President Biden made Environmental Justice (EJ) a priority of his Administration and ordered a “whole of government” approach to EJ issues. Now the U.S. Department of Justice’s (DOJ or Department) first ever Comprehensive Environmental Justice (EJ) Enforcement Strategy Annual Report (Report), was issued by the Environment and Natural Resources Division (ENRD) on October 13, 2023. Regulated entities should look to this Report as a guide to enforcement actions and remedies that will be sought in the coming months. The Report follows up on the Department's May 2022 Environmental Justice Enforcement Strategy (Strategy), and highlights a broad range of EJ cases and initiatives taken since the Strategy was issued.
One critical component of that Strategy was outreach to EJ communities. Regulated entities should expect that the government will reach out to learn whether their facilities present environmental and public health concerns. If they do, the government appears focused on finding opportunities to utilize Title VI of the Civil Rights Act of 1964 as an enforcement tool. In addition, EPA has signaled that it will ask DOJ to build EJ and climate remedies into administrative, civil and criminal case resolutions whenever possible. This will likely mean DOJ will continue its efforts to reach deep into its legal toolbox to provide overburdened communities with prompt redress and advance local projects and partnerships as a part of case resolution.
The Report lays out broad-ranging activities around each of the four principles in DOJ’s EJ Strategy. Supported by a new ENRD Office of Environmental Justice, the principles:
- Prioritize cases that will reduce public health and environmental harms to overburdened and underserved communities;
- Make strategic use of all available legal tools to address environmental justice concerns;
- Ensure meaningful engagement with the impacted communities; and
- Promote transparency regarding EJ enforcement efforts and their results.
In the Strategy, DOJ committed to ensuring “that the entire Department is vigorously and transparently working to secure environmental justice with the full set of legal tools at its disposal, in partnership with EPA and other federal agencies, and in communication with the communities most affected by the underlying violations of federal law.”
The new Report demonstrates how DOJ delivered on its commitment through coordination, key cases, and outreach.
DOJ’s Report emphasizes widespread coordination across agencies, divisions, and offices to deliver meaningful remedies to EJ communities quickly. For example, all 94 U.S. Attorneys’ offices have appointed Environmental Justice Coordinators and DOJ participates in several active taskforces. The Department commits to further cross-agency enforcement efforts through these taskforces and via new “Environmental Enforcement Exchanges”, which will bring to bring players together across individual districts and states with mutual EJ issues.
DOJ highlights a broad range of court actions advancing EJ issues spanning a wide variety of authorities, including enforcement actions under environmental protection, civil rights, worker safety, and consumer protection laws, the False Claims Act, and the use of Supplemental Environmental Projects.
The Report features work with EPA to address the drinking water crisis in Jackson, Mississippi. Through a Safe Water Drinking Act lawsuit, DOJ negotiated an interim order with City and State officials to name a court-appointed manager and begin to stabilize the community’s drinking water system. This agreement may serve as an example to follow for addressing drinking water issues in other EJ communities.
The Report also emphasizes the Civil Rights Division’s first Title VI environmental justice investigation -- an investigation into the Alabama and Lowndes County Health Departments for alleged long-standing underinvestment in wastewater infrastructure amounting to discrimination against minority residents. This DOJ-initiated investigation shows how Title VI is being deployed as a key EJ enforcement tool. In June of this year, DOJ dropped actions related to a Title VI complaint alleging that the Louisiana Department of Environmental Quality had failed to adequately protect EJ communities in its permitting process. Rather than a wholesale retreat, the filing of a federal lawsuit by the State of Louisiana that sought to block EPA’s efforts may have resulted in a strategic retreat by DOJ in this case.
Relatedly, EPA tracks the steadily increasing number of Title VI administrative complaints online, demonstrating communities’ increased use of this federal statute to alert regulators and enforcers about federal funding recipients’ alleged discriminatory actions.
Other notable DOJ actions mentioned in the Report include the recovery of a record-setting penalty for a single source under CAA and the use of a rarely used CAA emergency provision to shut down a facility; DOJ has signaled that it will not hesitate to use the emergency authorities under the environmental statutes to gain faster entry to sites and possible shut-downs until alleged non-compliance is addressed.
Community outreach is central to the government’s EJ strategy and another key theme of the Report. According to the Report there has already been extensive engagement with communities to lay the groundwork for future enforcement in EJ communities. DOJ is using listening sessions, trainings, and outreach plans to reach communities directly and identify EJ cases more quickly. The Department highlights its use of case-specific community outreach plans to connect residents with its enforcement work, and use of community input to inform cases and settlements. DOJ is also focusing on educating communities on environmental law and increasing their access to enforcement information.
With DOJ’s outreach practices in place, regulated entities can expect to see communities exercise much greater influence on where cases are brought. Models such as Baker Botts’ ACELAS can be deployed by companies to ensure they are listening and responding to the communities surrounding their operations and to mitigate the risk of enforcement attention.
With the President’s Earth Day Executive Order 14096 rolling out the broadest definition of EJ to date, now is the time for companies to take a proactive look at their operations, compliance strategies, and community relationships. DOJ’s Report shows that the Department has a strong foundation for future EJ enforcement initiatives, and its continued use of the tools and approaches outlined will only become more focused and effective in the future.
ABOUT BAKER BOTTS L.L.P.
Baker Botts is an international law firm whose lawyers practice throughout a network of offices around the globe. Based on our experience and knowledge of our clients' industries, we are recognized as a leading firm in the energy, technology and life sciences sectors. Since 1840, we have provided creative and effective legal solutions for our clients while demonstrating an unrelenting commitment to excellence. For more information, please visit bakerbotts.com.