On May 5, 2022, The Department of Justice (DOJ) announced two significant steps in addressing environmental justice issues, including unveiling a comprehensive environmental justice strategy document and reinstating the DOJ’s power to authorize community projects as part of environmental violation settlements. The DOJ’s environmental justice initiatives reverse some Trump-era policies and also substantially strengthen the Department’s focus on environmental justice issues, which was something that was required by President Biden of the Department.  The DOJ’s policies will impact environmental justice issues nationwide and companies must understand the significance of the DOJ’s actions on the overall administrations efforts to give agencies power to pursue its environmental justice goals.

DOJ’s Environmental Justice Policies

The DOJ’s environmental justice initiatives announced last week included the unveiling of its environmental justice strategy plan. This step fulfilled an Executive Order by President Biden from 2021 that required that such a plan be created. In the plan, the DOJ indicates that its civil and criminal enforcement arms will work in conjunction with the EPA and other federal agencies to identify and prioritize for prosecution cases that will reduce environmental harms that disproportionately impact overburdened and underserved communities. The DOJ specifically mentions utilizing Civil Rights Act Title VI allegations to directly address environmental justice issues. In order to ensure that the DOJ’s initiatives are carried out by all of its offices nationwide, the strategy plan directs each of its 93 U.S. attorneys nationwide to identify and designate an Environmental Justice Coordinator to “help identify areas of concern in [sic] communities and to establish procedures for members of the public to report those concerns.”

In addition to the Environmental Justice Strategy Plan, the DOJ intends to restore U.S. prosecutors’ power to allow settlement agreements in environmental violation cases to include a component of undertaking special community projects. Such environmental projects were previously impermissible under the previous administration. The settlement components would be used to compensate environmental justice communities as a part of environmental violation settlement agreements. There would be, though, some limits to the ability for settlement agreements to include environmental justice components, including requirements that any settlement agreements define “with particularity” the nature and scope of the specific project, that any projects have a “strong connection” to the underlying violation, and that the DOJ not propose the selection of any particular third party to receive payments. The DOJ would also would not be allowed to have control over the settlement funds, although it could take steps necessary to ensure that the terms of the settlement agreement are complied with.

Key Takeaways For Companies

The DOJ’s environmental justice policies should not surprise anyone given President Biden’s and the EPA’s significant interest in protecting environmental justice communities. Environmental violators or companies pursued by the DOJ for alleged environmental infractions should fully expect negotiations to include environmental justice components. Further, companies must realize that the DOJ and the EPA will both seek to target alleged violators in or near environmental justice communities. The EPA’s EJScreen tool is an excellent resource for companies to utilize to determine communities across the nation that are being and may be targeted in the future for enforcement action.

Without proper due diligence regarding environmental impacts of a project that will be disproportionately felt by marginalized communities, companies will increasingly see challenges in courts that focus on environmental justice issues. Risk mitigation begins with the simple step of recognizing the attention that environmental justice is receiving and incorporating environmental justice considerations into the planning phase.