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02.05.2021 Super EO Covers the Climate and Environmental Justice Fields By: John M. "Jay" Holloway, III & Carrick C. Brooke-Davidson

On January 27, 2021, President Biden signed an Executive Order (EO) on Tackling the Climate Crisis at Home and Abroad. The order begins by noting that:

[t]he United States and the world face a profound climate crisis. We have a narrow moment to pursue action at home and abroad in order to avoid the most catastrophic impacts of that crisis and seize the opportunity that tackling climate change presents. Domestic action must go hand in hand with the United States’ international leadership, aimed at significantly enhancing global action. Together, we must listen to science and meet the moment.

To that end, the EO seeks to put the [c]limate crisis at the Center of United States Foreign Policy and National Security. This goal is to be accomplished through the Special Presidential Envoy for Climate (John Kerry), the White House Office of Domestic Climate Policy (Climate Policy Office), the Assistant to the President and National Climate Advisor (Gina McCarthy) and a National Climate Task Force (Chaired by Gina McCarthy) that consists of all federal agency and policy heads.

International Action

Special Envoy Kerry is tasked with building on United States’ recommitment to the three major objectives of the Paris Agreement: (1) safe global temperature, (2) increased climate resiliency and (3) financial flows consistent with these goals. Kerry is to press for climate goals across “a wide range of international fora,” including the G7, the G20 and other international efforts that address “clean energy, aviation, shipping, the Arctic, the ocean, sustainable development, migration, and other relevant topics.” Kerry is encouraged to promote innovation through “international multi-stake-holder initiatives.”       

The President will host an early meeting of the Leader’s Climate Summit to maximize positive impacts at the 26th United Nations Climate Change Conference. The United States will reconvene the Major Economics Forum on Energy and Climate to pursue “green recovery efforts, initiatives to advance the clean energy transition, sectoral decarbonization, and alignment of financial flows with the objectives of the Paris Agreement, including with respect to coal financing, nature-based solutions, and solutions to other climate-related challenges.” These efforts include a plan to implement these strategies in developing countries.

Climate considerations are to be integrated into all aspects of foreign policy and national security. Within 90 days, Special Envoy Kerry will work with agencies doing significant international work to develop strategies and implementation plans assessing: (1) international climate impacts from agency work, (2) climate impacts from infrastructure abroad, for example, embassies and military installations, (3) agency management of impacts and risk mitigation, and (4) how international work can address the climate crisis.

A Climate Risk Analysis is to be developed that addresses all potential national security impacts of climate change. The Climate Risk Analysis will incorporate a security analysis conducted by the Secretary of Defense and the Chairman of the Joint Chiefs of Staff that will be updated annually. The Secretary of Homeland Security will provide input on the implications of climate change in the Arctic, the country’s borders and critical national functions.

Government-Wide Climate Approach

The EO states that “we face a climate crisis that threatens our people and communities, public health and economy, and, starkly, our ability to live on planet earth.” The President’s policy is that government must use the full capacities of its agencies to combat the climate crisis. This fight will be fought across the federal government. The Climate Policy Office, Task Force and Advisor McCarthy will undertake a mission to incorporate an analysis of climate impacts, protection of public health, conservation, environmental justice and union jobs into any future key federal actions. The Climate Policy Office is to coordinate domestic climate-policy issues, coordinate climate policy advice to the President, and monitor compliance with the President’s domestic climate agenda. The EO also recognizes that, to successfully achieve climate goals, a partnership must be formed between the federal government and stakeholders including industry.     

Government Procurement, Property and Asset Management

The EO requires the Administration to “catalyze private sector investment into and accelerate the advancement of America’s industrial capacity to supply, domestic clean energy, buildings, vehicles, and other necessary products and materials.” It is very important that the EO acknowledges that industry is best positioned to accomplish the technological advancement in renewables and other low/zero CO2 technology (e.g., utility scale battery storage) to achieve future carbon goals. Federal procurement will support these development efforts until the technology is market-driven. A comprehensive plan will be developed to create good jobs and stimulate clean energy industries through the revitalization of the federal government’s sustainability efforts. Elements of the plan will include (i) carbon pollution-free electricity (presumably net-zero) no later than 2035 and (ii) clean and zero-emission vehicles for federal, state, local and tribal fleets including the postal service. Union jobs will be created to run, maintain and manufacture these vehicles. The plan also should include any needed legislation and must be submitted to the Task Force within 90 days.   

Agency heads are to identify opportunities to use federal funding to “spur innovation, commercialization, and deployment of clean energy technologies and infrastructure” to the Office of Management and Budget (OMB) and Advisor McCarthy for inclusion in the FY 22 and future budget requests.  

The Secretary of the Interior is to review siting and permitting processes on public lands and offshore waters and report to the Task Force on potential steps to build more renewable energy generation on these lands and waters with a goal of doubling offshore wind by 2030. [Note that currently there is only 42 MWs of offshore U.S. wind generation in operation.] The Secretary is also to pause new gas and oil leases on public lands or offshore waters and to reconsider federal oil and gas permitting and leasing. These pauses will allow the Secretary to analyze potential climate and other impacts from these activities.

Any fossil fuel subsidies and respective agencies shall be identified by the OMB and Advisor McCarthy and actions shall be taken to ensure that these subsidies are not directly subsidizing fossil fuels. No details are provided as to what “directly subsidizing fossil fuels” means. One wonders whether appropriations to electric cooperatives or federal power agencies qualify as direct subsidies to fossil generation owned and operated by these entities.

Empowering Workers by Rebuilding Infrastructure and Advancing Conservation, Agriculture and Reforestation

The EO notes that the United States needs millions of construction, manufacturing, engineering and skilled-trade workers to replace our deteriorating infrastructure. The Chair of the Council on Environmental Quality (CEQ) and the OMB Director are to take steps to ensure that federal investment in infrastructure reduces climate pollution and to require that all federal permitting decisions consider the impacts of greenhouse gas (GHG) emissions and climate change.

Within 90 days, the Secretary of the Interior, the Secretary of Agriculture and other appropriate agency heads shall submit a strategy to the Task Force to protect the country’s natural resources, increase reforestation, improve access to recreation, and increase the country’s resiliency to storms and wildfires, while promoting well-paying union jobs and increasing opportunities for women and people of color. The strategy should recognize that farmers, ranchers and forest-owners have a very important role in this effort. Another component of the strategy is the creation of a Civilian Climate Corps to “mobilize the next generation of conservation and resilience workers and maximize the creation of accessible training opportunities and good jobs.”

The order also creates an Interagency Working Group (Working Group) of Cabinet Secretaries and agency heads, Advisor McCarthy and the federal Co-Chair of the Appalachian Regional Commission. The Working Group will coordinate the economic revitalization of coal, oil and gas, and power plant communities, assess opportunities to ensure benefits and protections for coal and power plant workers and submit reports on the progress of these efforts to Advisor McCarthy and the Assistant to the President for Economic Policy on a regular basis. The Working Group is to be housed in the Department of Energy.       

Securing Environmental Justice and Economic Opportunities

Almost a third of the EO is devoted to environmental justice directives. As framed in the EO, the goal is “to secure environmental justice and spur economic opportunity for disadvantaged communities that have been historically marginalized and overburdened by pollution and underinvestment in housing, transportation, water and wastewater infrastructure and health care.” 

Perhaps the most significant is the creation of a White House Environmental Justice Interagency Council within the Executive Office of the President. Creation of this Council is described as a revision to the Clinton era Executive Order 12898 of February 11, 1994 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations). This Council, to be headed by the chair of the CEQ Brenda Mallory, consists of representatives from most of the cabinet departments and the Environmental Protection Agency (EPA), as well as several executive offices, including OMB, the Office of Science and Technology Policy, and White House domestic and economic policy assistants. The Interagency Council is directed to develop a strategy to address current and historic environmental injustice by consulting with the White House Environmental Justice Advisory Council (also created by the EO, see below) and with local environmental justice leaders. The Interagency Council is also directed to develop clear performance metrics to ensure accountability and to publish an annual public performance scorecard on its implementation. Finally, the Council is directed to submit a set of recommendations for updating the 1994 environmental justice executive order.

As noted above, the EO also creates the White House Environmental Justice Advisory Council. This Council, while administratively housed in EPA, is designed to be solely an advisory council with its unpaid membership appointed by the President from across the political spectrum and with expertise in areas deemed relevant to advising the Interagency Council. 

In addition to the foregoing White House-level actions, the EO also contains directives or recommendations to specific executive agencies:

  • Within 6 months, the Chair of the CEQ is directed to create a geospatial Climate and Economic Justice Screening Tool and to publish yearly interactive maps highlighting disadvantaged communities.
     
  • The Administrator of the EPA is directed to
  1. strengthen enforcement of environmental violations with disproportionate impact on underserved communities through the Office of Enforcement and Compliance Assurance; and
  2. create a community notification program to monitor and provide real-time data to the public on current environmental pollution, including emissions, criteria pollutants, and toxins, in frontline and fenceline communities.
     
  • The Attorney General is ordered to
  1. consider renaming the Environment and Natural Resources Division the Environmental Justice and Natural Resources Division (this would be the fifth name change since its inception as the Public Lands Division in 1909);
  2. direct the division to coordinate with EPA, through the Office of Enforcement and Compliance Assurance, as well as with other client agencies, as appropriate, to develop a comprehensive environmental justice enforcement policy; and
  3. ensure comprehensive attention to environmental justice throughout the Department of Justice (DOJ), including by considering the creation of an Office of Environmental Justice within DOJ to coordinate environmental justice activities among DOJ components and United States Attorneys’ Offices.
     
  • The Secretary of Health and Human Services is ordered to
  1. establish an Office of Climate Change and Health Equity to address the impact of climate change health; and
  2. establish an Interagency Working Group to Decrease Risk of Climate Change to Children, the Elderly, People with Disabilities, and the Vulnerable as well as a biennial Health Care System Readiness Advisory Council, both of which are to report their progress and findings regularly to the National Climate Task Force established by the EO.
     
  • Within 100 days, the Director of the Office of Science and Technology Policy is directed to publish a report, in consultation with Advisor McCarthy, identifying the climate strategies and technologies that will result in the most air and water quality improvements.


The final environmental justice component of the EO is styled the Justice40 Initiative. Within 120 days, the Chair of the CEQ, the Director of the OMB, and Advisor McCarthy, in consultation with the Advisory Council discussed above, is to publish recommendations on how certain Federal investments might be made toward a goal that 40 percent of the overall benefits flow to disadvantaged communities. Recommendations are to focus on investments in the areas of clean energy and energy efficiency; clean transit; affordable and sustainable housing; training and workforce development; the remediation and reduction of legacy pollution; and the development of critical clean water infrastructure. Within 60 days the agency heads are to identify applicable program investment funds based on the recommendations and to consider interim investment guidance. By February 2022, the Director of OMB, in coordination with the Chair of CEQ, the Administrator of the United States Digital Service, and other relevant agency heads, is to publish on a public website an annual Environmental Justice Scorecard detailing agency environmental justice performance measures.  Although listed as part of the Justice40 Initiative, the wording implies the scorecard could be broader than just the investment activities covered by that initiative.

Williams Mullen’s environmental and energy lawyers are aggressively tracking all aspects of, and working with our clients to develop comprehensive strategies to achieve compliance with, President Biden’s unprecedented climate and environmental justice programs. Our focus is to ensure that these programs partner with industry to understand and take advantage of the many opportunities that they afford and to ensure that compliance is possible and sustainable for all stakeholders.