Biden Administration Directs Agencies to Implement and Enforce Environmental Justice Measures

On January 27, President Biden issued an executive order detailing the first steps to achieve his U.S. foreign and domestic policy on climate change, environmental justice (EJ), and clean energy. In particular, the executive order directs all federal agencies to make achieving EJ part of their missions and, most immediately, for the U.S. Environmental Protection Agency (EPA)to “[s]trengthen enforcement of environmental violations with disproportionate impact on underserved communities. . .” To facilitate such a shift, the order further requires the deployment of new tools designed to identify and protect “fenceline” communities carrying a disproportionate burden of pollution and harmful environmental effects. These tools include:

• Creating a “Geospatial Climate and Economic Justice Screening Tool” (building upon EPA’s existing EJ Screen mapping tool);
• Publishing EJ risk screening maps annually; and
• Making environmental compliance and monitoring data available to the public in “real-time” in “frontline and fenceline” communities.

As a complement to enhanced EPA enforcement, the executive order directs the U.S. Department of Justice (DOJ) to work with EPA’s Office of Enforcement and Compliance Assurance in order to develop a “comprehensive environmental justice enforcement strategy,” aimed at ensuring “timely remedies for systemic environmental violations and contaminations and injury to natural resource.”

Implementation of President Biden’s executive order poses significant implications for the regulated community, particularly for those industries and those facilities operating within or in close proximity to historically underserved communities. By mapping EJ communities more vividly and by making real-time compliance data more readily available to the public, EPA, DOJ and citizen groups will be able to identify and target facilities for prioritized inspection, investigation, and ultimate enforcement (including through citizen suits) in order to protect fenceline communities. Companies should begin to assess and mitigate forthcoming EJ-driven enforcement risks.