Attorney General Merrick B. Garland and Environmental Protection Agency (EPA) Administrator Michael Regan recently announced a series of significant actions to advance environmental justice. The U.S. Department of Justice (DOJ) released a long-awaited environmental justice enforcement strategy to guide the use of enforcement tools to address environmental injustices and launched a new Office of Environmental Justice. Additionally, DOJ issued an interim final rule restoring the use of supplemental environmental projects (SEPs) in settlements to provide redress to communities affected by environmental violations—which were controversially suspended under the Trump Administration.
Comprehensive Environmental Justice Enforcement Strategy
President Biden commissioned this comprehensive environmental justice enforcement strategy over a year ago when he outlined his ambitious environmental justice agenda in the Executive Order on Tackling the Climate Crisis at Home and Abroad. Developed in coordination with other federal agencies, community representatives, and environmental justice advocates, the strategy will guide DOJ and EPA as they work to advance environmental justice by pursuing “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.”
The strategy outlines four guiding principles along with specific actions to facilitate implementation:
- “We must prioritize cases that will reduce public health and environmental harms to overburdened and underserved communities.” Through this principle, DOJ commits to prioritizing cases that will have the greatest impact on the communities most overburdened by environmental harm. The agency will create an Environmental Justice Enforcement Steering Committee to help coordinate implementation of the strategy; develop protocols for assessing environmental justice impacts during investigations and identifying actions most likely to achieve meaningful results in overburdened communities; designate environmental justice coordinators in U.S. Attorneys’ Offices to oversee implementation in each district; pursue Tribal environmental justice; create environmental enforcement task forces to coordinate with local and regional authorities; and coordinate with EPA’s enforcement office and other federal agencies.
- “We must make strategic use of all available legal tools to address environmental justice concerns.” DOJ will pursue timely and effective remedies in enforcement matters, including remedies to stop ongoing violations and remedy past violations; use Title VI and other civil rights authorities; consider other forms of civil enforcement to address public health and environmental threats under other statutes; and develop training and other materials to facilitate implementation of the strategy.
- “We must ensure meaningful engagement with impacted communities.” This principle recognizes that communities should have a say in government decisions that affect them and that community engagement can help identify environmental justice issues and inform enforcement decisions. To this end, DOJ will conduct increased outreach and listening sessions; develop case-specific community outreach plans; and increase coordination with DOJ’s Community Relations Service to facilitate outreach.
- “We must promote transparency regarding environmental justice enforcement efforts and their results.” To facilitate access to information about enforcement actions in communities with environmental justice concerns, DOJ will develop performance standards to assess enforcement outcomes, establish mechanisms to track progress under the strategy, and update the strategy periodically.
Office of Environmental Justice
A new Office of Environmental Justice within DOJ’s Environment and Natural Resources Division (ENRD) will “serve as the central hub for [DOJ’s] efforts to advance [this] comprehensive environmental justice enforcement strategy,” explains Attorney General Garland. The office will support environmental justice investigations, develop implementation instructions and resource materials related to environmental justice, prioritize meaningful engagement with communities affected by environmental crime and injustice, and develop a plan for increased transparency regarding environmental justice work within the agency.
Restoring Supplemental Environmental Projects
DOJ also issued an interim final rule restoring the use of SEPs in appropriate circumstances and subject to specified guidelines and limitations. Before the policy was suspended in 2017, EPA and DOJ incorporated SEPs into settlements to provide redress to communities most directly affected by violations of federal environmental laws. By facilitating remedies in the affected community, SEPs are powerful tools for advancing environmental justice. DOJ invites public comment until July 11, 2022 on the new guidelines and limitations, including to inform any future changes to DOJ’s approach.