On May 5, 2022, Attorney General Merrick B. Garland announced a series of new environmental justice (“EJ”) actions, including a new comprehensive environmental justice enforcement strategy and the formation of a new Office of Environmental Justice (“OEJ”) within the United States Department of Justice (“DOJ”). Concurrently with the announcement, DOJ also issued an Interim Final Rule that will restore the use of supplemental environmental projects (“SEPs”) in settlement agreements for violations of federal environmental laws. These new federal EJ actions stem from Executive Order 14008, Tackling the Climate Crisis at Home and Abroad (January 27, 2021), in which President Biden instructed the Attorney General to “ensure comprehensive attention to environmental justice throughout the Department of Justice,” including in concert with environmental enforcement actions against facilities that impact surrounding communities (as further described in our prior Environmental Justice Update). The new EJ enforcement strategy should help the regulated community identify target regions where DOJ will focus its EJ enforcement efforts going forward.

Comprehensive Environmental Justice Enforcement Strategy

The new comprehensive EJ enforcement strategy, developed by DOJ’s Environment and Natural Resources Division (“ENRD”) in coordination with EPA’s Office of Enforcement and Compliance Assurance (“OECA”), provides for the first time a roadmap as to how DOJ will use its civil and criminal enforcement authorities to advance EJ in underserved communities. The strategy outlines the following EJ enforcement principles:

  1. Prioritize cases that will reduce public health and environmental harms to overburdened and underserved communities;
  2. Make strategic use of all available legal tools to address EJ concerns, including actions under environmental protection laws, civil rights laws, worker safety and consumer protection statutes, and the False Claims Act, as well as settlement tools such as supplemental environmental projects;
  3. Expand community outreach efforts to assist DOJ in identifying violations, harms to communities, and potential remedies; and
  4. Promote transparency in EJ enforcement by developing performance standards and mechanisms for tracking and sharing EJ enforcement progress with the public.

With respect to legal tools available to address EJ concerns, the strategy specifically calls on ENRD to identify opportunities for coordinating with DOJ’s Civil Rights Division and other relevant federal agencies, including Health and Human Services, to maximize synergies between the enforcement of environmental and civil rights laws. The strategy also calls for coordination with DOJ’s Civil Division to address health and safety threats to impacted communities under statues such as the Occupational Safety and Health Act, the Consumer Product Safety Act, and the Federal Food, Drug and Cosmetic Act.

More broadly, the strategy states that DOJ will continue working with other federal agencies, including OECA, the Federal Aviation Administration, the Department of the Interior, the Army Corps of Engineers, the Department of Energy, and the Food and Drug Administration, to develop procedures for coordinating on potential EJ enforcement actions.

Office of Environmental Justice

The OEJ will be housed within ENRD and will focus on implementing the new comprehensive EJ enforcement strategy. Cynthia Ferguson, an ENRD attorney with more than a decade of experience working on EJ issues, will serve as OEJ’s initial Acting Director.

As one of its first acts, the new EJ enforcement strategy calls on OEJ to convene a standing Environmental Justice Enforcement Steering Committee, which will provide guidance on the implementation of the enforcement strategy and future EJ policy choices. OEJ will also work with EPA and other federal investigatory agencies to develop protocols for assessing EJ impacts during investigations.

Supplemental Environmental Projects

DOJ also issued an Interim Final Rule that will restore the use of SEPs to provide redress to communities most directly affected by violations of federal environmental laws, often supporting entities not a party to the subject enforcement proceedings. Examples of SEPs can be found under analogous state EJ programs (such as those in California and New Jersey) and include renewable energy installations, sanctuaries, affordable housing, rain gardens, brownfield redevelopment, and a host of projects that may also qualify for specialized state and federal grants and subsidies.

The Interim Final Rule revokes a 2017 Trump Administration rule that prohibited the inclusion of SEPs in settlement agreements. Going forward, EJ settlements, including SEPs, will be governed by a new Attorney General Memorandum (the “Memorandum”) published concurrently with the Interim Final Rule. The Memorandum notes that SEPs “allow the government to more fully compensate victims, remedy harm, and punish and deter future violations.” The new EJ enforcement strategy similarly notes that “appropriately limited SEPs in civil enforcement cases—environmentally beneficial projects that are not required by law but that a defendant agrees to undertake as part of the settlement of an enforcement action—can secure significant environmental and public health benefits for impacted communities.”

The Memorandum does include guardrails on the use of SEPs in settlement agreements, including requirements that the project have a strong connection to the underlying violation of federal environmental law and that the project be designed to reduce the detrimental effects of the violation and the likelihood of similar violations in the future.

Key Takeaways

Unlike state EJ programs, which arise by statute (e.g., Cal. Gov. Code Section 65040.12), the federal EJ program is a matter of enforcement policy and hence has until now lacked specifics on how and when EJ enforcement actions might proceed. The new prioritization strategy should help the regulated community identify target regions where DOJ will focus its EJ enforcement efforts, perhaps signaling an opportunity to develop early settlement schemes using the noted SEP tools. In many respects, the new enforcement strategy parallels the prioritization scheme adopted by the California Environmental Protection Agency on May 3, 2022 under S.B. 535, which focuses on using the California Communities Environmental Health Screening Tool (CalEnviroScreen) to identify disadvantaged communities and help tailor California’s EJ efforts.