The acting head of the EPA’s enforcement office issued a memorandum on June 21, 2021 (the “Memorandum”), that outlines actions to advance the EPA’s environmental justice (“EJ”) goals in criminal enforcement matters. Previously, EPA Administrator Regan shared a message on April 7, 2021 with EPA employees that affirmed the Biden administration’s commitment to EJ. And we previously covered an April 30, 2021 memorandum from the acting head of the EPA’s enforcement office regarding generally strengthening enforcement in overburdened communities.

The June 21 Memorandum continues the EPA’s push to protect these communities by:

  1. Strengthening detection of environmental crimes in overburdened communities,
  2. Improving outreach to victims of environmental crimes, and
  3. Enhancing remedies sought in environmental criminal cases.

This Memorandum is the second in what is expected to be a series of memoranda issued by the EPA in response to the Biden administration’s EJ emphasis.

Highlights of the Memorandum

The Memorandum discusses the following specific EJ policy goals and measures that are relevant to the criminal enforcement program.

  1. Strengthening detection of environmental crimes in overburdened communities

In the Memorandum, EPA stresses the importance of civil and criminal enforcement coordination, particularly with regard to communication regarding increased facility inspections in overburdened communities. It also recommends enhancing EJ screening beyond the use of EPA’s EJSCREEN mapping tool by using crime victim data to assist in identification of individuals harmed by potentially criminal actions.

  1. Improving outreach to victims of environmental crimes

EPA has partnered with the U.S. Department of Justice (“DOJ”) to create an Environmental Crime Victims Assistance Program and Environmental Justice Interagency Workgroup (“Workgroup”) to improve attention and support to victims of environmental crimes and better integrate crime victim and EJ considerations into environmental criminal investigations and prosecutions. The Workgroup conducts additional training of EPA and DOJ staff on the use of EJSCREEN, identification of crime victims, and early coordination between criminal investigators and regional EPA staff.

Additionally, EPA continues to identify creative community outreach solutions—including disseminating information regarding pollution, victims’ services, and the status of criminal enforcement actions via social media.

  1. Enhancing remedies sought in environmental crime cases

Finally, EPA notes that it will strive to ensure that criminal prosecutions generate remedies that yield meaningful results and protections for communities that have been harmed by these crimes by: (1) deterring actors from committing additional environmental crimes by instituting sufficiently severe punishment; (2) urging prosecutors to seek sentences that impose advanced monitoring, audits, and public reporting of compliance data to assure communities that illegal pollution is not recurring; and (3) seeking restitution or other actions to redress harm caused to communities, including financial restitution and community service projects that remediate harm. To this end, the Memorandum directs the Workgroup to develop guidance for attorneys and prosecutors to ensure restitution, community service payments, and other court-ordered projects are considered as remedies in all cases.

The Memorandum notes that these strong punishments that focus on compliance and restitution should especially be applied in corporate prosecutions involving ongoing business or where defendants have sufficient financial means to redress harms.

Looking Forward

The Memorandum is the latest action by the Biden administration indicating that facilities in the vicinity of EJ communities and/or facilities that have the potential to disproportionately affect the health and environment of such communities are likely to: (1) become enforcement targets; (2) face faster paced enforcement; (3) receive harsher punishment; (4) be targeted for injunctive relief, such as EJ SEPs and advanced monitoring; and (5) see increased community engagement and activity.

Regulated entities should consider proactive steps to address EJ concerns, such as:

  1. Identify Relevant EJ Communities: Identifying relevant EJ communities is the first, and arguably most important, step in tracking relevant environmental matters affecting EJ communities. EJSCREEN is a helpful and publicly available tool to identify the environmental and demographic information necessary to identify and track potential EJ matters. We note that some states, for example, California, have their own EJ tools, as well.
  2. Consider targeted audits: Conducting targeted reviews of compliance at facilities or operations that are near or may be perceived as affecting EJ communities could be warranted given the heightened priority placed on EJ matters under the Biden administration.
  3. Consider the sufficiency of internal policies: Establishing EJ policies and goals provides a way for regulated entities to both show that EJ is important and to help manage EJ issues.
  4. Plan community outreach: Identifying relevant community leaders and developing strategies for increased and effective EJ community outreach.
  5. Monitor ongoing EJ developments: Maintaining and strengthening lines of communication with federal and state agencies on EJ issues, and monitoring ongoing EJ developments.

The EPA is expected to issue additional memoranda addressing EJ and enforcement.