On April 21, 2023, President Joseph R. Biden signed Executive Order 14096, “Revitalizing Our Nation’s Commitment to Environmental Justice for All.” 88 Fed. Reg 25251 (Apr. 26, 2023) (E.O. 14096). Drawing on 29 years of federal agencies’ experience implementing President William J. Clinton’s Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” 59 Fed. Reg. 7629 (Feb. 16, 1994) (E.O. 12898), E.O. 14096 envisions a “whole-of-government” approach requiring federal agencies to contribute to achieving environmental justice (EJ), regardless of current interactions with communities with EJ concerns. E.O. 14096 outlines objectives that agencies should incorporate into their missions to achieve EJ, including identifying and addressing environmental risks and historical inequities; using legal authorities to mitigate impacts from activities disproportionately affecting communities with EJ concerns; promoting meaningful public participation; and strengthening tribal partnerships. This article explores how E.O. 14096 complements E.O. 12898 and identifies factors that will likely influence the new E.O.’s success in meeting its critical goals.
Rather than replacing E.O. 12898, E.O. 14096 supplements it. In our view, this strategy serves two functions. First, it honors the groundbreaking work of the policymakers and communities with EJ concerns that worked to make E.O. 12898 a reality. Second, keeping E.O. 12898 in place strengthens EJ’s legal foundation in the event that a future president—perhaps one who is inclined to eliminate Biden-era policies as a general matter—revokes E.O. 14096. Together, these E.O.s provide a robust legal basis for EJ and offer agencies the necessary tools to address these issues effectively. While NEPA and Title VI of the Civil Rights Act of 1964 (Title VI) are legal tools agencies can use to advance EJ, E.O. 12989 does not explicitly refer to them—rather, they are mentioned in President Clinton’s related Presidential Memorandum, which served as the cover letter transmitting the E.O. to agencies. This Presidential Memorandum instructs agencies to abide by their obligations under the Civil Rights Act and analyze environmental effects on communities of color and low-income communities under NEPA. By contrast, E.O. 14096 recognizes these two bodies of law as concrete legal authorities for agencies to use to achieve EJ goals: Agencies’ NEPA analyses should “analyze direct, indirect, and cumulative effects of Federal actions on communities with environmental justice concerns”; “consider 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”; and ensure participation in the “environmental review process by communities with environmental justice concerns potentially affected by a proposed action,” See E.O. 14096 § 3(ix). The E.O. also reminds federal agencies of their Title VI responsibilities to ensure that federal funding recipients do not discriminate on the basis of race, color, or national origin. By incorporating these legal tools, President Biden gives EJ a legal foothold to stand on outside of Executive Orders.
E.O. 14096 updates E.O. 12898’s definition of “environmental justice.” E.O. 14096 eliminates the term “minority populations and low-income populations” from E.O. 12898’s definition of “environmental justice” and instead refers to “the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, Tribal affiliation, or disability, in agency decision-making and other Federal activities that affect human health and the environment.” See E.O. 14096 § 2(b). Whereas E.O. 12898 states that agencies are responsible for identifying and addressing disproportionately high and adverse human health and environmental effects, E.O. 14096 removes the word “high” from this phrase and requires federal agencies to ensure that “people … are fully protected from disproportionate and adverse human health and environmental effects (including risks) and hazards, including those related to climate change, the cumulative impacts of environmental and other burdens, and the legacy of racism or other structural or systemic barriers.” See E.O. 14096 § 2(b)(i). This change may have a substantial effect in that agencies should address all disproportionate and adverse impacts rather than attempting to differentiate on the size of impacts. Removing this one word may eliminate potential misunderstandings within agencies on what impacts they should consider, while strengthening the phrase’s intent and essence.
E.O. 14906 includes a definition of “federal activity” for EJ purposes where E.O. 12898 did not. Under E.O. 14096 § 2(c), a “federal activity” means “any agency rulemaking, guidance, policy, program, practice, or action that affects or has the potential to affect human health and the environment, including an agency action related to climate change.” By including agency actions related to climate change, this E.O. broadens the scope of actions for which agencies must consider EJ concerns.
Each agency must outline its specific and measurable environmental justice goals in its “Environmental Justice Strategic Plans,” which will update agencies’ “EJ strategies” implemented under E.O. 12898. Such measures may include increasing access to public participation opportunities, providing effective relief and remedies for EJ communities, expanding the use of environmental impact and pollution measuring tools, and limiting or removing exemptions or waivers that erode public health or environmental quality. Agencies should focus on improving compliance with statutes that affect the health and environment of communities with EJ concerns through regulations, policies, or permits. Each agency will have an Environmental Justice Officer responsible for the agency’s EJ Strategic Plan. The White House Council on Environmental Quality (CEQ) now has the responsibility to review all EJ Strategic Plans, whereas they had no requirement to provide feedback for agencies’ E.O. 12898 strategies. CEQ will assess each agency’s implementation of its EJ Strategic Plan, the barriers the agency may have encountered, and what, if anything, an agency has already done to address these barriers.
E.O. 14096 allocates responsibilities to CEQ and the White House Environmental Justice Interagency Council, established by E.O. 12898 to assist agencies with developing and enforcing their EJ strategies. Now, the CEQ will house a new White House Office of Environmental Justice, led by the Federal Chief Environmental Justice Officer and tasked with promoting EJ policies and partnerships with state and tribal partners. This role will advise CEQ and the Interagency Council. Additionally, the Interagency Council now must hold one annual public meeting, prioritizing the involvement of those disproportionately impacted by environmental and public health issues. Moreover, E.O. 14096 creates a way for the public to submit recommendations regarding EJ to the Interagency Council while having access to a “clearinghouse” for publishing the Interagency Council’s activities, and resources, improving access for all.
E.O. 14096 addresses the historical research gap on the impacts of climate and environmental issues on communities of color by establishing an EJ Subcommittee within the Office of Science and Technology Policy (OSTP). The Subcommittee will advise agencies on utilizing their research, promote meaningful public involvement, and disaggregate relevant data for agency-specific roles. By establishing this Subcommittee, the research responsibility is centralized instead of each agency conducting its own research, as outlined in E.O. 12898. Lastly, the Interagency Council and the Subcommittee will host an annual summit to present recent EJ research developments.
The new E.O. is a bold and fulsome statement on the high priority the Biden administration has placed on EJ. Several factors will influence whether the E.O. will be durable and lead to tangible benefits for communities with EJ concerns.
First, every federal agency must have sufficient funds and staff to build and sustain the EJ programs required by the E.O. All agencies, especially those agencies where EJ has not been top-of-mind or mission critical in the past, will likely need additional long-term resources, technical support, and leadership buy-in to develop and implement their strategic plans and EJ assessments. In our view, if agencies have sufficient staffing and funding to stand up and sustain robust EJ programs, EJ will become more engrained in all agencies’ administrative structures and cultures and it may be more difficult for future administrations who are less enthusiastic about addressing EJ to undo that work.
Second, it will be interesting to see if this E.O. improves agencies’ EJ analyses for rulemakings and other agency actions. E.O. 12898 required agencies’ rule preambles to discuss whether there was “significant evidence” that the proposed or final rule would have “disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous populations.” Many—perhaps most—agencies typically conduct conclusory and thinly substantiated analyses to “satisfy” their E.O. 12898 obligations. Under E.O. 14096, it appears that CEQ will expect agencies’ environmental justice regulatory analyses to be substantially more robust, detailed, and thoughtful. E.O. 14096 directs CEQ to issue interim guidance on regulatory analyses for agencies to follow by fall 2023 and final guidance by 2024. CEQ will likely scrutinize agencies’ EJ regulatory analyses more closely, potentially prompting agencies to enhance or revise the analyses during the E.O. 12866 interagency review facilitated by the Office of Management and Budget (OMB). This review process enables the public and other federal agencies to provide feedback on how a proposed regulation considers economic and other impacts.
Third, it is unclear what, if any, redress members of the public may have if agencies conduct deficient EJ regulatory analyses or otherwise fail to comply with E.O. 14096. Like most other executive orders, E.O. 14096 “is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.” See § 11(c). E.O.s are useful tools for advancing and implementing presidential policies, but they rarely contain legal frameworks for private rights of action against federal agencies. As “internal directives,” most are “intended for the internal management of the President’s cabinet” and “should not [be] enforce[d]” by courts. See, e.g., Chai v. Carroll, 48 F.3d 1331, 1339 (4th Cir. 1995). E.O.s are subject to judicial review only when issued pursuant to a clear statutory mandate or a congressional delegation of lawmaking authority. See, e.g., U.S. Dep’t of Health & Human Servs. v. Fed. Labor Relations Auth., 844 F.2d 1087, 1095 (4th Cir. 1987). President Biden appears to have aggregated multiple statutory authorities to justify E.O. 14096 but did not issue the E.O. in response to a congressional directive or delegation of authority. Therefore, persons wishing to challenge agency actions related to EJ must seek other avenues—for example, building an Administrative Procedures Act (APA) section 706 claim that an agency action required by an environmental statute fails to consider impacts to communities with EJ concerns and is therefore “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.”
We were struck by how E.O. 14096 explicitly acknowledges that racism is a fundamental cause of historic and current EJ issues, and hope that this monumental recognition will lead all federal agencies to implement all E.O.-required actions thoughtfully and urgently. E.O. 14096 underscores that it is essential for federal agencies to invest in and engage with underserved and overburdened communities to achieve environmental justice.