Vol. 53-1 Washington Update

Washington Update

Environmental Justice Action Plan for Land Protection and Cleanup Programs

Introduction

On September 30, 2022, the U.S. Environmental Protection Agency’s (EPA) Office of Land and Emergency Management (OLEM) finalized the Environmental Justice Action Plan: Building Up Environmental Justice in EPA’s Land Protection and Cleanup Programs (EJ Action Plan).[1] The Plan focuses on advancing environmental justice in OLEM’s programs, including Brownfields, Emergency Response, Superfund, Solid Waste Management and Corrective Action, and Underground Storage Tanks.[2] The OLEM will work with the newly created Office of Environmental Justice and External Civil Rights (OEJECR)[3] to implement the plan.[4]

Background

The EPA defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.”[5]   Environmental justice has been a focus in the Biden Administration.[6] Within days of taking office, President Biden issued two executive orders intended to lay the foundation for the administration’s environmental justice goals.[7] Together, these two executive orders—Executive Order 13985 and Executive Order 14008—direct federal agencies to “promote and work toward proactively achieving environmental justice.”[8]

In January 2022, OLEM released a draft of the EJ Action Plan to further effectuate the administration’s goals.  After hosting multiple public engagements sessions and reviewing comments, OLEM finalized the EJ Action Plan in September 2022.

Overview

The EJ Action Plan lays out various projects, as well as tools and practices, to apply to OLEM’s existing programs.[9] For each project, the EJ Action Plan provides a brief description of how the project will operate, the goal(s) of the project, and the potential environmental justice benefits.^[10] Additionally, the plan also provides an approximate timeline, including next steps and expected partners required for implementation of the project.^[11]

The recommended projects are grouped into one of four parts—each part corresponding to a different priority set out by the EPA and the Biden Administration.[12] These priorities and stated goals are outlined below.

Strengthen Compliance

The EPA’s stated goal is “[t]o strengthen compliance with cornerstone environmental statutes in communities overburdened by pollution.”[13] Further, to properly monitor compliance with, and subsequently enforce, environmental statutes, it “is necessary to ensure communities get the environmental and human health benefits intended by environmental statutes and EPA’s regulations.”[14]

Incorporate Environmental Justice Concerns

The EPA’s stated goal is to “[t]ake immediate and affirmative steps to incorporate environmental justice considerations into our work, including assessing impacts to pollution-burdened, underserved and tribal communities in regulatory development and to maximize benefits to communities.”[15]

Improve Community Engagement

EPA’s stated goal is to “[t]ake immediate and affirmative steps to improve early and more frequent engagement with pollution-burdened and underserved communities affected by agency rulemakings, permitting decisions and policies. Following President Biden’s memorandum on strengthening the nation-to-nation relationship with tribal nations, EPA staff should engage in regular, meaningful and robust consultation with tribal officials in the development of federal policies that have tribal implications.”[16]

Implement Justice40

EPA’s stated goal is, “[c]onsistent with the Administration’s Justice40 initiative, [to] consider and prioritize direct and indirect benefits to underserved communities in the development of requests for grant applications and in making grant award decisions, to the extent allowed by law.”[17]  The Justice40 initiative is memorialized in Executive Order 14008,[18] with the aim to ensure that at least “40 percent of the overall benefits of certain Federal investments flow to disadvantaged communities that are marginalized, underserved, and overburdened by pollution.”[19]

What’s Next

Implementation

The OLEM and OEJECR will work together to implement this Plan.[20] Specifically, the OEJCR is tasked with ensuring that any actions under the Plan comply with federal civil rights laws.[21] Funding from the Bipartisan Infrastructure Act will significantly impact the success of the EJ Action Plan.[22] The Act allocated a total of $3.5 billion to Superfund clean-up programs and an additional $1.5 billion for brownfield revitalization.[23] The first $1 billion is expected to be used “to initiate cleanup and clear the backlog of 49 previously unfunded Superfund sites and accelerate cleanup at dozens of other sites.”[24] The EJ Action Plan is further intended to be a “working document,” to be updated to reflect any progress made, as well as any future environmental justice efforts undertaken by OLEM.[25]

Challenges

The EJ Action Plan is dependent on cooperative actions by the EPA, state and local governments, and tribal nations. Further, the federal government is limited in what actions it can take and must rely on state and local governments to effectuate policies, which may also complicate the implementation of the Plan. Legal challenges to environmental justice efforts are also likely—if not inevitable. With these potential challenges in mind, EPA published a document extensively laying out federal statutes and regulations that serves as a basis for many of the actions and tasks contemplated by the EJ Action Plan.^[26]

Jacob Arechiga is a Special Counsel in Duane Morris LLP’s Austin, Texas, office. His practice is focused on complex commercial matters, particularly those in the energy and electric power industries.

Alex Anderson is a J.D. Candidate, Class of 2023, at The University of Texas School of Law. Alex joined TELJ in Fall of 2021 and serves as Senior Editor. He was raised in Tulsa, Oklahoma and studied Government at The University of Texas at Austin. After graduation, he plans to practice bankruptcy and restructuring.