Highlights of New Environmental Justice Enforcement Strategies and Policies
In January of 2021, shortly after his inauguration, President Biden issued Executive Order 13985, Tackling the Climate Crisis at Home and Abroad, emphasizing Environmental Justice or “EJ,” and requesting “comprehensive attention” to EJ issues by various federal agencies. In response to this Executive Order, the U.S. Environmental Protection Agency (“EPA”) and the U.S. Department of Justice released reports outlining plans to further EJ goals. Both reports reflect a similar focus on comprehensive relief, community outreach, and prioritizing enforcement around “historically marginalized and overburdened communities.” On March 1, 2022, the EPA released the “Progress Report on Incorporating Environmental Justice into Enforcement and Compliance Assurance Work,” which outlined key strategies implemented in response to President Biden’s executive order and new EJ policies. Additionally, on May 5, 2022, the Department of Justice released a memorandum detailing “principles” for EJ enforcement and outlined the steps the office will take to accomplish the overarching principles. Highlights of these new EJ enforcement policies are outlined below:
- Increased Inspections of Facilities in Overburdened Communities. The EPA plans to increase inspections at facilities located in communities that are overburdened or vulnerable to contamination to confirm “compliance with settlements and other legal requirements.” This includes setting a new goal to have 45% of all national inspections in 2022 conducted in vulnerable communities, an increase from the current level of 30%. This goal will continue to rise in the coming years, increasing to a 50% goal in 2023/2024 and 55% in 2025/2026.
- Environmental Monitoring. In 2022, EPA plans to launch air toxics, hazardous metals, and drinking water monitoring in specific communities with “potentially elevated inhalation risks, drinking water contaminant risks, or based on other tips and complaints received by EPA.” The EPA advises that this monitoring will provide the community information about potential environmental risks, as well as provide EPA with data to pursue enforcement actions.
- Increased Community Engagement. The EPA intends to provide more cleanup and monitoring data to the public in areas where CERCLA cleanups are occurring. Additional outreach plans include utilizing the app “Nextdoor” to reach potentially interested community members and increasing the support available to vulnerable communities. The EPA also plans to increase community outreach and use public feedback to adjust settlements to reflect the community’s needs.
- Community Service as a Remedy and EJ Considerations in Criminal Investigations and Prosecutions. A strategy noted by both the EPA and DOJ is integrating EJ considerations into the type of relief provided to areas, including requiring the facility perform community service as part of a remedy. For example, the DOJ plans to consider “a full range of remedies” when dealing with environmental violations in overburdened communities, including options of mitigation to offset environmental harms caused by polluters like retrofitting school buses with more environmentally friendly engines to benefit the community as a whole. Under this new guidance, the EPA will request information regarding the impact of the community in a Community Impact Mitigation Plan as part of CERCLA settlement negotiations. This may require that the settling party designate funds for a community service project like a local river cleanup.
- Designation of new leadership who will focus on EJ within existing divisions. The DOJ has designated a new Office of Environmental Justice within the Environment and Natural Resources Division. This new office will have an EJ enforcement steering committee to aid in implementing new EJ-focused policies and coordination.Further, each U.S. Attorney’s Office will also designate an EJ coordinator to help identify places of EJ concern within their respective districts.
Potential Future Implications of Agencies’ Focus on Environmental Justice
Recent guidance from the EPA and DOJ emphasizes an increased focus on communities that are overburdened and have EJ concerns. If a facility is located in an historically or currently overburdened community that has EJ concerns, the facility can expect increased environmental monitoring by the EPA in the area, more frequent facility inspections, and a closer look from regulators for compliance with environmental laws, all of which increase the facility’s risk for regulatory enforcement actions. Accordingly, to determine the risk of such enforcement, facilities should assess whether they are located with an area with EJ concerns. The EPA plans to develop a map of communities it believes to be overburdened in the coming years; however, EPA advises that it relies on the community itself to determine if it believes it has EJ concerns. Additionally, the EPA advises that overburdened communities are often “minority, low-income, tribal, or indigenous populations or geographic locations in the United States that potentially experience disproportionate environmental harms and risks.” Given this broad definition, it may be difficult for a facility to readily determine whether they operate in an overburdened community with potential EJ concerns. If it is unclear, a risk assessment can be performed to determine whether the facility is located in potentially effected community. Such an assessment can evaluate the surrounding community’s demographic makeup, potential environmental harms in the area, and likelihood of public engagement. Ideally, any risk assessment will be performed under the direction of counsel to increase the likelihood that it will be considered privileged in the future.
Under these new policies, facilities in areas with EJ concerns that are engaged in EPA supervised cleanups and federal enforcement actions can expect increased scrutiny from the EPA and DOJ. Additionally, these facilities should expect to address EJ concerns in negotiations, which may mean incorporating community service projects into any resolution or settlement that is designed to address a need of the community. Additionally, facilities should expect more involvement from the community members. For example, the EPA may require that sampling data be published online, and the facility provide multiple opportunities for public hearings. While increased community involvement can cause public relations challenges, it also may have the added benefit of building a relationship with the community and thereby bettering the opportunity for the facility’s longevity in the area.
Memorandum from Assoc. Att’y Gen. on Env’t Just. Enf’t to U.S. Att’ys, https://www.justice.gov/asg/page/file/1499286/download (May 5, 2022).
EJ 2020 Glossary, EPA, https://tinyurl.com/mryj2nut (last visited June 2, 2022).
Duke k. McCall, et. al, EPA Updates Model Remedial Design/Remedial Action Consent Decree and Statement of Work, MORGAN LEWIS, https://www.lexology.com/library/detail.aspx?g=c3cf38c1-29d2-431d-9334-903440548c09&l=9RLGU6A
Written by Kate Hopkins, Senior Associate, Alejandra Amendola, Summer Associate, and Paul Stockman, Partner