NEW YORK UNIVERSITY SCHOOL OF LAW

January 2021Iliana Paul

Christine PriesMax Sarinsky

Improving Environmental Justice Analysis

Executive Order 12,898 and Climate Change

Copyright © 2021 by the Institute for Policy Integrity. All rights reserved.

Institute for Policy Integrity New York University School of Law Wilf Hall, 139 MacDougal Street New York, New York 10012

Iliana Paul is a Senior Policy Analyst at the Institute for Policy Integrity at New York University School of Law, where Christine Pries is Associate Director for Strategy and Operations and Max Sarinksy is an Attorney. The authors would like to thank Brittany Shaar for excellent research on this topic. They also thank Richard Revesz, Bethany Davis Noll, Peter Howard, Jack Leinke, Derek Sylvan, and Ana Varela Varela for valuable feedback.

This report does not necessarily reflect the views of NYU School of Law, if any.

Table of Contents

Executive Summary i

Background on Executive Order 12,898: Lofty Goals and Renewed Interest 1

The Legal Case for Addressing Climate in Environmental Justice Analyses 3

The Disparate Impacts of Climate Change: A Factual Summary 6

Health Impacts 7

Economic Impacts 8

Resource and Infrastructure Impacts 9

Recommendations for Environmental Justice Analysis in the Climate Context 10

Steps Agencies Can Take to Improve Assessment of Climate Impacts 11 in Environmental Justice Analyses

Building Blocks of Environmental Justice Analysis in the Climate Context 13

Clean Power Plan (EPA) 13

Outer Continental Shelf Oil and Gas Leasing Program FPEIS (BOEM) 14

Conclusion 17

Appendix: Existing Agency Guidance and Resources 18

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Executive Summary

D istributional and equity concerns have typically received short shrift in federal administrative decisionmaking, particularly with regard to actions with climate-change impacts. Regulations and project determinations that cause greenhouse gas emissions and so contribute to global climate change lead to a number of harms that disproportionately affect low-income and minority communities.

Greenhouse gases mix globally into the atmosphere, meaning that a ton of greenhouse gases emitted has essentially the same effects on global climatic change regardless of where it is emitted. However, the effects of climate change are not felt uniformly across all communities. Many advocates have focused on a broad range of disparate environmental effects of federal decisionmaking on low-income and minority communities, including the effects of regulations or projects that result in greenhouse gas emissions. But, the federal government has paid relatively little attention to the ways in which these same federal actions contribute to the disproportionate and adverse climate change-induced effects on such communities.

This report aims to aid advocates and policymakers in meaningfully addressing the disparate climate-change impacts of federal actions. As a starting point, federal regulators should provide sufficient analysis and disclosure of these effects during the decisionmaking stage as components of regulatory impact analyses (“RIAs”) or project- or program-level analysis conducted under the National Environmental Policy Act (“NEPA”).1 Such analysis would finally focus long-overdue attention on equity and environmental justice, and help the government more explicitly highlight distributional concerns when assessing the impacts of a rule or project determination that has substantial implications for greenhouse gas emissions.

The legal and factual underpinnings for such attention are already well established. Executive Order 12,898, issued by President Clinton in 1994, requires agencies to identify adverse environmental and human-health impacts of all federal administrative programs on low-income and minority populations, and seek to address these impacts in regulatory decisionmaking. Analyses under this Order have most often focused on the impacts of local pollutants on particular geographical communities. The Order, however, calls for consideration of all disparate environmental effects, and agencies have occasionally assessed the disparate impacts of greenhouse gas emissions as part of their analyses. Greater and more consistent focus on climate change-related impacts is not only required by Executive Order 12,898, but may also help reinvigorate the Order, which many believe has fallen short of its potential.

Though local pollutants are typically the focus of analysis under Executive Order 12,898, global pollutants also contribute to environmental justice issues. Indeed, the factual connection between climate change and environmental justice is clear-cut. Although climate change threatens (and, in many ways, is already causing) extensive harm to all segments of the population, voluminous research documents how low-income and minority populations are particularly vulnerable to its impacts. For example, around the United States, low-income and minority communities have the least available resources to adapt to sea-level rise and extreme weather events; feel the burdens of climate change-induced increases in food and energy prices more acutely; and have the greatest vulnerability to heat stress and disease vectors that will be exacerbated by climate change.

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Merging these legal and factual conditions creates a strong case for agencies to explicitly consider the environmental justice implications of regulatory actions that substantially affect greenhouse gas emissions. For emission-reducing actions, providing detailed environmental justice analyses alongside sound cost-benefit analyses can strengthen the case for agency action and make such action more resilient against judicial challenge or reversal by a future presidential administration. Conversely, when agencies contemplate actions that increase greenhouse gas emissions, they should consider the full range of resulting harms, including adverse effects on low-income and minority communities—and be held accountable by advocates and courts when they do not.

There are a few basic steps regulators can take to lay the foundation for better environmental justice analysis in greenhouse gas-producing actions. First, agencies should disclose the volume of emissions associated with the proposed rule or project. Second, they should use available tools and information, and gather additional data, to: determine climate change effects, locate frontlines and vulnerable communities nationwide, and identify stressors that exacerbate the effects of climate change on these communities. Third, they should address the severity of the proposal’s climate impacts by applying the Social Cost of Greenhouse Gases, as well as quantify and monetize any localized effects. Finally, they should evaluate whether the proposal is justified in light of the climate change-related and other environmental justice findings, along with other costs and benefits of the proposal.

This report begins by providing background on Executive Order 12,898 and addressing how renewed national attention to environmental justice presents an opportunity to improve agency compliance with the Order. Then the report explores the legal justification for considering climate effects in environmental justice analyses, followed by numerous examples of how climate change will affect already vulnerable communities. Finally, the report concludes by offering some steps agencies can take to incorporate climate impacts into their analysis under Executive Order 12,898, including illustrative examples of how agencies have done so in the past.

A note on terminology

Executive Order 12,898 uses the terms “low-income”2 and “minority”3 to specify populations who are affected by environmental injustices. This report adopts those terms for the sake of consistency with the Order. However, the authors recognize that there is often overlap between those who are systematically economically disadvantaged, captured under the “low-income” umbrella, and certain communities of color, referred to throughout as minority communities. The authors also acknowledge that not all non-white communities are comparable and because of historical systems of discrimination and oppression, Black and Indigenous communities in the United States are often particularly vulnerable to environmental hazards, including the effects of climate change.

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Background on Executive Order 12,898: Lofty Goals and Renewed Interest

P resident Clinton signed Executive Order 12,898 in 1994, directing federal agenices to “make achieving environmental justice part of [their] mission.”4 Practically, the Order provides guidance for bolstering the consideration of environmental justice in regulatory decisionmaking.5 Since it was published, the federal government has provided guidance on the consideration of environmental justice on numerous occasions, though some presidential administrations have given the issue more attention than others. The nascent Biden administration appears to prioritize environmental justice and will likely make efforts to strengthen analysis under this Order.

Among other objectives, the Order creates an interagency working group—which still exists today—to coordinate environmental justice strategies across the federal government, and calls upon each agency to develop strategies to address disproportionately high and adverse environmental impacts on low-income and minority populations resulting from federal administrative actions;6 ensure participation from vulnerable communities in environmental decisionmaking;7 and increase data collection about environmental justice impacts.8

Critical for agency decisionmaking is the Order’s requirement that agencies use available statistical information “to determine whether their programs, policies, and activities have disproportionately high and adverse human health or environmental effects on minority populations and low-income populations.”9 Pursuant to this mandate, agencies routinely include quantitative analyses of the environmental justice considerations for actions with substantial environmental impacts, including rulemakings in the Federal Register and project-level determinations under NEPA.

Building on Executive Order 12,898

The federal government’s efforts to address environmental justice did not stop with Executive Order 12,898, and in fact subsequently drew environmental justice more explicitly into the climate context. In 2013, President Obama signed Executive Order 13,653, Preparing the United States for the Impacts of Climate Change. Although this Order was revoked by the Trump administration in 2017,10 it charged the Interagency Working Group on Environmental Justice with coordinating federal government efforts to ensure “that climate change related risks are accounted for” in decisionmaking to ensure social equity.11 President Obama also issued a presidential proclamation on the 20th anniversary of Executive Order 12,898, renewing the federal government’s commitment to achieving environmental justice.12

Additionally, a number of federal agencies have issued relevant guidance documents in the years since Executive Order 12,898 was issued. These guidance documents explain that agency environmental justice analyses should be extensive and detailed. Beginning with guidance from the Council on Environmental Quality during the Clinton administration,13 and continuing through Obama-era guidance from the Interagency Working Group on Environmental Justice,14 these documents have consistently instructed agencies to consider a broad range of potential disparate impacts. This means not only whether an action’s direct effects will be unequally distributed among the population, but also whether existing health and economic disparities will result in minority or low-income populations experiencing more harm from the same direct effects. Guidance from agencies responsible for environmental justice analyses—including several guidance

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documents issued by the Environmental Protection Agency (“EPA”) during the Obama administration15—echo this commitment to assessing a broad range of disparate environmental impacts in regulatory decisionmaking.

Despite this guidance, however, agencies have often failed to meaningfully account for environmental justice considerations in practice.16 Interest in environmental justice has waxed and waned across presidential administrations, and agencies have sometimes passed off environmental protection measures that they would have taken anyway as “environmental justice.”17 One study found that environmental justice concerns almost never guide agency policy, but instead agencies typically either ignore Executive Order 12,9898 in regulatory decisionmaking or satisfy its demands through “boilerplate rhetoric” that is “devoid of detailed thought or analysis.”18 This bad practice may in part be explained by the fact that Office of Information and Regulatory Affairs (“OIRA”)—the White House office that reviews draft regulation—has paid little attention to how agencies treat distributional issues. More formalized oversight of agency environmental justice analysis could help ensure that distributional impacts are not relegated to the sidelines.

The concern that agencies have shirked their repsonsibilities under the Order were exacerbated during the Trump administration, which generally showed antipathy toward environmental justice and environmental regulation more broadly.19 For instance, the Trump administration withdrew Executive Order 13,653 within its first few weeks in office20 and took numerous deregulatory measures that threaten the health and wellbeing of frontline communities.21

Yet with issues of racial equity rising to the forefront of the national conversation, there is renewed hope that agencies may give more consideration to environmental justice. Advocates have increasingly spoken about the racial impacts of environmental harms—including climate change—in the wake of broader calls for racial equity across society. For instance, one prominent advocate recently testified before a House committee, echoing the now famous last words of Eric Garner in 2014 and George Floyd in 2020:22 “When we say, ‘I can’t breathe,’ we literally can’t breathe,” because pollution seriously harms the health of low-income and minority communities.23

Lawmakers too have shown renewed interest in environmental justice. For instance, President Joseph R. Biden’s campaign outlined plans to “revise and reinvigorate” Executive Order 12,898 by establishing White House advisory councils on environmental justice that would develop performance metrics to hold implementing agencies accountable.24 Vice President Kamala Harris also gave voice to environmental justice issues during her tenure as a senator by sponsoring the Environmental Justice for All Act.25 Several of Presdient Biden’s political appointees and nominees have backgrounds on environmental justice issues, like Secretary of Interior nominee Congresswoman Deb Haaland and EPA Administrator nominee Michael Regan, which further indicates the administration’s interest in this area.26 This is a promising sign of a renewed focus on agency efforts to implement Executive Order 12,898 and meaningfully account for environmental justice in regulatory decisionmaking.

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The Legal Case for Addressing Climate Change Effects in Environmental Justice Analyses

A s part of agency efforts to reinvigorate Executive Order 12,898, agencies should give greater consideration to the environmental justice implications of climate change. Doing so would not only provide for more informed and reasoned agency decisionmaking but could also strengthen the legal justification for agency action and help protect that action against either judicial or executive reversal.

While analyses under Executive Order 12,898 have more frequently focused on how local air pollutants and other environmental effects will affect nearby communities, existing guidance both explicitly and implicitly supports the consideration of adverse disparate impacts on low-income and minority communities from climate change. Certain federal guidance documents, such as Obama-era guidance from both EPA27 and the Federal Interagency Working Group on Environmental Justice,28 explicitly recognize that climate change disproportionately burdens low-income and minority communities and advise agencies to assess these impacts in their environmental justice analyses. Even guidance that does not explicitly reference climate change—as well as Executive Order 12,898 itself29—is still consistent with that recommendation by counseling agencies to assess a broad scope of both direct and indirect disproportionate impacts.30

A Typical Project-Level Analysis: Assessing Only Localized Impacts

While environmental justice analyses for major national rulemakings sometimes assess the incremental disparate impacts attributable to the greenhouse gas emissions expected as a result of the rule, environmental justice analyses for project-level determinations—even those expected to cause substantial greenhouse gas emissions—very rarely do so. A recent NEPA assessment conducted by the Federal Energy Regulatory Commission (“FERC”) for a new natural gas pipeline system is instructive. There, FERC assesses the racial and economic composition of the local population, discusses health and social impacts that may affect minority or low-income individuals in that population, and highlights some mitigation measures, such as the siting of individual pipeline facilities. Yet FERC’s analysis makes no mention of the environmental justice impacts from the pipeline’s substantial greenhouse gas emissions—either on the local community or on other low-income and minority communities that will experience such impacts.31

In practice, however, agency assessment of the disparate impacts from greenhouse gas emissions has rarely provided the robust analysis dictated by agency-issued guidance on implementing Executive Order 12,898. Approaches have varied between—and sometimes even within—agencies. In some instances, the agency has failed to recognize any disproportionate adverse impacts on low-income or minority communities from an action’s substantial greenhouse gas emissions.32 Other times, the agency has recognized the possibility of adverse impacts on communities local to the particular project, while failing to recognize a broader and more diverse array of environmental justice impacts on communities nationwide.33 And even when agencies do recognize a wide array of adverse impacts on low-income and

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minority communities due to climate change—as the Trump administration sometimes did for major deregulatory actions that greatly increase greenhouse gas emissions—they then dismiss those adverse impacts as insignificant and ultimately give them little consideration.34

Agencies may seek to dismiss environmental justice impacts from actions with significant greenhouse gas emissions by claiming that the links between the action and disparate climate change impacts are too tenuous or that emissions from any one agency action will not dictate the Earth’s warming trajectory. But the mere fact that climate change is a global phenomenon does not mean that the incremental impacts from individual actions are not significant or deserving of close attention. For instance, the Social Cost of Greenhouse Gases—which monetizes the climate damages of any amount of emissions—reveals that actions that may contribute a small percentage of national or global emissions nonetheless often cause millions or billions of dollars worth of climate harm.35 While this tool does not capture the disparate impacts of climate change on low-income and minority communities, those impacts too are likely to be significant for rules or projects with substantial climate effects.

Cursory environmental justice analyses do not lend themselves to rational agency decisionmaking, and leave agency action potentially vulnerable to legal challenge. Although Executive Order 12,898 is not itself legally enforceable,36 the Administrative Procedure Act (“APA”) requires agency action to account for relevant facts and be the product of reasoned analysis,37 and courts have generally recognized that an agency’s findings on environmental justice are reviewable under that standard.38 While judicial review is deferential, courts have on occasion concluded that an agency’s limited or conclusory assessment of disparate impacts helps render the resulting action unlawful.39 Particularly if advocates bring attention to the disparate impacts of climate change through comments and litigation, agency analyses that disregard or brush aside these impacts could be increasingly susceptible to legal challenges.

A Template for Challenging Insufficient Environmental Justice Analyses

To date, few judicial challenges under the Administrative Procedure Act attacking an agency’s findings from its environmental justice analysis have been successful. But litigation against agency cost-benefit analyses provides a good illustration of what success could look like. Although cost-benefit analysis is also conducted pursuant to Executive Order,40 courts have long recognized that “[w]hen an agency decides to rely on a cost-benefit analysis as part of its rulemaking, a serious flaw undermining that analysis can render the rule unreasonable,” even if that cost-benefit analysis was not legally required.41 And courts have vacated numerous rules on the basis of a flawed cost-benefit analysis, with the court often zeroing in on particular conclusions from the agency that are internally inconsistent or not supported by the available evidence, including comments from affected stakeholders and the agency’s prior findings.42 Insufficient environmental justice analysis, even if not legally required, could receive similar treatment from the courts.

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Conversely, an agency that pays close attention to and considers the outsized benefits on low-income and minority communities of a project or rule that reduces greenhouse gas emissions—particularly if it relies on that analysis as a basis for the determination—provides itself another avenue to defend the decision against legal challenge.43 And because an agency must provide a “reasoned explanation” when “disregarding facts and circumstances” that it previously relied upon, greater explanation of the environmental justice benefits of a regulatory action that decreases greenhouse gas emissions will make it more difficult for a subsequent administration to reverse that action in the future.44 OIRA should encourage agencies to expound upon such benefits of actions that reduce greenhouse gas pollution, and provide guidance on how agenices can more extensively consider the environmental justice impacts of proposed actions that increase emissions.

In short, more extensive consideration of the disparate impacts of climate change on low-income and minority communities is not only consistent with Executive Order 12,898, but will also lead to better agency decisionmaking and strengthen the legal foundation of policies that cause a reduction in greenhouse gas emissions.

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The Disparate Impacts of Climate Change: A Factual Summary

F rom a factual perspective, the link between climate change and environmental justice is clear. Disparate impacts on low-income and minority communities from climate change include, among other harms, economic impacts from reduced crop yields and increased food and energy prices; human health impacts due to vulnerabilities to heat stress, respiratory illness, and other diseases that will be exacerbated by climate change; and resource and infrastructure impacts related to inequalities in adaptability to sea-level rise and extreme weather events.

This section provides a brief overview of the extensive literature cataloguing the link between climate change and environmental justice, highlighting the types of factors that agencies should assess under Executive Order 12,898.

How Redlining and Other Discriminatory Policies Created the Conditions for Environmental Injustice

A number of policies designed to disadvantage low-income and minority communities created the conditions for the environmental justice issues we have seen over the past several decades, including the vulnerabilities to particular climate change-related impacts detailed in this report.45 For example, redlining, the practice of denying a creditworthy applicant a mortgage for housing in a certain neighborhood,46 effectively segregated housing across the United States.47 Policies that made it more difficult for people of color to get loans and mortgages exacerbated the disparities in living conditions that redlining helped create.48

Moreover, because homeownership has been the primary means of wealth accumulation in the United States49 and because people of color, particularly Black Americans, have been systemically disadvantaged in their ability to buy and own property,50 wealth disparities—in addition to income disparities—are vast.51 When such economic disparities are coupled with racial discrimination, social and economic mobility are limited.52

One result of these discriminatory policies is that people of color and low-income families often live in neighborhoods with low property values.53 Property values can be affected by existing environmental conditions, like the proximity to a hazardous pollution source, or by structural or economic conditions that have adverse effects on the residents, like crumbling infrastructure or lack of amenities such as high-quality schooling.54 In turn, neighborhoods with low property values are often the recipients of new environmental hazards and subject to neglect by policymakers.55 These factors can lead to diminished resilience to climate shocks. The Ninth Ward of New Orleans, which was ravaged by Hurricane Katrina, is an example of how failing and neglected infrastructure in a specific area can cause an extreme weather event to have an outsized effect on low-income and minority communities.

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The concentration of minority families in neighborhoods with low property values can contribute to a feedback effect under which it becomes difficult for them to move elsewhere—away from conditions that leave them vulnerable to climate impacts. For example, because of the way in which public education is typically funded (i.e. through local property taxes) these areas often lack the resources to create educational conditions that are on par with wealthier districts, like providing air conditioning in classrooms when it is hot outside. The education resource gap compounds the barriers to accumulating wealth and accessing middle-class jobs,56 and can perpetuate the pattern of living in areas with environmental hazards.

Health outcomes are also linked to where a person lives. In fact, one of the factors that is most correlated with life expectancy is zip code.57 That means people living in communities that are already under-resourced and/or systemically overburdened by pollution are in turn vulnerable to the negative health impacts of climate change, like heat stroke,58 as well as conditions caused by local pollutants, like asthma.

All of these factors mean that communities of color face multiple burdens that hinder their resilience to climate change and put them particularly at risk for adverse health and socioeconomic outcomes.

Health Impacts

Low-income and minority communities are likely to suffer from severe and often fatal health impacts from climate change. While these health impacts will affect all corners of society, they are expected to fall particularly hard on low-income and minority communities.

For instance, low-income and minority communities tend to experience disparate harm from extreme heat, which is greatly exacerbated by climate change’s warming effect.59 Extreme heat can cause or contribute to heat exhaustion, heatstroke, and heart attacks, among other diseases.60 Across 49 large U.S. cities, an additional 9,000 premature deaths are projected by the end of the century due to climate change-induced changes in extreme temperatures.61 These impacts are likely to fall disproportionately on minority communities such as Black Americans, who already face a greater risk of cardiovascular disease.62 This is in part because “formerly redlined neighborhoods are today 5 degrees hotter in summer, on average, than areas once favored for housing loans, with some cities seeing differences as large as 12 degrees.”63 Moreover, “[r]edlined neighborhoods, which remain lower-income and more likely to have Black or Hispanic residents, consistently have far fewer trees and parks that help cool the air. They also have more paved surfaces, such as asphalt lots or nearby highways, that absorb and radiate heat.”64 In addition, outdoor workers, a group that includes a disproportionate share of minority and low-wage workers,65 are also at particular risk due to substantially increased heat exposure.

Outdoor workers are also more exposed to poor air quality. “Increased demand for [indoor] cooling will likely also increase energy-related emissions of criteria air pollutants (for example, nitrogen oxide and sulfur dioxide) … which are particularly important in the summer, when warmer temperatures and more direct sunlight can exacerbate the formation of photochemical smog.”66 In fact, climate change is projected to cause an increase in ground-level ozone levels “over most of the United States, particularly over already polluted areas.”67 Ground-level ozone causes emergency-room visits and premature deaths, aggravates asthma, and reduces productivity among outdoor workers.68 Marginalized communities

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such as the elderly, children, and those with chronic illnesses are “especially susceptible” to the harmful effects of ozone.69 Furthermore, rates of asthma are highest among poor and certain minority communities.70

Higher temperatures also prolong and intensify pollen and allergy seasons.71 And climate change increases the incidents of wildfires, exposure to which increases mortality of all causes, but most notably respiratory illnesses like asthma, chronic obstructive pulmonary disease, and pneumonia.72 “Indigenous peoples have disproportionately higher rates of asthma, cardiovascular disease, Alzheimer’s disease or dementia, diabetes, and obesity. These health disparities have direct linkages to increased vulnerability to climate change impacts, including changes in the pollen season and allergenicity, air quality, and extreme weather events.”73 Moreover, “[t]he health risks of climate change are expected to compound existing health issues in Native American and Alaska Native communities, in part due to the loss of traditional foods and practices, the mental stress from permanent community displacement, increased injuries from lack of permafrost, storm damage and flooding, smoke inhalation, damage to water and sanitation systems, decreased food security, and new infectious diseases.”74

As discussed in the Economic Impacts section below, climate change-induced increases in energy costs will worsen the state of energy insecurity across the country. And while heat stress, air pollutants, allergens, and wildfires cause their own sets of direct health impacts, energy insecurity in low-income communities is also expected to harm human health. Energy insecurity is associated with poor respiratory health, mental health, and sleep outcomes, further exacerbating respiratory and mental health-related disparities in vulnerable populations.75

Moreover, while climate change will alter and exacerbate a host of an additional cardiovascular, respiratory, and other disease vectors,76 these changes can be expected to have greater impacts on “[p]opulations with increased health and social vulnerability” that “typically have less access to information, resources, institutions, and other factors to prepare for and avoid the health risks of climate change.”77

Economic Impacts

Low-income and minority communities face disproportionate advserse economic impatcs that are tied to climate change. Direct economic effects from climate change on low-income communities arise in part from the fact that “poor communities … are more dependent on climate-sensitive resources such as local water and food supplies.”78 For example, poor rural and tribal communities are largely dependent on agriculture.79 But climate change reduces agricultural productivity due to increased rates of crop failure;80 altered rates of pressure from pests, weeds, and diseases;81 drought and depletion of water resources;82 and intensified wildfires.83 As a result, these agriculture-dependent communities are deeply vulnerable economically to the impacts of climate change.84

While decreased yields directly diminish income in those agriculture-dependent communities, their impact is felt in all low-income communities—farm-intensive or not—because they also lead to increases in food prices.85 Increased food prices, though affecting the population at large, most substantially burden low-income individuals who have less disposable income and for whom marginal price increases are therefore most difficult to afford.86

Likewise, higher temperatures will result in higher electricity costs due to increased demand, reduced efficiency of power generation and delivery, and the need to build new generation capacity.87 By 2040, nationwide spending on residential and commercial electricity may rise by 18 percent or more.88 Nationwide, low-income multifamily households spend 2.3 times more of their income on energy costs, and the median energy burden for Black households is nearly 50 percent

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higher than for non-Hispanic white households.89 Already, two-thirds of low-income households in California are energy insecure.90 Thus, an across-the-board increase in energy prices will most severely and disproportionately afflict poor and minority communities.

Higher temperatures also hinder labor and education productivity. Specifically, “[h]eat stress can lower work intensity, reduce cognitive performance, and voluntarily shorten work hours in sectors of the economy most exposed to outdoor temperature, such as construction and agriculture.”91 In addition, children who learn in under-resourced schools are less likely than their wealthier peers to have temperature-controlled classrooms, for example, and face similar heat-related issues that can negatively affect productivity.92

Resource and Infrastructure Impacts

Climate change is also expected to exacerbate resource and infrastructure inequalities affecting low-income and minority communities. Once again, while infrastructure and resource impacts will affect all parts of society, certain low-income and minority communities will tend to experience these effects most severely due to their greater exposure and susceptibility and their constrained ability to adapt and recover.

The impacts of sea-level rise and flooding—which are expected to cause widespread damage in coastal communities93—will likely hit low-income communities the hardest. For example, electricity generating infrastructure, which is typically concentrated in low-income and minority communities,94 is already vulnerable to flooding, which can cause hazardous spills and widespread contamination.95 Increases in the intensity of hurricanes further exacerbate energy infrastructure’s exposure to both storm-surge flooding and wind damage.96 To give a sense of what is at stake, a global mean sea-level rise of one meter will cause the number of vulnerable energy generation plants in Florida to double, and in Texas to triple.97

Low-income and minority communities, often already under-resourced, are not given equal access to resilience-building opportunities. For example, “local governments in counties with higher population and income are more likely to administer buyouts,” which allow people to move away from flood-prone homes, than local governments in poorer areas. This means that residents of lower-income counties may have fewer options to leave risk-prone areas.98 In addition, “[l]ack of economic diversity, limited access to the internet, and relatively limited infrastructure, resources, and political clout further detract from the adaptive capacity of rural and tribal communities.”99 Indigenous communities and other low-population areas frequently also receive less funding for disaster risk reduction.100 Moreover, inequalities in exposure and recovery are generally exacerbated by the fact that the elderly, children, individuals with disabilities, people experiencing poverty, and groups subject to discrimination are often excluded from disaster-planning processes.101

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Recommendations for Environmental Justice Analysis in the Climate Context

C limate change already has and will continue to have disparate impacts on low-income and minority communities. These impacts should be disclosed by agencies both in their analysis under Executive Order 12,898 and in order to fulfill their obligations under the APA to account for all relevant factors. This report has already explained the legal basis for considering environmental justice impacts and provided numerous specific climate-related harms with disparate impacts, explaining how low-income and minority communities are particularly vulnerable to these effects. In order to fulfill their legal responsibilities, agencies that propose actions with resulting greenhouse gas emissions must include climate impacts in their environmental justice analyses.

Environmental Justice Impacts Can Be Significant

The conclusions of an environmental justice analysis can be material to an agency’s rational decisionmaking and should accordingly be treated as a central factor rather than an afterthought. This applies both to rulemakings and project-level determinations under NEPA. Agencies must be aware that the findings in an environmental justice analysis may have bearing on other analyses conducted as part of a rulemaking or environmental assessment and should therefore inform particular determinations. With respect to NEPA in particular, agencies may identify disproportionately high or adverse impacts on low-income and minority communities that constitute significant effects in and of themselves and therefore require a full environmental impact statement rather than a shorter, less-detailed environmental asessment.102 Similarly, under the Administrative Procedure Act, agencies are required to consider indirect effects as part of their justification for pursuing a regulatory action.103 Such effects can and should include environmental justice impacts, if such effects are reasonably anticipated.

Although many environmental justice analyses under Executive Order 12,898 lack the necessary specificity that the Order and the APA require with respect to a wide variety of environmental impacts—and are often given insufficient weight in the decisionmaking process—this section focuses only on how to incorporate climate impacts into these analyses.

This section provides recommendations for how agencies should approach their responsibilities under Executive Order 12,898 with respect to climate impacts. It concludes with examples of climate-related environmental justice analyses by EPA and the Bureau of Ocean Energy Management (“BOEM”), highlighting the advantages and deficiencies of each analysis.

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Steps Agencies Can Take to Improve Assessment of Climate Impacts in Environmental Justice Analyses

Executive Order 12,898 directs agencies to “make achieving environmental justice part of [their] mission.”104 Accordingly, agencies are required to identify and address the ways in which their actions affect low-income and minority communities. Agencies must both review the relevant literature and gather primary-source data in order to meaningfully disclose the climate-related environmental justice effects of a proposed action. Below are steps agencies can take to help satisfy this requirement of Executive Order 12,898. These steps are generally applicable both to rulemakings and in the NEPA context.

In order to identify environmental justice effects of a proposed action that causes greenhouse gas emissions, agencies can take the following steps:

Step 1. Disclose whether a proposed action will be a significant source of greenhouse gas emissions and therefore contribute substantially to climate change impacts. Though agencies have some discretion to determine what constitutes a significant volume of greenhouse gas emissions, the Social Cost of Greenhouse Gases allows agencies to evaluate the magnitude of climate impacts and compare that amount to other monetized effects of a regulation or project.105

Step 2. Use available tools and information to gather relevant data.

Determining Climate EffectsThe latest National Climate Assessment and Intergovernmental Panel on Climate Change reports can help an agency to identify relevant impacts of climate change. Useful information can include geographically-relevant impacts in the vicinity of a project area, as well as climate-related impacts to economic wellbeing and public health to which low-income and minority communities nationwide may be particularly vulnerable.

Locating Vulnerable CommunitiesEPA’s EJSCREEN and census data106 can be used to identify low-income and minority communities, including in the vicinity of the proposed action. Although not required by Executive Order 12,898, agencies may also be interested in collecting data about other groups that are particularly vulnerable to the effects of climate change, such as the elderly and people living with disabilities.

Identifying Stressors that Exacerbate the Effects of Climate ChangeExisting socioeconomic and public-health disparities or characteristics can render low-income and minority communities especially vulnerable to climate shocks. Statistical data can be particularly useful to demonstrate disproportionate vulnerabilities faced by these communities compared to other groups, including those caused by local air pollutants from the proposed regulation or project itself.

Step 3. For agency actions that affect greenhouse gases, agencies should provide a detailed assessment of the severity of the climate impacts using the Social Cost of Greenhouse Gases. We note that because the Social Cost of Greenhouse Gases does not account for the disparate impacts of climate change on low-income and minority communities, agencies should closely evaluate the particular harms that will fall upon those communities, as Executive Order 12,898 requires. A strong qualitative analysis that details the impacts of climate change on low-income and minority communities around

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the country, and ties these impacts to the proposal under consideration, would help ensure that agencies account for these impacts.

Additionally, for proposed actions that contribute to concentrations of local air pollutants in addition to greenhouse gas emissions, agencies should use demographic data to assess how the proposed action could increase the vulnerability of nearby low-income and minority communities to climate change by exacerbating existing risk factors identified by the agency. Using demographically disaggregated data, an agency can determine if a particular geographic area affected by the local pollutants from a proposed action contains more low-income or minority households compared to an unaffected area. The agency can then use these findings and existing research on the interplay between local pollution and climate change vulnerability to assess how the action’s local pollution would make nearby low-income and minority communities more susceptible to particular effects of climate change.107 Agencies should quantify and monetize localized effects to the extent practicable.

While current methodologies may limit the ability of agencies to attribute particular environmental justice impacts to an incremental increase in greenhouse gas emissions from a proposed project or rule, agencies should still evaluate the severity of an action’s environmental justice impacts in a robust fashion by conducting a break-even analysis or using similar qualitative assessment tools to evaluate the magnitude of those impacts compared to other costs and benefits of the proposal.108 If those environmental justice impacts (combined with other costs of the action, both from greenhouse gas emissions and otherwise) are significant enough to offset the proposal’s benefits, the agency should not move forward with the proposed action.109

Step 4. Evaluate whether the proposed action is justifiable in light of the climate-related and other environmental justice findings. If an agency is conducting a cost-benefit analysis, which is required for “significant” regulatory actions under Executive Order 12,866, it should include any monetized environmental justice effects and use its reasoned professional judgment to weigh any effects that cannot be monetized. For agencies not required to conduct a full cost-benefit analysis, as is the case with analysis under NEPA,110 monetization is still a useful tool for contextualizing impacts. As noted above, a break-even analysis could be used for this purpose. 111

Agencies should always use the Social Cost of Greenhouse Gases to monetize climate damages when evaluating a proposed action that will affect greenhouse gas emissions.112 However, the social cost metric is rightly considered a lower bound113 and does not account for the disparate impacts of climate change on low-income and minority communities, making additional consideration of disparate climate impacts especially important. As governmental organizations and outside experts continue to improve the Social Cost of Greenhouse Gases estimates, they should work to integrate environmental justice harms into the metric. This would allow agencies to account directly for critical distributional issues in their cost-benefit assessment, helping to ensure that distribution is given its rightful attention in agency decisionmaking.114

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Agency Coordination: Needs and Opportunities

Environmental justice is within the purview of many agencies, which have worked together on this front for over two decades, since Executive Order 12,898 was issued. Such coordination must continue in order to achieve a coherent approach for incorporating climate impacts into environmental justice analyses. For example, agencies should come together to establish consistent criteria for environmental justice analysis under Executive Order 12,898, including tools for quantification, metrics for assessing the significance of distributional impacts, and recommendations on how to quantitatively and qualitatively present distributional impacts alongside other impacts of a proposed action. Agencies should also establish uniform definitions for the affected populations and impacts assessed.115 Finally, agencies can share resources to address gaps in the data and monitor outcomes in vulnerable communities.

The guidance documents listed in the Appendix include agency-specific examples and strategies for conducting environmental justice analyses, which can be applied to the climate change context.

Building Blocks of Environmental Justice Analysis in the Climate Context

Although it is not the norm, some agencies have proffered relatively substantive and detailed environmental justice analyses that focus on the disparate impacts of climate change. These analyses help illustrate how decisionmakers can disclose the disparate climate impacts of their actions on vulnerable communities. Below we examine elements of the environmental justice analyses in EPA’s Clean Power Plan and BOEM’s 10-year Outer Continental Shelf Leasing Plan, and highlight the shortcomings with each assessment.

Clean Power Plan (EPA)

EPA’s 2015 Clean Power Plan sought to reduce greenhouse gas emissions from power plants. The climate implications of this action were global, but EPA both disclosed general climate impacts that can affect low-income and minority communities and provided data derived from its EJSCREEN tool to improve the state-level decisionmaking required by the rule.

Connecting Climate Change and Environmental Justice

EPA clearly states that “[c]limate change is an environmental justice issue” in the preamble to the Clean Power Plan.116 The agency highlights how low-income and minority communities, which are “already overburdened by pollution,” “are disproportionately affected by climate change and are less resilient than others to adapt or recover from climate change impacts,”117 which include local phenomena like extreme weather, flooding, and droughts.118 EPA goes on to explain that it “considered climate change risks to minority and low-income populations, finding that certain parts of the population may be especially vulnerable based on their characteristics or circumstances,” per the agency’s 2009 Endangerment Finding.119

14

Though the Clean Power Plan would have reduced greenhouse gases and thereby provided benefits to all communities across the country, EPA emphasizes that these emissions reductions would be “particularly beneficial to populations that are disproportionately vulnerable to the impacts of climate change and air pollution.”120 However, EPA’s analysis mostly described the environmental justice benefits in qualitative terms. As discussed above, further research on methods to quantify or monetize environmental justice impacts would serve to benefit strong qualitative analyses like this one.

EPA’s 2009 Endangerment Finding

In 2009, EPA issued its Endangerment Finding on greenhouse gas emissions. The Finding connects the physical impacts of climate change with harmful effects on human health and wellbeing. EPA expands its categories of vulnerable groups beyond those delineated in Executive Order 12,898. Specifically, it says that groups that may be more vulnerable to climate shocks “include the poor, the elderly, the very young, those already in poor health, the disabled, those living alone, and/or indigenous populations dependent on one or a few resources.”121 The Endangerment Finding notes that “the vulnerability to weather disasters depends on the attributes of the people at risk (including where they live, age, income, education, and disability) and on broader social and environmental factors (level of disaster, preparedness, health sector responses, and environmental degradation.)”122 Accordingly, vulnerable populations can include communities of color, indigenous communities, and low-income communities as identified in Executive Order 12,898, but vulnerable populations are not limited to those groups.

Using Data to Address Environmental Justice Outcomes

As part of the rulemaking, EPA conducted a proximity analysis using EJSCREEN, the agency’s environmental justice mapping tool. EPA intended to share with state and local decisionmakers in the formulation of state implementation plans in order to ensure that vulnerable populations would not be disproportionately impacted by the rule. Although the Clean Power Plan Proximity Analysis focuses on local pollutants from electric generators, EJSCREEN is used to “help identify communities that may have a high combination of environmental burdens and vulnerable populations.”123 Such information is relevant to any decisionmaking with environmental justice concerns, and could be used to assess how local pollution would exacerbate climate change impacts in particular low-income or minority communities. EPA emphasizes that agencies should build upon the EJSCREEN data with additional information and local knowledge to form “a more complete picture of a location.”124 Using the best available data on the disparate impacts of climate change should inform an agency’s decisionmaking.

Outer Continental Shelf Oil and Gas Leasing Program FPEIS (BOEM)

In 2016, BOEM released the final programmatic environmental impact statement (“FPEIS”) for the Outer Continental Shelf Oil and Gas Leasing Program.125 The FPEIS covers multiple regions where oil and gas leasing will take place, including Alaska and the Gulf of Mexico.

15

While BOEM’s disclosure of climate impacts provides a good building block for other agencies, its consideration and assessment of those impacts is plainly insufficient and not indicative of rational decisionmaking. Despite including a fairly detailed environmental justice analysis, BOEM decided to move forward with leasing for offshore oil and gas development that could contribute over $9 billion in climate damages annually according to the Social Cost of Greenhouse Gases (a damages estimate that the agency itself did not calculate and disclose),126 along with significant impacts to low-income and minority communities like those included below. Furthermore, despite identifying moderate to major effects on vulnerable communities from the proposed action, including from climate impacts,127 BOEM fails to assess whether or explain why the benefits of the plan outweighed the enormous climate and environmental justice costs.

Linking the Proposed Action to Disparate Climate Impacts

BOEM clearly connects its offshore leasing program to climate change effects that have disparate impacts. The agency discloses that the proposed action would result in over a billion tons of carbon dioxide-equivalent being emitted into the atmosphere, and therefore would contribute to global climate damages.128 As noted above, however, BOEM does not apply the Social Cost of Greenhouse Gases to assess the magnitude of harm stemming from these emissions. But the agency does draw a direct line between the proposed action and climate impacts on vulnerable communities, saying that though the effects on these communities would be indirect, program activities “could put additional stress on the impacts of ongoing and reasonably foreseeable future actions, including global climate change.”129 Agencies conducting environmental justice analyses for actions with foreseeable climate impacts should establish a clear connection between the proposal and the harms climate change are expected to cause in vulnerable populations.

Identifying Specific Climate Threats to Low-Income and Minority Communities

BOEM ties program-affected locations to climate impacts that the communities who live there would face. The FPEIS reports that three communities in the program area would be affected by climate change: those inshore of the Beaufort Sea, Cook Inlet, and the Gulf of Mexico. BOEM includes each of these communities in its environmental justice analysis and provides specific consequences of climate change they may face considering geographic and socioeconomic factors.

For example, BOEM connects climate impacts in the Arctic like “failed ice cellars, shallower lakes,” and “thawing permafrost from higher temperatures,” to “a decrease in places for safe handling and storing of subsistence harvests.”130 BOEM also notes that a “changing climate impacts the distribution and numbers of fish and wildlife which in turn impacts subsistence hunting, fishing, and gathering”131 and so disadvantages the local populations that rely on subsistence activities. The agency adds a quantitative layer to this example by reporting the replacement value of the lost subsistence harvest, estimating it to be approximately $44 million annually.132

For the Gulf of Mexico region, BOEM notes that the area is still recovering from several extreme weather events over the past 15 years, and highlights why such climate impacts have environmental justice implications: “These events have had disproportionate effects on communities of color and low-income populations, especially in terms of property damage and loss of income.” BOEM builds on this assessment by noting how the effects of severe weather exacerbate the disparate climate impacts these communities face. “This makes these groups more vulnerable to any new hazard or natural disaster.”133 The agency also lists a number of other climate impacts, like coastal erosion and increasing frequency of storm surges, to which low-income and minority communities around the Gulf of Mexico are particularly vulnerable.134

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While the location-specific analysis included in the EIS is useful for concretizing the effects of climate change on particular low-income and minority communities, BOEM should have done more with respect to a nationwide discussion of climate impacts and environmental justice. While BOEM makes a generic statement about how climate change affects frontline communities,135 its analysis lacks specificity and does little to meaningfully assess the detrimental effects that the greenhouse gases resulting from offshore oil and gas leasing would have on low-income and minority communities across the United States. Because its description is brief and generic, it could only be useful as part of a larger analysis that considers specific climate impacts on low-income and minority communities.

Moreover, as noted above, even the stronger parts of BOEM’s analysis are ultimately inconsequential because the agency does not weigh the project’s climate change-related impacts on low-income and minority communities—and climate effects more generally—against other costs and benefits of the leasing program. As detailed above, monetization tools such as the Social Cost of Greenhouse Gases are a very valuable starting point for capturing a proposal’s impacts on economic and social costs stemming from climate change. Further analysis (including, if necessary, a breakeven analysis) to assess the disparate impacts of climate change onlow-income and minority communities that the social cost metrics do not currently capture is also highly recommended. Such considerations would have facilitated a more rational analysis by BOEM and made environmental justice considerations harder for the agency to overlook.

In short, though some agencies, like EPA and BOEM, have provided environmental justice analyses that make clear connections between agency actions and the disparate impacts of climate change on low-income and minority communities, they can and should be doing more. In particular, agencies need to be transparent about their justifications for moving forward with proposals that contribute to these adverse impacts.

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Conclusion

E xecutive Order 12,898 provides a framework for agencies to consider the disparate environmental impacts on low-income and minority communities. However, agencies’ analyses rarely include climate change impacts, which have large and disproportionate adverse effects on these groups. This report has provided a discussion of the Executive Order, made an argument about the legal basis for assessing climate impacts in environmental justice analyses, and provided guidance that agencies can use to improve their disclosure and consideration of these effects.

While any analysis of environmental justice impacts would ideally quantify and monetize the incremental environmental justice impacts resulting from a specified amount of greenhouse gas emissions, existing research and methodologies provide a sparse basis for quantification. Therefore, agency analyses under Executive Order 12,898 will have to rely on largely qualitative assessments until the research advances. This underscores the importance of developing methodologies to quantify and monetize the environmental justice impacts of climate change.

Appendix: Existing Agency Guidance and Resources

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Since Executive Order 12,898 was issued in 1994, several agencies have published guidance and strategy documents for meeting the requirements of the Order.

Federal Interagency Working Group on Environmental Justice

Promising Practices for EJ Methodologies in NEPA Reviews (2016)136

Examples of actual agency practices and approaches agencies can use for understanding environmental justice in the NEPA context.

Environmental Protection Agency

Guidance on Considering Environmental Justice During the Development of Regulatory Actions (2015)137

Strategies for identifying environmental justice concerns and integrating those considerations into the rulemaking process, including how to engage with low-income and minority communities and stakeholders.

Technical Guidance for Assessing Environmental Justice in Regulatory Analysis (2016)138

Detailed steps for conducting an environmental justice analysis, including instructions on:

• Screening for Potential EJ Concerns

• Defining Baseline, Regulatory Scenarios and Incremental Changes

• Data and Information to Assess Potential EJ Concerns

• Assessing the Distribution of Costs and Other Impacts

Also includes analytical methods and considerations and identifies research priorities to fill in gaps in the data.

This technical guidance document gives examples of environmental justice concerns of proposed actions that have greenhouse gas emissions implications, the Clean Power Plan and the 2012 greenhouse gas emissions standards for trucks.

Council on Environmental Quality

Environmental Justice Guidance Under the National Environmental Policy Act (1997)139

Procedure to ensure that environmental justice concerns are identified and addressed in the NEPA process. Includes general principles for considering environmental justice in NEPA analysis and how to incorporate environmental justice into all steps of the NEPA process.

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Department of Transportation

Order 5610.2(a) – Environmental Justice Order (Updated 2012)140

Guidance on preventing and addressing disproportionately high and adverse impacts on low-income and minority communities.

Environmental Justice Strategy (2016)141

Department framework for implementing Executive Order 12,898 and DOT Order 5610.2(a).

Department of Energy

Environmental Justice Strategy (2017)142

Summary of DOE’s goals for implementing Executive Order 12,898 and mainstreaming environmental justice, including to minimize climate change impacts on vulnerable populations.

Department of Labor

Environmental Justice Strategy (2012)143

Framework for pursuing Environmental Justice as a part of Department of Labor efforts to protect the health, and safety, and promote the training of workers, including low-income, minority, and Native American workers.

20

12 Pres. Proc. 9082, 79 Fed. Reg. 8821 (Feb. 10, 2014).13 CEQ Guidance at 8–9 (explaining that environmental

justice analyses under NEPA should be “highly sensitive to the history or circumstances of a particular community or population, the particular type of environmental or human health impact, and the nature of the proposed action itself ” and noting that “[a]gencies should recognize the interre-lated cultural, social, occupational, historical, or economic factors that may amplify the natural and physical environ-mental effects of the proposed agency action,” including “the physical sensitivity of the community or population to particular impacts; the effect of any disruption on the community structure associated with the proposed action; and the nature and degree of impact on the physical and social structure of the community”); id. at 14 (“Agencies should recognize that the impacts within minority popula-tions, low-income populations, or Indian tribes may be different from impacts on the general population due to a community’s distinct cultural practices. For example, data on different patterns of living, such as subsistence fish, veg-etation, or wildlife consumption and the use of well water in rural communities may be relevant to the analysis.”). See Appendix A for a list of agency guidance on Executive Order 12,898.

14 Federal Interagency Working Group on Environmental Justice, Promising Practices for EJ Methodologies in NEPA Reviews 31 (2016), https://www.epa.gov/sites/produc-tion/files/2016-08/documents/nepa_promising_practic-es_document_2016.pdf [hereinafter “Promising Practices”] (“explaining that agencies should assess “chemical and non-chemical stressors that could potentially amplify impacts from the proposed action to the health of minority popula-tions and low-income populations,” such as “health status (e.g. pre-existing health conditions) and past exposure histories, and social factors such as community property values, sources of income, level of income, and standard of living”).

15 See, e.g., EPA, Technical Guidance for Assessing Environ-mental Justice in Regulatory Analysis (2016), https://www.epa.gov/sites/production/files/2016-06/docu-ments/ejtg_5_6_16_v5.1.pdf [hereinafter “EPA Technical Guidance”]; EPA, Guidance on Considering Environ-mental Justice During the Development of Regulatory Actions (2015), https://www.epa.gov/sites/production/files/2015-06/documents/considering-ej-in-rulemaking-guide-final.pdf. These documents, along with other guid-ance, were issued by EPA as part of Plan EJ 2014, a plan to reinvigorate Executive Order 12,898 following its twenti-eth anniversary. See Plan EJ 2014, https://www.epa.gov/environmentaljustice/plan-ej-2014 (last visited Oct. 20, 2020).

1 A complete environmental justice analysis for impacts not related to climate change is outside the scope of this report, though the authors note that environmental justice analyses conducted by federal agencies are often wanting. See infra note 17.

2 The Council on Environmental Quality (“CEQ”) describes “low-income population” in the context of Executive Order 12,898 in the following way: “Low-income populations in an affected area should be identified with the annual sta-tistical poverty thresholds from the Bureau of the Census’ Current Population Reports, Series P-60 on Income and Poverty. In identifying low-income populations, agencies may consider as a community either a group of individu-als living in geographic proximity to one another, or a set of individuals (such as migrant workers or Native Ameri-cans), where either type of group experiences common conditions of environmental exposure or effect.” Council on Env’t Quality, Environmental Justice Guidance Under the National Environmental Policy Act 25 (1997), https://www.epa.gov/sites/production/files/2015-02/documents/ej_guidance_nepa_ceq1297.pdf [hereinafter “CEQ Guid-ance”].

3 CEQ describes “minority” as “Individual(s) who are mem-bers of the following population groups: American Indian or Alaskan Native; Asian or Pacific Islander; Black, not of Hispanic origin; or Hispanic.” Id. A “minority popula-tion” is defined as when “(a) the minority population of the affected area exceeds 50 percent or (b) the minority population percentage of the affected area is meaningfully greater than the minority population percentage in the general population or other appropriate unit of geographic analysis.” Id.

4 Exec. Ord. No. 12898 § 1-101, 59 Fed. Reg. 7629 (Feb. 11, 1994) (“To the greatest extent practicable and permit-ted by law, … each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations[.]”).

5 Id.6 Id. § 1-103(a).7 Id. § 2-2.8 Id. § 3-301(a)–(c).9 Id. § 3-302(a).10 Exec. Ord. No. 13,783 §3(i), 82 Fed. Reg. 16,093 (Mar. 28,

2017).11 Exec. Ord. No. 13,653 §2(c), 78 Fed. Reg. 66,819 (Nov. 1,

2013).

Endnotes

https://www.epa.gov/sites/production/files/2016-08/documents/nepa_promising_practices_document_2016.pdfhttps://www.epa.gov/sites/production/files/2016-08/documents/nepa_promising_practices_document_2016.pdfhttps://www.epa.gov/sites/production/files/2016-08/documents/nepa_promising_practices_document_2016.pdfhttps://www.epa.gov/sites/production/files/2016-06/documents/ejtg_5_6_16_v5.1.pdfhttps://www.epa.gov/sites/production/files/2016-06/documents/ejtg_5_6_16_v5.1.pdfhttps://www.epa.gov/sites/production/files/2016-06/documents/ejtg_5_6_16_v5.1.pdfhttps://www.epa.gov/sites/production/files/2015-06/documents/considering-ej-in-rulemaking-guide-final.pdfhttps://www.epa.gov/sites/production/files/2015-06/documents/considering-ej-in-rulemaking-guide-final.pdfhttps://www.epa.gov/sites/production/files/2015-06/documents/considering-ej-in-rulemaking-guide-final.pdfhttps://www.epa.gov/environmentaljustice/plan-ej-2014https://www.epa.gov/environmentaljustice/plan-ej-2014https://www.epa.gov/sites/production/files/2015-02/documents/ej_guidance_nepa_ceq1297.pdfhttps://www.epa.gov/sites/production/files/2015-02/documents/ej_guidance_nepa_ceq1297.pdfhttps://www.epa.gov/sites/production/files/2015-02/documents/ej_guidance_nepa_ceq1297.pdf

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16 See, e.g., Richard L. Revesz, Regulation and Distribution, 93 N.Y.U. L. Rev. 1489, 1534–40 (explaining that “political commitment to the goals of the Executive Order has varied across different presidencies,” but that even after “positive developments” during the Obama administration “environ-mental justice concerns appear not to be fully integrated into the EPA’s decisionmaking”); Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 Colum. L. Rev. 1260, 1325 (2006) (calling the Executive Order “ineffective,” and noting that environmental equity concerns are “not a prominent feature of regulatory deci-sionmaking”); Albert Huang, The 20th Anniversary of Presi-dent Clinton’s Executive Order 12898 on Environmental Justice, NRDC (Feb. 10, 2014), https://www.nrdc.org/experts/albert-huang/20th-anniversary-president-clintons-execu-tive-order-12898-environmental-justice (providing perspec-tives from numerous environmental-justice advocates who broadly agreed that the Executive Order had failed to live up to its loftier ambitions).

17 Eileen Gauna et al., A Survey of Federal Agency Responses to President Clinton’s Executive Order Number 12898 on Environ-mental Justice, 31 Env’t L. Rep’r 11,133 (2001).

18 Elizabeth Ann Glass Geltman et al., Beyond Baby Steps An Empirical Study of the Impact of Environmental Justice Execu-tive Order 12898, 39 Family and Cmty. Health 143, 143 (2016); see also Revesz, supra note 16, at 1540 (“[O]f the nearly 4000 rules the EPA promulgated during the Obama administration, the agency referred to only seven as ones taking environmental justice concerns into account.”).

19 See Joshua Ozymy & Melissa Jarrell, Administrative Persis-tence in the Face of a Hostile Regime: How the Environmental Protection Agency Can Survive the Trump Administration, 10 Env’t Justice 6 (2017).

20 Exec. Ord. No. 13,783 §3(i).21 For instance, the Safer Affordable Fuel Efficient (SAFE) Ve-

hicles Rule, 85 Fed. Reg. 24,174 (Apr. 30, 2020), will drasti-cally increase particular matter pollution (see Nat’l High-way Traffic & Safety Admin., Final Environmental Impact Statement for the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Year 2021-2026 Passenger Cars and Light Trucks at 4-31 (Mar. 2020)), which researchers from EPA’s National Center for Environmental Assessment have identified as a particular threat to low-income and minority communities. Ihab Mikati et al., Disparities in Distribution of Particulate Matter Emission Sources by Race and Poverty Status, 108 Am. J. Pub. Health 480 (2018).

22 Garner’s July 2014 death brought more widespread attention to the Black Lives Matter movement, which has helped reig-nite the public dialogue on racial justice in the United States. See Oliver Laughland, ‘I Can’t Breathe’: NYPD Fires Officer Who Put Eric Garner in Chokehold, The Guardian (Aug. 19, 2019), https://www.theguardian.com/us-news/2019/aug/19/eric-garner-daniel-pantaleo-nypd-officer.

23 Lisa Friedman & Julia Rosen, The Environmental Justice Wake-Up Call, N.Y. Times ( June 17, 2020), https://www.nytimes.com/2020/06/17/climate/climate-environmen-tal-justice.html.

24 The Biden Plan to Secure Environmental Justice and Equitable Economic Opportunity, Joe Biden, https://joebiden.com/environmental-justice-plan/ (last visited Oct. 20, 2020).

25 Harris, Booker, Duckworth Introduce Comprehensive Legisla-tion to Help Achieve Environmental Justice for All, Senator Kamala D. Harris ( July 30, 2020), https://www.harris.senate.gov/imo/media/doc/EJ%20for%20All%20Act%20-%20Final%20Text.pdf.

26 See, e.g. Scott Waldman & Jean Chemnick, Historic Picks for EPA, Interior Complete Biden Climate Team, E&E News (Dec. 18, 2020), https://www.scientificamerican.com/article/historic-picks-for-epa-interior-complete-biden-climate-team/.

27 EPA Technical Guidance, supra note 15, at 64 (“Regula-tory actions associated with greenhouse gases, for example, could benefit from qualitative analysis of how climate change may differentially affect one or more population group(s) where data precludes a quantitative assess-ment.”); id. at C-4, C-16 (providing examples of agency’s consideration of climate change’s disparate impacts in prior analyses).

28 Promising Practices, supra note 14, at 31 (“Agencies may wish to consider how impacts from the proposed action could potentially amplify climate change-related hazards (e.g., storm surge, heat waves, drought, flooding, and sea level change) in minority populations and low-income populations in the affected environment, and vice versa. Agencies may benefit by considering climate resilience in the proposal’s design and alternatives.”).

29 See, e.g., Exec. Ord. No. 12898 § 3-302 (counseling agencies to consider and assess that environmental justice impacts “whenever practicable and appropriate”).

30 See, e.g., CEQ Guidance, supra note 13, at 3–4 (“Where an agency action may affect fish, vegetation, or wildlife, that agency action may also affect subsistence patterns of con-sumption and indicate the potential for disproportionately high and adverse human health or environmental effects on low-income populations, minority populations, and Indian tribes.”).

31 FERC, Rio Grande LNG Project Final Environmental Impact Statement 4-233 to -238 (2019).

32 There are many examples of analyses under Executive Order 12,898 that make no reference to a project or rule’s substantial greenhouse gas emissions. The Federal Energy Regulatory Commission is among the worst offenders. See, e.g., id.

33 See, e.g., BLM, Coastal Plain Oil and Gas Leasing Program Final Environmental Impact Statement 3-280 (2019).

https://www.nrdc.org/experts/albert-huang/20th-anniversary-president-clintons-executive-order-12898-environmental-justicehttps://www.nrdc.org/experts/albert-huang/20th-anniversary-president-clintons-executive-order-12898-environmental-justicehttps://www.nrdc.org/experts/albert-huang/20th-anniversary-president-clintons-executive-order-12898-environmental-justicehttps://joebiden.com/environmental-justice-plan/https://joebiden.com/environmental-justice-plan/https://www.harris.senate.gov/imo/media/doc/EJ%20for%20All%20Act%20-%20Final%20Text.pdfhttps://www.harris.senate.gov/imo/media/doc/EJ%20for%20All%20Act%20-%20Final%20Text.pdfhttps://www.harris.senate.gov/imo/media/doc/EJ%20for%20All%20Act%20-%20Final%20Text.pdf

22

34 See SAFE Rule, 85 Fed. Reg. at 25,262 (“Any impacts of this rulemaking on low-income and minority communi-ties would be attenuated by a lengthy causal chain; but if one could attempt to draw those links, the changes to climate values would be very small and incremental compared to the expected changes associated with the emissions trajectories in the [Global Change Assessment Model] Reference scenario.”); Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modi-fied Sources Reconsideration, 85 Fed. Reg. 57,398, 57,437 (Sept. 15, 2020) (“EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-in-come populations, and/or indigenous peoples, as specified in Executive Order 12898. . . . While these communities may experience forgone benefits as a result of this action, the potential forgone emission reductions (and related benefits) from the final amendments are small compared to the overall emission reductions (and related benefits) from the [agency’s prior rule being revised].”).

35 To provide just one example, a recent decision of the fed-eral Office of Surface Mining to expand the Bull Mountains Mine in Montana will result in the emission of 190 mil-lion tons of carbon dioxide—an amount that the agency brushed aside as “minor” because it amounts to just 0.44 percent of annual global emissions. Bull Mountains Mine No. 1 Federal Mining Plan Modification Environmental Assessment 56–57 (2018). Yet according to the central social cost estimate developed by the Interagency Work-ing Group on the Social Cost of Greenhouse Gases, this amount of emissions results in roughly $9 billion in global climate damage.

36 Exec. Ord. No. 12,898 § 6-609.37 See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43 (1983) (“[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. … In reviewing that explanation, we must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” (internal quotation marks omitted)). While State Farm applies to rulemaking, NEPA requires that agencies “consider and disclose the actual environmental effects” of project-level de-terminations in a way that “brings those effects to bear on [the agency’s] decisions,” which could include assessment of that environmental justice considerations. Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97 (1983).

38 See, e.g., Cmtys. Against Runway Expansion, Inc. v. FAA, 355 F.3d 678, 689 (D.C. Cir. 2004) (“When an agency includes an environmental justice analysis of the effects on minority and low-income populations in its [environmental impact statement], then the environmental justice analysis can be reviewed under NEPA and the APA.”); Coliseum Square Ass’n, Inc. v. Jackson, 465 F.3d 215, 232 (5th Cir. 2006) (ap-

plying APA to findings in an environmental justice analy-sis); but see, e.g., Citizens Concerned About Jet Noise, Inc. v. Dalton, 48 F. Supp. 2d 582, 604 (E.D. Va. 1999) (reaching opposite conclusion).

39 See, e.g., Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 255 F. Supp. 3d 101, 140 (D.D.C. 2017) (criticiz-ing agency’s “bare-bones conclusion that [a minority or low-income population] would not be disproportionately harmed”). See generally District of Columbia v. U.S. Dep’t of Agric., No. 20-cv-00119, at *65–67 (D.D.C. Oct. 18, 2020) (stating that Department’s failure to provide “meaningful discussion” of the disparate impacts of rule limiting eligibil-ity for Supplemental Nutrition Food Assistance “points to the agency’s failure to ‘consider an important aspect’ of the effects of the Rule” (quoting State Farm, 463 U.S. at 43)).

40 See Exec. Ord. No. 12,866 § 6(a)(3)(C)(ii), 58 Fed. Reg. 51,735 (Oct. 4, 1993).

41 Nat’l Ass’n of Home Builders v. EPA, 682 F.3d 1032, 1040 (D.C. Cir. 2012).

42 See Jonathan S. Masur & Eric A. Posner, Cost-Benefit Analy-sis and the Judicial Role, 85 U. Chi. L. Rev. 935 (2018).

43 Because Executive Order 12,898 requires only consider-ation of disparate adverse impacts, it technically does not require any consideration of the disparate beneficial impacts of a project or rule that reduces greenhouse gas emissions. Exec. Ord. No. 12898 § 3-302. Nonetheless, agencies under the Obama administration sometimes provided descriptions of the environmental justice benefits flow-ing from a rule’s expected reductions in greenhouse gas emissions. See, e.g., Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662, 64,940–41 (Oct. 23, 2015). However, such analyses were inconsistently provided, and typically more qualitative than quantitative.

44 FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515–16 (2009); see also Organized Vill. of Kake v. U.S. Dep't of Agric., 795 F.3d 956, 968 (9th Cir. 2015) (“[E]ven when reversing a policy after an election, an agency may not simply discard prior factual findings without a reasoned explanation.”).

45 For more on environmental injustice as a product of vari-ous factors, see Robert Bullard, Race and Environmental Justice in the United States, 18 Yale L. J. 319 (1993) (“Eco-logical inequities in the United States result from a number of factors, including the distribution of wealth, housing and real estate practices, and land use planning.” (citing Robert D. Bullard, Dumping in Dixie: Race, Class, and Environmental Quality 1–24 (1990))).

46 See Federal Reserve, Federal Fair Lending Regulations and Statutes, Fair Housing Act Consumer Compliance Hand-book 1 (“Redlining is the practice of denying a creditwor-thy applicant a loan for housing in a certain neighborhood even though the applicant may otherwise be eligible for the

23

loan. The term refers to the presumed practice of mortgage lenders of drawing red lines around portions of a map to indicate areas or neighborhoods in which they do not want to make loans. Redlining on a racial basis has been held by the courts to be an illegal practice.”); see also Phil Hubbard, Redlining in Encyclopedia of the City at 560 (R.W. Caves ed., 2004) (“Redlining is the explicit spatial defini-tion of areas … where credit, investment or other services are less available than in other neighbourhoods. Banks may discriminate against applications for credit in a redlined neighbourhood, regardless of the characteristics of the applicant. Loans may be denied at a higher rate in redlined neighbourhoods than in comparable neighbourhoods, or they may be available only at a higher price.”).

47 See id. (“In the United States, redlining is closely associ-ated with race. Neighbourhoods with high proportions of minority residents are more likely to be redlined than other neighbourhoods with similar household incomes, housing age and type, and other determinants of risk, but different racial composition.”); Bullard, supra note 45, at 321–22 (describing institutional barriers that exacerbate environ-mental problems in communities of color).

48 See, e.g., Jacob Faber & Terri Friedline, New America, The Racialized Costs of Banking (2018) (“Banks’ costs and fees further limit the economic power of communities of color by requiring more earnings to be sequestered in checking accounts where they cannot be used.”).

49 See Thomas M. Shapiro, Race, Homeownership and Wealth, 20 Wash. U. J. L. & Pol’y 53, 59 (2006) (“[F]or most Americans, home equity represents the largest reservoir of wealth: home wealth accounts for 60% of the total wealth among America’s middle class” (citing Thomas M. Shapiro, The Hidden Cost of Being African American: How Wealth Perpetuates Inequality (2004)).

50 See, e.g., Vicki Been et al., The High Cost of Segregation: Exploring Racial Disparities in High-Cost Lending, 36 Fordham Urban L.J. 362 (2009) (reporting substantially higher rates of subprime loan mortgages for Black Ameri-cans).

51 See Kriston McIntosh et al., Examining the Black-White Wealth Gap, Brookings (Feb. 27, 2020), https://www.brookings.edu/blog/up-front/2020/02/27/examining-the-black-white-wealth-gap/ (“At $171,000, the net worth of a typical white family is nearly ten times greater than that of a Black family ($17,150) in 2016.”).

52 Bullard, supra note 45, at 323 (“An individual’s ability to leave a health-threatening physical environment is usually directly correlated with affluence. However, racial barri-ers … impede the ability of affluent African Americans to leave environmentally hazardous neighborhoods.”).

53 See, e.g., Andre M. Perry et al., The Devaluation of Assets in Black Neighborhoods 3, Brookings (Nov. 27, 2018), https://www.brookings.edu/research/devaluation-of-as-sets-in-black-neighborhoods/ (“[O]wner-occupied homes in black neighborhoods are undervalued by $48,000 per home on average, amounting to $156 billion in cumulative losses.”).

54 See, e.g., Daniel M. Sullivan, The True Cost of Air Pollution: Evidence from House Prices and Migration, Harvard Env’t Econ Progr. Discussion Paper No. 16-69 (2016).

55 See, e.g., Paul Mohai & Robin Saha, Which Came First, People or Pollution? Assessing the Disparate Siting and Post-Siting Demographic Change Hypotheses of Environmental Jus-tice, 10 Env’t Res. Ltrs. 115008 (2015) (finding “strong evidence of disparate siting for facilities sited” in people-of-color communities).

56 See, e.g., Rachel R. Ostrander, School Funding: Inequality in District Funding and the Disparate Impact on Urban and Migrant School Children, B.Y.U. Ed. & L. J. (2015).

57 See, e.g., Jen Laskey, How Your Zip Code Affects Your Health as a Black Woman, Today (Aug. 28, 2020), https://www.today.com/specials/how-zip-code-affects-health-black-women/; Garth N. Graham, Why Your ZIP Code Matters More Than Your Genetic Code: Promoting Health Outcomes from Mother to Child, 11 Breastfeed Med. 396 (2016).

58 Tamma A. Carleton & Solomon M. Hsiang, Social and Economic Impacts of Climate, 353 Science (2016).

59 Intergovernmental Panel on Climate Change, Climate Change 2014: Impacts, Adaptation, and Vulnerability Part A: Global and Sectoral Aspects 51 (2014).

60 Prasanna Gowda et al., Agriculture and Rural Communi-ties, Impacts, Risks, and Adaptation in the United States: Fourth National Climate Assessment, Vol. II 391 (David R. Reidmiller et al. eds., 2018) [hereinafter “Agriculture and Rural Communities”]; see also Janet L. Gamble et al., Populations of Concern, The Impacts of Climate Change on Human Health in the United States: A Scientific Assess-ment, U.S. Global Change Research Program (2016).

61 Kristie L. Ebi et al., Human Health, Impacts, Risks, and Adaptation in the United States: Fourth National Climate Assessment, Vol. II 551(David R. Reidmiller et al. eds., 2018) [hereinafter “Human Health”].

62 Telly A. Meadows et al., Ethnic Differences in Cardiovascular Risks and Mortality in Atherothrombotic Disease: Insights From the Reduction of Atherothrombosis for Continued Health (REACH) Registry, 86 Mayo Clin. Proc. 960 (2011).

63 Brad Plumer & Nadja Popovich, How Decades of Racist Housing Policy Left Neighborhoods Sweltering, N.Y. Times (Aug. 24, 2020).

64 Id.

https://www.brookings.edu/blog/up-front/2020/02/27/examining-the-black-white-wealth-gap/https://www.brookings.edu/blog/up-front/2020/02/27/examining-the-black-white-wealth-gap/https://www.brookings.edu/blog/up-front/2020/02/27/examining-the-black-white-wealth-gap/https://www.brookings.edu/research/devaluation-of-assets-in-black-neighborhoods/https://www.brookings.edu/research/devaluation-of-assets-in-black-neighborhoods/https://www.today.com/specials/how-zip-code-affects-health-black-women/https://www.today.com/specials/how-zip-code-affects-health-black-wom