methane emissions from oil and gas wells. These may include an expansion of the “Next Generation Compliance” initiatives popular during the Obama Administration.
• EPA will reduce “the number of ‘Referred No Complaint Filed’ (RNCF) civil judicial cases” more than 2.5 years old to 93 or less by 2026. As of June 30, 2018, there were 129 cases more than 2.5 years old.

2.  Program Area Goals

The Draft Plan also proposes a number of objectives for individual programs:

• Chemicals and Pesticides. EPA plans to complete a host of Toxic Substances Control Act (TSCA) risk evaluations, reviews of TSCA risk mitigation requirements, and 78 pesticide registration review cases, among other objectives. Those reviews might give greater consideration to disproportionate exposure in EJ communities.
• Ensuring Clean and Safe Water; Protecting Waterbodies. EPA’s water-related goals focus on ensuring safe drinking water, reliable water infrastructure, and protecting and restoring waterbodies and watersheds. While touting the nation’s drinking water supply as one of the “most reliable and safest” globally, EPA acknowledges that communities across the country still lack access to adequate drinking water, wastewater, and stormwater infrastructure, making them vulnerable to regulated and emerging contaminants, such as lead and PFAS. The plan reaffirms EPA’s commitment to ensuring clean and safe water for all, “especially for vulnerable communities of color, underserved communities, and Tribal communities.”
• Ensure Clean and Healthy Air for Communities. EPA aims to reduce air pollution and improve indoor air quality, with a particular focus on communities that are disproportionately impacted. EPA’s strategies for achieving certain long-term performance goals for improving air quality suggest the agency may undertake additional rulemaking and enforcement. For example, the agency explains it will “reconsider” the 2020 PM NAAQS, and “lead the development of … emission reduction strategies and multipollutant regulations.” In general, industry should expect to see heightened attention from EPA and stricter scrutiny under existing rules.
• Safeguard and Revitalize Communities. EPA plans to prioritize cleanup of legacy contamination and emerging pollutants, and increase inspections of high-risk facilities. EPA plans to ensure cleanup work accounts for the local communities’ goals for the site and will include consideration of climate and weather science as “standard operating practice in Superfund cleanup projects.”

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. For more information, please contact the authors.