Environmental Justice a Top EPA Enforcement Priority

The Biden Administration has implemented a broad “whole-of-government” policy to address issues of environmental justice. The new policy, set forth in a series of Executive Orders, has led EPA to pursue more aggressive enforcement of environmental laws in areas said to have been overlooked or ignored by prior administrations. And it has led to the creation of several top-level environmental justice offices—including at the Justice Department—and a spate of new environmental justice-focused civil and criminal enforcement guidance from the Justice Department and EPA.

Biden’s Executive Orders: An Environmental Justice Focus from Day One

The administration’s policy was announced the day President Biden took office, when he signed Executive Order (“EO”) 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (January 20, 2021).[1] That EO announced a policy to “advance environmental justice” by “hold[ing] polluters accountable, including those who disproportionately harm communities of color and low-income communities.”[2] It also directed all executive agencies to review and address all existing regulations, guidance documents, and orders that were promulgated, issued, or adopted during the previous administration and to “consider suspending, revising, or rescinding” those agency actions that conflicted with the announced policy.[3]

The following week, Biden signed EO 14008, Tackling the Climate Crisis at Home and Abroad (January 27, 2021),[4] which directed EPA’s Office of Enforcement and Compliance Assurance to “strengthen enforcement of environmental violations with disproportionate impact on underserved communities,”[5] and instructed the Attorney General to “ensure comprehensive attention to environmental justice.”[6] The Executive Order also directed the Justice Department’s Environment and Natural Resources Division (ENRD) (responsible for enforcement actions involving violations of federal environmental laws) to coordinate with EPA’s Office of Enforcement and Compliance Assurance (which works in coordination with ENRD in the enforcement of federal environmental laws), in developing a “comprehensive environmental justice enforcement strategy, which shall seek to provide timely remedies for systemic environmental violations and contaminations, and injury to natural resources.”[7] Finally, the President urged the Attorney General to consider creating a new Office of Environmental Justice within the Justice Department that would “coordinate environmental justice activities among Department of Justice components and United States Attorneys’ Offices nationwide.”[8]

Last month, Biden signed EO 14096, Executive Order on Revitalizing Our Nation’s Commitment to Environmental Justice for All (April 26, 2022), which furthers the administration’s “whole-of-government approach” to environmental justice.[9] EO 14096 creates a White House Office of Environmental Justice within the Council on Environmental Quality.[10] That office will be headed by a Federal Chief Environmental Justice Officer, to be appointed by the President.[11] EO 14096 also requires each federal agency to “make achieving environmental justice part of its mission,” including by addressing the “cumulative impacts of environmental and other burdens on communities with environmental justice concerns.”[12] Accordingly, agencies are directed to use the “best available science and information” relating to race and socioeconomic status in order to address “disparate health effects (including risks) arising from exposure to pollution and other environmental hazards” when conducting environmental reviews under the National Environmental Policy Act (NEPA).[13] The Executive Order also directs EPA, in reviewing the environmental impact of other agencies’ activities and proposed regulations, to assess whether each agency “analyzes and avoids or mitigates disproportionate human health and environmental effects on communities with environmental justice concerns.”[14] Finally, the Executive Order requires every federal agency to develop an “Environmental Justice Strategic Plan” that will identify and address opportunities to “improve accountability and compliance” with any statute the agency administers that affects the health and environment of communities with environmental justice concerns, including through increased public reporting; leveraging compliance-assessment tools such as fence-line monitoring; and imposing remedies that will not only penalize past violations, but also provide relief to communities by ensuring future compliance.[15]

At DOJ, A New Environmental Justice Office and a New Enforcement Strategy

The Justice Department’s New Office of Environmental Justice

In response to EO 14008, the Justice Department launched a new Office of Environmental Justice in May 2022, which operates within ENRD.[16] It functions as a “central hub” for the Justice Department’s implementation of the new Enforcement Strategy; provides support for environmental justice-related investigations and enforcement actions; and facilitates the Justice Department’s outreach to environmental justice communities.[17]

A New Environmental Justice-Focused Enforcement Strategy

Also in response to EO 14008, in May 2022 the Justice Department issued its Comprehensive Environmental Justice Enforcement Strategy (“Enforcement Strategy”).[18] According to Attorney General Merrick Garland, the Enforcement Strategy is intended to “ensure that the entire Department is using all available legal tools to promote environmental justice.”[19] The Enforcement Strategy serves as a roadmap for using the Department’s civil and criminal enforcement authorities “to advance environmental justice through timely and effective remedies for systemic environmental violations and contaminations and for injury to natural resources in underserved communities that have been historically marginalized and overburdened, including low-income communities, communities of color, and Tribal and Indigenous communities.”[20] The guidance directs the Department to make those enforcement actions a “top enforcement priorit[y].”[21]

To carry out that directive, the Enforcement Strategy instructs Justice Department investigators at ENRD to develop protocols for assessing environmental justice impacts during investigations; requires each United States Attorney to designate an environmental justice coordinator and establish procedures for the public to report environmental justice concerns within each office’s jurisdiction; and requires U.S. Attorneys’ Offices to coordinate with EPA’s Office of Enforcement and Compliance Assurance when undertaking enforcement actions.[22] In addition, the Enforcement Strategy directs the Justice Department to “make strategic use of all available legal tools that might remedy environmental violations, “including tools outside of the traditional environmental statutes,” such as civil rights laws.[23]

A Return to Supplemental Environmental Projects as Enforcement Tools

Reversing a prior administration policy, the Justice Department in May 2020 issued an Interim Final Rule restoring the use of Supplemental Environmental Projects (SEPs) as enforcement tools.[24] When announcing the policy change, Attorney General Garland promoted SEPs as “particularly powerful tools for advancing environmental justice” and underscored their importance in “provid[ing] redress to communities most directly affected by violations and federal environmental laws.”[25] As part of a settlement following an enforcement action, an alleged violator may propose to fund a project that provides environmental or public health benefits to the environment or community affected by the alleged violation, and which exceeds what is required under the law.[26] Under the new Interim Rule, the SEP must be closely related to the alleged violation that is resolved by the settlement agreement and will be subject to new restrictions on payments to third parties (such as environmental groups).[27] DOJ will consider the existence of an alleged violator’s voluntary agreement to perform a Supplemental Environmental Project when determining an appropriate settlement penalty.[28] 

According to Attorney General Garland, SEPs are just one component of the Justice Department’s broader effort address environmental injustice in communities of color, low-income communities, and Tribal communities.[29]

A recent settlement following an enforcement action in Colorado is illustrative. Earlier this year, EPA announced a settlement with Univar Solutions USA Inc. to resolve alleged violations of industrial accident-prevention requirements at four of the company’s chemical distribution facilities, including one in North Denver.[30] As part of the settlement, Univar will spend at least $195,103 on a SEP to provide emergency response equipment that will be used by the Denver Fire Department. According to EPA, the equipment will not only “facilitate quick and efficient responses to releases associated with emergency events,” but will also “provide environmental and public health benefits for local communities,” including “historically underserved communities” near Univar’s North Denver facility “which are overburdened by environmental pollution.”[31]

In fiscal year 2023, 6.4% of EPA’s settlements included a SEP—up from only 0.7% in fiscal year 2021 and 0.2% in fiscal year 2022. According to Director of EPA’s Office of Civil Enforcement Rosemarie Kelley, with EPA increasing inspections with an environmental justice focus, more SEPs are likely to benefit environmental justice communities in the future.[32]

At EPA, a New Office of Environmental Justice and New Enforcement Guidance

A New Office and New Funding: EPA’s Office of Environmental Justice and External Civil Rights

In September 2022, EPA announced the creation of its Office of Environmental Justice and External Civil Rights (OEJECR), a single top-tier office that combines three mid-level offices (the Office of Environmental Justice, the External Civil Rights Compliance Office, and the Conflict Prevention and Resolution Center, which helps resolve environmental cleanup disputes).[33] OEJECR will be run by a Senate-confirmed assistant administrator who answers directly to the EPA administrator, thus putting the office on par with EPA’s national offices of air, water, and chemical pollution.[34] OEJECR coordinates implementation of EPA’s environmental justice priorities across the agency’s national programs, regional offices, and partnerships with other federal agencies (including the Justice Department), as well as coregulators in state, tribal, and local governments.[35] The office is also tasked with enforcing federal civil rights laws, including Title VI, that prohibit discrimination by applicants for and recipients of federal financial assistance provided by EPA.[36] That office will oversee a portion of a $60 billion investment in environmental justice initiatives funded by the 2022 Inflation Reduction Act.[37] President Biden has yet to nominate a leader for the office, although his expected pick is former Willamette University law professor Robin Morris Collin, founding chair of the State of Oregon’s Environmental Justice Task Force and who currently serves as EPA’s Senior Advisor to the Administrator for Environmental Justice.[38]

According to the agency’s fiscal 2023 operating plan, OEJECR’s hiring target is approximately 241 full-time equivalents, with 131 of those personnel at EPA’s headquarters, and each regional office taking 10 to 12 staff members.[39] That represents a nearly fourfold increase in staff carrying out the agency’s environmental justice and civil rights work.[40] EPA’s budget for environmental justice is now at $108 million in annual appropriations—an exponential increase over the $12 million budget in place when President Biden took office.[41]

EPA Issues Expanded Civil and Criminal Enforcement Guidance

Consistent with Executive Order 14008 (January 27, 2021), which directs EPA to “strengthen enforcement of environmental violations with disproportionate impact on [overburdened] communities through the Office and Compliance Assurance,” EPA issued a series of memoranda setting out steps to advance those goals through civil regulatory and criminal enforcement.

Civil Regulatory Enforcement. In April 2021, EPA’s Office of Enforcement and Compliance Assurance issued a memorandum, Using All Appropriate Injunctive Relief Tools in Civil Enforcement Settlements (April 26, 2021),[42] which directs EPA enforcement staff to use “the full array of policy and legal tools available” not only to ensure compliance with environmental laws and regulations, but also to tailor injunctive relief to address the underlying causes of the violations and “mitigate the harm to the communities impacted by noncompliance.”[43] The memorandum recommends the use of settlement provisions that would require, among other things, advanced monitoring that provides real-time information about pollution; audits and independent third-party verification that will “achieve compliance beyond the focus of a specific enforcement action”; and greater public access to monitoring data to promote accountability.[44]

That same month, the Office of Enforcement and Compliance Assurance issued a related memorandum, Strengthening Enforcement in Communities with Environmental Justice Concerns (April 30, 2021),[45] which set forth several environmental justice-related enforcement program goals. The first goal, “increas[ing] the number of facility inspections in overburdened communities,” directs EPA staff to assess and increase those programmatic inspections that “address the most serious threats to overburdened communities.”[46] The second goal, “strengthen[ing] enforcement in overburdened communities by resolving environmental noncompliance through remedies with tangible benefits for the community,” builds on the prior memorandum on injunctive relief by urging enforcement staff to “think creatively” to craft settlement agreements that will both remediate pollution and address past harms to overburdened communities. Among other things, the memorandum urges enforcement staff to seek penalties where violations impacted overburdened communities; to seek “early and innovative relief,” including fence-line monitoring and transparency tools; and to seek and obtain restitution for victims of environmental crimes.[47] Finally the memorandum directs staff to “increase engagement with communities about enforcement cases that most directly impact them” by enabling access to compliance history data and by increasing community engagement in the development of cleanup agreements “to ensure community concerns are addressed in a meaningful manner.”[48]

Criminal Enforcement. In June 2021, the Office of Enforcement and Compliance Assurance issued a third memorandum, Strengthening Environmental Justice Through Criminal Enforcement (June 21, 2021).[49] Consistent with the directives discussed above, the memorandum set out steps to advance environmental justice goals by strengthening tools for the detection of environmental crimes in overburdened communities.[50] It also directs enforcement personnel to seek punishments “sufficient to achieve the goal of deterrence,” and sentences sufficient to assure affected communities that illegal pollution is not recurring.[51] To achieve that goal, the memorandum suggests punishments that will include advanced monitoring requirements, audits and/or court-appointed monitors, and the publication of electronic, publicly accessible compliance data, “especially in corporate prosecutions involving ongoing businesses.”[52] Finally, the memorandum suggests that “restitution and/or community service” should be “standard components” of any sentence where the defendant has sufficient financial means.[53] Accordingly,  the memorandum directs EPA investigators to develop “a full accounting of the gain or loss from the offense, along with the defendants’ ability to pay restitution [and] fines, and fund community service projects to remediate harm.”[54]

Cleanup Enforcement. In July 2021, the Office of Enforcement and Compliance Assurance issued a fourth memorandum, Strengthening Environmental Justice Through Cleanup Enforcement Actions (July 1, 2021).[55] That memorandum, which complemented the prior 2021 memoranda addressing civil regulatory and criminal enforcement, set out steps to advance environmental justice through cleanup enforcement actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA). Consistent with the earlier guidance, the memorandum urges EPA regions to “prioritize early action and/or enforcement efforts on Superfund site operable units that most impact overburdened communities” and to use EPA’s authority to issue unilateral orders (under CERCLA Section 106, and RCRA Section 7003) “to proactively address potential releases” of hazardous substances.[56] Also consistent with the earlier guidance, the memorandum urges EPA staff to engage affected communities; require the installation of advanced monitoring equipment to demonstrate compliance; and make monitoring data publicly available.[57] Finally, the memorandum recommends that staff “[c]onduct compliance reviews at sites in communities with [environmental justice] concerns” to ensure the remedial actions are properly implemented in a timely manner.[58]

EPA Oversight at Chicago’s Southeast Side Scrapyard

Even before announcing the creation of its new Office of Environmental Justice and External Civil Rights, and before EPA or the Justice Department had issued the new enforcement guidance, EPA Administrator Michael Regan had taken oversight action consistent with the agency’s new focus on environmental justice.

In June 2020, the Illinois State Environmental Protection Agency (IEPA) approved a key permit for a metal scrapyard that had been proposed for a site in Chicago’s Southeast Side—a community that is infamous for historic toxic pollution[59] and one that EPA has recognized as “environmentally overburdened.”[60] The company behind the project made headlines when it proposed to move the facility from the predominantly white, affluent neighborhood of Lincoln Park to the predominantly low-income and Latino Southeast Side.[61]

Activists who opposed the scrapyard filed an “environmental justice complaint” with EPA, urging it to launch a civil rights investigation.[62] Following months of protests and an investigation by the U.S. Department of Housing and Urban Development, EPA took notice. In May 2021, EPA Administrator Regan informed Chicago’s then-mayor Lori Lightfoot that the siting of the scrapyard “ha[d] raised significant civil rights concerns.”[63] Regan noted that “the current conditions facing Chicago’s southeast side epitomize the problem of environmental injustice, resulting from more than a half century of prior actions.”[64] He urged the City to “conduct a robust analysis to assess the full environmental justice implications of siting [the] facility in a community already overburdened by pollution,” and to “use that analysis to inform any permitting decision.”

In February 2022, Chicago’s Department of Public Health issued a final decision denying the permit application. The Department cited the project’s “unacceptable risk” to air quality and quality of life in the “already vulnerable community.”[65]

EPA’s direct intervention in the Chicago scrap metal project represents perhaps an unprecedented level of involvement in a municipality’s isolated permitting decision,[66] evincing the agency’s new focus and follow-through on its commitment to environmental justice. Industry has taken notice. As one industry publication concluded in an article discussing the scrapyard saga, “Addressing emissions and considering [environmental justice] are two factors that could become the ‘new normal[.]’”[67]

Environmental Justice-Related Inspections and Enforcement Actions

Agency Inspections. EPA conducted 5,861 on-site inspections in fiscal year 2022—a 78% increase over the number of inspections conducted in the previous year—with nearly 57% of those inspections conducted at facilities “affecting communities with potential EJ concerns.”[68] That number is well above the fiscal year 2022 target of 45% of inspections at such facilities, and even exceeds the agency’s fiscal year 2025 goal of 55%.[69] The 2023 omnibus spending package, along with the 2022 climate bill, will result in over $100 million in new funding for EPA’s enforcement office this year.[70]

Denka Performance Elastomer: A “Substantial Engagement” to an Environmental Justice Community. Following his confirmation as EPA Administrator in March 2021, Michael Regan visited towns and met with members of environmental justice communities as part his “Journey to Justice” tour. The tour included a visit to an area known as “Cancer Alley,” an 85-mile region along the Mississippi River between Baton Rouge and New Orleans that is known for high rates of illness, especially among Black and low-income communities located near the region’s approximately 150 chemical plants and refineries.[71] At a stop at Saint John the Baptist Parish, Louisiana, Administrator Regan committed to take action to protect the community from chloroprene emissions from a neoprene manufacturing facility owned by Denka Performance Elastomer.[72]

In February of this year, EPA and the Justice Department sued Denka under Clean Air Act Section 303, a rarely used provision that authorizes EPA to sue to “immediately restrain any person causing or contributing” to pollution that presents an imminent threat to public health and welfare.[73] According to the Complaint, Denka has been emitting dangerous levels of carcinogenic chloroprene for years, posing an imminent and substantial endangerment to public health and welfare.[74] The Complaint underscores the cumulative impacts of decades of chloroprene release on the residents in surrounding communities.[75]

Administrator Regan described the enforcement action as a fulfilment of his earlier commitment to address environmental justice issues in Saint John the Baptist Parish. And he foreshadowed additional measures: “This action is not the first step we have taken to reduce risks to the people living in Saint John the Baptist Parish, and it will not be the last.”[76]

EES Coke Battery, LLC: An Alleged New Source Review Violation in an Environmental Justice Community. In June 2022, the Justice Department filed a complaint on behalf of EPA in the Eastern District of Michigan against EES Coke Battery.[77] The complaint alleges that the company’s sulfur dioxide emissions at its River Rouge, Michigan coke oven battery plant violated the Clean Air Act’s New Source Review requirements.[78]

Among other things, the United States seeks an injunction requiring EES Coke Battery to bring its pollution within legal limits, apply for required permits, and offset the health and environmental harms caused by its violations. It also seeks a civil penalty of up to $109,024 per day, per violation.[79]

In its press release announcing the enforcement action, EPA stated that it “recognizes the environmental justice concerns of community members in the River Rouge area, including a high asthma rate in the area near EES Coke.”[80]

The court’s ruling on the United States’ motion for summary judgment on liability is pending.

Conclusion

EPA is targeting pollution in EJ communities with greater frequency and devoting substantial resources to those efforts. Coupled with regulatory changes to be discussed in a forthcoming article, these developments are likely to have far-reaching consequences for business, local government, and environmental practitioners.

For more information on Marten’s environmental justice practice, please contact Michael Smith at msmith@martenlaw.com.