DOJ, EPA Prioritize Environmental Justice Enforcement with New Policy Guidance

On May 5th, Attorney General Merrick Garland and EPA Administrator Michael Regan announced the launch of a new Environmental Justice enforcement strategy (the strategy).[1] The strategy is a major statement of policy, and institutionalizes throughout the Department of Justice a preexisting Biden Administration commitment to focus on environmental justice issues.[2]

This alert discusses four key trends to monitor: (1) an increased focus on environmental harm and enforcement; (2) reliance on an expanded set of authorities—particularly, the False Claims Act—to promote policy outcomes and address misconduct; (3) increased coordination within DOJ and the entire federal government on environmental justice issues; and, (4) the return of supplemental environmental projects to promote environmental justice outcomes.

1. Biden Administration’s Increased focus on Environmental Harm and Enforcement

The strategy directs the DOJ to increase its focus on environmental justice when investigating, prosecuting, and resolving enforcement matters. Environmental justice is the recognition that the harms of pollution and environmental degradation disproportionately affect minority and underserved populations.[3]

Specifically, DOJ will identify cases where enforcement would achieve significant reduction of environmental harm, public health harm, or injury to natural resources in overburdened and underserved communities. Under the strategy, DOJ will prioritize these cases going forward, and devote increased attention to the environmental justice aspects of investigations already underway. It will also prioritize resolving cases in a way that provides meaningful relief to the affected population, that is, beyond a focus on extracting a penalty for noncompliance. DOJ has committed to engagement and transparency with affected communities, including a requirement that each case have a case-specific community outreach plan.

We predict the strategy will be part of an overall effort to increase the number of environmental enforcement actions brought by the federal government. It is well documented that enforcement in this area has declined in recent years, particularly during the Trump Administration. The same environmental groups who put pressure on the Biden Administration to make environmental justice a priority continue to push for vigorous enforcement.[4]

2. Enforcement Beyond Traditional Environmental Laws

The strategy stresses that DOJ must use “all enforcement authorities,” including “tools outside of the traditional environmental statutes.”[5] In the strategy and other recent pronouncements, DOJ focuses on three types of authorities:

• Statutes adjacent to the traditional pollution control statutes. These include the Occupational Safety and Health Act, the Consumer Product Safety Act, and the Federal Food, Drug, and Cosmetic Act.
• Statutes targeting improper use of federal funds. The strategy highlights potential use of the False Claims Act (“FCA”), directing attorneys to investigate potential violations of “material public health-related grant or contract conditions pertaining to impacted communities.”[6] The FCA is notable because it provides treble damages, which DOJ notes as a potentially significant deterrent. The strategy also discusses Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin in any program or activity that receives Federal funds or other Federal financial assistance.
• Generally applicable criminal authorities. The strategy notes that criminal fines, penalties, and incarceration are available where appropriate. In remarks given at the end of last year, Todd Kim, head of DOJ’s Environment and Natural Resources Division (“ENRD”), stated that “enforcement of the criminal provisions of the environmental laws is a priority,” and noted that DOJ will look to the so-called “Title 18” crimes of fraud, conspiracy and obstruction of justice if supported by the underlying conduct.[7]

3. Increased Coordination Within DOJ and Across the Federal Government

To fully use these tools, the strategy recognizes that increased coordination both within DOJ and across the federal government will be necessary. DOJ’s Environment and Natural Resources Division will lead efforts under the strategy, and a new Office of Environmental Justice (“OEJ”) will be established within it, dedicating prosecutorial resources to these issues. OEJ will coordinate with the Civil and Civil Rights Divisions of DOJ. OEJ will also coordinate with and each of the 93 U.S. Attorney offices, which will be required to designate an environmental coordinator within each office. EPA and its Office of Enforcement and Compliance Assurance (“OECA”) will continue to be the critical client agency, but coordination with the Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (“PHMSA”) and the Occupational Safety and Health Administration (“OSHA”) will increase as well. This is all consistent with the “whole of government” approach the Biden Administration has adopted with respect to climate issues.

As one of its first acts under the strategy, OEJ will convene a “standing DOJ Environmental Justice Enforcement Steering Committee,” comprised of representatives from various Justice Department components, including the Attorney General and Deputy Attorney General’s offices. The strategy further calls for close collaboration with state, local, and Tribal governments, including the formation of task forces to focus and coordinate enforcement efforts.[8]

4. Resumed Use of “Supplemental Environmental Projects” to Achieve Administration Goals

DOJ has also reinstated the use of Supplemental Environmental Projects (“SEPs”). SEPs are a potentially powerful tool that regulated entities can benefit from when they face investigations and enforcement proceedings.

SEPs are environmentally beneficial projects or activities that a defendant agrees to undertake as part of a settlement. SEPs go beyond mere mitigation, and address environmental harms beyond any underlying violation identified by the Government. Though the Trump Administration discontinued the use of SEPs in 2020,[9] prior practice—detailed in a thorough EPA manual issued in 2015—allowed defendants to credit up to 80% of the estimated SEP cost to against their settlement.[10]

In addition to reducing the size of a penalty, SEPs have been popular in the past because many defendants feel that projects with concrete environmental benefits, which can be publicized and presented as contributing to a healthy environment, provide greater reputational benefits than simply settling their claims with the government.

Under the new strategy, DOJ recognizes that SEPs are a significant tool for environmental justice: Because they provide flexibility, they can be used to implement a remedy that meaningfully benefits an impacted community.

Regulated entities looking to take advantage of this new enforcement flexibility should consider the type and amount of potential environmental harm stemming from the violation; the Biden Administration’s broader environmental goals; and the communities affected by the alleged violations. The onus will largely be on them to take the lead in project design: Consistent with longstanding SEP guidance, the strategy forbids DOJ or a client agency from proposing any specific third party to receive payments or benefit from a project, although the type of entity may be specified. It will thus be beneficial to start to identify potential projects early in the enforcement process.

If you have any questions concerning the material discussed in this client alert, please contact the members of our Environmental and White Collar practices.