February 2024 – Upholding Environmental Justice: Executive Order 14096 and Changes to NEPA

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By Paul DiPaolo, PMP and Lukas Lightcap

On April 21, 2023, President Biden signed Executive Order (EO) 14096, “Revitalizing Our Nation’s Commitment to Environmental Justice for All." This EO directs federal agencies to prioritize environmental justice (EJ) initiatives within their core missions. The requirements extend to federal agencies’ compliance with the National Environmental Policy Act (NEPA) and the associated analyses. Read on to learn what EJ is, why it is important, and how this EO aims to shape the future of
EJ policy in the United States.

Photo by Tobias Tullias on Unsplash

Broadening the Scope of Environmental Justice

EO 14096 builds on the foundation laid by previous efforts, notably the “original” 1994 EJ initiative (EO 12898) signed by President Clinton, and the Biden Administration's own Justice40 Initiative (EO 14008). Justice40 is an effort to ensure that at least 40% of the overall benefits from federal investments in climate and clean energy go to disadvantaged communities.  

EO 14096 expands the traditional "environmental justice" definition to include "Tribal affiliation" and "disability" as protected categories. EJ is now generally defined as “the fair treatment and meaningful involvement of all people regardless of income, race, color, national origin, Tribal affiliation, or disability, in agency decision-making and other Federal activities that affect humans and the environment.” Communities with EJ concerns have historically experienced disproportionate and adverse impacts from federal actions, less affordable housing, pollution overburden, and other detrimental impacts resulting in poorer health and lower life expectancy in these areas.

Establishing New Structures for Oversight

In a further move to ensure adherence to EJ principles, EO 14096 established the Office of Environmental Justice within the Council on Environmental Quality (CEQ). The goal of this office is to advance EJ initiatives through coordination on policy development, identify opportunities for cross jurisdictional collaboration including coordination with Tribes, and advise CEQ on EJ matters.

Revisiting NEPA Regulations

Historically, when assessing EJ under the NEPA process, CEQ has provided six major guiding principles:

  1. Determine whether EJ populations are in the affected area and may be subjected to disproportionately high and adverse human health or environmental effects.

  2. Consider public health and industry data regarding the potential for multiple exposures or cumulative exposure to environmental and human health hazards.

  3. Recognize interrelated cultural, social, occupational, historical, or economic factors that may intensify the natural and physical environmental effects of the proposed action.

  4. Develop effective public participation strategies.

  5. Assure meaningful community representation in the process as early as possible.

  6. Seek Tribal representation in the process.

In April of 2022, CEQ published a final rule (“National Environmental Policy Act Implementing Regulations”), that generally restored provisions in effect before being modified in 2020. Of particular importance to EJ initiatives is the return to the previous definition of "effects," which requires consideration of cumulative impacts and indirect effects, including climate change impacts. The historical treatment of these communities (the “cumulative” impact) is vital to understanding the extent of disproportionate effects.

On July 31, 2023, CEQ published a notice of proposed rulemaking entitled, “National Environmental Policy Act Implementing Regulations Revisions Phase 2.” If the changes take effect, they will represent significant updates to existing NEPA regulations. Key changes, as they relate to EJ, include, but are not limited to, the requirements to:

  • Provide reasonable alternatives and promote mitigation measures that will reduce or address disproportionate adverse effects on EJ communities.

  • Consider Tribal Nations’ rights and disproportionate and adverse impacts on Tribes as part of the EJ analysis.

  • Affirm the use of Indigenous Knowledge as a source of relevant special expertise for cooperating agencies.

  • Promote meaningful engagement with EJ communities.

Leveraging Available Tools

EJ Screen Tool. Image Courtesy of USEPA

EO 14096 and other regulatory changes have significantly expanded the scope of EJ, a move that highlights the need for comprehensive tools to aid in analysis and decision-making. There are several tools NEPA practitioners can utilize, including EJSCREEN and the Climate and Economic Justice Screening Tool (CEJST).

EJSCREEN is a national-level EJ screening and mapping tool developed by the United States Environmental Protection Agency (USEPA). It uses demographic and environmental information to identify census block groups that may support vulnerable populations and/or be subject to higher environmental burdens. The White House’s CEJST is a geospatial mapping tool designed to identify areas across the United States where communities (not necessarily EJ communities) face significant burdens, such as climate change, energy, health, housing, legacy pollution, transportation, water and wastewater, and workforce development. Tools like EJSCREEN and CEJST can assist with more comprehensive reviews of vulnerabilities; however, these tools do not currently include information on "Tribal affiliation" and "disability," which are protected categories in the EO 14096 EJ definition. Therefore, analysts should be sure to consult US Census data, Tribal knowledge and other state and local tools, where available, to fill the data gaps. It should also be recognized that some populations, particularly those with disabilities, are protected under privacy laws and information about these EJ protected populations may not be available for public use and dissemination. Discretion will be required when sharing EJ information and analyses.

Final Thoughts

In light of pending revisions to NEPA and the issuance of Executive Order 14096, there has been a renewed emphasis on EJ and its integration into decision-making processes. While the expanded definition of EJ and new requirements may introduce new challenges to conducting EJ analysis, Federal agencies and NEPA practitioners should continue to prioritize the incorporation of EJ considerations. These efforts should include early and inclusive community engagement, comprehensive cumulative impact assessments addressing historic disparities and climate change effects, and the implementation of targeted mitigation measures in collaboration with affected communities. As the EJ landscape continues to evolve, it remains imperative for Federal agencies and NEPA practitioners to stay abreast of emerging changes, methodologies, and tools, ensuring ongoing enhancement in the consideration of EJ impacts and communities.

PHE is dedicated to upholding the requirements set by NEPA and ensuring compliance with EJ policies. Clients come to us knowing that we provide the innovative environmental and planning expertise needed to ensure a thorough analysis of the proposed action and potential environmental effects, including EJ-related concerns. PHE’s staff are engaged in solving today’s most pressing environmental challenges, including EJ, climate change, and many others. Our team of NEPA experts and environmental scientists stand ready to help our clients navigate the ever-changing regulatory landscape. For any questions about EJ or other NEPA-related issues, contact Paul DiPaolo at paul.dipaolo@phe.com.