Biden Administration Issues New Executive Order on Environmental Justice

On February 16, 2023, the Biden Administration issued a new Executive Order (EO) “Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” (A fact sheet summarizing the action is here.) The EO builds on EO 13985, signed on the first day of the administration. The new EO requires U.S. EPA and other agencies to develop annual plans to “address barriers they (underserved communities) face in accessing and benefitting from the agency’s policies, programs, and activities.” Some of the requirements for government agencies included in the EO are:

• Each agency must form an equity team in the next 30 days that includes senior officials from their program, policy, civil rights, regulatory, science, technology, grants, data, budget, public engagement, and legal offices to develop strategies to make sure that their programs delivery services equitably for all Americans, including those living in underserved communities. Initial plans from these teams are required to be completed by this September, and then must be updated annually, including reports on progress and milestones under the Environmental Justice Scorecard being developed to track progress under the Justice40 program.
• The existing Interagency Working Group on Equitable Data is required to improve its “collection, analysis, and use of demographic data to advance equity, and to regularly report on progress to the White House and the American public.” The EO does not provide specifics on how the group is to achieve those gains, however.
• The formation of a White House Steering Committee on equity to coordinate government-wide efforts, including assistance and review of each agency’s annual equity action plans, to ensure that those plans are in line with the administration’s initiatives around EJ.
• The Office of Management and Budget (OMB) must issue government-wide guidance to support equitable decision making including how environmental and technical assistance can equitably be employed. The EO also calls on agencies to engage with OMB on matters of financial equity.
• Agencies are to “increase engagement with underserved communities by identifying and applying innovative approaches to improve the quality, frequency and accessibility of engagement.”
• Agencies are to help both rural and urban communities access federal resources to advance equitable development policies such as community wealth building. The EO includes direction on how to help underserved communities access federal resources and requires agencies to identify displacement risks that may occur as a result of federal facility siting and development and to engage with any potentially affected community.
• The EO sets an overall goal that 15% of federal dollars in FY2025 be awarded to small businesses owned and operated by socially and economically disadvantaged individuals and directs OMB to set an FY2024 goal to work with each agency to establish an agency-specific goal.
• Finally, the EO directs agencies to affirmatively advance civil rights, directing them to “comprehensively use their respective civil rights authorities and office to prevent and address discrimination and advance equity for all, including to increase the effects of civil rights enforcement and to increase public awareness with civil rights principals.” This comes along with a requirement that those agencies have their most senior civil rights official report directly to the head of the agency.

What Does it Mean?

The new EO is like many of the documents and announcements we have seen come out of the administration and is largely focused on getting the various agencies across the government on board with the administration’s EJ agenda. This agenda includes more structure and controls being put into place to ensure that those agencies are acting with EJ in mind and coordinating their efforts with other government agencies and the administration. The EO does not have a lot of content that would immediately impact industry, though there could be aspects that “trickle down” through the agencies directly affected by the EO and how they implement the requirements outlined for them.

If you have concerns about the potential implications of this latest executive order and you’d like to discuss them, feel free to contact your ALL4 Project Manager or Rich Hamel. We’ll continue to monitor EJ guidance from the administration and states for its potential impact on permitting in the future. We can also help you evaluate permitting risks from EJ concerns to regulatory issues and assist in developing a strategy to make the permitting of your project as efficient as possible.