Environmental Justice Update: New Biden Administration Executive Order Expands EJ Across Federal Government; New Jersey Rolls Out State EJ Program

Given that Earth Day occurred last week, it’s no surprise we have two major developments to report:

• First, President Biden announced a new Executive Order directing federal agencies other than the US Environmental Protection Agency (EPA) to prioritize EJ issues; and
• Second, New Jersey rolled out final versions of its EJ regulations.

We discuss these in turn.

New Federal Executive Order

On April 21, the Biden Administration entered a new “Executive Order on Revitalizing Our Nation’s Commitment to Environmental Justice for All.” The Executive Order includes provisions requiring all federal agencies to “make achieving environmental justice part of its mission.” Specific highlights:

• Each agency is required to review EJ concerns implicated by agency activities in a manner reminiscent of what has been required for EPA, up to and including creating an Environmental Justice Strategic Plan, similar in many respects to EPA’s Equity Action Plan. (See our discussion of EPA’s Equity Action Plan here.)
• “No later than 2 years after the submission” of its EJ Strategic Plan, each agency is required to submit an “Environmental Justice Assessment” that evaluates the effectiveness of the Strategic Plan’s implementation.
• Expand interagency coordination and launch the Office of Environmental Justice within the White House Council on Environmental Quality (CEQ). Within one year of the Executive Order, the chair of CEQ is directed to submit a report to the President that includes each agency’s EJ strategic plan. In future years, this report will also include Environmental Justice Assessments.
• The director of the Office of Science and Technology Policy is required to establish an EJ Subcommittee of the National Science and Technology Council to evaluate data gaps related to EJ and identify for opportunities for agencies to coordinate to close these gaps, including through consideration of knowledge of indigenous people.

The Executive Order is believed to have been in the works for some time and is consistent in spirit with other federal programmatic developments occurring in recent months. (See here, here, here, and here.) The Executive Order’s requirements — reviewing data gaps and ways each agency’s authority implicates EJ concerns; evaluating barriers to participation in EJ communities; and periodic assessment of activities – closely align with what has already been required from EPA. And to be sure, other agencies including the US Departments of Defense, Transportation, Interior, and Agriculture have programming that can have significant EJ impacts that should be assessed. (The Ninth Circuit’s decision in Center for Community Action v. Federal Aviation Administration provides one good example of EJ concerns implicated by a non-EPA federal agency. Here’s our discussion of that case.)

New Jersey Program Announced

Final New Jersey EJ regulations — the draft versions of which we mentioned in passing in January — were announced this week. The rules impose processes which may significantly limit future development or permit renewal in New Jersey EJ communities through imposing more stringent requirements to secure most environmental permits.

In general, there are two primary threshold applicability criteria:

• Presence in an EJ “overburdened community.” Under New Jersey’s rule, “overburdened communities” — include those where “at least 35 percent of the households qualify as low-income” “where at least 40 percent … identify as minority or as members of a State-recognized tribal community” or where “at least 40 percent of the households have limited English proficiency” can be identified through New Jersey’s EJMAP tool.
• Type of facility. Under the new rules, New Jersey’s EJ regime applies to eight types of facilities, including “major sources of air pollution”; “resource recovery facilities or incinerators”; sludge processing facilities, combustors, or incinerators; sewage treatment plants with a permitted flow of more than 50 million gallons per day; transfer stations and large recycling facilities; scrap metal facilities; landfills; and many medical waste incinerators.

For facilities meeting these criteria, potential permittees must first request initial screening data from stage regulators. This analysis will involve assessing whether the involved community “is subject to one or more adverse environmental and public health stressors” in comparison to non-EJ New Jersey communities. Sites over this threshold then subject to greater permitting scrutiny, most notably including submission of an “environmental justice impact statement,” intended to assess whether the facility would cause “disproportionate impact” to the involved community; more stringent public participation requirements; and potentially additional permit conditions or denial if “disproportionate impacts” cannot be avoided.

Two major takeaways from these rules:

• First, while New Jersey’s EJ regulations are among the first state regulations which have been issued, other states including New York, Connecticut, Colorado, and Illinois are in varying stages of considering either EJ-focused changes to statutory law or regulations. Given that New Jersey’s rules are now final, it is likely that other states will consider them as a model.
• Second, New Jersey’s EJ regulations potentially pose limitations on operations in EJ communities. For sure, because the regulations add additional steps to the permitting process, they likely will increase the cost of securing permits and the time period necessary to do so.

Major developments in the EJ space occur at a rapid clip. Members of the firm’s Environmental & Energy Groups regularly monitor state and federal EJ efforts. Find our most recent “EJ Issues to Watch” post here and contact us with questions about how federal and state EJ efforts or programs can affect you.