On May 5, 2022, Attorney General Merrick Garland made three significant announcements regarding the Department of Justice’s (DOJ) approach to so-called environmental justice enforcement. Garland first announced Associate Attorney General Vanita Gupta’s comprehensive environmental justice enforcement strategy. He then announced the opening of the new Office of Environmental Justice (OEJ). Finally, Garland announced that the DOJ would be issuing an interim final rule, along with guidelines and limitations, related to supplemental environmental projects (SEPs).

Background

The Environmental Protection Agency (EPA) defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national original or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA believes that environmental justice can be achieved when all persons experience “[t]he same degree of protection from environmental and health hazards, and equal access to the decision-making process to have a healthy environment in which to live, learn, and work.” Therefore, environmental justice initiatives focus on the communities that have been most affected by environmental harm. Historically, the communities that experience the most environmental harm are low-income, indigenous and communities of color.

DOJ’s Comprehensive Environmental Justice Enforcement Strategy

The environmental justice enforcement strategy was developed by the Environment and Natural Resources Division (ENRD) in partnership with the EPA pursuant to Executive Order 14008, Tackling the Climate Crisis at Home and Abroad. It guides litigators, investigators and U.S. Attorneys’ Offices nationwide in advancing the cause of environmental justice through the enforcement of federal laws. The strategy relies upon four principles, requiring the DOJ to:

  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 environmental justice concerns;
  3. Ensure meaningful engagement with impacted communities; and
  4. Promote transparency regarding environmental justice enforcement efforts and their results.

It also emphasizes the DOJ’s increased interest in environmental justice enforcement by stating, “These enforcement actions must be among the Department’s top enforcement priorities.” Through the environmental justice enforcement strategy, the DOJ believes all departments within the DOJ will utilize all available legal tools to promote environmental justice.

The Office of Environmental Justice

The OEJ, in partnership with the EPA, will be the central body tasked with advancing the environmental justice enforcement strategy. Accordingly, the OEJ will prioritize cases that “will have the greatest impact on the communities most overburdened by environmental harm” and prioritize “meaningful and constructive engagement with the communities most affected by environmental crime and injustice” together with the DOJ’s Civil Rights Division, Office for Access to Justice, Office of Tribal Justice and U.S. Attorneys’ Offices.

The OEJ will be led by acting Director Cynthia Ferguson, an attorney from the Environmental Enforcement Section of the ENRD with more than a decade of experience in environmental justice.

Interim Final Rule on Third-Party Settlement Agreements

Garland announced that the new interim final rule would “restore [the DOJ’s] ability to use supplemental environmental projects… to compensate victims and remedy violations of federal environmental laws.” The interim final rule revokes 28 CFR 50.28, the Trump era regulation prohibiting DOJ attorneys from “entering into any agreement on behalf of the United States in settlement of federal claims or charges” with any nongovernmental person or entity that is not a party to the dispute. Along with the interim final rule, Garland published the Attorney General’s Memorandum on Guidelines and Limitations for Settlement Agreements Involving Payments to Non-Governmental Third Parties, dated May 5, 2022, setting out new guidelines and limitations governing the DOJ’s approach to entering into these types of settlement agreements.

Conclusion

Each of these announcements demonstrate the DOJ’s increasing interest in environmental justice enforcement. It is too early to know what this enforcement will exactly look like and how it will affect private citizens and corporate entities. However, this increased interest will more than likely lead to an increase in investigations. Therefore, clients in industries that may be affected by environmental justice policies should consider the environmental justice impact of all business decisions and proposals.