28 April 2021
United States President Joe Biden has prioritized achieving environmental justice and combatting climate change, following up on campaign pledges. The Biden Administration’s focus on climate change is evident in early Executive Orders (EOs)[i] and in the April 22 Climate Summit that he convened. President Biden’s focus on environmental justice (EJ) is manifested in the same EOs. He has also proposed wide-ranging legislation regarding climate change in his American Jobs Plan, which also contains major elements relating to EJ[ii]. Also before Congress is the Environmental Justice For All Act championed by Vice-President Kamala Harris, a law which would for the first time recognize that all Americans have the right to clean air, clean water and a healthy environment. Unlike the EOs, the proposed legislation must be passed by Congress and its content thus may change significantly. This blog thus focuses on the EOs, with only occasional reference to the legislation.
The specific approaches in the EOs to climate change and EJ are similar in some respects but differ in others. Importantly, they have a reciprocal relationship and efforts to combat climate change and achieve EJ can be mutually reinforcing.
One similarity is that both climate change and EJ involve a wide variety of economic, social and environmental issues and policies. Climate change obviously penetrates deeply into many spheres of society and involves many actors, both internationally and domestically. EJ is principally domestic in focus, but its realization often relates to climate change. For example, an important EJ issue concerns ensuring that workers who are displaced by climate change mitigation or adaptation activities are treated fairly during a “just transition” and that there are “decent work and quality jobs” available to replace the ones lost – phrases that appear in the preamble to the Paris Agreement on climate change.[iii] As another example, some of the most egregious environmental injustices in the United States involve prodigious pollution from oil refineries and petrochemical facilities, some of which bear the disturbing label of “sacrifice zones.”
Another similarity is that both efforts are government-wide in order to address the vast array of relevant issues and actors involved. The Biden EOs direct each agency to review its policies, practices and regulations to ensure they are consistent with the new policies regarding climate change and EJ and to rectify any shortcomings, to report to President Biden about actions, and to participate in elaborate agency-wide processes consisting of newly created councils, task forces and screening tools, complete with deadlines and monitoring requirements.
A potentially significant difference lies in the clarity of the terms. The meaning of “climate change” and the goals in relation to it are relatively clear due to the decades-long work of the Intergovernmental Panel on Climate Change (IPCC)[iv] and the existence of international climate change agreements, especially the United Nations Framework Convention on Climate Change[v] and the Paris Agreement. Moreover, that meaning is universally accepted, due to the global nature of the IPCC and the fact that the vast majority of United Nations member States are Party to those agreements. The UNFCCC, for example, defines “climate change” as “a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time period.” [vi]
The concept of EJ, in contrast, does not enjoy such a universally accepted definition. Although some international instruments, such as the Habitat Agenda, the primary outcome document of the Second United Nations Conference on Human Settlements (Habitat II, 1996), call for action on various aspects of EJ (without using that term), there is no equivalent of the IPCC or climate change agreements except for the preambular references to just transition and quality jobs mentioned above. Moreover, the challenges to EJ vary to some extent by society. In the United States, the primary problem is racism, whereas in some countries it is poverty, caste or religious tensions.
International human rights law, however, provides a blueprint for the substance of EJ.
Based on international human rights law, EJ has five elements. These are:
- no disproportionate impact from environmental harm on disadvantaged communities or individuals;
- equal and meaningful access to environmental information and participation in decision making;
- equal access to environmental amenities such as clean drinking water, sanitation and parks;
- access to justice and effective remedies for environmental harm; and
- a healthy and sustainable environment.
The 1948 Universal Declaration of Human Rights (UDHR), which now constitutes customary international law, and subsequent human rights instruments provide strong bases for these elements. The first and third elements above, for example, are based on the human right to equal treatment that is required by several articles in the UDHR.[vii] The right to participate in decision making, the second element above, is required by articles 18-21 of the UDHR. The right to justice and effective remedies (the fourth element) is provided in article 8 of the UDHR. And the fifth element, the right to a healthy and sustainable environment, encompasses rights such as the right to an adequate standard of living and the right to life in articles 3 and 25, respectively of the UDHR[viii] and has an empirical scientific basis in the fundamental importance of ecosystem services to human society[ix].
The fifth element can be viewed as equivalent to the Right to a Safe, Clean, Healthy and Sustainable Environment, often referred to as the Right to a Healthy Environment, which at least 155 countries are already legally bound to respect by national constitutions, national statutes, or legally binding international agreements.[x] The universal recognition of this right is currently being discussed at the UN Human Rights Council.[xi]
President Biden’s EOs regarding EJ[xii] do not define “environmental justice”; their substance focuses on eliminating disproportionate impacts of pollution on vulnerable communities and providing remedies (the first and third elements above), as well as on providing economic opportunities.[xiii] His proposed American Jobs Plan also does not define EJ, although it relates to the first element (e.g., eliminating water pollution from lead pipes), as well as to providing economic opportunities. The only official definition in the U.S. government is that of the Environmental Protection Agency:[xiv]
Environmental justice is 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. This goal will be achieved when everyone enjoys:
- The same degree of protection from environmental and health hazards, and
- Equal access to the decision-making process to have a healthy environment in which to live, learn, and work.
That definition is inadequate because it covers only the first two elements above. Achieving EJ will not be possible without recognizing all its five elements; the same is true of successfully combatting climate change.
The fifth element of EJ identified above, i.e., a healthy and sustainable environment, best illustrates the reciprocal relationship of climate change and EJ. Even achieving the initial four elements would not be capable of achieving justice or being described by reference to that term if the environment were dirty, unsafe and unsustainable because of the threats posed to the right to life and other human rights.
The effort to keep global warming at or less than 1.5 degrees Celsius can be viewed as a critical part of the effort to achieve a healthy, sustainable environment and thus to achieve EJ. Indeed, achieving EJ is critical to the battle against climate change. This is true not only for legal, moral and political reasons, but also for functional reasons. As UN High Commissioner for Human Rights Michelle Bachelet has pointed out, human rights serve a critical preventive function, including with respect to protecting the environment and combatting climate change.
Moreover, without a clear compass to help steer the myriad difficult decisions that will be necessary to deal with climate change, those decisions are likely to be inconsistent and work at cross purposes. In addition, they would be less likely to garner the requisite political support. EJ, including the Right to a Healthy Environment, can provide that compass.
President Biden’s EOs and proposed legislation recognize this reciprocal relationship. A single EO — the January 27, 2021 EO — for example, prescribes the primary approach of the Administration to both climate change and EJ and relates them to one another. Similarly, the White House Press Release regarding the January 27 EO describes the EJ effort as “address[ing] the disproportionate health, environmental, economic, and climate impacts on disadvantaged communities.”[xv] The inclusion of climate impacts in this list makes it absolutely clear that the Biden Administration’s EJ focus includes climate change.
Combatting climate change and achieving environmental justice will be difficult under the best of circumstances. Recognizing the right to a healthy environment would be a major step forward in both areas and help ensure that efforts in one reinforce efforts in the other.
[i] Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (21 Jan. 2021); Executive Order on Tackling the Climate Crisis at Home and Abroad (27 Jan. 2021).
[ii] Regarding EJ, see, e.g., the White House Press Release, March 31, 2021: “the plan prioritizes addressing long-standing and persistent racial injustice. The plan targets 40 percent of the benefits of climate and clean infrastructure investments to disadvantaged communities. And, the plan invests in rural communities and communities impacted by the market-based transition to clean energy.“, available at
[iii] Paris Agreement on climate change, Preamble, available at
https://unfccc.int/sites/default/files/english_paris_agreement.pdf.
[iv] E.g., https://www.ipcc.ch.
[v] UNFCCC, available at
[vi] Id. at article 1.2.
[vii] Universal Declaration of Human Rights , articles 1, 2, 3, 7 (1948).
[viii] Report to the General Assembly by John Knox & David Boyd, Special rapporteur on human rights and environment: Human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (2018), A/73/188, available at
https://documents-dds-ny.un.org/doc/UNDOC/GEN/N18/231/04/PDF/N1823104.pdf?OpenElement.
[ix] Ecosystem services are what nature provides humankind for free. They constitute the true infrastructure of human society. See, e.g., United Nations Environment Programme & World Resources Institute, Millennium Ecosystem Assessment 40 (2005).
[x] See generally, Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox, Preliminary Report, UN Doc. A/HRC/22/43, available at http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A-HRC-22-43_en.pdf
[xi] See, e.g., Letter from 15 UN bodies supporting the recognition of the right to a safe, clean, healthy and sustainable environment, available at https://www.unep.org/news-and-stories/statements/joint-statement-united-nations-entities-right-healthy-environment.
[xii] Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, 21 Jan. 2021.
[xiii] “Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (21 Jan. 2021). The original EJ Executive Order issued by President Bill Clinton also does not define the term; it focuses on “identifying and addressing . . . disproportionately high and adverse human health or environmental effects .. . . on minority communicates or low-income communities”, i.e., the first element of EJ mentioned above. Executive Order 12898 (11 Feb. 19940).
[xiv] Available at https://www.epa.gov/environmentaljustice.
[xv] Available at
Featured photo: President Biden spoke from the East Room of the White House on Friday, the second and final day of his virtual climate summit meeting. Anna Moneymaker for The New York Times
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