Regulating to Achieve Environmental Justice

Low-income, minority, and tribal communities disproportionately suffer from the distribution of pollution in the United States. In 1994, President Bill Clinton directed federal agencies to identify programs, policies, or activities that imposed disproportionate and adverse effects on “minority populations and low-income populations in the United States.” For example, the U.S. Environmental Protection Agency (EPA) has since developed a mapping tool called EJScreen that combines environmental and demographic data to identify geographic regions in the United States that require additional analysis or outreach within EPA programming. By employing EJScreen, EPA identifies the “most overburdened” communities in the United States through a series of environmental and demographic indicators, such as proximity to hazardous waste sites and the percentage of low-income adults in a community. Once a community is identified as overburdened, EPA provides “additional consideration, analysis or outreach” to prevent further harm from EPA permitting, enforcement, or compliance activities. Upon President Joseph R. Biden assuming office, his Administration committed to securing the fair implementation of environmental laws, regulations, and policies for all U.S. citizens, regardless of race or income. By executive order, President Biden announced the Justice40 Initiative, a government-wide approach directing federal agencies to deliver 40 percent of all benefits from federal investments in climate and clean energy to disadvantaged communities. Federal agencies have already taken steps to comply with this initiative. In July 2021, the director of the Office of Management and Budget, the chair of the Council on Environmental Quality, and the National Climate Advisor issued guidance on achieving the initiative’s goals. Among other things, the guidance provides federal agencies with a sample of indices for determining whether a community is disadvantaged. The White House Environmental Justice Advisory Council—a public advisory committee established by executive order—aims to support the federal government’s efforts to address current and historic environmental injustice. In May 2021, the Council issued recommendations on the development of a climate and economic screening tool, which would include interactive maps highlighting disadvantaged communities throughout the United States. In this week’s Saturday Seminar, experts discuss recent scholarship on regulatory aspects of environmental justice