Recently, two Federal policies have been released that could have a significant effect upon environmental remediation and the emergency response procedures and policies of the Environmental Protection Agency (EPA). The recent train derailment in Palestine, Ohio, may bring them into sharper focus. The regulated community may find it useful to take notice of these directives.
Executive Order 14091 (dated February 16, 2023)
Executive Order 14091, “Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,” was published in the Federal Register on February 22, 2023. (See 88 FR 10825.) The stated policy of this ambitious new Executive Order is to “take additional actions across the Federal Government … to continue the work begun with Executive Order 13995 (released on January 20, 2021), to combat discrimination and advance equal opportunity by … redressing unfair disparities and removing barriers to Government programs and services.” Therefore, it is the intent of this new Executive Order to advance an ambitious “whole of government approach to racial equity and support for underserved communities and to continuously embed equity into all aspects of Federal decision-making.” Among other matters, the Federal Government will “deliver environmental justice and implement the Justice 40 initiative,” which directs the investment of substantial sums of federal money into underserved, environmental justice communities.
This Executive Order establishes an “equity-focused leadership” across the Federal Government, directing the creation of “Agency Equity Teams” within 30 days of the date of this Executive Order in most federal agencies, including the Environmental Protection Agency. These teams will build upon and coordinate with the agency’s existing structure and processes, including the Environmental Justice Officer. Each team will be led by a designated senior official, who will work with the agency’s Chief Diversity Officer to the extent applicable. This senior official will be responsible for delivering “equitable outcomes” to the extent consistent with applicable law and shall report to the head of the agency. The official shall also coordinate with the Office of Management and Budget (OMB) to ensure that the Equity Team has sufficient resources to advance the agency’s equity goals. In addition, the Executive Order establishes a White House Steering Committee on Equity which will coordinate government-wide efforts to advance equity and the existing White House Environmental Justice Interagency Council. Each agency shall use the agency’s resources, programs and policies to deliver “equitable outcomes” to all Americans, including underserved communities. Agency heads will submit the agency’s Equity Action Plan to the White House Steering Committee, and each Action Plan will be made public. Beginning with the Fiscal Year 2025 Budget, and annually thereafter, OMB shall consider how the President’s Budget can support these Agency Action Plans to reinforce agency efforts to meaningfully engage with underserved communities and advance equitable outcomes. The Agency Action Plan will develop and incorporate strategies to pursue “evidence-based approaches” and reduce administrative burdens in order to advance equity. Interestingly, the agency’s regulatory agenda may be consulted to find items that would profit from the analysis this Executive Order demands. Also, these plans can be used to identify “opportunities” consistent with applicable law, to develop new regulations, or modify existing regulations and policies to advance equitable outcomes. The director of the OMB will take steps to “embed equity into government-wide processes to support equitable decision-making.” OMB circulars and memoranda can be used to facilitate this process.
Certain Executive Orders released by the Trump Administration, such as targeting Opportunity Zones for Federal Site locations, are revoked by this Executive Order. Also, agencies are encouraged to take prompt action to revoke any existing agency rules, guidelines or policies that are inconsistent with the policies enunciated by Executive Order 14091. An entire section of this Executive Order is devoted to affirmatively advancing civil rights. Existing agency civil rights authorities should be “comprehensively” used to address discrimination and advance equity, and the role of agency civil rights offices should be enhanced and elevated.
The Executive Order defines a number of terms, including “equity,” “underserved communities” and “algorithmic discrimination”—which can be a source of discrimination. “Equity” is broadly defined to mean the “consistent and systematic treatment of all individuals in a fair, just and impartial manner,” and several specific communities are identified in this order, including “persons otherwise adversely affected by persistent poverty or inequality.” The phrase “equitable outcomes” is not defined.
New EPA Policy to Integrate Environmental Justice into Emergency Response Preparedness and Management
This policy revision, just recently published, was distributed to EPA’s Regional Administrators before the Palestine, Ohio, train derailment incident occurred. The agency believes that its traditional approach to confronting and coping with environmental emergencies resulting from the spill of releases of hazardous substances or the discharge of vast amounts of oil (i.e., the Deepwater Horizon spill) insufficiently emphasized the environmental justice aspect of these response actions. Very often, these discharges take place in and largely affect underserved, environmental justice communities. For instance, drinking water supplies may be threatened as well as wastewater treatment facilities. Over time, the EPA’s emergency response teams have developed to the point that specific agency officials are required to implement an increasingly sophisticated emergency response plans, and now the EPA will make environmental justice specialists available in the early stages of an emergency. The policy clarifies who is responsible for integrating environmental justice priorities into the EPA’s National Approach to Responses, engaging environmental justice expertise in the response assessments, incorporating the environmental justice function and staffing support into the regional incident management team, implementing training and related requirements, and developing and promoting the adoption and use of participation guidelines in disaster response situations. These developments may raise the question whether the primary statutory and regulatory functions of these agencies, such as timely permitting and enforcement, will be affected or enhanced by these new and revised policies.