Environmental justice takes a permanent place at the Department of Justice

In January 2021, President Biden called for the creation of an Office of Environmental Justice within the Department of Justice (OEJ-DOJ). On May 5, 2022, Attorney General Merrick Garland made that vision a reality with the appointment of Cynthia Ferguson as the OEJ-DOJ Acting Director.  

Until now, the US Environmental Protection Agency (EPA) was the only federal agency to have a long-standing (since 1994) dedicated office staffed with individuals focused on environmental justice* – both in headquarters and in the regions. Since January 2021, other agencies have hired an EJ Senior Counsel (for example, the Federal Energy Regulatory Commission) or have reassigned staff (as in the Department of Transportation) to explore implementing EJ principles within plans to advance racial equity and support undeserved communities. But none invested the level of resources we now see dedicated to the OEJ-DOJ.

The OEJ-DOJ will coordinate DOJ’s newly outlined internal EJ strategy among the Department’s components, including the Civil Rights Division, Environment & Natural Resource Division (ENRD), and the Victim Compensation Program, as well as across 93 US Attorney’s Offices. Each of those offices is designating an environmental justice coordinator.

DOJ’s strategy commits to using civil and criminal enforcement authorities, as well as those from other statutes, to address systematic environmental violations in underserved communities. By implementing the strategy, the new OEJ-DOJ will also be a force multiplier for EPA Administrator Michael Regan’s commitment to increase inspections and environmental enforcement in overburdened and vulnerable communities.

Lastly, because adverse climate impacts are often amplified in vulnerable communities, OEJ-DOJ will also have the opportunity to advance President Biden’s climate agenda while providing prioritized protections.

The choice of Ferguson to serve as OEJ-DOJ’s first Acting Director means the new agency will be led by a veteran DOJ enforcement attorney and EJ proponent.  Ferguson recently coordinated a DOJ EJ training that was attended by government lawyers across the federal family, and thus has already begun facilitating President Biden’s government-wide focus on EJ enforcement. These newly trained attorneys will combine authorities under the environmental statutes with those found in worker safety and consumer protection laws, as well as Title VI of the Civil Right Act, to fashion settlements that remedy the pollution and health concerns underlying any allegations pursued by the DOJ.

AG Garland also announced that the DOJ intends to bring back Supplemental Environmental Projects (SEPs) to bolster its ability to provide redress to EJ communities, including low-income communities, communities of color, and Tribal and Indigenous communities.

SEPs aim to remedy environmental harms or improve the health conditions in EJ communities adversely affected by pollution. Before they were prohibited by the Trump Administration, SEPs were often sought as part of the settlement of an enforcement action and provided for payments or loans to non-governmental third parties for benefiting the environment. The DOJ issued an Interim Final Rule and memorandum outlining guidance for such payments or loans. Entities targeted for DOJ enforcement will now be able to maximize the use of SEPs in their settlement strategies on enforcement actions.

Considerations for companies with environmental interests

Companies with environmental interests should consider several dynamics arising from these policy developments and resource allocations:

1. The creation of the OEJ-DOJ will strengthen the commitments made by EPA’s Office of Enforcement and Compliance Assurance (OECA) to aggressively pursue criminal and civil enforcement in EJ communities. The OEJ-DOJ  is expected to prioritize cases involving public health and environmental harms to natural resources in overburdened and underserved communities.
   
   
2. Facilities inspections in EJ communities likely will increase, and we can expect more Notices of Violations and more difficult settlement negotiations that will be informed by community input.
   
   
3. Enforcement actions in or around EJ communities will likely seek higher penalties, and we expect an increased use of SEPs with payments to non-governmental third parties designed to benefit the environment. The scope of these SEPs will be specifically crafted to address community concerns. Companies facing enforcement action from the OEJ-DOJ must be prepared to engage with EJ communities on issues underlying the enforcement action.
   
   
4. Both EPA and DOJ will also focus on Title VI civil rights enforcement for more significant violations by recipients of federal funds, with the DOJ handling cases on behalf of the EPA in civil courts. This may become a concern for companies that rely on state or local regulators for permit renewals or new permits for facility expansions. The EPA has indicated it will be publishing a new strategy on civil rights enforcement in the coming months.
   
   
5. The DOJ will focus on meaningful engagement with EJ communities so that they can participate in environmental decision making. Companies with operations in EJ communities may consider developing and implementing a community engagement strategy rooted in a broader environmental justice policy that will help the company identify and develop EJ response strategies.

Learn more about the implications of these proposed rules by contacting the authors or your DLA Piper relationship lawyer.

*The EPA defines environmental justice as "the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies."