McIntyre, Stavitsky and Heye Discuss Federal and State Efforts to Enact Environmental Justice-Related Legislation

Environmental attorneys Krista McIntyre and Ariel Stavitsky and summer 2020 associate Lydia Heye contributed an article to Corporate Counsel titled “Uncharted Waters: Environmental Justice in Federal and State Regulation,” published August 16, 2021. The second in a three-part series, the article discusses steps being taken by federal and state actors throughout the U.S. to achieve environmental justice (EJ) through policy, regulation, and enforcement.

While EJ regulatory development remains in its infancy for most state and federal agencies, EJ was made a key agenda priority by the Biden administration. President Biden has signed two executive orders in his first 90 days in office intended to spur federal EJ action. One order directs federal agencies to revisit regulations passed during the Trump administration that conflict with EJ objectives, while the second aims to deliver federal EJ progress within a climate change framework through specific direction to agencies.

The authors note that executive orders and memoranda issued by Presidents Clinton and Obama contained guidance that was applied inconsistently and had little impact in making progress on the ground. For several reasons, they believe the Biden executive orders will be more effective — they more directly mandate specific agency actions and there is funding available through the American Rescue Plan and from the EPA to implement their programs and actions.

As well as the executive orders, federal legislation, in the form of several proposed and pending bills containing EJ-focused measures, is finding its way through congress — the Environmental Justice for All Act, Environmental Justice Legacy Pollution Cleanup Act, and Environmental Justice Mapping and Data Collection Act of 2021.

According to the authors, federal EJ efforts lag efforts in states such as California and New Jersey — early adopters of legislation requiring that EJ considerations be included in various permitting schemes — as well as Washington, New York, Massachusetts, Rhode Island, Connecticut, Maryland, Virginia, Illinois, and Oregon, which have also passed EJ-focused legislation. Similar legislation is pending in many more states, including several that are historically red such as Texas, Georgia, and Florida.

McIntyre, Stavitsky and Heye conclude: “Exactly how governments will implement and enforce EJ accountability is evolving. These federal and state currents require more attentive private-sector navigation to chart a successful course of action. … In the third and final article of this series, we will explore these potential effects in more detail and set forth strategies for approaching EJ implementation in your business.”