Biden Administration Takes Aggressive Steps To Merge Environmental Law Enforcement And Equity | Venable LLP

Over the past month, the Biden administration has taken several notable steps aimed at creating an environmental law enforcement strategy focused on tackling 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 political priority for the president, recent actions by the US Department of Justice and the Environmental Protection Agency have clarified the strategy. application of the administration.

The actions taken by the DOJ and EPA reflect the commitment of administrative and financial resources to implement a new comprehensive strategy to promote a JE and equity agenda. The most significant aspects are:

  • Create a dedicated environmental justice office within the DOJ to pursue civil and criminal law enforcement in EJ communities. This office will prioritize cases that will result in “a significant reduction in environmental and public health harm, or damage to natural resources, in overburdened and underserved communities.”
  • Require the GM to “make strategic use of all available legal tools,” including reinstating Supplemental Environmental Projects (SEPs). A SEP is an environmental remediation project that an alleged violator may undertake as part of a settlement resolving an environmental enforcement action.
  • Promote “meaningful engagement with affected communities” through listening sessions and other outreach activities to ensure these communities can participate in environmental decision-making.

What does this mean for manufacturing and industrial companies across the wide range of economic sectors? At a minimum, the frequency of inspections and enforcement actions involving facilities located in or near disadvantaged communities will increase. Since the issues surrounding EJ concerns generally involve impacts of long-standing actions, it does not matter if a facility has demonstrated a long history of compliance. Current concerns, combined with the impacts of various other sources of pollution over time, could lead to further scrutiny.

If agencies find a violation, they will likely seek higher penalties and remedies that fully address noncompliance, including the greater possibility of criminal prosecution in the most serious cases. The EPA has also signaled plans to make greater use of “imminent and substantial endangerment” orders under various environmental programs to provide immediate relief. For example, Section 303 of the Clean Air Act, although rarely invoked, allows the EPA to issue an emergency order to shut down a facility that seriously endangers public health, welfare being or the environment.

Federal agencies have also expressed greater interest in partnering with state and local agencies and nonprofit organizations to pursue environmental law enforcement cases. The EPA and the 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 allowed industrial facilities to operate without a permit and discharge dangerous air pollution into an underprivileged 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 need to look beyond their fence to understand the context of their community. If the community has concentrated industrial development or has 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.

Companies could also consider taking a more proactive approach to community outreach. Rather than holding meetings only when necessary (for example, as part of a permit application), operators need to think creatively about how to engage with communities throughout the year , whether by attending community meetings, being present at farmers markets or sponsoring events. More importantly, being present in a community also means actively listening to the concerns of residents. Understanding these concerns and how they can be addressed in the context of ongoing industrial operations can go a long way in resolving EE issues and preventing government enforcement action.