The Biden Administration has issued Executive Order (EO) 14096: Revitalizing Our Nation's Commitment to Environmental Justice for All, which markedly expands on the previous EO relating to environmental justice, issued by President Clinton in 1994.

The new EO includes in its definition of "Environmental Justice" the "just treatment of all people" to ensure that they "are fully protected from disproportionate and adverse human health and environmental effects (including risks) and hazards, including those related to climate change, the cumulative impacts of environmental and other burdens, and the legacy of racism or other structural or systemic barriers..."

Whereas the prior EO asked federal agencies to avoid actions that would adversely affect environmental justice, this new EO requires, in part, federal agencies to proactively advance environmental justice in part by addressing historic inequities, including addressing even the risk of adverse effects unrelated to federal activities. As such, the order in relevant part requires agencies to:

1. identify, analyze, and address disproportionate and adverse human health and environmental effects (including risks) and hazards of Federal activities, including those related to climate change and cumulative impacts of environmental and other burdens on communities with environmental justice concerns; 

2. take steps to address disproportionate and adverse human health and environmental effects (including risks) and hazards unrelated to Federal activities, including those related to climate change and cumulative impacts of environmental and other burdens on communities with environmental justice concerns; 

3. identify, analyze, and address historical inequities, systemic barriers, or actions related to any Federal regulation, policy, or practice that impair the ability of communities with environmental justice concerns to achieve or maintain a healthy and sustainable environment; 

4. identify, analyze, and address barriers related to Federal activities that impair the ability of communities with environmental justice concerns to receive equitable access to human health or environmental benefits, including benefits related to natural disaster recovery and climate mitigation, adaptation, and resilience; 

5. if appropriate, take steps to provide, in consultation with unions and employers, opportunities for workforce training and to support the creation of high-quality and well-paying jobs, including union jobs, for people who are part of communities with environmental justice concerns; and 

6. consider adopting or requiring measures to avoid, minimize, or mitigate disproportionate and adverse human health and environmental effects (including risks) and hazards of Federal activities on communities with environmental justice concerns, to the maximum extent practicable, and to address any contribution of such Federal activities to adverse effects -- including cumulative impacts of environmental and other burdens -- already experienced by such communities.

As noted by others, the new definition of Environmental Justice eliminates the “disproportionately high” threshold for disproportionate and adverse effects under E.O. 12898, effectively lowering the bar for what EJ impacts must be addressed or prevented.

These requirements will have most bite in connection with projects requiring National Environmental Policy Act (NEPA) review.  The E.O. establishes a White House Office of Environmental Justice within CEQ, and a new presidentially-appointed Federal Chief Environmental Justice Officer, to ensure federal agencies satisfy their NEPA duties. 

It remains to be seen exactly how these EO mandates will be implemented, but they threaten to slow down and complicate any project requiring federal permitting or approval.