EPA and CEQ’s New Environmental Justice Screening Tools: Five Things You Should Know
In his Executive Order on Tackling the Climate Crisis at Home and Abroad, released on January 27, 2021, President Biden directed the White House Council on Environmental Quality (“CEQ”) to “create a geospatial Climate and Economic Justice Screening Tool and [to] annually publish interactive maps highlighting disadvantaged communities” in support of the Justice40 Initiative—a “whole-of-government effort” and part of the administration’s commitment to addressing Environmental Justice. Environmental Justice (“EJ”) is defined by the EPA as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”
On February 18, 2022, the CEQ fulfilled President Biden’s directive and released the beta version of its Climate and Economic Justice Screening Tool (“CEJST”). On the same day, the EPA also released its latest “2.0” version of EJScreen — an environmental justice mapping and screening tool.
Below are five important things to know about CEJST and EJScreen 2.0.
The Two Tools Will be Used for Different Purposes
- CEJST: According to the CEQ, CEJST will be used by federal agencies to “implement  the Justice40 Initiative goal of directing 40 percent of the overall benefits of certain Federal investments to disadvantaged communities in climate, clean energy and energy efficiency, clean transit, affordable and sustainable housing, training and workforce development, clean water infrastructure, and the remediation of legacy pollution.”
- EJScreen: The EPA uses EJScreen in enforcement, compliance, outreach and engagement, and policy making. Many other agencies use it in the National Environmental Policy Act (“NEPA”) permitting context to identify the location and concentrations of minority and/or low-income populations.
The Two Tools Share the Aim of Identifying Environmental Justice Communities and Rely on Similar Data
- CEJST: The CEQ states that the tool will “help Federal agencies identify disadvantaged communities that are marginalized, underserved, and overburdened by pollution.” The CEQ also states that the “function of the tool is to employ indicators for the purpose of identifying communities that exhibit conditions of underinvestment in energy, transit, housing and water infrastructure, disproportionate pollution burden, and job training and employment.”
- EJScreen: The EPA describes the tool as a way for users to “access high-resolution environmental and demographic information for locations in the United States,” “compare their selected locations to the rest of the state, EPA region, or the nation,” and (among other things) identify minority populations and low-income populations.
There is some overlap in the underlying data used by the two tools:
|Higher education enrollment rate||√|
|Expected agriculture loss rate||√|
|Expected building loss rate||√|
|Expected population loss rate||√|
|PM2.5 in the air||√||√|
|Diesel particulate matter exposure||√||√|
|Air toxics cancer risk||√|
|Air toxics respiratory hazard index||√|
|Traffic proximity and volume||√||√|
|Housing cost burden||√||√|
|Median home value||√|
|Proximity to hazardous waste facilities||√||√|
|Proximity to National Priorities List sites||√||√|
|Proximity to Risk Management Plan (RMP) facilities||√||√|
|Underground storage tanks and leaking underground storage tanks||√|
|Low life expectancy||√|
|Low median income||√|
|High school degree attainment||√||√|
|Under age 5||√|
|Over age 64||√|
|People of color||√|
Strikingly, CEJST lacks consideration of race as part of its underlying data. Third-party sources indicate that the exclusion of race was based on the idea that projects would be less likely to draw legal challenges and the tool would not face being struck down by the judiciary. Despite this, it is well recognized that race is a central determinant of who experiences environmental harm and inevitably leads to questions of the efficacy of CEJST. It is not clear whether the feedback provided from users of CEJST, so improvements or changes can be made to the tool, will prompt the CEQ to include race as part of the criteria to identify environmental justice communities.
CEJST Integrates Non-Environmental Factors in a way that EJScreen Does Not . . . Yet
- CEJST: At a functional level, CEJST identifies disadvantaged communities if they are (1) above the threshold for one or more climate or environmental indicators;1 and (2) above the threshold for both socioeconomic indicators.2 The “climate or environmental indicators” include a number of categories that are not strictly “environmental,” like agriculture loss rate, building loss rate, population loss rate, energy burden, median home value, and health burdens, among others.
- EJScreen: This tool uses a formula that combines a single environmental factor3 with the demographic indicator to create an “EJ Index” that identifies census block groups that are disproportionately affected. EJScreen 2.0 now contains and displays data regarding health disparities, climate change, and critical service gaps. It is unclear, however, how (or whether) this new data will be integrated into EJ Indexes in the future. EPA stated in its FY 2022-2026 Strategic Plan Draft that in order for it to fulfill “its mission to protect human health and the environment,” it needed to address both chemical and non-chemical stressors.
Neither Tool Includes Cumulative Impacts
The EPA defines “cumulative impacts” as “the total burden – positive, neutral, or negative – from chemical and non-chemical stressors and their interactions that affect the health, well-being, and quality of life of an individual, community, or population at a given point in time or over a period of time.” Neither screening tool shows the cumulative impacts on a disadvantaged or environmental justice community. However, as we noted previously, both the EPA and the CEQ are interested in determining how to bridge that gap. In its Notice, the CEQ explicitly asked for input on how CJEST’s methodology could incorporate a cumulative impacts approach. This follows efforts by the EPA’s Office of Research and Development regarding cumulative impacts, to include the release of an external review draft, Cumulative Impacts: Recommendations for ORD Research, which is currently open for public comment.
CEJST May Eventually be Used for Other Purposes
Although CEJST is intended to further the aims of the Justice40 Initiative, it is very likely that it will be utilized not just by agencies, but also by industries and individuals alike. For example, CEJST can be used to help determine permitting success — whether planned activities will disproportionally affect disadvantaged communities in terms of health and environmental impacts — at both the federal and state level. And, because EJ concerns are integrated into the NEPA review process, CEJST may be used as part of a cumulative effect analyses and identification of possible mitigation efforts (to include reasonable alternatives). Application of CEJST may also reach beyond compliance, however, and be used in both enforcement and legislative actions.
Users of CEJST are encouraged to find communities and provide feedback, so improvements can be incorporated.
The EPA is developing new tools for assessing EJ. There is considerable cross-over in the datasets underlying CEJST and EJScreen; however, both serve different purposes. While CEJST primarily helps federal agencies to identify funding opportunities pursuant to the Justice40 Initiative, the EJScreen is designed to help the accuracy of agency decisions regarding permitting, compliance, enforcement, and outreach. Notwithstanding this, it is clear that the two tools overlap and can be used together not just by government agencies, but also by industries, businesses, regulated entities, and individuals to help inform decisions about environmental matters in light of EJ concerns. To that end, the regulated community should familiarize itself with both tools (in addition to any state-specific screening tools such as CalEnviroScreen and MD EJSCREEN) to monitor changes and developments in this space and implement proactive steps within their strategies in order to address EJ and protect disadvantaged communities. Things are getting more complex in this space, not less.
Stay tuned for more updates on this topic and read V&E Attorneys’ previous posts about Environmental Justice on our blog.
1 These indicators include, broadly, but are not limited to: PM2.5 in the air; diesel particulate matter exposure; traffic proximity and volume; lead paint; proximity to hazard waste facilities; proximity to National Priorities List sites; proximity to RMP facilities; and wastewater discharge, as well as asthma, and diabetes.
2 For the Climate Change, Clean Energy and Energy Efficiency, Clean Transit, Affordable and Sustainable Housing, Reduction and Remediation of Legacy, Critical Clean Water and Waste Infrastructure, and Health Burdens categories, the two socioeconomic indicators are low income and higher education enrollment rate. For the final category, Training and Workforce Development, the two socioeconomic indicators are high school degree attainment rate for adults 25 years and older and higher education enrollment rate.
3 Environmental indicators include the following: PM2.5; ozone; diesel particulate matter; air toxics cancer risk; air toxics respiratory hazard index; traffic proximity and volume; lead paint; Superfund proximity; RMP facility proximity; hazardous waste proximity; underground storage tanks and leaking underground storage tanks; and wastewater discharge.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.