The Memorandum comes on the heels of an announcement by Administrator Regan that reaffirmed the Biden administration’s commitment to environmental justice (“EJ”) enforcement matters and set out initial steps EPA will take to advance its EJ goals. Among them was to “[s]trengthen enforcement of violations of cornerstone environmental statutes and civil rights laws in communities overburdened by pollution.” OECA’s Memorandum outlines a plan to do just that by, among other things, pushing to:

• increase the number of facility inspections,
• strengthen enforcement and compliance,
• increase public engagement in overburdened communities, and
• signaling that EPA is willing to take action without state partner involvement.

This Memorandum is the first in what is expected to be a series of memoranda issued by EPA in response to the Biden administration’s emphasis on EJ.

Biden Administration’s Focus on EJ

The EPA defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” As we have highlighted in these previous articles, the Biden administration identified EJ as a priority on the campaign trail and continues to consistently prioritize EJ concerns. Within days of taking office, President Biden signed an executive order (“EO 14008”) stating that it is the “policy of [the] Administration to secure environmental justice and spur economic opportunity for disadvantaged communities that have been historically marginalized and overburdened by pollution and underinvestment in housing, transportation, water and wastewater infrastructure, and health care.” EO 14008 directed the EPA Administrator to strengthen environmental enforcement in underserved communities and create a community notification program to monitor environmental pollution and provide real-time data to the public. This Memorandum is one of the many steps EPA will take in response to EO 14008’s call to action.

Highlights of the Memorandum

The Memorandum discusses specific EJ policy goals and measures including, but not limited to:

1. Increasing the number of facility inspections,
2. Strengthening enforcement and compliance,
3. Increasing public engagement in overburdened communities, and
4. Prioritizing community health when deciding appropriate action when state partner agencies are involved.

1. Increase the number of facility inspections in overburdened communities.

EPA has begun an evaluation of what types of programmatic inspections actually address the most serious threats to overburdened communities and the number and nature of such inspections on a national and regional basis. Once this evaluation is complete, EPA plans to set new inspection goals that are informed by these results. Facilities in certain industry sectors or in certain geographic areas may see an up-tick in EPA inspections as a result.

2. Strengthen enforcement in overburdened communities.

The Memorandum emphasizes that strengthening enforcement should be achieved by resolving environmental noncompliance through remedies that have tangible benefits for affected communities. Examples of tangible benefits include: prevention of further pollution, pollution mitigation, penalties, Supplemental Environmental Projects (“SEPs”), and restitution for victims of environmental crimes. Notably, SEPs were eliminated from the approved suite of settlement tools by the Trump administration in March 2020. Currently, the use of SEPs will have to be limited to EPA administrative actions, as Department of Justice regulations issued by the prior administration significantly limit the Department’s use of SEPs in civil judicial settlements. However, these regulations are currently under review and the Department is expected to revive its use of SEPs.

The Memorandum directed OECA case teams to be creative about seeking injunctive relief earlier on in an enforcement matter — perhaps seeking interim measures to stop noncompliance, orders to expedite the implementation of pollution controls, or installation of monitoring equipment. EPA also described a number of these, and other, tools for crafting innovative settlements in a recent memorandum, “Using All Appropriate Injunctive Relief Tools in Civil Enforcement Settlements.” As a result, those facing an EPA enforcement matter in the next few years can expect to see settlement terms that incorporate a number of projects or measures that were no longer used by the end of the Trump administration.

3. Increase engagement with communities about enforcement cases that directly impact the community.

The Memorandum outlined a goal of increasing engagement with EJ communities concerning enforcement actions by, among other measures: (1) providing more information about facilities, pollution, and enforcement activities through press releases and public meetings, (2) increasing awareness and usability of its existing EJSCREEN and Enforcement Compliance History Online (“ECHO”) databases, and (3) increasing opportunities for community engagement in the development of cleanup and reuse agreements.

4. Prioritize community health when deciding appropriate action when state partner agencies are involved.

Finally, EPA notes that it will continue to work with co-regulators (such as state or Tribal environmental agencies) on the shared goal of EJ, but will “not hesitate to step in and take necessary action” where it determines that a co-regulator is not taking timely or appropriate action in a situation where a community’s health may be impacted by noncompliance. This may be a signal that EPA plans to be less deferential to its state and Tribal partners when their policy goals do not align with EPA.

Looking Forward

The Memorandum is the latest action by the Biden administration indicating that facilities in the vicinity EJ communities and/or facilities that have the potential to disproportionately affect the health and environment of such communities are likely to: (1) become enforcement targets; (2) face faster paced enforcement; (3) harsher penalties; (4) targeted injunctive relief, such as EJ SEPs; and (5) see increased community engagement and activity.

Regulated entities should consider proactive steps to address EJ concerns before regulators are at their doorstep:

1. Identify Relevant EJ Communities: Identifying relevant EJ communities is the first, and arguably most important, step in tracking relevant environmental matters affecting EJ communities. EJSCREEN is a helpful and publicly available tool to identify the environmental and demographic information necessary to identify and track potential EJ matters. We note that some states, for example California, have their own EJ tools as well.
2. Consider targeted audits: Targeted reviews of compliance at facilities or operations that are near or may be perceived as affecting EJ communities could be warranted given the heightened priority placed on EJ matters under the Biden administration.
3. Consider the sufficiency of internal policies: 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. Plan community outreach: Identify relevant community leaders and developing strategies for increased and effective EJ community outreach.

The EPA is expected to issue additional memoranda addressing EJ and enforcement.