While the Biden administration has struggled to expeditiously implement carbon reduction and sustainability goals, the United States Environmental Protection Agency (USEPA) continues to move the needle on a number of notable environmental justice and enforcement policies. On April 30, 2021, acting USEPA Assistant Administrator Lawrence E. Starfield issued a memorandum titled “Strengthening Enforcement in Communities with Environmental Justice Concerns” (the EJ Memo) with specific directives to advance Environmental Justice goals using USEPA’s existing resources. The USEPA’s Office of Enforcement and Compliance Assurance (OECA) will be instrumental in accomplishing environmental justice goals.

Bolstering Environmental Justice with Targeted Enforcement Goals

In the EJ Memo, Assistant Administrator Starfield identified three enforcement program goals to enhance USEPA’s emphasis on environmental justice:

• Increasing facility inspections in overburdened communities.
• Addressing non-compliance by implementing remedies with tangible benefits.
• Increasing engagement with communities regarding the most important enforcement cases.

Regarding increased facility inspections, USEPA will coordinate with Regional Offices and OECA to analyze the types of programmatic inspections relevant to the most serious environmental threats in overburdened communities. Administrator Regan noted that increased inspections must be balanced with safety measures in light of the continuing pandemic, but also encouraged further use of “offsite compliance monitoring tools” in the meantime. Perhaps the most notable example is USEPA’s use of Clean Air Act § 114 Requests for Information to obtain facility information.

In terms of implementing environmental remedies with tangible benefits, the EJ Memo highlights four subareas of focus: (i) preventing further pollution; (ii) pursuing “early and innovative” relief; (iii) incorporating supplemental environmental projects (SEPs) into settlements; and (iv) obtaining restitution for victims of environmental crimes. These additional focus areas reveal USEPA’s intent to prioritize environmental issues in overburdened communities, with emphasis on mitigating past impacts, targeted imposition of penalties, and encouraging use of fence-line monitoring and transparency tools (see more below regarding “Next Gen” compliance / enforcement).

Assistant Administrator Starfield also encouraged USEPA personnel to “think creatively” to obtain injunctive relief that remediates pollution and fixes past harms. Examples include USEPA’s increased collaboration with state and local authorities and a potential renewed focus on implementing SEPs.

The EJ Memo also emphasized increased engagement with communities regarding enforcement cases with direct community-based impacts, which signals USEPA’s shift toward embracing “Next Gen” compliance and enforcement measures that were beginning to emerge under the Obama administration, but were phased out by the Trump administration in favor of its “cooperative federalism” policy, which deferred to state enforcement.

Re-Emergence of “Next Gen” Compliance Tools

USEPA’s messaging about “increased community engagement” in the EJ Memo emphasizes the current administration’s belief in empowering communities to detect, increase awareness of, and address environmental issues. Assistant Administrator Starfield agrees that increased “public access to compliance data can promote a community’s ability to better understand and manage risks and monitor compliance at local facilities.” In particular, the memo encourages the agency to “[s]eek early and innovative relief, e.g. fence-line monitoring and transparency tools.” This focus speaks directly to the reemergence of USEPA’s “Next Gen” compliance policy, which was withdrawn by the prior administration in April 2018.

USEPA’s Next Gen Compliance Initiative (which appears to have been quietly restored to the agency’s website shortly before the issuance of the EJ Memo) is comprised of five components: (i) easier-to-implement regulations and permits; (ii) advanced pollution/emission monitoring; (iii) electronic reporting; (iv) expanded transparency; and (v) innovative enforcement. The EJ Memo’s focus on “increased community engagement” echoes these goals, including the following:

• Increasing transparency by providing more information to communities about facilities, pollution and enforcement activities.
• Empowering communities by increasing awareness of enforcement program resources, including EJSCREEN and Enforcement/Compliance History Online (ECHO).
• Increasing opportunities for community engagement in the development and reuse agreements to ensure community concerns are meaningfully addressed.

Among the Next Gen items restored on USEPA’s website are links to reports published in 2013 and 2016 encouraging the use of “citizen science” by members of the public to monitor facility emissions near the fenceline.

Looking Around the Corner

The above items are consistent with USEPA’s 2020-23 National Compliance Initiatives, especially regarding improving community air quality and preventing noncompliance with drinking water standards for community water systems. The EJ Memo signals that USEPA is “giving teeth” to its environmental justice policies and will increase its enforcement focus on facilities in overburdened communities. Given USEPA’s renewed push to democratize environmental tracking methods by the public, regulated entities would do well to implement proactive “total compliance” measures, including performing voluntary compliance audits and renewed community engagement and outreach. Coupled with increased agency enforcement, these “citizen science” measures may spur citizen enforcement lawsuits or proliferation of potentially unreliable data by the public, including through social media. Depending on USEPA’s ability to unwind the Trump administration’s deemphasis of SEPs, regulated entities facing enforcement may again be able to leverage SEPs into agreed settlements to reduce civil penalties.

For more information on environmental justice, Next Gen Compliance or SEPs, contact the authors or consider attending Faegre Drinker’s June 23, 2021 webinar entitled, “What to Expect From the Biden Administration in Environmental Enforcement.”