The EPA recently indicated that it will ramp up its activity with respect to environmental justice enforcement initiatives using pre-pandemic tools such as on-site facility inspections. The EPA’s focus on environmental justice reverse some Trump-era policies that limited the focus of EPA action on environmental justice, and further support President Biden’s pledge to increasingly focus on environmental justice initiatives. The EPA’s environmental justice enforcement policies will impact environmental justice issues nationwide and companies must understand the significance of the EPA’s announcement on the overall administrations efforts to give agencies power to pursue its environmental justice goals.

EPA’s Environmental Justice Enforcement Actions

Larry Starfield, the EPA’s Chief of the Office of Enforcement and Compliance Assurance (OECA), announced on May 24, 2022 that the EPA will immediately begin practices that it followed prior to the pandemic to more readily identify violators of Safe Drinking Water Act (SDWA) and Clean Air Act (CAA) regulations. The focus of such efforts will be on facilities that are deemed to be an “imminent and substantial endangerment” to surrounding communities, with a special focus on environmental justice communities directly impacted by water and air pollution issues. Mr. Starfield specifically mentioned using tools such as on-site inspections as a critical component of enforcement actions that will begin again.

The EPA also intends to increase the use of supplemental environmental projects (SEPs) to provide remedies to communities impacted by pollution issue above and beyond the relief that courts can provide. The EPA will also utilize pollution enforcement teams to conduct surprise visits of facilities believed to be the most concerning for pollution impacting environmental justice communities.

The EPA’s environmental justice enforcement initiatives come in conjunction with the Department of Justice’s (DOJ) own environmental justice initiatives, including 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.”

Key Takeaways For Companies

The EPA and DOJ environmental justice enforcement initiatives should not surprise anyone given President Biden’s and the federal government’s significant interest in protecting environmental justice communities. Environmental violators or companies pursued by the EPA or 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.