The Department of Justice (“DOJ”) issued a Comprehensive Environmental Justice Enforcement Strategy (“the Strategy”) on May 5, 2022, pursuant to President Biden’s January 2021 Executive Order on Tackling the Climate Crisis at Home and Abroad. The Strategy provides a roadmap for DOJ civil and criminal enforcement authorities, working alongside federal agencies such as the Environmental Protection Agency (“EPA”), to “advance environmental justice1 through timely and effective remedies for systemic environmental violation and contamination and for injury to natural resources in underserved communities that have been historically marginalized and overburdened[.]”

To that end, the Strategy outlines the following four broad principles to advance environmental justice enforcement:

  1. Prioritization of cases that will “reduce public health and environmental harm to overburdened and underserved communities”;
  2. Strategic use of available legal tools to address environmental justice concerns;
  3. Meaningful engagement with impacted environmental justice communities; and
  4. Promotion of transparency of environmental justice enforcement efforts and results.

Along with the Strategy, the Attorney General issued a memorandum restoring Supplemental Enforcement Projects as an allowable element of environmental settlements.

Here are five important things to know about these actions:

  1. The DOJ Will Seek to Use Enforcement Authorities Beyond Traditional Environmental Statutes and the Environmental and Natural Resources Divison

Entities may face heightened scrutiny for health, safety, and fraud violations near or in an environmental justice community because the Environmental and Natural Resources Division (“ENRD”) and Civil Division will use enforcement tools beyond environmental statutes to address concerns that overburdened communities may experience multiple public health and environmental risks at the same time or over a period of time. To that end, the Strategy directs that statutes more commonly related to health and public safety — the Occupational Safety and Health Act, the Consumer Product Safety Act, and the Federal Food, Drug, and Cosmetic Act — be used to address environmental justice concerns. Likewise, the Strategy identifies the False Claims Act (“FCA”) as a potential tool to use. The FCA imposes liability on entities that defraud government programs, including potential non-compliance with environmental or public health-related requirements in federal grants or contracts. The focus on using the FCA is of particular note given that liability under the FCA may result in treble damages.

  1. Beyond the DOJ, Other Federal Agencies and Partners Not Typically Associated with Environmental Enforcement May Get Involved

Those with operations in and near environmental justice communities may see several federal agencies beyond the DOJ during the course of an environmental enforcement investigation. Beyond the EPA, which most often works with the DOJ in environmental enforcement cases, the Strategy anticipates participation by other federal agencies with enforcement, regulatory, cleanup, or restoration authority. These agencies include the Department of Transportation’s Pipeline and Hazardous Materials Safety Administration and Federal Aviation Administration, Department of Housing and Urban Development, U.S. Coast Guard, U.S. Army Corps of Engineers, Department of the Interior, Department of Agriculture, Department of Defense, Department of Energy, Department of Commerce, Department of Labor’s Occupational Safety and Health Administration and Mine Safety and Health Administration, Department of Health and Human Service’s Food and Drug Administration, and Consumer Product Safety Commission. Each will work with the DOJ to “develop procedures for improving information sharing, enhancing investigative capabilities, and coordinating on potential environmental justice enforcement actions.”

  1. The DOJ Will Emphasize Overlapping Civil Rights and Environmental Issues

Entities may also face further federal scrutiny if any part of their operations involve potential civil rights issues. By integrating the Civil Rights Division and ENRD in a joint enforcement role, the Strategy suggests there will be a further emphasis at the DOJ on the perceived intersection between civil rights and environmental issues. Title VI of the Civil Rights Act prohibits federal agencies from providing funding to recipients with practices that have discriminatory effects. The Strategy calls upon the Civil Rights Division and ENRD to ensure that Title VI “is consistently and effectively enforced throughout the federal government in a manner that will advance environmental justice.” Further, the Strategy recognizes that the Civil Rights Division and ENRD should “maximize any effective synergies” between the two components to coordinate investigations, share evidence, identify potential exposures and violations, and identify potential remedies. Finally, the Strategy notes that the Civil Rights Division and ENRD should expand on their engagement with the EPA’s External Civil Rights Compliance Office, the Department of Transportation, the Department of Housing and Urban Development, and the Department of Health and Human Services.

  1. The DOJ Is Allowing a Return of Third-Party Payments, Including the Use of Supplemental Environmental Projects to Address Environmental Justice

If a company is found liable for violating an environmental law or regulation, it may be asked to enter into a settlement agreement that involves payments to third parties to address harms arising from violations of federal law. These agreements may include Supplemental Environmental Projects (“SEPs”) — typically environmentally beneficial projects that a defendant agrees to implement or pay for as part of a settlement in an enforcement action. In 2017, the Attorney General issued a memorandum which generally prohibited the DOJ from entering into third-party payments. And, separately, in 2020, the DOJ codified this prohibition in 28 C.F.R. § 50.28, which also fully precluded the use of SEPs. Concurrently with the Strategy, the DOJ has now published an interim final rule that removes 28 C.F.R. § 50.28, restores the general use of third-party payments in settlement agreements, including in environmental cases, and allows the use of SEPs as part of settlement terms to “advanc[e] environmental justice.” Furthermore, the Attorney General’s May 2022 memorandum subjects third-party payments and SEPs to the following new guidelines:

  • Settlement agreements contemplating SEPs must define the nature and scope of projects with particularity;
  • SEPs must be strongly connected to the underlying violation, consistent with the statute being enforced and its objectives, and designed to reduce the effects of the violation and the likelihood of similar violations in the future;
  • The DOJ will neither recommend the selection of any particular third party to implement projects, nor will it propose a specific beneficiary of any such projects; however, it will retain the right to disapprove proposed third party implementers or beneficiaries;
  • SEP must be agreed to before an admission or finding of liability and the DOJ cannot retain post-settlement control of the SEPs;
  • SEPs cannot be used to satisfy a federal agency’s (DOJ or other) statutory obligation to perform certain activities, including any activity for which appropriations have been made; and
  • SEPs cannot require payments to non-governmental third parties for general public education or awareness projects, contribute to generalized research, or take the form of unrestricted cash donations.
  1. The DOJ Will Use More Resources to Identify and Prioritize Environmental Justice Cases

The Strategy creates an Office of Environmental Justice within the ENRD. This Office, in turn, will convene a standing DOJ Environmental Justice Enforcement Steering Committee co-chaired by the Assistant Attorneys General of ENRD and the Civil Rights Division (or their designees). The Steering Committee will include representatives from a broad array of DOJ entities: the Office of the Attorney General, the Office of the Deputy Attorney General, and the Office of the Associate Attorney General (these are, respectively, the 3 highest-ranking offices in the DOJ), alongside the ENRD, Civil Rights Division, Civil Division, Executive Office for U.S. Attorneys, Office of Justice Programs, Office of Tribal Justice, Office of Access to Justice, Community Relations Service, and the Federal Bureau of Investigation. The Steering Committee may also include other DOJ law enforcement agencies “and other relevant components.” Meeting regularly, the Steering Committee will oversee the Strategy’s implementation, including recommending actions to DOJ leadership connected to policy, budget, training, research, data collection, and coordination with other agencies (federal, state, Tribal, local, and territorial).

Takeaways

The release of the Strategy indicates future increased efforts directed at reducing disproportionate public health and environmental impacts on environmental justice communities. Given that the DOJ’s role and primary lever is the investigation and bringing of enforcement cases under a variety of federal statutes, clients should consider where they have operations or activities that occur in or near environmental justice communities as well as the broad range of regulatory obligations to which those operations are subject, looking beyond the traditional environmental statutes to others that the Strategy Memo highlights. Those areas are likely to be the focus of increased investigative scrutiny. In turn, increased internal attention to and proactive compliance with regulations may help avoid future problems and further scrutiny.