There is a well-established framework for EJ programs going back several decades. EJ has grown to include a range of issues, many of which do not directly implicate enforcement. The Biden administration’s EJ focus will likely be evolutionary rather than revolutionary. The differentiators may prove to be the level of focus and resources devoted to EJ issues and the extent to which EJ practice and programs become further embedded throughout government. Past and ongoing EJ programs and picks for key environmental and policy roles help inform the direction of the Biden administration on EJ enforcement. Additionally, existing EJ activities inform future risks faced by the regulated community from the Biden administration EJ enforcement priorities and steps that might be considered to mitigate such risks.

EJ Activities and Agenda by EPA

EPA created a roadmap for integrating EJ into its programs, policies, and activities in its EJ Plan 2014 released in September 2011.³ On the enforcement front, EPA’s goal was to fully integrate EJ into compliance and enforcement by integrating EJ concerns “into the planning and implementation of the Office of Enforcement and Compliance Assurance’s (“OECA”) program strategies, case targeting strategies, and development of remedies in enforcement actions to benefit overburdened communities.”⁴ EPA planned to implement these goals by advancing EJ in: (1) its National Enforcement Initiatives; (2) the targeting and development of compliance and enforcement actions; (3) enhancing the use of enforcement and compliance tools to advance EJ in affected communities; (4) seeking remedies; and (5) enhancing communication with affected communities.

During the Obama administration, the Office of Environmental Justice within the EPA helped to sharpen the agency’s focus on EJ by launching tools such as EJSCREEN. ⁵ The aim was to “help place tools in people’s hands at the community-level . . . help[ing] them visualize pollution burden.”⁶

In October 2016, near the end of the Obama administration, EPA released its EJ 2020 Action Agenda, which presented the Obama administration’s view of EPA’s EJ agenda through 2020.⁷ The EJ 2020 Action Agenda included three goals:

1. Deepen environmental justice practice within EPA programs to improve the health and environment of overburdened communities with a focus on four areas: (1) rulemaking, (2) permitting, (3) compliance and enforcement, and (4) science.
2. Work with partners to expand EPA’s positive impact within overburdened communities
3. Demonstrate progress on significant national environmental justice challenges focusing on four areas: (1) lead disparities, (2) drinking water, (3) air quality, and (4) hazardous waste sites.

Over the past four years EPA has taken steps in each of these areas. However, we anticipate seeing more resources and attention devoted to these issues.

While EPA has presented clear enforcement priorities and goals in the context of EJ, there is little in the way of hard data. In 2017, EPA added enforcement statistics, such as final administrative compliance orders, administrative penalty orders, consent decrees, and Supplemental Environmental Projects (“SEPs”), to its EJ progress report.⁸ From 2018 through 2020, EPA shifted to providing statistics on how many EJ screenings it had performed in its enforcement and compliance work.⁹ The 2018 to 2020 reports provide little in the way of data that can be used to divine enforcement statistical trends. However, this could change under the Biden Administration. The EJ 2021 Progress Report could turn out to be a helpful summary of EJ enforcement trends.

Political Leadership Driving EJ

Biden’s focus on EJ is supported by his picks for top environmental positions.

• President-elect Biden chose Michael Regan, the secretary of the North Carolina Department of Environmental Quality (“NC DEQ”), to lead the EPA. At NC DEQ, Regan prioritized environmental justice concerns and treated climate change as an EJ issue. He also established an environmental justice advisory board that worked with Republican state legislators. Regan has identified environmental justice as a priority for EPA under the Biden administration.
• President-elect Biden identified Brenda Mallory, the current director of regulatory policy at the Southern Environmental Law Center, as the Chair for the Council on Environmental Quality (“CEQ”). Mallory served as the CEQ’s general counsel under President Obama. As Chair of CEQ, she will be integral to the EJ working groups and advisory councils the Biden team has indicated it will implement to tackle EJ issues.

President-elect Biden, however, has yet to identify people who will fill other key political positions, such as the Assistant Attorney General of the Environment and Natural Resources Division (“ENRD”), who will impact environmental enforcement. We anticipate that those additional appointees will be charged with prioritizing EJ issues even if they do not personally have deep backgrounds in EJ issues.

Other Indicators of EJ Momentum

Another indicator of support for an increase in EJ enforcement matters is a September 2020 letter from Environmental Council of the States (“ECOS”) to the EPA Office of Enforcement and Compliance Assurance (“OECA”). The ECOS letter provided input on the development of the OECA FY 2022 to 2023 national program guidance. The ECOS letter asked OECA to emphasize compliance efforts in EJ and low-income communities and to better address cumulative cross media impacts on communities in EPA’s National Compliance Initiatives (“NCI”).¹⁰

EPA focuses its enforcement and compliance assurance resources on the NCIs, which include what it considers “the most serious environmental violations.” ECOS recommended that a focus on environmental outcomes would help to improve measures of effectiveness and success and suggested one possible metric as that which accounts for improved compliance in EJ communities.¹¹ It is very likely that EJ will become an explicit priority in the next cycle of NCIs.

An increased focus on EJ in the next cycle of NCIs could affect how EPA prioritizes new cases, strengthens pending enforcement cases with EJ issues, and analyzes appropriate penalties or injunctive remedies in EJ enforcement matters.

Environmental and Climate Justice Division of the DOJ

The Biden Plan proposes to create an Environmental and Climate Justice Division of the DOJ.¹² Such a Division has been proposed in the past. Conceptually, the new Division would complement the work of the DOJ’s ENRD by increasing environmental enforcement, supporting plaintiff-driven litigation against polluters, addressing legacy pollution, and working with the EPA’s Office of Civil Rights.¹³ It will undoubtedly take a significant amount of political and administrative effort to establish the proposed Environmental and Climate Justice Division and get it up and running. That is unlikely to happen in the short term. Assuming President-elect Biden is able to successfully establish this new Division and devote sufficient resources and authorities to make the new Division effective, the additional attention and resources devoted to EJ enforcement matters may significantly increase the legal risk involved in environmental enforcement matters with EJ concerns.

Supplemental Environmental Projects

In a 2020 memo, the DOJ’s ENRD eliminated “Supplemental Environmental Projects” (“SEPs”) in civil settlements.¹⁴ Under President-elect Biden, the DOJ will likely seek to rescind this guidance and reintroduce SEPs to its enforcement arsenal. SEPs that benefit minority and low-income communities could become an important consideration in environmental enforcement cases.

More Government Structure to Focus EJ Attention

President-elect Biden also intends to reinvigorate and revise policy within the Government to meet and strengthen Executive Order 12898. President-elect Biden has stated that he will reestablish the White House Environmental Justice Advisory Council and the White House Environmental Justice Interagency Council.¹⁵ The Councils would work alongside EJ leaders and help develop clear performance metrics to promote accountability and would publish an annual “public performance score-card” on the implementation of EO 12898.¹⁶

Conclusions

Facilities near low income/minority communities — or whose emissions have the potential to disproportionately affect such communities — may be more likely to be enforcement targets and end up with harsher penalties (or their operators may be asked to take on projects that would benefit those communities, if DOJ’s third party payment and SEPs policies are overturned).

The public has an opportunity to comment on judicial consent decrees before they are finalized, and community groups may take a more active role in commenting and pushing for EJ terms. We would also expect the resolution of cases involving EJ to include more measures designed to improve the health of EJ communities.

Regulated entities might consider proactive steps, such as:

1. Identifying and tracking relevant environmental matters affecting EJ communities near their facilities, sites, and property. EJSCREEN is a helpful and publicly available tool to identify the environmental and demographic information necessary to identify and track potential EJ matters.
2. Reviewing the compliance status of facilities or operations that are near or may be seen to be affecting EJ communities and considering the defensibility of the compliance status.
3. Being proactive in creating or updating internal policies regarding EJ. Environmental justice policies and goals provide a way for regulated entities to both show that EJ is important and to help manage EJ issues.
4. Identifying relevant community leaders and developing strategies for increased and effective EJ community outreach.
5. Maintaining and strengthening lines of communications with federal and state agencies on EJ issues or monitoring ongoing EJ developments.

¹ See The Biden Plan to Secure Environmental Justice and Equitable Economic Opportunity, Biden for President., https://joebiden.com/environmental-justice-plan/ (last visited Dec. 15, 2020) [“The Biden Plan”].

² Climate Change: The Biden-Harris plan to create union jobs by tackling the climate crisis, Biden-Harris Transition, https://buildbackbetter.gov/priorities/climate-change/ (last visited Dec. 18, 2020).

³ EPA, Plan EJ 2014 (Sept. 2011), https://nepis.epa.gov/Exe/ZyPDF.cgi/P100DFCQ.PDF?Dockey=P100DFCQ.PDF.

⁴ Id. at ii.

⁵ EPA, Fiscal Year 2015 Annual Environmental Justice Progress Report (Sept. 2016), https://www.epa.gov/sites/production/files/2018-02/documents/ej_fy2015_progress_report.pdf. See also EJSCREEN: Environmental Justice Screening and Mapping Tool, EPA, https://www.epa.gov/ejscreen (last visited Dec. 15, 2020).

⁶ Id. at 1.

⁷ E.J. 2020 Action Agenda, supra note 10.

⁸ EPA, No. 240-R1-8001, Environmental Justice FY2017 Progress Report 6, https://www.epa.gov/sites/production/files/2018-04/documents/usepa_fy17_environmental_justice_progress_report.pdf.

⁹ See EPA, No. 230R19003, EPA Annual Environmental Justice Progress Report FY 2019 32, https://www.epa.gov/sites/production/files/2019-11/documents/11.19.19_ej_report-final-web-v2s.pdf; see also EPA, No. 230R19002, EPA Annual Environment Justice Progress Report FY 2018 28, https://www.epa.gov/sites/production/files/2019-08/documents/ejprogress_report_fy2018-11.pdf.

¹⁰ Letter from Donald Welsh, Environmental Council of the States Executive Director, to the Office of Enforcement and Compliance Assurance (Sept. 24, 2020).

¹¹ Id.

¹² The Biden Plan, supra note 1.

¹³ Id.

¹⁴ Memorandum from Jeffrey Bossert Clark, Assistant Attorney General, to ENRD Deputy Assistant Attorney Generals and Section Chiefs regarding Supplemental Environmental Projects (“SEPs”) in Civil Settlements with Private Defendants, (Mar. 12, 2020), https://www.justice.gov/enrd/page/file/1257901/download.

¹⁵ The Biden Plan, supra note 1.

¹⁶ Id.