The Justice Department Steps Up and Releases Its Inaugural Environmental Justice Report

On October 13, 2023, Todd S. Kim, the Assistant Attorney General of the Department of Justice’s Environment and Natural Resources Division (ENRD), delivered the keynote address at the American Bar Association’s 31^st Fall conference in Washington, D.C., highlighting the Justice Department’s enforcement successes concerning environmental justice (EJ). Later that day, DOJ’s Office of Environmental Justice (OEJ) released its inaugural Comprehensive Environmental Justice Enforcement Strategy Annual Report (OEJ Report). The report highlights the Justice Department’s successes in pursuing cases involving EJ concerns and summarizes its efforts in “engaging with and delivering results to communities long overburdened by pollution.” (See DOJ Press Release). Kim’s remarks and the OEJ Report indicate that the Justice Department will continue to actively pursue environmental enforcement actions where there is an EJ aspect to the matter. Companies should be alert to the possibility, and be prepared to timely respond, to agency inquiries where there is arguably an EJ impact from their operations.

Background – The Lead-Up to the Report

On January 27, 2021, President Biden issued Executive Order 14008, Tackling the Climate Crisis at Home and Abroad, directing all federal agencies to “make achieving environmental justice part of their missions … by developing programs to address the disproportionately… disadvantaged communities that have been historically marginalized and overburdened by pollution.” As we summarized, the Executive Order is comprehensive and directs the entire federal government to tackle climate change and undertake clearly the most ambitious EJ agenda ever issued in this country.

The Executive Order instructed the Attorney General to “ensure comprehensive attention to environmental justice throughout the Department of Justice” and more specifically, to “develop a comprehensive environmental justice enforcement strategy, which shall seek to provide timely remedies for systemic environmental violations and contaminations, and injury to natural resources[.]” EO 14008, Sec. 222(c)(ii). Notably, the order specifically called for significant changes to improve collaboration between the U.S. Environmental Protection Agency (EPA) and the Justice Department. On May 5, 2022, the Justice Department responded by not only establishing the Office of Environmental Justice, housed within ENRD, but also outlining its Comprehensive Environmental Justice Enforcement Strategy to guide the Justice Department’s work through its litigators, investigators, and U.S. Attorneys’ Offices nationwide.

The Justice Department’s Display of its Accomplishments

On October 13, 2023, AAG Todd Kim—along with Associate Attorney General Vanita Gupta, Assistant Attorney General of the Civil Rights Division Kristen Clarke, and Director of OEJ Cynthia M. Ferguson—announced the Department’s accomplishments over the last year in the detailed 28-page OEJ annual report. The report showcases the Department’s recent major actions, including a Safe Drinking Water Act lawsuit to address the drinking water crisis in Jackson, Mississippi; a Clean Air Act (CAA) suit to curb alleged air pollution from a petrochemical manufacturer in LaPlace, Louisiana; and an interim resolution agreement in the Justice Department’s first ever Title VI EJ investigation, in Lowndes County, Alabama. (Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, and national origin in programs and activities receiving federal financial assistance.)

The report also details collaborative efforts over the last year with the 94 U.S. Attorney’s Offices, various environmental enforcement taskforces, and other key partners in implementing the Administration’s EJ strategy. For example, each U.S. Attorney’s Office now has a dedicated prosecutor serving as EJ coordinator, and EPA’s Office of Enforcement and Compliance Assurance and ENRD have jointly coordinated guidance and use of a mapping and screening tool, EPA’s EJScreen, to identify overburdened communities.

The  cases highlighted by DOJ also include: felony convictions for the mismanagement of an industrial waste landfill; a civil CAA lawsuit against a manufacturing facility that failed to reduce harmful emissions far or fast enough; a recovery of a record-setting penalty for a single source under the CAA against a refinery; and CAA settlements (under the Act’s Leak Detection and Repair requirements) with three natural gas processors requiring them to pay a combined $9.25 million in civil penalties and make improvements at multiple gas processing plants and 91 compressor stations.

Key Takeaway

EJ Executive Orders have been part of federal policy since the early 1990s, when President Bill Clinton signed the landmark Executive Order 12898 in 1994, Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, announcing the federal government's goal for environmental justice. But the Orders issued by President Biden over the last two years are more specific and aggressive than those issued in prior administrations, and there has been more follow-through by the responding federal agencies. See Executive Order on Revitalizing Our Nation’s Commitment to Environmental Justice for All | The White House. The Biden administration has elevated EJ concerns affecting largely poor, minority communities by directing and prioritizing a “whole-of-government approach,” and the OEJ Report indicates that this goal is being vigorously implemented. Kim’s recent remarks and the OEJ Report indicate that the Administration—through the Justice Department, EPA, and other federal agencies—will continue to rapidly develop new regulatory plans and actively pursue enforcement.

Crowell, with its team of experienced energy and environmental regulatory, investigation, and enforcement attorneys, understands the uncertainties that the regulated sector and other stakeholders face from this rapidly evolving landscape of EJ policies and corresponding enforcement actions. We will continue to monitor the stage, remain engaged with key federal agency components, and provide guidance and representation on enforcement actions, investigations, negotiations, and disputes across all environmental sectors.

Crowell & Moring LLP – Environmental Justice.