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Biden victory could usher in new era of environmental justice policies

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Biden victory could usher in new era of environmental justice policies

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The city of Los Angeles in 2019 scrapped plans to renovate the Scattergood gas-fired power plant and opted to instead shut it down in 2024. Los Angeles was at that time the most air polluted city in the U.S. and officials noted closing the plant along with two others would help reduce asthma and other air-pollution related health impacts to local communities.
Source: Mario Tama/Getty Images News via Getty Images

Environmental justice policies could be prioritized like never before if presidential candidate Joe Biden wins the White House next month, which could have widespread ramifications for infrastructure permitting and climate policy.

Through a combination of executive orders, rulemakings and legislation, the Biden camp has outlined plans to elevate environmental justice issues by pushing for 40% of all clean energy investments to be in disadvantaged communities and establishing an Office of Climate Change and Health Equity at the Department of Health and Human Services. He has said he intends to re-establish and elevate environmental justice groups within White House Council on Environmental Quality, create an environmental and climate justice division with the U.S. Justice Department, launch an Interagency Climate Equity Task Force, and overhaul the EPA's external civil rights compliance office.

He has also pledged to work with Congress to pass legislation that would reinstate the private right to sue the federal government for civil rights violations. And Biden would revise and "reinvigorate" President Bill Clinton's executive order and accompanying memorandum that in 1994 directed federal agencies to address environmental justice in minority and low-income communities under the National Environmental Policy Act, or NEPA, process. The NEPA process is a key part of siting energy infrastructure.

"Justice and equity are really at the core of what they are planning to do on climate change, clean energy and infrastructure," according to Cathleen Kelly, a senior fellow focused on climate justice and policy at the Center for American Progress. Kelly worked at the White House Council on Environmental Quality during the Obama administration.

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Characterized by the U.S. Environmental Protection Agency as "the fair treatment and meaningful involvement of all people regardless of race, color, national origin or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies," environmental justice intersects with energy infrastructure permitting and climate policies.

Also driving the push on environmental justice has been the increased focus on racial tensions in the U.S., brought to the fore of public discourse following the death of George Floyd while in police custody. This national dialogue on race has prompted a number of companies, investors, state governments and Democratic presidential nominee seekers to elevate environmental justice issues.

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Biden has pledged to make environmental justice a core tenet of his policies if he wins the White House.
Source: Joe Biden campaign

Harris, who identifies as Black and Indian, also made environmental justice a cornerstone of her own campaign while she was in the running for the Democratic presidential nomination.

But even if Biden were to win and make all the changes he has promised within his first 100 days, applying them would take time, and states also have a say in certain infrastructure siting decisions. Moreover, for the changes Biden has proposed to stick, Congress would need to codify them into law, according to environmental advocates.

State of play

According to EPA Administrator Andrew Wheeler, the administration's deregulatory efforts did not hurt environmental justice but rather fit with President Donald Trump's commitment to cleaner air and water. During a Sept. 3 speech in California, Wheeler said "we can do all three at the same time" — clean air, clean water and deregulation — in pursuit of environmental justice. That would include promoting community-based environmentalism and revitalization and giving states more power over the environmental permitting process during a second Trump term.

"Communities that deal with the worst pollution in this country — and tend to be low-income and minority — face multiple environmental problems that need solving. ... If you look for answers on why environmental injustice takes place today ... it's not happenstance, nor a coincidence," Wheeler said. "I want to bring our environmental decision-making process out of the proverbial smoke-filled back room."

Shortly after Wheeler's speech, however, the EPA shelved an environmental justice speaker series in light of a White House order stopping government agencies from conducting certain race-related training, according to a POLITICO report.

Environmental justice advocates have expressed hope that Biden would undo Trump administration policies that the advocates say have hurt low-income and other disadvantaged communities.

Specifically, advocates cite the Trump administration's rollbacks of several policies enacted during President Barack Obama's administration that provided for more stringent federal oversight of air, water and waste pollution, the advocates said.

Trump's Council on Environmental Quality in July also finalized changes to NEPA, the law governing how federal agencies review the potential environmental impacts of major federal actions. While Trump noted that the revisions would speed up the siting of energy and other infrastructure in the U.S., critics of the revisions say the changes limited the scope of climate-related impacts that agencies will consider and made it harder for local communities to have their voice heard in the process.

Combating inertia

A Biden win alone would not automatically advance environmental justice goals, said Jean Su, director of the energy justice program at the Center for Biological Diversity. The fossil fuel and utility industries have historically had strong lobbying power, Su noted.

"There's all of those political forces, which means that everyone on the other end has to be super loud," Su said.

To build environmental justice momentum, a Biden administration would need to make the issue a top White House priority and require the Office of Management and Budget to incorporate environmental justice into rulemaking reviews, the Center for American Progress' Kelly said.

"In order to really change the culture within and across the agencies, you need to have White House leadership a team of people who wake up in the morning and think only about addressing environmental justice across the agencies and collaborate with Congress as needed," Kelly said.

According to Peggy Shepard, co-founder and executive director of the group WE ACT for Environmental Justice, 17 federal agencies were tasked with accounting for environmental justice in their decisions under Clinton's executive order, EO 12898, but they have instead "taken stuff they are [already] doing and called it environmental justice."

As for decisions related to interstate infrastructure, such as natural gas pipelines and liquefied natural gas export facilities, the Federal Energy Regulatory Commission and the U.S. Energy Department have come under pressure in recent years from local groups who worry projects pose environmental risks. While FERC does have an indirect mandate under the 1994 executive order to consider environmental justice in its decisions, its role as an independent agency does not necessarily provide for more sweeping change, Baker and Hostetler LLP attorney Glenn Benson said.

"I suppose it's possible they may want to establish some sort of rulemaking procedure, but I'm not sure they're going to go in that direction. It certainly didn't happen under Clinton or Obama," he said in an interview. "A Democrat-controlled FERC would be more inclined to require stronger mitigation measures, but ... I don't think you'd see a radical change or even a noticeable change in direction."

Many types of investment decisions and permitting approvals — including Clean Water Act Section 401 certificates that ultimately affect local communities — are in the hands of states. And some states have already begun to tighten their own environmental justice laws including Connecticut and New Jersey.

The federal government could encourage states to adopt environmental justice policies by producing guidelines for states to consider the cumulative environmental impacts of projects, said Ana Baptista, a board member of the New Jersey Environmental Justice Alliance. Along those lines, the Center for American Progress' Kelly noted that a Biden administration and congress could also twist states' arms by imposing environmental justice conditions to federal funding.