In May 2022 the Department of Justice (DOJ) issued multiple actions aimed at aligning its environmental justice (EJ) efforts with President Biden’s 2021 Executive Order, “Tackling the Climate Crisis at Home and Abroad.” It issued a “Comprehensive Environmental Justice Enforcement Strategy” and created a new Office of Environmental Justice within the agency. DOJ also issued an interim final rule titled “Guidelines and Limitations for Settlement Agreements Involving Payments to Non-Governmental Third Parties” (effective immediately) to reinstate the use of supplemental environmental projects (SEPs) for DOJ settlements and simultaneously issued a memorandum of the same name with new guidelines for the use of SEPs.
DOJ EJ Strategy
The purpose of DOJ’s EJ strategy is to ensure the agency provides “comprehensive attention” to EJ efforts and develops “timely remedies for systemic environmental violations and contaminations, and injury to natural resources[.]” It serves as DOJ’s “roadmap” and includes its principles for using civil and criminal enforcement authorities to advance EJ efforts in underserved communities such as low-income communities, communities of color, and Tribal and Indigenous communities. DOJ’s stated EJ principles are:
- Prioritizing cases that will reduce public health and environmental harms to overburdened and underserved communities.
- Making strategic use of all available legal tools to address EJ concerns.
- Ensuring meaningful engagement with impacted communities.
- Promoting transparency regarding EJ enforcement efforts and their results.
Within its new Office of Environmental Justice, DOJ convened a standing Environmental Justice Enforcement Steering Committee, which includes members from the Office of the Attorney General, the Civil Rights Division, the Environmental and Natural Resources Division, and the FBI, among others. The steering committee will coordinate EJ activities amongst these agencies and make recommendations on policy choices, budget prioritization, training needs, and many other activities designed to coordinate the federal government’s EJ enforcement efforts. DOJ has also indicated that it will expand its toolkit for addressing EJ concerns and will use all enforcement authorities and tools at its disposal, including enforcement actions under environmental laws, civil rights laws, worker safety and consumer protection statues, and the False Claims Act. It will also consider additional settlement tools, like SEPs (discussed further below), and will be pursuing efforts to engage underserved communities that are impacted by environmental concerns.
Return of SEPs
DOJ overturned the Trump administration’s 2020 prohibition against the use of SEPs and, in doing so, brought back a tool long used by DOJ that allows parties settling environmental enforcement matters to voluntarily implement environmentally beneficial projects as a part of the settlement. As part of that revival, DOJ is attempting to address opponents’ claims that SEPs are an unlawful diversion of settlement funds by issuing new conditions associated with the use of SEPs, including requiring that settlement agreements define “with particularity” the nature and scope of the SEP, mandating that SEPs have a “strong connection” to the underlying violation, restricting DOJ from proposing the selection of any particular third party to receive payments, and prohibiting the use of SEPs for solely public educational or awareness projects.
Although the rule reinstating SEPs became effective immediately (May 10, 2022), the rule remains open for comment until July 11, 2022. Further, the rule may still face legal challenges from opponents, so it remains to be seen whether SEPs will be utilized in the near term as a part of DOJ’s EJ strategy or otherwise.
Conclusion
DOJ’s EJ strategy and corresponding efforts are likely to better organize and focus its ability to target activities and enforcement with an EJ component. The regulated community should expect greater emphasis on actual or threatened adverse impacts to public health or the environment, an emphasis on the affected communities and potential remedies for addressing such harms, and, perhaps, more creativity from DOJ and its partners in attempts to pursue and address EJ concerns.
FOR MORE INFORMATION
For more information, please contact:
Joel D. Eagle
216.566.5938
Joel.Eagle@ThompsonHine.com
Tasha Nicole Miracle
216.566.5622
Tasha.Miracle@ThompsonHine.com
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