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President Biden Begins to Tackle Climate Change and Environmental Justice through Executive Action

Energy, Environment and Natural Resources Cynthia A. Faur, Marian LaLonde, George Marek, Pilar M. Thomas

Senior hands giving small planet earth to a child

On January 27, 2021, President Biden signed a sweeping Executive Order that places climate considerations front and center in both international and domestic policy. Taking a government-wide approach, President Biden intends to leverage available federal authorities, including procurement, to hasten the transformation of the United States economy into a more environmentally sustainable one, while working to create good paying jobs and opportunities in communities that were either reliant on coal, oil, and natural gas operations or that are overburdened by pollution. While legislation would likely be necessary to fully implement the Biden administration’s vision, certain actions taken pursuant to this Executive Order, especially those related to environmental justice, may have a near-term impact on businesses, public and private infrastructure projects, and overburdened communities throughout the country.

Taking a Coordinated Approach

During his campaign, President Biden promised to elevate and bring a “whole of government” approach to address climate concerns. This order creates the framework for President Biden’s plan by, among other things, establishing the White House Office of Domestic Climate Policy and a National Climate Task Force to facilitate a variety of federal actions that go well beyond reducing greenhouse gas emissions and implementing adaptation strategies.

Key elements of this order include the ambitious goal to conserve 30% of lands and waters of the United States by 2030 and the directive to bring measureable environmental improvements and economic benefits to low-income, minority, and tribal communities that have experienced the brunt of pollution historically. While the actions taken under the Executive Order are intended to spur the creation of well-paying union jobs and economic growth, there is certain to be significant growing pain as long-standing business interests may be uprooted, and facilities located in low-income and minority areas face greater scrutiny from the federal government.

Showing Us the Money and Changing How Business Is Done

One of the primary ways the Biden Administration intends to tackle climate change is through the power of its purse. Pursuant to this Executive Order, the federal government will use its status as a substantial consumer of energy and goods and as a large property owner to incentivize actions that reduce greenhouse gas emissions and address the impacts of climate change.

Specifically, to the extent consistent with federal law, executive branch agencies will purchase additional clean energy and zero emitting vehicles with a focus on products “Made in America.” The federal government will explore the use of federal funding to forward innovation, commercialization, and deployment of clean energy technologies and infrastructure, and to increase the energy and water efficiency of governmental buildings.

As a significant landowner, the government will evaluate the steps it can take to increase renewable energy production on federal lands and waters, with a goal of doubling offshore wind by 2030. It will also explore its legally available options to amend existing oil, natural gas, and coal leases on public lands. The Executive Order “pauses” new oil and gas leases on public lands and offshore waters pending a comprehensive reconsideration of federal leasing practices. This effort, to the extent consistent with applicable law, may include adjusting royalties associated with coal, oil, and gas resources to account for corresponding climate costs. The Executive Order directs federal agencies to identify any fossil fuel subsidies provided and to ensure, consistent with applicable law, that federal funding does not directly subsidize fossil fuels.

Under this Executive Order, greenhouse gas emissions and climate considerations will, to the extent allowed under applicable law, become an express consideration in federal permitting decisions particularly with regard to infrastructure investments.

Conserving Lands and Revitalizing Communities

The Executive Order casts climate action as a means to create jobs and opportunities throughout the country and in particular in communities that have been left behind due to historic pollution or that may be left behind as the economy shifts away from a reliance on fossil fuels.

President Biden outlines in this order a bold goal to preserve 30% of our lands and waters by 2030. To accomplish this goal, the Executive Order calls for the creation of a Civilian Conservation Corps to train a new generation of conservation and resilience workers. The Executive Order also directs the Department of Agriculture to collect input from tribes, farmers, ranchers, forest owners, conservation groups and firefighters on how available funding could be best used to encourage the voluntary adoption of climate-smart agricultural and forestry practices that decrease wildfire risk associated with climate change, result in measurable and verifiable carbon reduction, and source sustainable bio-products and fuels.

Additionally, the Executive Order recognizes that shifting to a green economy will adversely impact many communities and workers that benefit from the mining and energy industries and that federal leadership and money will be essential to foster economic revitalization and investment in these communities. Activities needed in these communities may include remediation of contaminated properties, restoration of natural assets and redevelopment of brownfield properties. Pursuant to this Order, an interagency working group housed in the Department of Energy will develop strategies to assist these communities as well as identify available resources and coordinate their delivery to further opportunities in these communities.

Delivering Environmental Justice through Economic Benefits and Increased Enforcement

The greatest near-term impact of this Executive Order will likely be seen in the area of environmental justice.

Through this Executive Order, the Biden Administration recommits to achieving environmental justice for low-income, minority and tribal communities that have been disproportionately impacted by current and historic industrial operations. Most notably, this order announces the Justice 40 Initiative. The goal of this initiative is that 40% of the benefits achieved by federally funded programs to address climate change would flow to these disadvantaged communities. Beneficial programs could include clean energy and transit energy efficiency, affordable and sustainable housing, clean water infrastructure, job training, and remediation of historic pollution.

The order also includes creation of a White House Environmental Interagency Council, which is comprised of the heads of 28 departments and agencies in the executive branch. This Interagency Council will, in consultation with environmental justice leaders, develop a strategy and clear performance metrics to address current and historic environmental injustice.

Development of metrics to evaluate progress toward addressing disproportionate impacts of pollution will take time, but in the next few months, businesses and communities will likely see some direct effects of this renewed emphasis on environmental justice. In particular, the United States Environmental Protection Agency (“EPA”) is directed through this Order to strengthen enforcement of environmental violations with a disproportionate impact on underserved communities and to create a community notification program to monitor and provide real-time data to the public on environmental pollution. There will also be changes at the Department of Justice, where the Attorney General has been directed to ensure comprehensive attention to environmental justice throughout the Department and to coordinate environmental justice activities among Department of Justice components and United States Attorney Offices throughout the United States. The Attorney General has also been directed to work with EPA and other client agencies to develop a comprehensive environmental justice enforcement strategy.

Potential Impact of the Executive Order

The ultimate goal of this Executive Order is to leverage government funding and legal authorities to build on existing market forces and encourage a radical transformation of the United States energy economy. Whether President Biden will be successful in this effort remains to be seen, particularly given the strength of the fossil fuel industry and players who prefer the status quo.

For businesses and communities interested in development of clean energy, clean transit and sustainable infrastructure investments, however, there may be opportunities to fund projects and create jobs in the green economy. For depressed communities that have seen businesses shuttered, there may also be revitalization opportunities - especially through the Justice 40 initiative.

The most certain outcome of this Executive Order, however, is increased scrutiny of industrial facilities located in environmental justice communities. In 2021, we expect increased inspections and potentially enforcement actions at these plants. We also expect greater federal outreach to environmental justice community members and organizations, and government to government consultation with Indian tribes regarding industrial facilities and environmental pollution in the area. This outreach may include providing input on resolution of enforcement matters, a practice that was undertaken during the Obama administration. There may also be additional outreach related to the publishing of real-time environmental data, which due to the potential for misinterpretation and misunderstanding can pose issues for the regulated community.

If you have any questions concerning this Order, how it may impact you or provide new federal opportunities, please do not hesitate to contact your Quarles & Brady attorney or: