June 26, 2022

Volume XII, Number 177

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Biden Administration Rolls Out New Climate, Economic, and Environmental Justice Tools

Two recent actions by the Biden Administration will identify areas of focus for environmental justice (EJ) and therefore influence environmental enforcement priorities, federal permitting and licensing, and federal spending, among other actions. On February 18, the White House Council on Environmental Quality (CEQ) released the beta (or draft) version of its Climate and Economic Justice Screening Tool (CEJST), a key component of President Biden’s Justice40 Initiative and mandated by the same Executive Order 14008. As we described last year, the Justice40 Initiative set the goal of “delivering 40 percent of the overall benefits of relevant federal investments” to disadvantaged communities. The CEJST serves a specific purpose: to help agencies identify disadvantaged communities in order to direct federal benefits and help agencies measure whether 40 percent of benefits are being received by those communities.

In sum, CEJST is a map and accompanying list of disadvantaged communities in the US, as determined by eight categories of disadvantaged status indices. In general, CEJST uses a baseline of low-income and low higher education enrollment rate plus at least one other burden listed in a category to determine disadvantaged status. CEQ is now soliciting feedback on the CEJST and has published a lengthy draft spreadsheet of disadvantaged communities.

Also last Friday, the Environmental Protection Agency (EPA) released EJSCREEN 2.0, an update to its EJSCREEN 1.0—a tool widely used by federal and state agencies for a broad array of screenings, outreach, and analyses. EJSCREEN 2.0 includes new environmental justice indices, such as an underground storage tank indicator and an unemployment indicator, as well as updated environmental and demographic data down to the block group level (i.e., about every 1200 persons).

In Comparison: CEJST and EJSCREEN 2.0

The tools are interrelated and use similar (but not identical) datasets and indices. CEQ describes the tools as complementary, stating that EJSCREEN “provides a tool to screen for potential disproportionate environmental burdens and harms at the community level,” while the CEJST “defines and maps disadvantaged communities for the purpose of informing how Federal agencies guide the benefits of certain programs.”

One key difference between the tools is that EJSCREEN was developed by EPA, while the White House CEQ developed the CEJST. On a Community Engagement Call, EPA explained that CEQ’s CEJST has a specific purpose associated with the 40 percent benefit delivery of President Biden’s Justice40 to ensure benefits of government “go to communities with the greatest need,” while EPA’s EJSCREEN has always been a “broad tool for a lot of different purposes” that “combines environmental and demographic data to highlight where vulnerable populations may be disproportionately impacted by pollution,” and the two tools are “very different in that regard.” As an example of how the two tools may be used together, EPA described its diesel grants work, although “benefits” evaluated under Justice40 are not limited to actual “dollars flowing to communities.” In the diesel grant context, program administrators could look at the CEJST map of disadvantaged communities (i.e., communities (1) above the 65th percentile for low income, (2) at or below 20 percent for higher education enrollment rate, and (3) experiencing at least one other listed burden in a category) and compare that to places to which its grants have been or will be issued in order to see whether 40 percent of grants went into those communities. Then, using EJSCREEN, administrators could say how many of those grants went to places in the top percentile for diesel particulate matter alone, regardless of income and education rate (i.e., the general baselines for disadvantaged community status under CEJST). EPA stated that, by using the tools in combination, it can gain a sense of where program benefits are having an impact in order to assess and adjust the program as needed. EPA explained that the “tools have different strengths.” In effect, EPA stated that the tools can provide different perspectives.

Both tools are essentially GIS mapping tools. EJSCREEN drills down to the 1,200-person level, while CEJST looks at the 4,000-person level. EJSCREEN maps 12 “indexes,” each with underlying indicators, while the CEJST labels areas using 8 “categories,” each with underlying indicators—but the indicators within the tools are different or are aggregated differently where they overlap. Whereas the CEJST relies on EJSCREEN compilations for indicators such as PM 2.5, diesel particulate matter, traffic proximity, and proximity to hazardous waste sites, EJSCREEN also includes demographic indicators, such as people of color, that are absent from the CEJST. While both EJSCREEN and the CEJST are described as “screening tools,” providing a first step in highlighting locations for further review, CEQ is signaling that the CEJST tool is destined for important uses that will need to withstand judicial review. In response to questions about the lack of inclusion of race in the CEJST, CEQ has stated “we have a desire to make sure this tool is legally enduring.” During its Community Engagement Call, EPA explained that “EJSCREEN will always have race in it” because it “was crafted for a purpose that allows the use of race.”

A Close Look at the CEJST

Users of the CEJST are expected to include community members and government agencies. It will allow them to look at indicators at the census-track level, which equates to groupings of approximately every 4,000 people in the US by location. It also allows users to search by city, state, or zip code to see whether any “indicator” thresholds are exceeded.

There are two key elements: what constitutes a “disadvantaged” census tract and how the “indicators” are measured and determined in assessing disadvantaged status. As presented, a census tract can be identified as disadvantaged in up to eight categories based on multiple indicators (bulleted below) within each category. The eight categories range from Clean Energy to Health to Workforce Development, and the CEJST website provides more information regarding the underlying datasets used for each category.

As presented by CEQ, the “disadvantaged” label applies to census tracks that exceed:

(1) ANY of the one to four burden thresholds for the category (first bullet); AND

(2) BOTH of the two socioeconomic thresholds for the category (second bullet).

  1. Climate Change

  • at or above 90th percentile for expected agriculture loss rate OR expected building loss rate OR expected population loss rate; AND

  • is above 65th percentile for low income AND at or below 20% for higher ed enrollment rate

  1. Clean Energy and Energy Efficiency

  • at or above 90th percentile for energy burden OR PM2.5 in the air; AND

  • is above 65th percentile for low income AND at or below 20% for higher ed enrollment rate

  1. Clean Transit

  • at or above 90th percentile for diesel particulate matter exposure or traffic proximity and volume; AND

  • is above 65th percentile for low income AND at or below 20% for higher ed enrollment rate

  1. Affordable and Sustainable Housing – Note: variation in aggregation of burden indicators

  • at or above 90th percentile for lead paint AND median home value is at or less than 90th percentile OR at or above the 90th percentile for the housing cost burden; AND

  • is above 65th percentile for low income AND at or below 20% for higher ed enrollment rate

  1. Reduction and Remediation of Legacy Pollution

  • at or above 90th percentile for proximity to hazardous waste facilities OR proximity to NPL sites OR proximity to RMP facilities; AND

  • is above 65th percentile for low income AND at or below 20% for higher ed enrollment rate

  1. Critical Clean Water and Waste Infrastructure

  • at or above 90th percentile for wastewater discharge; AND

  • is above 65th percentile for low income AND at or below 20% for higher ed enrollment rate

  1. Health Burdens

  • at or above 90th percentile for asthma OR diabetes OR heart disease OR low life expectancy; AND

  • is above 65th percentile for low income AND at or below 20% for higher ed enrollment rate

  1. Training and Workforce Development – Note: variation in socioeconomic indicators

  • at or above the 90th percentile for low median income as a percent of area median income OR linguistic isolation OR unemployment OR percent individuals in households at or below 100% federal poverty level; AND

  • at or less than 90% for high school degree attainment rate for adults 25 years and older AND at or below 20% for higher ed enrollment rate

The Tools in Use

EPA already uses EJSCREEN broadly in its work to help identify and address areas with EJ concerns. EPA uses EJSCREEN to inform prioritization of enforcement actions, permitting throughout federal programs, superfund clean-up and brownfields redevelopment, and prioritization of grants to communities. Recently, EJSCREEN has been used in its Clean Air Act analyses (see, for instance, this air toxics Risk and Technology Review) and to inform reporting under the Emergency Planning and Community Right-to-Know Act (see, for instance, this recent addition to the Toxics Release Inventory). EJSCREEN is also already used by other federal and state agencies and local communities, organizations, and academia.

CEQ has made clear that the CEJST will be used by agencies to direct benefits of federal investments disadvantaged communities in seven key areas: climate change, clean energy and energy efficiency, clean transit, affordable and sustainable housing, training and workforce development, remediation and reduction of legacy pollution, and water infrastructure. For its Justice40 pilot that will utilize the CEJST, EPA will focus on lead in drinking water, diesel emissions reductions, superfund site remediation, brownfields redevelopment, and state revolving funds (SRFs) for water.

EPA and other agencies can use both of these tools to inform actions related to diverse sets of climate, energy, housing, and environmental indicators. Permitting authorities, industry members, and community members can use these tools to analyze locations for not only their demographic profiles, but also whether or not they are disadvantaged communities that need remediation rather than additional industrial growth. For instance, if a company is planning to develop or expand a new oil and gas field well or an expansion to increase capacity of a manufacturing facility that has releases to water and air, we would expect that federal agencies and the local communities would use both of these tools to conduct analyses of surrounding communities to examine their demographic profiles and whether or not they qualify as disadvantaged communities. For this reason, companies seeking permits or other licenses and permissions should use these tools to gain insight into community needs that may be implicated by a project and perspectives related to historical operations or contamination that could affect community support for a project.

When running the tools, companies should consider the various inputs and defensibility of the datasets and methodologies. CEQ is currently taking comment on the CEJST’s methodology and data through its website, and a Federal Register notice was published on February 23 announcing a comment period that runs through April 25. Stakeholders should use this comment period to raise any potential gaps in data and issues with the methodologies used to identify disadvantaged communities and to provide suggestions on how CEJST can be used in coordination with other regulatory and non-regulatory tools to improve disadvantaged communities.

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume XII, Number 59
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Shannon Broome Environmental Attorney Hunton Andrews Kurth Law Firm
Partner

Shannon is the managing partner of the firm’s San Francisco office and leads the firm’s California environmental practice.  Her prior experience as a chemical engineer in the oil and gas industry affords her unparalleled insights into the development of regulations and counsel on environmental, health and safety issues. Shannon also maintains an office in Washington, DC. Splitting her time between these offices allows her to help her clients wherever they may be. Shannon’s work focuses on permitting, enforcement, environmental incident response, and regulatory advocacy and litigation....

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Kerry McGrath Environmental Lawyer Hunton Andrews Law Firm
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Kerry has extensive experience with permitting and litigation under the Clean Water Act (CWA), the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA) and other environmental statutes. She represents groups from a wide variety of industry sectors, including utilities, mining, oil and gas, renewables, agriculture, consumer products, housing and development, and related trade associations and industry coalitions. Kerry has significant experience with federal litigation, drafting comments on administrative rulemakings and counseling clients on compliance with regulatory...

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Nancy Beck Regulatory Science Professional Environmental Compliance Hunton Andrews Kurth
Director of Regulatory Science

Nancy provides industry leaders with advice related to the impact of environmental policy, including chemical regulations and compliance programs, applying her in-depth knowledge and applied public health experience as a PhD toxicologist.

Nancy has over twenty years of applied public health experience, sixteen of which were from her time in government, including senior leadership positions at the Environmental Protection Agency (EPA) and the White House. As a PhD toxicologist she has a deep scientific understanding of chemical risk assessment,...

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Erin Grisby Environmental Law Attorney Hunton Andrews Kurth Law Firm California
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Erin draws on her experience with the US government to assist clients with energy and environmental regulatory and compliance matters.

As part of the firm’s environmental practice group, Erin advises clients on regulatory and compliance issues arising under various environmental laws. She previously served as an enforcement attorney with the US Environmental Protection Agency where she gained in-depth experience in administrative law and judicial litigation.

Erin’s experience involves complex Clean Air Act (CAA)...

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Charles H. Knauss Environmental Attorney Hunton Andrews Kurth
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Chuck Knauss has been repeatedly lauded by clients in Chambers USA. From 2011 through 2016, Chambers USA has reported that Chuck impresses clients with his “extraordinary strategic and analytical capabilities—he finds solutions others just cannot see … and has great understanding of how government agencies work.” For more than 30 years he has been on the frontlines of environmental law, pioneering work on behalf of clients in the US manufacturing and energy sectors. Clients call him a “legend in the field” and an “absolutely superb lawyer, top of [our]...

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