Over the past month, the Biden administration has taken several noteworthy steps aimed at creating an environmental enforcement strategy focused on addressing pollution that has traditionally been concentrated in low-income and disadvantaged communities. While it has been clear since his inauguration in January 2021 that environmental justice (EJ) is a policy priority for the President, recent actions by the U.S. Department of Justice and the Environmental Protection Agency have brought the administration's enforcement strategy into clearer focus.
The actions taken by the DOJ and EPA reflect the dedication of administrative and financial resources aimed at implementing a comprehensive new strategy to promote an EJ and equity agenda. The most significant aspects are:
- Creating a dedicated Office of Environmental Justice within the DOJ to pursue civil and criminal enforcement in EJ communities. This office will prioritize cases that will result "in significant reductions in environmental and public health harms, or injury to natural resources, in overburdened and underserved communities."
- Requiring DOJ to "make strategic use of all available legal tools," including by reinstating Supplemental Environmental Projects (SEPs). An SEP is an environmental remediation project that an alleged violator can undertake as part of a settlement resolving an environmental enforcement action.
- Promoting "meaningful engagement with impacted communities," through listening sessions and other outreach to ensure that such communities can participate in environmental decision making.
What does this mean for manufacturing and industrial businesses across the wide range of economic sectors? At a minimum, the frequency of inspections and enforcement actions involving facilities in or near disadvantaged communities will increase. Because the issues surrounding EJ concerns usually involve impacts from long-standing actions, it will likely not matter if a facility has demonstrated a long history of compliance. Current concerns, combined with impacts from a variety of other pollution sources over time, could lead to greater scrutiny.
If the agencies find a violation, they will likely seek higher penalties and remedies that fully address the non-compliance, including the greater possibility of pursuing criminal penalties in the most severe cases. The EPA has also signaled its intent to make greater use of "imminent and substantial endangerment" orders under a variety of environmental programs to provide immediate relief. For instance, Section 303 of the Clean Air Act, although it has rarely been invoked, allows the EPA to issue an emergency order to close a facility that is substantially endangering public health, welfare, or the environment.
Federal agencies have also expressed greater interest in partnering with state and local agencies and nonprofits to pursue environmental enforcement cases. The EPA and Colorado Department of Public Health and Environment, for example, recently agreed to coordinate EJ enforcement actions. And in Louisiana, the EPA stepped in to investigate nonprofit complaints that the local agency was allowing industrial facilities to operate without permits and release hazardous air pollution in a disadvantaged community.
Given these developments, it is more important than ever for facilities to create or update risk management and compliance plans. When dealing with compliance planning, operators should look beyond their fenceline to understand their community's context. If the community has concentrated industrial development or there is a history of environmental violations, it is likely an "EJ community." The EPA's "EJ Screen" database is also a useful tool for identifying the potential for regulators to focus on facilities in a particular community.
Businesses might also consider taking a more proactive approach to community outreach. Rather than holding meetings only when required to (such as in relation to a permit application), operators should think creatively about how to engage with communities throughout the year, whether by attending community meetings, having a presence at farmers' markets, or sponsoring local events. Most important, being present in a community also means actively listening to the residents' concerns. Understanding those concerns and how they can be addressed in the context of continued industrial operations can go a long way toward addressing EJ issues and forestalling government enforcement actions.
Venable regularly advises companies facing environmental enforcement, both civil and criminal, and assists them in developing compliance plans. Please contact the authors or representatives of our Environmental and Natural Resources Practice Group and Investigations and White Collar Defense Practice Group with any questions about these issues and the implications of the administration's aggressive EJ strategy.