The U.S. Environmental Protection Agency (EPA) announced at the end of September the establishment of the Office of Environmental Justice and External Civil Rights (Office). This office combines three existing EPA programs: Office of Environmental Justice, External Civil Rights Compliance Office, and Conflict Prevention and Resolution Center. Stacey Halliday, Principal and Co-Chair of B&D’s Environmental Justice (EJ) practice, provides comments on the new Office and its effect on companies and ESG priorities in two recent articles in Law360 and the National Law Review (NLR).

In Law360, Stacey anticipates that the Office will “force changes in the EPA's internal operations,” and that “having an assistant administrator who is regularly meeting with the administrator and other program office leaders will be a huge structural change.”

"Before, [EJ], in all of its different iterations at External Civil Rights Compliance (ECRCO) or at OEJ, was sort of siloed," she said. "It was one or two steps attenuated from the administrator's office […] so that power center just wasn't there." She notes in the NLR article that “we can expect to see more alignment between EPA program offices [...] and a ‘from-the-top’ imperative to incorporate EJ in overall agency decision-making. This is a big change from past practice when EJ and civil rights enforcement were separately housed within other program offices and lacked this level of authority and agency-wide reach.”

When asked what we can expect from the new Office, she predicts more action concerning civil rights, “considering that under Biden, the EPA and U.S. Department of Justice (DOJ), which created its own environmental justice branch, have already been much more aggressive in launching Title VI investigations.”

Stacey also said that even with the establishment of the Office, “there may still be tensions[.]”  She noted even the White House Environmental Justice Advisory Council “has not endorsed all the Biden administration's climate change policy approaches, such as carbon capture and nuclear power.” The new Office also has the task of facilitating “the Biden administration's "Justice40" initiative, which aims to deliver 40% of the overall benefits from federal investments in climate and clean energy to disadvantaged communities.”  She states that “many of the solutions that the administration is looking to will put this conversation very much in stark relief of what communities want” but explained the dilemma of how the office can “center the voices of communities in a way that's true to EJ, but also achieves meaningful climate goals?"

With regard to how the Office will impact private businesses, Stacey said, “even before the creation of this office, the renewed federal and state prioritization of EJ has had an impact on corporate behavior – driven broadly by federal guidance and tools, new state permitting requirements, targeted environmental enforcement, and investor demand.” She continues,  companies seeking to gain the benefit of competitive federal funding – especially following the flush of resources coming from the [Infrastructure Investment and Jobs Act (IIJA) and Inflation Reduction Act (IRA)] – are more frequently asked to provide a detailed accounting of how they will assess and address EJ impacts, as well as how projects may contribute to the Justice 40 Initiative.”

B&D's Environmental Justice practice has been at the forefront of EJ issues for decades, bringing specialized private sector and government experience to bear. We represent multinational companies and municipal clients in complex disputes and high-profile project development, corporate ethics and governance, environmental compliance, and investigations related to EJ and Title VI of the Civil Rights Act of 1964 enforcement. For more information, please contact the authors.