DOJ Announces Environmental Justice Office and Focused Enforcement Initiative

The US Department of Justice (DOJ) released its long-awaited Environmental justice (EJ) enforcement strategy today, a priority for the Biden Administration. The enforcement strategy will “advance environmental justice through timely and effective remedies for systemic environmental violations and contaminations and for injury to natural resources in underserved communities that have been historically marginalized and overburdened, including low-income communities, communities of color, and Tribal and Indigenous communities.”
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Details of the comprehensive EJ strategy are found in DOJ’s announcement of the initiative and in a speech by Merrick Garland, the US Attorney General. Part of this strategy is the creation of the Office of Environmental Justice (OEJ) within DOJ to serve as a central hub for EJ efforts. While much of the initiative focuses on work with the US Environmental Protection Agency (EPA), other agencies are noted to also play important role in achieving the Administration’s objective of reducing environmental and public health burdens on impacted communities (e.g. PHSMA, FAA, HUD, Army Corps, DOI, DOE, OSHA, FDA, and CPSC).

Other highlights of the strategy include:

  • DOJ’s Environment and Natural Resources Division (ENRD) will prioritize cases that will result “in significant reductions in environmental and public health harms, or injury to natural resources, in overburdened and underserved communities.” (See here.)
  • DOJ will “make strategic use of all available legal tools to address environmental justice concerns.” These include the traditional environmental statutes but also federal civil rights laws, worker safety and consumer protection statutes, and the federal False Claims Act. DOJ will use settlement tools – including Supplemental Environmental Projects (SEPs) it once declined to use (see, e.g., here) – to advance these concerns. DOJ will support future use of SEPs through an Interim Final Rule restoring its ability to use SEPs to “compensate victims and remedy violations of past environmental laws.” In DOJ’s view, SEPs “bring environmental and public health benefits to the communities most directly affected by the underlying violations, [so] they are particularly powerful tools for advancing environmental justice.” Further contours of how DOJ will use SEPs are discussed here.
  • DOJ will “ensure meaningful engagement with impacted communities.” This means that DOJ would participate with community partners to hold listening sessions, develop case-specific community outreach plans, and coordinate with DOJ’s Community Relations Service when making decisions that could affect overburdened communities so that these communities could meaningfully participate environmental decision making that could affect them.
  • DOJ will “promote transparency regarding environmental justice enforcement efforts and their results.” This means DOJ will develop plans to track, review, and evaluate progress under this strategy and update the strategy through engagement with stakeholders. DOJ will review progress under this Strategy roughly a year after the Strategy is implemented.

These announcements build on recent EPA announcements, including EPA’s announcement of its Equity Action Plan and its intent to focus on environmental justice issues. For discussions of how these issues may affect your business, please reach out to any member of the Firm’s environmental group.

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