Department of Justice Takes Historic Action to Prioritize Environmental Justice in Enforcement: What Does it All Mean and What is Ahead?
On May 5, 2022, Attorney General Merrick Garland announced key developments that would elevate environmental justice (EJ) as a key priority for the nation’s largest and most powerful enforcement agency. These historic measures include:
- Release of the U.S. Department of Justice’s (DOJ) Comprehensive Environmental Justice Enforcement Strategy (DOJ EJ Strategy), pursuant to Executive Order (EO) 14008 (Tackling the Climate Crisis at Home and Abroad) and developed by DOJ’s Environment and Natural Resources Division (ENRD) and the U.S. Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance (OECA);
- Establishment of DOJ’s first Office of Environmental Justice (OEJ), led by Cynthia Ferguson - a long-time agency veteran and seasoned litigator, with decades of experience in environmental enforcement and who has convened several EJ working groups in years past; and
- Issuance of an Interim Final Rule – effective on May 10, 2022, but open for comment until July 11, 2022 - to restore the agency’s qualified authority to use supplemental environmental projects (SEPs) in criminal and civil settlement negotiations, which largely adopts the pre-2017 approach with some limited exceptions outlined in a related memorandum outlining anticipated guidelines and limitations.
These measures are a notable step forward in the Biden Administration’s whole-of-government approach to advancing EJ and implementation of EO 14008, which called for targeted and strategic enforcement in overburdened and underserved communities as a way to achieve its goals. DOJ’s EJ-focused actions are expected to fortify recent EPA efforts focusing enforcement on vulnerable communities – including an April 2021 OECA memorandum, the Office of Land and Emergency Management’s December 2021 draft EJ Action Plan, and recent initiatives informed by Administrator Regan’s Journey to Justice Tour in 2022.
What Does It All Mean?
In the recent flurry of EJ-related federal and state activity, it can be difficult to understand the practical implications of these new developments. DOJ’s announcement also comes at a time when the Administration is facing significant criticism from EJ and civil rights advocates, who argue that despite its promises since the early days of the Biden campaign, it has failed to deliver and make meaningful progress almost 18 months into the presidency. All said, the developments at DOJ are unquestionably significant and likely to result in meaningful changes to the way that DOJ targets enforcement actions, resolves its cases, and ensures internal progress towards its EJ-related goals.
1. DOJ will target enforcement actions in overburdened and underserved communities.
Though EJ-focused enforcement has been a priority since the early days of the Biden campaign, this is the furthest-reaching effort to date to deliver on that promise. The DOJ EJ Strategy commits DOJ to using its discretionary authority to “prioritize cases that will reduce public health and environmental harms to overburdened and underserved communities.” DOJ will develop protocols for assessing EJ impacts during investigations, including “actual or threatened adverse impacts to public health or the environment from systemic environmental violations, contamination, or injury to natural resources,” and “information concerning the affected community and potential remedies or public health or environmental harms.” Based on this information, DOJ will identify enforcement actions that are most likely to achieve meaningful reductions in EJ-related impacts for prioritization.
This broad discretion to develop component-specific methodologies for identifying EJ impacts leave it unclear as to how DOJ will identify “overburdened and underserved communities,” as well as measure such adverse impacts—especially given complicating factors like multisource pollution. The DOJ EJ Strategy specifically highlights “communities of color, low-income communities, and Tribal and indigenous communities” as “underserved,” consistent with past practice by federal agencies. However, an anticipated EPA tool quantifying cumulative effects on overburdened communities—alongside existing mapping tools like EPA’s EJSCREEN 2.0, CEQ’s CEJST tool, and EPA’s Power Plants and Neighboring Communities Map—will undoubtedly play a role in the Department’s calculus as it identifies areas for prioritization.
Given DOJ’s expanded commitment to advancing EJ, industry stakeholders with meaningful footprints in “overburdened and underserved communities”—likely low-income, minority, and/or Tribal and indigenous communities—can expect a sizeable increase in enforcement scrutiny. Though the nature of the enforcement matter itself may not be particularly notable, DOJ will be eager to publicize actions taken in cases implicating EJ, with commensurate reputational impacts. This expanded risk provides a strong incentive for refreshing community engagement efforts, engaging early and often in the absence of controversy, and conducting comprehensive EJ assessments to assess any expanded enforcement risk.
2. DOJ will consider EJ in resolution of enforcement matters, including through the use of SEPs in settlement negotiations.
DOJ’s long-awaited reinstatement of SEPs alongside the DOJ EJ Strategy provides strong messaging that SEPs will, once again, be a method for furthering the Department’s EJ goals. Though SEPs are not new to DOJ’s portfolio of settlement options, this is the first time that an Attorney General has explicitly endorsed the concept, making it far more likely that they will be used in the future. The policy shift also puts DOJ in close alignment with EPA, where SEPs have received longstanding support.
As noted above, the Attorney General’s May 5th memorandum on guidelines and limitations suggests that 2022’s SEP approach will largely resemble the 2015 EPA SEP Policy with limited exceptions—including explicit prohibitions against education-only SEPs, which were previously only strongly disfavored. As in the past, the SEP vetting process is expected to be thorough, though DOJ is likely to still have a great deal of subjectivity and discretion. With that discretion in mind, SEPs can again offer meaningful and positive settlement options for defendants who have strong community relationships and provide creative options for resolution with a newly motivated DOJ team. Notably, though DOJ’s SEP policy applies to federal settlements only, the Department frequently collaborates with state enforcement entities, who would not be limited by the Policy’s terms - but may have their own administrative SEP limitations. Though a state claim would need to be part of the resolution, a state partner could incorporate terms that were otherwise limited under federal policy into a parallel state agreement, effectively getting around federal SEP restrictions.
Under these new terms, those in settlement negotiations with DOJ should consider proposing a SEP early on, before the option is no longer available. Though DOJ can disapprove of contractors, consultants, or organizations that defendants propose as part of a SEP (consistent with pre-2017 practice), it cannot direct the selection of a specific implementer or recipient – giving defendants liberal ability to design solutions. Negotiating parties may also consider proactively reaching out to the impacted community or potential SEP-performing organizations to get input on desired project types that meet community need, appreciating that the settlement process is confidential, but that community-focused input on the SEP itself would be invaluable.
3. DOJ will incorporate environmental justice consideration well beyond environmental enforcement.
The newly-formed DOJ OEJ—not to be confused with its decades-old sister Office of Environmental Justice within EPA—is tasked with forming an Environmental Justice Enforcement Steering Committee under the new Strategy, co-chaired by the Assistant Attorneys General of ENRD and the Civil Rights Division, with representatives from various DOJ components. The broad composition of the group alongside the goals for the DOJ EJ Strategy suggest a broader mandate in line with President Biden’s whole-of-government EJ approach outlined in EO 14008.
The Strategy calls upon DOJ to “consider and make effective and appropriate use of all enforcement authorities and tools that might remedy environmental violations and contamination, including tools outside of the traditional environmental statutes.” Specific examples include the use of actions under civil rights laws, worker safety, and consumer protection statutes, and the False Claims Act. In addition, coordination between ENRD and the Civil Division is encouraged to address adverse environmental and public health burdens on impacted communities under the Occupational Safety and Health Act, the Consumer Product Safety Act, and the Federal Food, Drug, and Cosmetic Act.
We should expect to see the Department thinking broadly and creatively about what actions can be taken—beyond ENRD—to make an EJ-related impact. Alignment with the Civil Rights Division may amplify DOJ’s use of civil rights authorities, by “identifying and addressing race and national origin discrimination and programs and activities receiving federal financial assistance.” Enforcement of the Fair Housing Act, the Americans with Disabilities Act, and Title VI of the Civil Rights Act of 1964 (which DOJ recently did for the first time in November 2021), will likely get more attention, in coordination with EPA, the Department of Transportation, the Department of Housing and Urban Development, and the Department of Health and Human Services.
4. Increased accountability may drive increased enforcement activity.
Though an EJ-focused convening group is not new to DOJ, the composition of the Steering Committee alongside its stated goals in the DOJ EJ Strategy are likely to drive results—including through recommendations of “policy choices, budget prioritization, training needs, research and data collection, and coordination with other federal agencies and state, Tribal, territorial, and local government partners.” In addition, the Strategy tasks all 93 United States Attorneys with designating environmental justice coordinators, who will develop procedures for considering outreach efforts to identify areas of EJ concern, establish procedures for members of the public to report EJ concerns, and track and report annually on EJ matters handled by the USAOs.
As these convening groups begin to meet, pressure to demonstrate progress may drive various components to deliver on the goals of the DOJ EJ Strategy and increase enforcement activity, within the bounds of their existing authority. Regional focus may be an effective way to demonstrate that progress in a measurable way and could be an approach to focus efforts initially. For example, EPA’s Region 6 contains several states that the Administrator focused upon in his Journey to Justice Tour (including Mississippi, Louisiana, and Texas), which are serving as focal points of related EJ-focused enforcement initiatives, including unannounced inspections, monitoring, and overall enforcement in vulnerable communities. Similar use of regional or geographic areas that have historically faced EJ-related challenges could be a popular approach to show high numbers and increased enforcement progress.
Though many have challenged the suggestion that environmental enforcement will increase under the Biden Administration, with case numbers lagging of late, investments in enforcement are likely to show long-term returns—even if they do not materialize overnight. New investments in staff, programs, and agency-wide infrastructure take time, but once realized, are likely to show large increases in case numbers year over year. In the near-term, while DOJ and other agencies build capacity to achieve the Administration’s ambitious EJ goals and address pre-existing case backlogs, they will likely explore less resource-demanding enforcement actions. While inspections require more inspectors, information requests and desk inspections do not. One can expect an increase in these actions in EJ “hot spots,” which offer DOJ options to make progress towards EJ goals while they work on long-term investments in expanded enforcement.
If a company is considering a SEP, many of Beveridge & Diamond's attorneys are exceptionally knowledgeable with prior government experience and can give examples of projects that are most likely to succeed. B&D's Environmental Justice practice has been at the forefront of EJ issues for decades, bringing specialized private sector and government experience to bear. We represent multinational companies and municipal clients in complex disputes and high-profile project development, corporate ethics and governance, environmental compliance, and investigations related to EJ and Title VI of the Civil Rights Act of 1964 enforcement. For more information, please contact the authors.