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The Year in Review

Environment, Energy, and Resources Law: The Year in Review 2023

Environmental Justice Committee Report

Julia Casciotti and James Robert May


  • The Environmental Justice Committee Report for The Year in Review 2023.
  • Summarizes significant legal developments in 2023 in the area of environmental justice, including President Biden’s Executive Order 14096, EJ in environmental enforcement, EJ at the ABA, and more.
Environmental Justice Committee Report
Alistair Berg via Getty Images

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“Environmental Justice” (EJ) acknowledges the right of every individual to dignity and a clean, healthy environment and that overburdened communities should have their voices heard. This chapter summarizes EJ developments at the federal and state levels, in the courts, and within the ABA. These developments include the issuance of a comprehensive Presidential Executive Order on EJ; implementation of the EJ aspects of the Inflation Reduction Act; EPA’s issuance of guidance to distribute billions to support EJ; New York State’s adoption of a groundbreaking environmental justice law; New Jersey’s issuance of first-of-a-kind EJ regulations; judicial rejection of EJ-based claims; and the ABA’s issuance of a “Blueprint to Advance Environmental Justice.”

I. EJ at the Federal Level

In 2023, the Biden-Harris Administration took steps to advance environmental justice (EJ) initiatives through several different actions – including Executive Orders, Guidance, updates to EJ tools, and Title VI investigations – all with the aim of addressing disproportionate harms born by marginalized communities from environmental exposure. This chapter summarizes key environmental justice actions taken in 2023 by the White House, the Environmental Protection Agency (EPA), and the Department of Justice (DOJ).

A. EJ Executive Order

On April 21, 2023, President Biden issued Executive Order 14096, entitled “Revitalizing Our Nation’s Commitment to Environmental Justice for All.” EO 14096 aims to “to dismantle racial discrimination and institutional bias that disproportionately affect the health, environment, safety, and resiliency of communities with environmental justice concerns” and advance environmental justice by expanding the definition of environmental justice, requiring agencies to create EJ strategic plans and assess their efforts biannually, directing research on EJ issues, expanding notifications for chemical releases, and directing compliance with NEPA in a manner that evaluates effects on EJ communities. This historic “all government” approach “make[s] environmental justice a part of the mission of every agency by directing federal agencies to develop programs, policies, and activities to address the disproportionate health, environmental, economic, and climate impacts on disadvantaged communities.” The Administration issued a separate Executive Order, 14008, focused on “Tackling the Climate Crisis at Home and Abroad,” which created a government-wide “Justice40 Initiative” with the goal of delivering 40 percent of the overall benefits of relevant federal investments to disadvantaged communities and the development of equitable decision making across the federal government.

B. EJ Screening Tools

EPA’s EJSCREEN allows users to map environmental, health, and socioeconomic indicators for potential EJ concerns. EPA also utilizes EJSCREEN to identify EJ issues across permitting, enforcement, outreach, and compliance. On June 26, 2023, EPA released EJSCREEN 2.2, which adds mapping layers regarding health disparities, housing, health insurance, transportation, and location of facilities that are out of compliance with federal environmental laws.

C. EJ in Environmental Enforcement

On August 17, 2023, EPA published its National Enforcement and Compliance Initiatives for fiscal years 2024-2027 for mitigating climate change, addressing exposure to PFAS, protecting communities from coal ash contamination, reducing air toxics in overburdened communities, increasing compliance with drinking water standards, and reducing the risk of chemical accidents, all of which incorporate environmental justice considerations.

On October 13, 2023, DOJ published its first annual report detailing the implementation of its EJ enforcement strategy. The EJ strategy directs DOJ attorneys to prioritize cases that reduce harm to overburdened and underserved communities, ensure meaningful engagement with impacted communities, and promote transparency regarding EJ enforcement efforts. The report details EJ-related “successes” under various legal authorities, including the Clean Air Act, Safe Drinking Water Act, and Affordable Care Act. The report also discusses enforcement trends and outlines new opportunities the DOJ has identified to progress its EJ strategy, such as incorporating more mitigation and Supplemental Environmental Projects into settlements.

D. EJ in Regulatory Actions

EPA has proposed to incorporate EJ into environmental regulatory regimes in new ways. For example, in January 2023, it released a “Cumulative Impacts Addendum” to its existing guidance document entitled “EPA Legal Tools to Advance Environmental Justice.” This addendum walks through various statutory frameworks - including air, water, waste, chemicals, and others – and discusses the various authorities under each program that may present opportunities to address cumulative impacts as part of regulatory or agency decision-making processes.

On April 19, 2023, EPA released a “Framework for the Implementation of the Greenhouse Gas Reduction Fund as Part of President Biden’s Investing in America Agenda,” which implements the Inflation Reduction Act’s $27 billion Greenhouse Gas Reduction Fund (GGRF). This is a transformative opportunity embraced by industry to accelerate energy transition, advance environmental justice, and fight climate change. It includes $14 billion for the “National Clean Investment Fund,” $6 billion for the “Clean Communities Investment Accelerator,” and $7 billion for the “Solar for All” program. Collectively these programs advance Environmental Justice with direct and support funding “to ensure low-income and disadvantaged communities have access to financing for cost-saving and pollution-reducing clean technology projects,” and other EJ-advancing objectives.

In April, the EPA also announced a proposal to update air emissions regulations that apply to chemical plants, including those that make synthetic organic materials and polymers. If finalized, the proposal would reduce the action level for certain hazardous chemicals, impose fenceline monitoring requirements on facilities, and require that data be transparent and available to communities.

Over the past several years, EPA has developed various resources and guidance to promote environmental justice in the permit application process under different permitting frameworks. For example, in late 2023, the EPA granted Louisiana primary permitting authority for Class VI Underground Injection Control permits under the Safe Drinking Water Act for the geologic sequestration of carbon in that state. Louisiana has agreed to implement various EJ-focused elements into the permitting process.

E. EJ and Title VI

EPA continues to utilize investigations under Title VI of the Civil Rights Act as an avenue for addressing environmental justice concerns. Title VI prohibits recipients of federal financial assistance from discriminating based on race, color, or national origin. EPA’s Office of Environmental Justice and External Civil Rights may investigate complaints of Title VI discrimination against EPA-funded agencies and negotiate with those entities to address non-compliance. As of December 2023, EPA is reviewing approximately 20 complaints filed in the last year.

In one such investigation, the EPA was investigating a complaint that alleged that the Louisiana Department of Environmental Quality and the Louisiana Department of Health subjected Black communities living near chemical plants to disparate treatment under Title VI. In mid-2023, Louisiana filed a complaint and motion for preliminary injunction challenging EPA’s investigation, after which EPA announced it was closing its investigation.

F. EJ and the Inflation Reduction Act

In early 2023, EPA announced approximately $100 million in grants for projects that advance environmental justice as part of the Inflation Reduction Act.

II. EJ at the State Level

A. New York

On March 3, 2023, New York Governor Kathy Hochul signed a new law that requires that the N.Y. Department of Environmental Conservation (DEC) prepare “existing burden reports” and that it “shall not issue an applicable permit for a new project if it determines that the project will cause or contribute more than a de minimis amount of pollution to a disproportionate pollution burden on the disadvantaged community.” The New York law goes beyond the procedural requirements of most other environmental justice laws in prohibiting the DEC from greenlighting new projects that affect disadvantaged communities in more than a de minimis way.

B. New Jersey

On April 17, 2023, New Jersey adopted detailed regulations to implement its 2020 “Environmental Justice Act,” which requires that the New Jersey Department of Environmental Protection (NJDEP) prepare “environmental justice impact statements.” The rules will ensure “public participation in the Department's analysis of environmental and public health stressors in overburdened communities” while seeking to “limit the placement of new facilities that would create a disproportionate impact by causing or contributing to adverse cumulative stressors in an overburdened community” and “reduce environmental and public health stressors in overburdened communities in the permitting of new, expanded, and existing major source facilities by requiring incorporation of measures to avoid, minimize, and/or reduce facility contributions thereto.” The new rules provide detailed requirements for those seeking to make changes in facilities located near overburdened communities with the goal of limiting environmental and public health stressors. The regulations would have the NJDEP

[D]eny a permit for a new facility upon a finding that approval of the permit, as proposed, would, together with other environmental or public health stressors affecting the overburdened community, cause or contribute to adverse cumulative environmental or public health stressors in the overburdened community that are higher than those borne by other communities.

III. EJ in the Courts

Courts continue regularly to turn aside EJ-based challenges to environmental assessments or environmental impact statements under NEPA, provided the agency has taken a ‘hard look’ at EJ concerns. For instance, in Shoshone-Bannock Tribes of Fort Hall Rsrv. v. Daniel-Davis, the court rejected an effort to enforce EO 12,898 in challenging an EIS, noting that it “does not create a private right to judicial review” and that the agency had taken a sufficient “hard look” at EJ concerns. In Ctr. for Cmty. Action & Env't Just. v. Fed. Aviation Admin., the Ninth Circuit upheld a Federal Aviation Administration EA over a challenge that it failed to adequately consider EJ concerns, noting that it considered displacement of individuals in overburdened communities and the increased usage of diesel trucks. In Nat'l Ass'n for Advancement of Colored People Erie Unit 2262 v. Fed. Highway Admin., the court rejected plaintiffs’ contention that the agency “failed to consider the possibility of increased air pollution, noise, and traffic speed, as well as whether the Project will benefit the EJ communities” finding instead that it took a ‘hard look’ at the project's environmental consequences as required by NEPA. Likewise, in El Puente v. U.S. Army Corps of Engineers, the court rejected an EJ challenge to an EIS that contended that the Corps failed to take a “hard look” at EJ, finding that “no group of people would bear a disproportionately higher share of adverse environmental consequences resulting from the proposed work.”

Constitutional claims fared no better. In Inclusive Louisiana v. St. James Par., the court dismissed plaintiffs’ claims that a zoning plan “used to protect majority white parts of the Parish from industrial development, while steering industry to the 4th and 5th Districts, which are home to populations that are majority Black” violates the Thirteenth and Fourteenth Amendments because the plaintiffs could not show that the zoning plan was the sole cause of alleged health injuries.

IV. EJ and the ABA

In August 2021, the ABA passed a historic resolution at its Annual Meeting, committing to promoting Environmental Justice through its programs, policies, and activities, and to advocate for environmental justice legislation and policy. Following this, the ABA Board of Governors established an 18-member Environmental Justice Task Force (EJTF) to integrate Environmental Justice principles within the ABA's operations and to explore ways to support and promote these principles across the legal profession, as well as at federal, state, local, tribal, and international levels. The EJTF issued the "Blueprint for Environmental Justice in the ABA," “which highlights the ABA’s role in combating the disparate impact of environmental policies and practices on poor communities, people of color and tribal communities, at the ABA’s August 2023 Annual Meeting.”

The authors thank Giulia Lima, Delaware Law School ’24, for research assistance.