Gravel2Gavel Construction & Real Estate Law Blog
Soon after taking office, President Biden issued Executive Order 14008, entitled, “Tackling the Climate Crisis at Home and Abroad.” This is an unusually long and complex executive order and includes many provisions relating to environmental justice and the plight of “disadvantaged communities” that are overwhelmed by many environmental threats. Section 223 of the Order describes the President’s “Justice40 Initiative,” which is designed to ensure that 40% of Federal benefits flow to disadvantaged communities through an “all of government approach.” There is a recognition that some disadvantaged communities lack the personnel and resources to take advantage of this Initiative, so technical training funds will be made available. The Order establishes new offices throughout the Federal bureaucracy to handle and expedite environmental justice matters.
The Office of Management and Budget (OMB) and the Council on Environmental Quality (CEQ) play a large role in implementing the Initiative by issuing appropriate guidance and assisting the Federal agencies to locate, among the thousands of programs they supervise, suitable programs that will assist disadvantaged communities. At last count, 518 Federal programs administered by 19 distinct Federal agencies could be a good source for the resources needed by disadvantaged communities to cope with air and water pollution and solid waste issues. Direct grants will be made in many cases, and other programs require the community to apply for the funds promised by the Executive Order. In addition, the Order requires participating Federal agencies to assess the value and effectiveness of the benefits bestowed. OMB and the CEQ have issued guidance documents and conducted many meetings with key personnel and members of the disadvantaged communities.
In addition to Implementation Guidance periodically issued by OMB, a “Justice40 Initiative Covered Programs List” was issued in November 2023, and in January 2024, the U.S. Government Accountability Office (GAO) issued a report entitled “Use of Leading Practices Would Strengthen Efforts to Guide Environmental Justice Initiative.” The points made by these studies include observations on the difficulties involved by disparate agencies coordinating the program through the complex bureaucracy that has been created by Executive Order 14008. In addition, the agencies are confronted by complex issues inherent in attempting to define the value of services that would be rendered by these programs. The agencies and departments currently participating in this Initiative are as follows: the Army Corps of Engineers; the Department of Agriculture; the Department of Commerce; the Department of Energy; the DHS; the Department of Homeland Security; HUD; the Department of the Interior, Department of Labor; Department of State; DOT; Department of Veterans Affairs, EPA; NASA; and the National Science Foundation. This indicates how far ranging these hundreds of programs are.
Lately, a recurring question is whether this program has been authorized by Congress. The provisions of the Bipartisan Infrastructure Law and the Inflation Reduction Act broadly authorize the appropriation of millions of dollars for these projects, and the Initiative appears to have satisfied the requirement that the work be authorized by the Congress.
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