On the first day of his Presidency, among 26 other Executive Orders that day, Donald Trump issued his Unleashing American Energy Executive Order rescinding President Biden’s Executive Order 14096 of April 21, 2023 (Revitalizing Our Nation’s Commitment to Environmental Justice for All). On the same day, he issued Ending Radical And Wasteful Government DEI Programs And Preferencing (the “Ending DEI Order”). Together, these and other Executive Orders[1] effectively eliminated all Diversity, Equity, and Inclusion (DEI) and Environmental Justice (EJ) programs at the federal level, including any DEI and EJ positions within the federal government. More specifically, the Ending DEI Order called for the “termina[tion], to the maximum extent allowed by law, all DEI, DEIA and ‘environmental justice’ office and positions (including but not limited to ‘Chief Diversity Officer’ positions); all ‘equity action plan,’ ‘equity’ actions, initiatives, or programs, ‘equity-related’ grants or contracts; and all DEI or DEIA performance requirements for employees, contractors, or grantees.”
In early March, EPA Administrator Lee Zeldin reportedly followed suit by "eliminating all diversity, equity, and inclusion, and environmental justice offices and positions immediately" at the agency. While it seems quite clear that these Orders will eliminate the Environmental Protection Agency and other federal agencies’ implementation of DEI and EJ programs during the Trump administration, their effect on Massachusetts’ EJ programs is not immediately apparent.
The admittedly vague language of the Executive Orders leaves open the question of how the federal government will treat states that prioritize environmental justice. Although the Ending DEI Order expressly terminates “equity related grants or contracts,” it does not specifically terminate funding for EJ programs or to grantees with EJ programs. To date, litigation challenging the Ending DEI Order has primarily focused on preserving DEI positions and programs, rather than addressing environmental justice. Nevertheless, because DEI and EJ programs both include race as a factor in administering government policies and distributing government benefits, which the Trump administration considers unlawful discrimination, it seems likely that EJ programs will inevitably get the disfavor already meted out to DEI programs. This will likely take the form of cutbacks in federal funding for state programs and a refusal to recognize EJ principles in state agency decisions.
Massachusetts has a robust environmental justice program. Massachusetts Environmental Justice Policies issued by the Executive Office of Energy and Environment (EEA) pursuant to former Governors’ Executive Orders were effectively codified into law with the 2021 passage of the Act Creating a Next-Generation Road Map for Massachusetts Climate Policy (Climate Roadmap Act). Among other provisions, the Climate Roadmap Act necessitated that in addition to environmental impacts, project proponents and permitting agencies take into account environmental justice considerations as part of environmental review under the Massachusetts Environmental Policy Act (MEPA) and required all EEA agencies “to consider the environmental justice principles in making any policy, determination or taking any other action related to a project review, or in undertaking any project pursuant to [MEPA] that is likely to affect environmental justice populations.”
Indeed, pursuant to the Climate Roadmap Act, the EEA adopted new regulations and guidelines mandating EJ review in a wide array of projects and is working on implementing other EJ related principles in constituent agency regulations, such as the new Cumulative Impact Analysis provisions of the Massachusetts Department of Environmental Protection’s (MassDEP) air regulations for projects near EJ populations.
According to EEA Secretary Tepper’s February 2024 - Environmental Justice Strategy (EJ Strategy), the EEA is “embedding environmental justice and equity into the fabric of EEA . . . [t]he EJ Strategy will be the guiding document to embed environmental justice and equity into the work of EEA and its agencies.” “With this EJ Strategy as a guide, all EEA agencies will embed environmental justice and equity into their everyday work and decision-making to deliver on environmental justice through leadership and bold action.” More particularly, the EJ Strategy expressly provides that:
It is the policy of EEA that environmental justice and equity principles will be an integral consideration, to the extent applicable and allowable by law, in the implementation of all EEA programs, including but not limited to the grant of financial resources or technical assistance, the promulgation, implementation, and enforcement of laws, regulations, and policies, the provision of access to both active and passive open space, and the diversification of energy sources, including energy efficiency and renewable energy generation. Further, any agency, department, division, board, and office within EEA that is making any policy, determination, or taking any other action related to a project that is subject to review under the Massachusetts Environmental Policies Act (“MEPA”), must consider “environmental justice principles,” as defined in M.G.L. c. 30 section 62.
The obvious first question is whether funding for the Commonwealth’s Environmental Justice programs is in jeopardy, given that the Ending DEI Order terminates all “equity related” grants or contracts. While the minuscule amount of the EEA’s EJ-related programs that are federally funded are likely in jeopardy, the $8.7 M line item for “environmental justice work” within EEA’s FY 2025 $159 M budget will presumably continue since it is not listed as federally funded.
The less obvious question is whether the Commonwealth’s commitment to environmental justice will indirectly impact other federal funding. Will the federal government continue to provide federal funds to an EEA that “embed[s] environmental justice and equity into [its] everyday work and decision making?”[2]
This concern is not insignificant. Federal spending comprised $35 million of the EEA’s $159M 2025 budget. Approximately one-third ($28M) of the MassDEP’s $87M 2025 budget is federal spending. A large portion of that federal funding ($11M) is allocated to carry out the Performance Partnership Grant provided by the EPA, which funds the MassDEP’s implementation of federally delegated programs, including the permitting of air emission sources under the federal Clean Air Act. Other EEA departments, like the Department of Conservation and Recreation (DCR), also receive significant federal funding (i.e., $16M of the DCR’s $161M FY 2025 budget). In addition to federal funding for EEA and other state agencies and departments, Massachusetts has received billions of dollars in federal grants for transportation infrastructure, including $1.7 billion towards the Bourne and Sagamore bridge replacement projects. As we have seen in many of the President’s other moves, he is not shy about using the threat of funding loss as a lever to force changes in policy or position by his chosen target.
Another even less obvious question is how the federal government’s hostility to EJ principles will affect a project that requires both state and federal permits or approvals. Because the Trump administration’s Executive Orders eschew any consideration of environmental justice in the issuance of federal permits or approvals, but state laws and regulations mandate such considerations, will the respective permits be compatible? For example, will a project proponent’s commitments to mitigate project impacts to an EJ population in a jointly administered permit program run afoul of the federal prohibition of such considerations?
Stay tuned as we here at Verrill keep abreast of this fast-breaking and important area of environmental law.
