Environmental Justice Update: DOJ Releases Inaugural EJ Enforcement Strategy Report

The Comprehensive Environmental Justice Enforcement Strategy Annual Report builds on the DOJ’s creation of its Office of Environmental Justice within the DOJ’s Environment and Natural Resources Division (ENRD), which has issued a Comprehensive Environmental Justice Enforcement Strategy. The report highlights various DOJ EJ efforts, organized according to their relationship with four principles, which include:

• Prioritizing cases that will reduce public health and environmental harms in overburdened and underserved communities,
• Making strategic use of all available legal tools to address EJ concerns,
• Ensuring meaningful engagement with impacted communities, and
• Promoting transparency regarding EJ enforcement efforts and their results.

In the past two years, environment-related headlines have focused on generational spending, such as the Inflation Reduction Act, resiliency issues, and emergency response. While significant enforcement actions have been resolved with ties to EJ communities (e.g. a settlement with oil and gas company BP related to refinery operations in Whiting, Indiana), many of the EJ-related cases focus on quality-of-life issues. Some examples include:

• In the civil rights arena, an interim resolution agreement in a Title VI EJ investigation involving wastewater issues in Lowndes County, Alabama, as well as a settlement with the City of Houston involving illegal dumping in Black and Latino neighborhoods.
• ENRD case section references the Environmental Protection Agency’s (EPA) lawsuit against Denka related to chloroprene emissions (which we discussed here and here), but also more routine settlements related to Clean Air Act Leak Detection and Repair requirements.
• The DOJ Civil Division highlights multiple cases involving the DOJ’s efforts to ensure that parties with federal mineral rights leases do not use the bankruptcy process to avoid reclamation obligations.

The DOJ’s focus makes sense in the context of its overall EJ program. Meaningfully addressing these issues will likely result in increased engagement with EJ communities and trust that the government listens to their concerns. Community engagement, listening sessions, presentations, and development of locality-specific outreach plans can work together to create a feedback loop that can lay a foundation for addressing other environmental problems. See our discussion of a recent EPA Toolkit focused on community engagement here.

To be sure, federal regulators have not deprioritized enforcement. Indeed, EPA’s recently released National Enforcement and Compliance Initiative on Climate Change directs EPA staff to prioritize climate and resilience issues in enforcement efforts focused on EJ communities. With all of the effort that federal regulators have spent retooling EPA and the DOJ to focus on issues like climate change and EJ, it may be that significant enforcement efforts are soon to come, as all indications are that increased enforcement in line with these principles is a high priority for the Biden Administration. 

Members of the firm’s Environmental, Energy & Cleantech, and AgTech groups regularly monitor state and federal administrative activity with broad implications to the regulated community. Contact us with questions about how these efforts or programs affect you.

J. Michael Showalter is presenting at a November 14 webinar hosted by Gradient with a panel of Gradient EJ thought leaders. Planned topics include how federal funding is being applied to EJ-related projects, the developing relationship between cumulative risk assessment and EJ initiatives, legal considerations with EJ-related reforms and interests, and the various tools available to evaluate potential EJ concerns by area. Learn more here.