The Biden Administration’s Executive Order 14096, “Revitalizing Our Nation’s Commitment to Environmental Justice for All,” launched significant new policies to further integrate environmental justice throughout the federal government. The Executive Order (EO) outlines sweeping measures to institutionalize environmental justice across federal agency processes, including in compliance monitoring, permitting, funding distribution, rulemaking, and environmental enforcement. Overseen by the newly established Office of Environmental Justice in the White House, federal agencies are now required to implement significant systematic changes to better advance environmental justice and will be held accountable for their progress. For example, agencies are directed to dedicate staff and resources to environmental justice priorities, maintain and publicize transparent reporting, and develop internal mechanisms to fulfill the Administration’s goals. Providing further transparency and accountability, the White House paired the EO with the release of the Environmental Justice Scorecard, which was established under EO 14008, Tackling the Climate Crisis at Home and Abroad, to serve as a government-wide assessment of environmental justice efforts and track agency progress toward achieving policy goals. For more information about EO 14008, see WilmerHale’s prior alert. Through these changes, the Administration continues to embed environmental justice and equity considerations into the work of federal agencies in durable ways. The EO adds detail and momentum to the Administration’s commitment to ambitious initiatives set out in previous EOs (see WilmerHale’s prior alert for more).

Key provisions likely to directly impact regulated entities include:

• National Environmental Policy Act Review: The EO directs all executive agencies carrying out environmental reviews of federal actions under the National Environmental Policy Act (NEPA) to analyze potential direct, indirect, and cumulative impacts of pollution and other burdens, like climate change, on communities with environmental justice concerns. Under the EO, agencies must consider the best available science and information on any disparate health effects (including risks) arising from exposure to pollution and other environmental hazards, such as information related to the race, national origin, socioeconomic status, age, disability, and sex of the individuals exposed. Companies engaging in federal permitting processes should proactively anticipate increased attention on providing environmental justice communities with opportunities for early and meaningful involvement throughout the NEPA process. As agencies work to implement the EO’s provisions, we also expect agencies to undertake more rigorous environmental justice analyses in NEPA processes and develop more specific guidance on methodologies for the analysis.¹
• Permitting: The EO includes other directives likely to affect federal and state permitting processes, outside of the NEPA process. The EO instructs agencies to consider measures that will avoid, minimize, or mitigate disproportionate and adverse human health and environmental effects (including risks) and hazards on communities with environmental justice concerns, including disproportionate and adverse effects not previously considered to be “large.” Agencies must also address any contribution of federal activities to adverse effects already experienced by communities, including the cumulative impacts of environmental burdens. This requirement will likely lead to an increased emphasis on community engagement, public participation, and Tribal consultations in agency permitting processes; more fulsome analysis of cumulative impacts and risks; and a larger focus on environmental justice-oriented permit conditions.
• Compliance/Enforcement: For companies with existing permits, the EO changes the compliance and enforcement landscape by requiring agencies to develop Environmental Justice Strategic Plans identifying, for instance, measures “expanding use of pollution measurement and other environmental impact or compliance assessment tools, such as fenceline monitoring.” The plans may also include measures to “improv[e] the effectiveness of remedies designed to provide relief to individuals and communities with environmental justice concerns,” including “remedies that will penalize and deter violations, and promote future compliance, including through harm mitigation and corrective action.” Companies should anticipate permit terms focused on community impacts, greater attention to monitoring requirements, and, when facing enforcement actions for permit violations, should be prepared to consider supplemental environmental projects (SEPs) in remedies to provide relief directly to impacted communities. For more information about SEPs, see WilmerHale’s prior alert. 
• White House Office of Environmental Justice: This expanded whole-of-government environmental justice agenda will be coordinated by a newly established White House Office of Environmental Justice within the Council on Environmental Quality, to be led by a Federal Chief Environmental Justice Officer appointed by the President. The new coordinating function in the White House is anticipated to facilitate both rapid and widespread adoption of environmental justice policies and improve the effectiveness of those policies across federal agencies, contributing to long-lasting institutional changes. 

Building on more than two years of environmental justice policy development, EO 14096 is perhaps the Biden Administration’s boldest step toward advancing its environmental justice and equity agenda. As federal agencies seek to implement the EO’s provisions, companies that proactively evaluate how the environmental justice and equity considerations reflected in the EO could impact their permitting or compliance programs will be better positioned to avoid adverse or delayed enforcement and permitting decisions. The WilmerHale team monitors trends in this area and regularly advises companies navigating developments. Please contact the WilmerHale ESG team to learn more.

¹Existing federal guidance includes, for instance: Federal Interagency Working Group on Environmental Justice, Promising Practices for EJ Methodology in NEPA Reviews (2016); Federal Interagency Working Group on Environmental Justice, Community Guide to Environmental Justice and NEPA Methods (2019); U.S. Environmental Protection Agency Office of General Counsel, Environmental Justice and Civil Rights in Permitting Frequently Asked Questions (2022); White House Council on Environmental Quality, Environmental Justice Guidance under the National Environmental Policy Act (1997).