How Durable Is President Biden’s Environmental Justice Agenda?

Starting his first week in office, President Biden issued a series of executive orders to require agencies to identify and address environmental injustice in their policies and programs, relying on existing regulatory and enforcement authorities and funding streams. These orders emphasized both components of EJ: just treatment and meaningful involvement. This two-prong definition requires decision-makers to create space for and meaningfully incorporate feedback from EJ communities and ensure that the benefits and burdens of environmental and public health policies are distributed equitably. President Biden’s Executive Order 14096, which created the first government-wide definition of EJ, also emphasized that decision-makers must account for the cumulative environmental and public health burdens communities face, as well as the “legacy of racism or other structural or systemic barriers.”

The Environmental & Energy Law Program (EELP) at Harvard Law School began tracking federal agencies’ EJ-related actions in the spring of 2021. This Federal EJ Tracker allows users to search by agency, topic, action (final rule, proposed rule, guidance, etc.), statute, and to review open comment opportunities and download comment templates. To access the tracker, visit eelp.law.harvard.edu/ejtracker.

President Biden’s EJ agenda got a significant financial boost with the passage of the Infrastructure Investment and Jobs Act (IIJA) and the Inflation Reduction Act (IRA), both of which included requirements for funds to be invested in “disadvantaged” and low-income communities. As a result, hundreds of billions of dollars for environmental and clean energy have already been invested in communities with EJ concerns.

However, the United States still lacks an overarching EJ statute, meaning agencies must rely on existing authorities when issuing EJ-related rules, policies, and enforcement actions. Nevertheless, by taking a whole-of-government approach to EJ, the administration’s actions have been numerous and diverse. These include targeted enforcement of environmental and public health violations in EJ communities; new offices and personnel with environmental and climate justice mandates; and rules and policies promoting EJ priorities, including Tribal co-stewardship of federal resources; more inclusive federal permitting processes; more protective air and water pollution standards to address risks to frontline communities; and resiliency and energy efficiency upgrades to affordable housing.

Congress, Courts Threaten to Dismantle EJ Agenda

While the Biden administration’s whole-of-government approach to EJ is an important start, more ambitious action is needed to redress and repair the legacy of pollution, discrimination, and exclusion in overburdened communities. Yet Republicans in Congress and many federal courts have been hostile to ambitious executive action, particularly when it comes to environmental and racial justice matters. According to Climate Power’s Inflation Reduction Act Repeal Votes Tracker, as of this writing, Republicans have voted 42 times to repeal the IRA. And some federal judges, encouraged by the U.S. Supreme Court’s conservative majority, consistently issue decisions that expand the role of the judiciary while shrinking the authority of the executive branch and the role of Congress.

Since the Supreme Court announced the “major questions doctrine” in West Virginia v. EPA, striking down a U.S. Environmental Protection Agency (EPA) rule to reduce greenhouse gas emissions from the power sector, courts have used this doctrine to upend longstanding civil rights protections and block student debt relief and vaccine mandates. The doctrine, as currently applied, is antiregulatory—if agencies seek to act on issues of “political and economic significance,” they must point to clear statutory language authorizing the action at issue. But this is not how Congress legislates, particularly in the environmental and public health space. Congress issues broad mandates, entrusting expert agencies to weigh competing interests and issue standards that incorporate public comment and the best available science. The Supreme Court also overturned the Chevron doctrine, a longstanding practice in which courts deferred to reasonable agency interpretations of ambiguous statutory provisions. These decisions and others by the Court prevent federal agencies from doing their jobs while giving courts broader powers to second-guess and overturn agency rules. These decisions also have a chilling effect on agencies seeking to leverage their authorities in new ways to tackle complex challenges, including climate change and environmental and racial injustice.

It is important to evaluate the durability of Biden’s EJ agenda and assess which elements may be the first to fall if former President Trump wins in November and which programs are built to withstand judicial review. While programs relying wholly on executive authority, like Biden’s Justice40 Initiative, are vulnerable to immediate repeal, other programs, including funding from the IRA or regulations relying on longstanding authorities, will be more difficult to claw back. I walk through examples of each and discuss the factors that will determine these programs’ durability.

Early Initiatives: Executive Orders, Guidance, and Personnel

Many of the Biden administration’s earliest EJ initiatives are policies that did not require notice-and-comment rulemaking. These include internal agency guidance and strategy documents, secretarial orders, and discretionary enforcement. These also include programs created through executive orders, such as the Justice40 Initiative and Climate & Economic Justice Screening Tool (CEJST).

President Biden created the Justice40 Initiative his first week in office, modeled after New York’s Climate Leadership and Community Protection Act (CLCPA). Justice40 requires federal agencies to direct 40 percent of the “benefits” of federal clean energy and climate programs to “disadvantaged communities,” as defined by the CEJST. Currently, there are 518 programs across 16 agencies covered by Justice40, including multi-billion-dollar loan and grant programs, reforestation and conservation efforts, workforce training and development, tax incentives, and environmental remediation and pollution control programs. A new Trump administration could immediately scrap the Justice40 Initiative, including the staff and online tools supporting its implementation. By comparison, a Harris administration could build on the administration’s institutional infrastructure to integrate lessons learned on how to qualify and track the benefits associated with Justice40 investments.

In addition to Justice40, executive agencies have issued myriad guidance to prioritize EJ and related considerations in the implementation of new and existing programs. One of the most important changes issued via guidance is the Office of Management and Budget’s (OMB) updates to Circular A-4. Circular A-4 tells agencies how to review their regulatory proposals, including what factors to consider when conducting benefit-cost analyses. The update included requirements that agencies assess how the benefits and burdens of proposed rules are distributed and consider benefits in the future or outside the United States. These changes affect rulemaking across the federal family by requiring agencies to explicitly consider the distributional impacts of proposed rules, including impacts on future generations. However, as guidance, Circular A-4 could be revoked or revised by a new administration without going through notice-and-comment.

The election will also determine the fate of the new EJ offices and advisory bodies President Biden created to implement his EJ mandates. After he took office, President Biden re-staffed federal agencies following an exodus under former President Trump and created new positions, offices, and advisory bodies to embed EJ priorities at the highest levels of government. These include the White House Environmental Justice Advisory Council, which provides direct guidance and feedback on executive policy, as well as new EJ-related offices at the U.S. Department of Health and Human Services, EPA, the Department of the Interior, and others.

If former President Trump’s first term is a model for his second, these positions and offices will likely be defunded or eliminated if Trump wins in November. Furthermore, Trump has threatened to purge the government of civil servants by making career staff “at will” employees (in addition to defunding the EPA altogether). Eliminating nonpolitical career staff poses a threat not only to Biden’s EJ priorities but also to the technical and scientific expertise and institutional memory that are the foundation of effective governance. In response, the Office of Personnel Management issued a final rule in April 2024, codifying labor protections for certain career civil servants. While a Trump administration could revoke and replace the rule, doing so will take time and be subject to judicial review if challenged in court.

Funding: Federal Laws Promote EJ Investments, Build State Capacity

When Congress passed the IIJA and IRA, it created the first explicit EJ mandates in federal law. In addition to funneling billions in federal environmental, energy, and climate funding to “disadvantaged communities,” these provisions are significant in that they also apply to non-federal recipients of those funds. By comparison, only federal agencies are required to comply with Justice40, and many Republican-led states have publicly committed to ignore Justice40 and other executive EJ and equity mandates.

Much of the funding available under the IRA and IIJA is subject to strict deadlines. While these short timelines created administrative and capacity challenges for both the federal government and potential grantees, they have pushed agencies to allocate or otherwise designate much of that funding before January 2025. For competitive grants, federal agencies have also used their discretion in designing grant application and review processes to improve accessibility for communities with less administrative or financial capacity. These changes are also mandated under Biden’s Executive Order 13985, which requires agencies to audit their current grant application processes and make changes to ensure “full and equal participation” in federal programs, including procurement and contracting opportunities. However, if agencies fail to disburse all IRA funds before January 2025, a new Trump administration could delay, redirect, or, in some cases, cease to disburse the remaining funds.

It is notable that most federal climate investments under President Biden have gone to communities with education rates and median incomes below the national average. In March 2024, the Center for American Progress (CAP) reported that the Biden administration has invested more than $148 billion in low-income, Black, brown, and Indigenous communities. This total represents the combined investments under the IRA, IIJA, and other federal EJ policies, including the Justice40 Initiative. CAP also found that between 2022 and 2023 alone, more than $60 billion in clean energy investments went to congressional districts where up to 75 percent of the population has less than a bachelor’s degree and lower-than-average median incomes.

These funds could affect how states consider EJ concerns going forward. The IRA’s and IIJA’s explicit EJ requirements, combined with the availability of new EJ mapping and data tools created by the Biden administration, have encouraged some states to improve their approach to EJ programming. For example, under the IIJA, 49 percent of drinking water state revolving fund aid (forgivable loans or grants) must go to “disadvantaged communities.” However, the Safe Drinking Water Act allows states to define who qualifies as “disadvantaged” using affordability criteria. In January 2023, the Association of State Drinking Water Administrators reported that, due to IIJA funding requirements, five states began using EJ criteria for the first time, and more than half of state programs have modified their definition of “disadvantaged communities.” Many states are now using data provided by federal EJ mapping tools, including the CEJST, EPA’s updated EJSCREEN, and the Centers for Disease Control and Prevention’s Social Vulnerability Index. These states will likely retain the discretion and capacity to integrate EJ concerns into their programs. However, this discretionary approach will lead to a patchwork of EJ implementation, depending on state-based requirements and leadership.

If Trump wins in November, it will exacerbate this patchwork of EJ funding and enforcement—or what some advocates refer to as “legal sacrifice zones.” One of the few tools EJ advocates have to challenge state permitting and other decisions that disparately impact communities of color is Title VI of the Civil Rights Act of 1964. Title VI administrative complaints rely solely on federal agency discretion to investigate complaints and negotiate with states to comply with agency regulations. The Biden administration has invested significant funding and personnel into agencies’ Title VI enforcement divisions. However, that enforcement has been tempered since a federal district court in Louisiana blocked EPA and the U.S. Department of Justice (DOJ) from enforcing their Title VI disparate impact regulations in the state. Trump, if reelected, would likely revive a rule his DOJ finalized but never published at the end of his term. The rule would eliminate the “disparate impact” standard altogether, and thus, one of the few legal levers communities have to challenge state decisions that disproportionately harm EJ communities.

Rulemakings: Considering EJ Concerns Under Statutory Mandates

Some of the most durable elements of the Biden administration’s EJ agenda are notice-and-comment rulemakings. In these rules, agencies implement existing statutory mandates while accounting for EJ and equity concerns. This might include more robust engagement with frontline communities during open comment periods, integrating new data on the unique environmental and public health burdens these communities face, or consideration of non-quantifiable costs and benefits to those communities when assessing regulatory options. Importantly, federal agencies prioritized issuing many of their most significant public health rules before the Congressional Review Act deadline, after which Congress can unilaterally disapprove of agency rules, barring the agency from issuing rules that are “substantially the same” in the future.

Some of these rules have made headlines like CEQ’s two-phased revamp of its regulations implementing the National Environmental Policy Act (NEPA). The recently finalized Phase 2 rule codifies a government-wide definition of EJ for the first time, encourages agencies to consider Indigenous and traditional ecological knowledge with Western science in environmental reviews of proposed projects, and mandates early and meaningful engagement with communities with EJ concerns, among other important changes. This rule has been challenged by a coalition of Republican-led states with litigation ongoing.

The bulk of the administration’s EJ-related rulemaking has garnered less public attention but nevertheless delivers significant public benefits. Examples include the EPA’s stricter pollution standards for particulate matter (soot) under the Clean Air Act and final rule granting certain tribes the authority to set their own water quality standards under the Clean Water Act. Similarly, the Department of Labor finalized new protections for miners from silica dust; the Federal Emergency Management Agency published an interim final rule in March 2024 expanding federal disaster assistance for low-income survivors and survivors with disabilities; and the U.S. Department of Housing and Urban Development finalized new rules to make federally funded affordable housing more energy efficient and resilient to future flooding.

Like CEQ’s NEPA Phase 2 rule, many of the administration’s environmental rules have been challenged in courts by Republican-led states and certain industry groups. These challenges often invoke the major questions doctrine, along with “arbitrary and capricious” challenges under the Administrative Procedure Act and general ultra vires claims. With an eye toward durability, federal agencies have worked to strengthen the administrative records underlying these rules, including providing extended public comment periods or supplemental rulemakings. However, recent Supreme Court decisions call into question the extent to which courts should defer to that record and the agency’s expertise, if at all. It will, therefore, fall to the DOJ and intervening allies to persuasively argue that these rules faithfully execute the law as Congress intended before an increasingly skeptical judiciary.