The Department of Justice (DOJ), in coordination with the U.S. Environmental Protection Agency (EPA), has launched three new initiatives in its continuing efforts to prioritize environmental justice (EJ) policies. On May 5, 2022, DOJ announced a new “comprehensive environmental justice strategy” (Strategy); an Interim Final Rule that will restore the use of supplemental environmental projects (SEPs) as part of civil settlements for environmental violations; and a new Office of Environmental Justice within DOJ.
In furtherance of President Biden’s Executive Order 14008, Tackling the Climate Crisis at Home and Abroad, DOJ issued a memorandum which outlines its Strategy and provides guidance to DOJ litigators, investigators and United States Attorneys’ offices on advancing EJ through federal enforcement. More specifically, the Strategy encourages DOJ attorneys to prioritize enforcement actions that will reduce environmental and public health impacts in overburdened and underserved communities and recommends coordinating with other federal agencies, using available legal tools and creating task forces to pursue effective EJ remedies.
In a similar vein, DOJ issued an Interim Final Rule to restore the use of SEPs as an effective settlement tool when negotiating with environmental violators. DOJ and EPA had previously utilized SEPs to allow a defendant to implement relevant, environmentally beneficial projects as part of an enforcement settlement, but the projects were subsequently prohibited during the Trump administration. DOJ explained that reinstating SEPs will further its EJ initiative by providing redress to communities that are most impacted by environmental harms. DOJ also issued a related memorandum outlining the appropriate circumstances and guidelines for using SEPs.
In keeping with the Strategy’s principles of prioritizing community engagement and transparency in EJ and related enforcement efforts, DOJ has established a new Office of Environmental Justice which, via its Steering Committee, will assist in developing, and soliciting public feedback on, a process for stakeholder engagement. The Office will also prepare a report evaluating the Strategy’s effectiveness after the first year of implementation for the Deputy Attorney General’s review.
These announcements build on prior signals from DOJ and EPA that they will focus more resources in communities with EJ concerns. Companies can utilize EPA’s new tool, EJScreen, to identify whether they are operating in an EJ community, which can help determine whether there will be enhanced oversight by regulators. A facility in an EJ community should consider conducting a third-party environmental audit of their operations to ensure compliance. Because DOJ and EPA are now measuring enforcement actions in communities with EJ concerns, taking extra steps to ensure compliance is worth the cost of an audit.
Furthermore, facilities should implement robust, site-specific community engagement programs and community engagement plans. While community opinion of a facility is not a basis for issuing a violation, DOJ attorneys and EPA inspectors will pay attention to community opinions on the operations of a facility in their neighborhood.