By Jeffrey Meyers
Just days after taking office in January 2021, President Biden signed Executive Order 140081 to address what he termed a “climate crisis at home and abroad.” Embedded in the 15-page order was a 270- word section establishing the Justice40 Initiative, which called for the goal of delivering 40% of the benefit of federal infrastructure investment over the coming years to disadvantaged communities across the country. Clean energy and energy efficiency; clean transit; affordable and sustainable housing; training and workforce development; the remediation and reduction of legacy pollution; and the development of critical clean water infrastructure were all established as priority investment areas.
Funding under the American Rescue Plan Act (ARPA), the Infrastructure Investment and Jobs Act (IIJA), and the Inflation Reduction Act (IRA) is intended to be directed to serve these Justice40 goals.
Under Justice40, federal agencies identify specific “covered” programs within the priority investment areas and direct program expenditures to disadvantaged communities that meet established thresholds for at least one of a number of categories of burden. Such disadvantaged communities would include, for example, a neighborhood that lacks affordable housing, experiences legacy pollution, or lacks adequate green space, and is above the 65% percentile for low income. Metrics on covered program expenditures to disadvantaged communities are kept and reported by federal agencies that over time are intended to reach 40% of available infrastructure funding, collectively, in the priority areas.
Two years later, the Justice40 initiative remains a work in progress. Differing agency definitions of “disadvantaged,” numerous federal and state databases that inform the mapping of those communities, and the absence of complete guidance on program performance metrics still present challenges to local communities and their state governments on how best to leverage the potential benefits of the Justice40 initiative.
Here is a guide to three key elements of Justice40 with which state and local governments should be familiar and four actions state and local governments can take to prepare for and leverage the benefits of the initiative as implementation moves forward:
1. Guidance and Recommendations
Interim Justice40 Implementation Guidance2 was issued by the Office of Management and Budget (OMB) in July 2021 for all federal agencies. This Interim Guidance described the essential elements of the program or otherwise established a process for further action to define Justice40 program requirements. It defined a disadvantaged community, identified initial covered programs that would constitute an initial pilot for investment, and established the initial seven categories for targeted investment. The Interim Guidance added climate change to the six categories identified in the Executive Order. An eighth category, health, was more recently added to this list.
Rather than prescriptively define “disadvantaged community,” the Interim Guidance offered a list of 13 variables,3 including indicators such as low income, high unemployment, pollution and environmental stressors, and racial and ethnic segregation, and urged federal agencies to establish their own definition with regard to their specific covered programs. While this approach has much to commend, especially in its attempt to align with agency-specific infrastructure investment programs, it also has resulted in differing definitions that may leave local governments challenged in tracking the various impacts of programs across their neighborhoods and census tracts. A census tract classified as disadvantaged for energy programs may not be considered disadvantaged for other potential investments such as housing or transportation.
In August 2022, the White House Environmental Justice Advisory Council (WHEJAC) issued the Justice40 Phase 1 Recommendations4.Constituted as an advisory group to the White House Council on Environmental Quality (CEQ), WHEJAC was tasked with providing advice and recommendations to the CEQ, the OMB, and the National Climate Advisor on how Justice40 could be implemented to achieve the 40% target.
The Phase 1 Recommendations include cross-agency actions, as well as individual actions directed to the 10 largest federal agencies through which the majority of federal infrastructure funding will flow. It also urges federal agencies to adopt best practices for public stakeholder engagement, grant funding, and proposed infrastructure projects.
Selected WHEJAC recommendations for all federal agencies include:
For Grant Funding:
For Stakeholder Engagement:
For Infrastructure Projects:
2. Covered Programs
Justice40-covered programs are federal programs that expend federal funds in any one of the established eight infrastructure categories: climate change, clean energy and energy efficiency, clean transit, affordable and sustainable housing, training and workforce development, remediation and reduction of legacy pollution, health, and the development of critical clean water and wastewater infrastructure. Existing and new programs, including those created by the Bipartisan Infrastructure Law and the IRA, which make investments in any of these categories, are considered Justice40-covered programs.
To date, 13 federal agencies have designated some 451 covered programs. The Biden Administration published the Justice40 Initiative Covered Programs List5 in August 2022. The list is not static, and several federal agencies have independently published their lists of covered programs and other Justice40 activities:
3. The Climate and Economic Justice Screening Tool
The Climate and Economic Justice Screening Tool (CEJST or tool) is a critical component of the Justice40 Initiative. In Executive Order 14008, the White House Council on Environmental Quality (CEQ) was directed to develop a geospatial mapping tool to identify disadvantaged communities that face burdens.
In November 2022, the CEQ launched version 1.0 of the CEJST. Version 1.0 incorporates feedback that CEQ received on the beta—or draft—version of the tool. The tool was released in a beta version in order to solicit feedback from federal agencies, Tribal Nations, state and local governments, WHEJAC, key stakeholders, and the public.
The CEJST is available here6. The tool uses publicly available datasets to identify disadvantaged communities. The datasets are indicators of burdens that disadvantaged communities face.
For this 1.0 Version, communities are considered disadvantaged if they are in census tracts that meet the thresholds for at least one of the tool’s categories of burden, or if they are located on federally recognized tribal lands.
Census tracts that are completely surrounded by disadvantaged communities are also considered disadvantaged if they meet an adjusted low-income threshold (≥ 50th percentile). As published by the CEQ in Table I of CEJST,7 the methodology for establishing a qualifying burden is as follows:
*Low Income = 65th percentile or above for census tracts that have people in households whose income is less than or equal to twice the federal poverty level, not including students enrolled in higher education (NEW) method of calculation.
1. Embrace Data to Ensure Comprehensive Mapping of Disadvantaged Communities
There is an abundance of data that will aid state and local governments in determining whether a census tract, neighborhood, or community is considered disadvantaged. The federally created CEJST is one tool that may be helpful, but it is not intended to be exclusive. Cincinnati has published a Climate Equity Indicators Report8 that compiles a wide range of demographic, environmental, health outcome, economic, and planning indicators, aggregated at the neighborhood level. The Cincinnati report drew upon 52 sociodemographic, geospatial, and institutional indicators that were generated from a wide array of datasets. San Antonio also has developed a Climate Equity Screening Tool9. State and local governments are uniquely positioned to complement the CEJST and other environmental justice data tools with local data that can distinguish the community for competitive grants. Local storytelling is impactful.
2. Integrate Justice40 Goals with Existing Local Infrastructure Plans
Cities and states are increasingly establishing climate plans and goals that should be aligned with the Justice40 Initiative to leverage federal funding. According to the publication Nature10, some 20 cities across the country, from Atlanta to Boston to Orlando to Cleveland and San Antonio, are explicitly planning to integrate climate justice. Another 20 cities are now voicing an aspiration on the need for such planning. Planning for the integration of federal funding opportunities under the IIJA and IRA by state and local government is even more important in order to leverage this generational opportunity to address inequities in housing, clean energy, and legacy pollution, among other burdens.
3. Involve the Community and Engage Federal Stakeholders
Community education and outreach are critical components of any large-scale projects or programs impacting a neighborhood, city, or state. Early and frequent community outreach will yield multiple benefits in planning and preparing for infrastructure investments that implement Justice40 goals, from acquiring information to building support for pursuing IIJA and IRA competitive grants that will help achieve local Justice40 goals.
State and Local governments should also participate in federally sponsored stakeholder outreach that is now being conducted by federal agencies. The US Department of Transportation, for example, is currently seeking public comment on its US DOT Equitable Transportation Community Explorer (ETCE) Tool and Index Methodology11. This and similar opportunities by federal agencies provide affected state and local governments with an important vehicle to advocate and register their position on Justice40 implementation.
4. Establish Local Governance for Justice40 Goals
There are a number of governance models that state and local governments have begun to embrace to plan and implement Justice40 goals: Working groups (Minneapolis)12, climate emergency mobilization directors (Los Angeles)13, equity advisory committees (San Antonio)14, climate equity steering committees (Cincinnati)15, and Justice40 oversight committees (Delaware)16. Community planning, implementation, and evaluation of Justice40 objectives that address the needs of a community will not happen on their own. Each community will find the model that is right for its citizens, but having governance in place is critical.
Special thanks to Raquel Malmberg and Hillary Thompson for contributing to this article.
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