An Amended Environmental Justice Executive Order Is Not the Answer

Tuesday, February 2, 2021

Let me begin this blog by stating that I support the Joe Biden Administration’s effort to address environmental injustices in this nation. I just wish that it had taken a legislative-focused path to help bring about profound changes in the lives of tens of millions of Black and Brown and poor people.

On February 1, ELR—The Environmental Law Reporter published my article, Time Has Come Today for Environmental and Climate Justice Legislation. I argued that President Biden needs to be bold in “the first 100 days” and recommend to Congress environmental justice and climate justice legislation. I pointed out that in 1992, Rep. John Lewis (D-Ga.) and Sen. Al Gore (D-Tenn.) first introduced environmental justice legislation in the U.S. House of Representatives and the U.S. Senate. Since then, unfortunately, nothing has been enacted into law on the federal level. Importantly, I argued that Executive Orders do not have the force of law and are not legally binding. Therefore, President Biden should refrain from amending President Bill Clinton’s February 11, 1994, environmental justice Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.”

Climate justice now protest signOn the afternoon of January 27, while my article was at the printers, President Biden issued his “Executive Order on Tackling the Climate Crisis at Home and Abroad.” In the Executive Order, President Biden included a section for “Securing Environmental Justice and Spurring Economic Opportunity,” amending President Clinton’s Executive Order 12898. Among other things, his Order establishes a White House Environmental Justice Interagency Council and a White House Environmental Justice Advisory Council to prioritize environmental justice and ensure a whole-of-government approach to addressing current and historical environmental injustices. These new councils will also be tasked with advising President Biden on ways to further update Executive Order 12898. Most assuredly, President Biden’s Executive Order formalizes his commitment to make environmental justice a part of the mission of every federal agency by directing them to develop programs, policies, and activities to address the disproportionate health, environmental, economic, and climate impacts on disadvantaged communities.

But, since 1994, all of this has been done before. With varying degrees of success, federal agencies have devoted considerable time, money, and energy to carrying out the goals of Presidents Clinton, George W. Bush, and Barack Obama pertaining to environmental justice. For example, during the Obama Administration, on August 4, 2011, the federal agencies signed the “Memorandum of Understanding on Environmental Justice and Executive Order 12898,” not only to develop environmental justice strategies to protect the health of people living in communities disproportionately exposed to environmental harms and risks, but also to provide the public with annual progress reports on their efforts. Furthermore, the federal agencies adopted an Interagency Working Group charter that provided the workgroup with more structure and direction. It also formalized the environmental justice commitments that agencies made in 2010, and provided a road map to better coordinate their efforts. Specific areas of focus included considering the environmental justice impacts of climate adaptation and commercial transportation, and strengthening environmental justice efforts under the National Environmental Policy Act and Title VI of the Civil Rights Act of 1964.

In spite of the lofty goals of the MOU, instances of environmental injustice continued to proliferate throughout the country. The fact is that minority and/or low-income individuals, communities, and populations continue to be disproportionately exposed to environmental harms and risks as compared to others. This is an undeniable fact.

At this time, the answer is not amending Executive Order No. 12898 any further: instead, the answer is enacting environmental and climate justice legislation into law. I argued in my article that, because of his 36 years as a senator, President Biden can surely appreciate the essential role of legislation in our body politic, since legislation determines the rights and responsibilities of individuals and the authorities to whom the legislation applies. Thus, President Biden should place considerable pressure on the U.S. Congress to pass environmental and climate justice legislation in the first 100 days of his presidency. Otherwise, an Executive Order is arguably an exercise in futility.

The state of New Jersey, for example, has reached the same conclusion. Three Democrats and one Republican governor issued environmental justice Executive Orders in 2004, 2009, 2011, and 2018. On September 18, 2020, New Jersey finally enacted landmark environmental justice legislation into law.

On January 19, 2004, Gov. James McGreevey (D-N.J.) issued Executive Order No. 96 to establish statewide environmental justice policy. On February 5, 2009, Gov. Jon S. Corzine (D-N.J.) issued Executive Order No. 131, which, among other things, established the Environmental Justice Advisory Council. On April 20, 2011, Gov. Chris Christie (R-N.J.) issued Executive Order No. 60, which was concerned with “the cumulative exposure to pollution and other hazards from multiple sources in urban communities [which] creates a disproportionate impact on the health, well-being, and quality of life of persons living in those communities, and those impacts are exacerbated by exposure to diesel exhaust in urban settings.” On April 20, 2018, Gov. Philip D. Murphy (D-N.J.) issued Executive Order No. 23, which tasked the Department of Environmental Protection to take the lead in developing environmental justice guidance for all state agencies. My article pointed out the breadth of New Jersey’s new environmental justice law. Arguably, New Jersey leadership decided that issuing Executive Orders ad infinitum is a piecemeal approach to addressing a substantive environmental and public health issue.

President Biden’s Executive Order ends with the following language in §301(c ): “This order 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.” That’s the problem with an Executive Order: it creates neither a new substantive legal authority for environmental justice nor any legally enforceable requirements. Whereas, environmental and climate justice legislation would identify what is to be governed, the procedures to be followed, the means of enforcement, as well as procedures for redress of damages. In order to seek to ensure equity and parity, moreover, the new Environmental Justice and Natural Resources Division of the U.S. Department of Justice cannot enforce an environmental justice Executive Order against a polluter in Cancer Alley. Nor can a community-based organization in Cancer Alley sue the Biden Administration for compliance or noncompliance with the amended Executive Order. In sum, although well-intended, the tangible effects of an amended Executive Order are very limited.

As long as America is without a comprehensive federal environmental and climate justice law, it will continue to be a nation in a state of chaos and confusion.