EPA Releases Environmental Justice Equity Action Plan

Perhaps illustrative of the importance of the issue, President Biden issued E.O. 13985 on his first day in office to broadly require executive departments and agencies to “recognize and work to redress inequities in their policies and programs that serve as barriers to equal opportunity.” To further that executive order, the Biden Administration announced its Equity Action Plan (the Plan) on April 14, 2022, which sets forth six priority action items at the core of EPA’s efforts to advance environmental equity.

Available here, the Plan addresses equitable concerns that are hand-in-glove with other environmental justice issues prioritized by the Biden Administration. (See here for a discussion of these.)

The Plan’s priority actions support the agency’s FY2022-2026 Strategic Plan, which we discussed here, to advance more equitable regulation and environmental justice across all agency programs, processes, and policies. These are:

• Action #1: Develop a comprehensive framework for considering cumulative impacts in relevant EPA decisions and operationalize that framework in EPA’s programs and activities.
• Action #2: Build the capacity of underserved communities to provide their experience to EPA and implement community-led projects.
• Action #3: Develop EPA’s internal capacity to engage underserved communities and implement clear and accountable processes to act based on communities’ input.
• Action #4: Strengthen EPA’s external civil rights compliance program and ensure that civil rights compliance is an agency-wide responsibility.
• Action #5: Integrate community science into EPA’s research and program implementation.
• Action #6: Make EPA’s procurement and contracting more equitable.

Major takeaways from the Plan include the following:

• Increased community engagement. The Plan is intended to increase EPA engagement with communities to achieve more equitable outcomes in the environmental space. EPA’s present view is that prior decisions from EPA, state environmental regulators, and local zoning officials have “contributed to the disproportionate pollution burden on people of color and underserved communities across the country” and acknowledges that these same mistakes likely would continue without meaningful community participation. To foster participation, the Plan outlines various actions aimed at turning community engagement into real action that addresses stakeholder concerns. Some of these actions include: (1) providing grants, technical assistance, and capacity-building centers across the country to deliver the support and resources needed to build the base of underserved communities; and (2) ensuring EPA rulemakings account for and respond to environmental justice concerns and consider disproportionate pollution impacts in underserved communities.
• Explicit embrace of “citizen science.” The Plan sanctions the use of “community science” and traditional ecological knowledge in addition to the scientific research, legal review, and economic analysis usually employed by EPA in decision making. Notably, the Plan’s incorporation of “community science” ― also referred to as “citizen science” (which we discussed in greater detail here) ― shifts it from a tool favored by activists to one embraced by regulators.
• Use of federal civil rights laws to advance environmental compliance. Since taking office, the Biden Administration has repeatedly emphasized that agencies can use federal civil rights laws to advance environmental justice issues. (See here). The Plan further emphasizes EPA’s authority to use civil rights laws to compel civil-rights focused compliance activities, new education and training for EPA staff, and direct references to civil rights requirements in all applicable EPA publications. Beyond these, the Plan notes that EPA is directed to “prohibit […] recipients of EPA financial assistance from taking actions in their programs or activities that are intentionally discriminatory and/or have a discriminatory effect” but admits that EPA’s enforcement, historically, has been reactive rather than proactive. Of note to this, the Plan was issued just days after EPA accepted for investigation civil-rights-focused complaints against the Louisiana Department of Environmental Quality related to air emissions in St. John the Baptist Parish. (See here.)
• Renewed focus on equity in EPA procurement and contracting. With regard to equity in procurement and contracting, the Plan identifies barriers faced by the underserved and underrepresented business community in accessing federal procurement opportunities and outlines ways to overcome those barriers. These actions include development and implementation of policies and procedures designed to level the playing field between incumbent contractors and newcomers, technical assistance to those navigating the federal procurement process (internally and externally), and increased outreach so that the underserved and underrepresented business community gains access to EPA decision makers.

In general, the Plan represents a continuation of the “whole of government” approach undertaken by the Biden Administration related to addressing environmental justice issues. To understand how this approach might affect your business, please reach out to any member of the Firm’s environmental group.