Proposed Climate Bill Would Advance Biden Administration’s Focus on Environmental Justice

On March 2, 2021, Democratic leaders of the House Committee on Energy & Commerce released the Climate Leadership and Environmental Action for our Nation’s Future Act (“CLEAN Future Act” or “Act”), a bill reflecting many of the top climate and clean energy priorities of the Biden Administration and Congressional Democrats. While focusing largely on a range of measures intended to achieve net-zero greenhouse gas (GHG) emission by 2050, notably Title VI of the bill would, if ultimately enacted, also further advance the administration’s environmental justice objectives, as first articulated earlier this year Executive Order 14008. In particular, the bill would, among other measures:

• Provides stand-alone authority for any person to bring a private right of action to try to seek relief or compel agencies to comply with requirements under sections 603 and 604 for addressing environmental justice;
• Restrict the issuance of Clean Air Act Title V air permits for major sources in areas determined to be overburdened by pollution;
• Amend the Safe Drinking Water Act to require increased testing and monitoring of injection wells used for enhanced oil recovery and to sequester up to 110 percent of carbon dioxide used in the process by 2050;
• Amend the Safe Drinking Water Act to require testing and disclosure of fluids and propping agents used in hydraulic fracturing within one mile of drinking water sources;
• Amend the Solid Waste Disposal Act to impose additional requirements beyond those in 40 C.F.R. 257 to require additional opportunities for public notice and engagement concerning the permitting of coal combustions residual units, the imposition of financial assurance requirements, and additional groundwater monitoring and closure requirements for surface impoundments and other coal combustion residual units.;
• Amend the Solid Waste Disposal Act to require regulation of drilling fluids, produced water, and other wastes associated with oil and natural gas exploration and production activities;
• Establish an Office of Energy Equity within the U.S. Department of Energy with direction to develop an agency-wide environmental justice strategy, reduce or stabilize the energy costs in underserved or disadvantaged communities, and increase access to energy conservation measures in those communities;
• Establish a $1 billion climate justice grant program intended to respond to the impacts of climate change in environmental justice communities;
• Set a 10-year deadline for cleanup of all federal Superfund sites that are vulnerable to the effects of climate change;
• Require that state hazardous waste disposal plans neither create nor exacerbate disproportionate impacts on environmental justice communities prior to federal approval;
• Increase air quality monitoring for toxic air pollutants and public access to air quality information in fenceline communities and expand the national ambient air monitoring network in overburdened communities;
• Require environmental justice training for employees at federal agencies and establish an environmental justice training program for communities to better identify and address disproportionately adverse human health or environmental effects;
• Provide funding for technical assistance grants to facilitate engagement by environmental justice communities in regulatory decision-making processes conducted under the Clean Air Act and Solid Waste Disposal Act;
• Codify the Interagency Federal Working Group on Environmental Justice and the National Environmental Justice Advisory Council, and require relevant federal agencies to integrate environmental justice into their respective missions as directed by President Clinton’s 1994 E.O. 12898; and
• Amend Section 1452 of the Safe Drinking Water Act to authorize the appropriation of federal funds to create a new, standalone program to pay for lead service line removal across the country, and prioritizing the replacement of lead service lines impacting disadvantaged communities.

While the viability of the bill remains in doubt, the mere inclusion of a title dedicated to environmental justice reflects the elevated status and priority that Congressional Democrats are giving for environmental justice as they consider ways to respond to the climate crisis. While the very nature of an executive order is to direct and prioritize executive branch efforts under existing statutory authorities, the broad regulatory and enforcement authorities contained in the CLEAN Future Act highlight the shortcoming of executive actions that use only existing authorities to address environmental justice concerns. E.O. 14008 sought to build on the Clinton Administration’s environmental justice executive order prioritizing the consideration of environmental justice throughout the federal government, but the measures contained within the CLEAN Future Act would provide unprecedented legal authorities for the executive branch to take specific actions to respond to environmental justice concerns.