By: Blythe Pabon
Executive Action Remains the Federal Strategy for Environmental Justice
On April 21, 2023, President Biden signed Executive Order 14096 to “revitalize our nation’s commitment to environmental justice for all.”[1] The Order strengthens a 1994 Clinton Executive Order, creates a new White House Office of Environmental Justice, and directs all federal agencies to make environmental justice central to their mission.[2]
What is Environmental Justice?
The basic goal of environmental justice is “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income” in environmental law.[3] The founding of the environmental justice movement began during the Jim Crow era when communities were racially segregated and targeted for landfill fills and industrial sites.[4] The environmental justice movement began to take national attention after a 1982 protest in Warren County, North Carolina.[5] Black leaders across the country organized a month-long protest against the placement of a Polychlorinated Byphenyl landfill in a majority Black county.[6] While the protest was unsuccessful, it prompted action, including a United Church of Christ’s Commission for Racial Justice study, which showed that toxic waste facilities are wildly overrepresented in Black and Hispanic Communities.[7] In 1990, the Environmental Protection Agency (EPA) created the Environmental Equity Workgroup after the Congressional Black Caucus and others pointed out that “the EPA’s inspections did not address the needs of low-income communities of color.”[8] The Environmental Equity Workgroup produced a report titled “Reducing Risk for All Communities” which led to the EPA creating the Office of Environmental Equity and the National Environmental Justice Advisory Council in 1992 and 1993.[9]
Presidential Environmental Justice Action
In response to widespread environmental justice action from the EPA, Universities, and grassroots organizations, in 1994, President Bill Clinton signed Executive Order 12989, titled, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.”[10] Order 12989 directed federal agencies to promote nondiscrimination in programs that affect health and create strategies for installing environmental justice. The Order required agenciesto “identify and address the disproportionately high and adverse human health or environmental effects of their actions on minority and low-income populations.”[11] Additionally, Order 12989 create an Interagency Working Group composed of eleven department or agency heads, White House offices, and the EPA Administrator.[12] Despite riding a wave of momentum from the environmental justice movement, Order 12989 saw little to no action in its first ten years.[13] In 2004, the Office of the Inspector General (OIG) submitted a report which found that the EPA had not “fully complied with the intent” of Order 12989.[14]
In 2001, after President George W. Bush’s election, the EPA’s approach to environmental justice changed.[15] The new administration’s EPA de-emphasized the role that race and income place in environmental injustices, opting to label environmental justice as something for everyone.[16] The 2004 OIG report pointed out that Order 12989 explicitly directs the agency to focus on the disproportionate effect on minority and low-income populations.[17] Further, the report noted that the EPA failed to provide a national approach to environmental justice, which resulted in inconsistent programs and policies across regional offices.[18] Bush’s EPA completely rebuffed the 2004 Report, disagreeing wholly with the OIG’s interpretation of Order 12989.[19]
In 2010, after President Barrack Obama’s election , the EPA reached out to the United States Government Accountability Office (GAO) for evaluation on “(1) how EPA is implementing its environmental justice efforts, and (2) the extent that EPA has followed leading federal strategic planning practices in establishing a framework for these efforts.”[20] The GAO evaluation showed a continued gap in establishing an agency wide strategy for “defining key environmental justice terms or identifying the resources needed to accomplish its environmental justice integration goals.”[21] However, the GAO report commended the EPA’s renewed commitment to environmental justice and the positive actions that the agency took. [22] The EPA responded positively to the report and agreed to comply with every recommendation.[23]
Shortly before the 2011 GAO report was published, the Interagency Working Group issued a “Memorandum of Understanding on Environmental Justice and Executive Order No. 12898,” which largely constituted a recommitment to action on environmental justice. The Obama Administration seemed to be taking positive and clear steps towards implementing Order 12989 and securing environmental justice programs. However, the beginning of the Flint Michigan Water Crisis renewed the public’s awareness of the need for widespread and powerful environmental justice changes.
Flint Michigan Water Crisis
In 2011, the City of Flint, Michigan fell under state control, and the governor, Rick Snyder, instructed emergency managers to cut costs because Flint had a deficit of $25 million.[25] As a result, in 2013, the City began pumping water from the highly corrosive Flint river through aging pipes without treating the water.[26] The community began experiencing major health issues, but their complaints were ignored for over eighteen months.[27] Meanwhile, the contaminated water exposed over nine thousand children to lead poisoning, caused a Legionnaires’ disease outbreak, and more.[28] The EPA became aware of an issue with the water as early as May 2014, and in December 2014, after a six month round of lead monitoring by the Michigan Department of Environmental Quality, the lead levels in Flint River were confirmed to be above the practical limit.[29] However, the EPA did not issue an emergency order until January 2016, all the while Flint residents went without clean drinking water.[30]
With the Flint Michigan Water Crisis in the backdrop, the Trump Administration dismantled over one hundred environmental rules, including regulations of water pollutants.[31] The GOA published two reports on environmental justice in 2019, both of which found that the Interagency Working Group was inconsistent and lacked a strategic approach, despite its recommitment in 2011.[32] Order 12989 sat on the shelf during the Trump Administration as the EPA and the Interagency Working Group halted their progress in environmental justice, despite continued issues in Flint and rising issues in other communities.[33]
The Biden Administration’s Recommitment to Environmental Justice
Shortly after his election, Biden acted to address climate change, environmental justice, and other environmental issues.[34] On his first day in office, Biden signed Executive Order 13990, which identified Biden’s specific strategies and directed agencies to review and reconsider environmental policies installed during the Trump Administration.[35] However, the success of any administration’s strategies hinges on agency commitment, funding, and oversight.[36] On April 21, 2023, President Biden signed Executive Order 14096, titled “Executive Order to Revitalize Our Nation’s Commitment to Environmental Justice for All,” that strengthened Order 12989 and provided clearer guidelines for federal agencies.[37] Order 14096, directs federal agencies to create an environmental justice strategic plan within eighteen months, update their strategic plans every four years, and when there are toxic chemical releases, immediately notify affected communities and hold a public meeting.[38] Additionally, Order 14096 established a White House Office of Environmental Justice and a White House Environmental Justice Interagency Council and instructs the Office of Science and Technology to create an Environmental Justice Subcommittee[39]
Order 14096 was a thorough, logical continuation of the Biden Administration’s environmental justice work. However, instituting important policies via executive order comes with drawbacks. Each administration can take a drastically different approach, which prevents consistent policies and stalls forward movement.[40] It leaves communities without effective recourse and lacks the regulatory power that a statute would have. [41] In 1994, President Clinton signed an Executive Order directing federal agencies to make environmental justice a part of their mission, but thirty years later, communities still lack proper support when faced with environmental injustices.[42] Executive Order 14096 is a positive step preceded by a history of missteps. Hopefully, communities will not have to wait another thirty years to see lasting change.
[1] FACT SHEET: President Biden Signs Executive Order to Revitalize Our Nation’s Commitment to Environmental Justice for All, White House Briefing Room (April 21, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/04/21/fact-sheet-president-biden-signs-executive-order-to-revitalize-our-nations-commitment-to-environmental-justice-for-all/.
[2] Id.
[3] Learn About Environmental Justice, Env’t Prot. Agency, https://www.epa.gov/environmentaljustice/learn-about-environmental-justice (last updated Sept. 6, 2022).
[4] Bloomberg Law, Will Environmental Justice Change Under Biden?, YouTube (June 10, 2021), https://www.youtube.com/watch?v=Ylx1TT93XOo.
[5] Environmental Justice Timeline, Env’t Prot. Agency, https://www.epa.gov/environmentaljustice/environmental-justice-timeline (last updated July 18, 2022).
[6] 55 Arrested in Protect at a Toxic Dump in Carolina, N.Y. Times (Sept. 16, 1962), https://www.nytimes.com/1982/09/16/us/55-arrested-in-protest-at-a-toxic-dump-in-carolina.html; Environmental Justice: History, Congressional Black Caucus Foundation https://avoice.cbcfinc.org/exhibits/environmental-justice/history/ (last visited May 8, 2023); Environmental Justice Timeline, supra, note 5.
[7] Environmental Justice: History, Congressional Black Caucus Foundation (last visited May 8, 2023).
[8] Id.
[9] Environmental Justice Timeline, supra, note 5.
[10] Id.
[11] Summary of Executive Order 12898, Env’t Prot. Agency, https://www.epa.gov/laws-regulations/summary-executive-order-12898-federal-actions-address-environmental-justice (last updated Sept. 12, 2022).
[12] Id.
[13] Mollie Soloway, Measuring Environmental Justice: Analysis of Progress Under Presidents Bush, Obama, and Trump, 51 Envtl. L. Rep. (ELI) 10038, 10040-41 (2021). https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1060&context=student_pubs; U.S. Off. of Inspector Gen., Report No. 2004-P-00007, Evaluation Report: EPA Needs to Consistently Implement the Intent of the Executive Order on Environmental Justice, Executive Summary (2004) https://grist.org/wp-content/uploads/2004/03/20040301-2004-p-00007.pdf.
[14] Id. at 7.
[15] Soloway, supra note 13 at 10041; U.S. Off. of Inspector Gen., supra note 13 at 7.
[16] U.S. Off. of Inspector Gen., supra note 13 at 7.
[17] Id. at 7-8, 10.
[18] Id. at 8, 15.
[19] Id. at EPA Response to Draft Report.
[20] U.S. Gov’t Accountability Off., GAO-12-77, Environmental Justice: EPA Needs to Take Additional Actions to Help Ensure Effective Implementation (2011) https://www.gao.gov/assets/gao-12-77.pdf.
[21] Id. at 31.
[22] Id.
[23] Id.
[24] Interagency Working Grp. on Env’t Just., Memorandum of Understanding on Environmental Justice and Executive Order 12898 (Aug. 2011) https://www.epa.gov/environmentaljustice/memorandum-understanding-environmental-justice-and-executive-order-12898.
[25] Melissa Denchak, Flint Water Crisis: Everything You Need to Know, NRDC (Nov. 8, 2018) https://www.nrdc.org/stories/flint-water-crisis-everything-you-need-know#summary.
[26] Id.
[27] Id.
[28] Id.
[29] Off. of Inspector Gen., 18-P-0221, Management Weaknesses Delayed Response to Flint Water Crisis, 32-33 (July 19, 2018) https://www.epa.gov/sites/default/files/2018-07/documents/_epaoig_20180719-18-p-0221.pdf
[30] Id. at 27.
[31] Nadja Popovich et al., The Trump Administration Rolled Back More than 100 Environmental Rule. Here’s the Full List, N.Y. Times (last updated Jan. 20, 2021) https://www.nytimes.com/interactive/2020/climate/trump-environment-rollbacks-list.html
[32] U.S. Gov’t Accountability Off., GAO-20-290T, Environmental Justice: Federal Agencies Could Benefit from a Strategic Approach to Assess Progress (Nov. 20, 2019) https://www.gao.gov/products/gao-20-290t; U.S. Gov’t Accountability Off., GAO-19-543, Environmental Justice: Federal Efforts Need Better Planning, Coordination, and Methods to Assess Progress (Sept. 16, 2019) gao.gov/products/gao-19-543.
[33] U.S. Gov’t Accountability Off., GAO-19-543, Environmental Justice: Federl Efforts Need Better Planning, Coordination, and Methods to Assess Progress (Sept. 16, 2019); Denchak, supra note 25.
[34] Hana Vizcaeea & Hannah Perls, Biden’s First 100 Days of Climate Action, Harvard Law: Environmental & Energy Law Program (May 11, 2021) https://eelp.law.harvard.edu/portfolios/environmental-governance/bidens-first-100-days-of-climate-action-report/.
[35] Id.
[36] Stephen Lee & Dean Scott, Success of US Climate Guidance Revamp Hangs on Agency Commitment, Bloomberg Law News (Jan 30, 2023 4:30 AM) https://www.bloomberglaw.com/product/blaw/bloomberglawnews/business-and-practice/XKHHG1C000000?bc=W1siU2VhcmNoICYgQnJvd3NlIiwiaHR0cHM6Ly93d3cuYmxvb21iZXJnbGF3LmNvbS9wcm9kdWN0L2JsYXcvc2VhcmNoL3Jlc3VsdHMvMzcxNDBiYTEwMWY3YjBlOWQ1ZDI5NDM2MDY4YjA0MjEiXV0–a3acf7ab17eaf7b3cf19f3ca24f4b18c07c1cc16&bna_news_filter=business-and-practice&criteria_id=37140ba101f7b0e9d5d29436068b0421&search32=031xhQFaLQ8yIf3DUdBYXg%3D%3DfJVWw7j-l_BYgzSb7s1UArHy0GUvgYMYSU1vDepI2Gs7Of9jeEpLJJoRP34iCO53o7mJ87UeYUfVLVhGBaS4h-qxwpkWhUIwZfmnG6C4picwTDesai9XYwX7OLvuf4ZU979Y3C0Z87EY0LP6BzrZS4xpTDkcUYj-DCVfgUIwnqcv8FZLTB5MqPEjtIilq2hNJXzGlhUfqp0do6N4rIH1DaFrolKrSCYwjk27YHssNSI1XRQ5UlG-xYuQmpj5ShSQX7vD1WGMFfWuh75OQhwNNffKXb-8LEro8ln5V91kVX41Gft_5v020xWLIoJWuD85vn_kEGZgktcenuqkbmHQB7YTun7OiqhroTEZ9K-S_xnty5mJYpZzIDBo_cXHlTw7sMXmgQb7Dvk76exsbYyrjA%3D%3D.
[37] Executive Order on Revitalizing Our Nation’s Commitment to Environmental Justice for All, White House Briefing Room (April 21, 2023), https://www.whitehouse.gov/briefing-room/presidential-actions/2023/04/21/executive-order-on-revitalizing-our-nations-commitment-to-environmental-justice-for-all/
[38] Id.
[39] Id.
[40] Executive Orders & Presidential Power, Purdue Policy Resch. Inst. Blog (March 3, 2021) https://www.purdue.edu/discoverypark/ppri/blog/executive-orders-presidential-power/.
[41] Id.; Denchak supra note 25.
[42] Jaclyn Lee et al, Flint residents grapple with water crisis 9 years later: ‘No justice’, ABC News (April 21, 2023, 12:46 PM) https://abcnews.go.com/US/water-crisis-plagues-flint-residents-decade/story?id=98724950; Darryl Fears & John Muyskens, City planners targeted a Black community for heavy pollution. Can the damage be undone?. The Washington Post (May 7, 2023 at 8:00 AM) https://www.washingtonpost.com/climate-environment/2023/05/07/oakland-freeways-environmental-justice/; Tonyisha Harris & Iyana Simba, A Look at Chicago’s Environmental Justice Battles, Impacts and Solutions, Illinois Environmental Council (Jan. 5, 2022) https://ilenviro.org/a-look-at-chicagos-environmental-justice-battles-impacts-and-solutions/.
