On May 5, 2022, U.S. Attorney General Merrick Garland announced three new initiatives that the Department of Justice (the “DOJ”) would be taking to advance the Biden administration’s environmental justice efforts – one of the most significant being a new Office of Environmental Justice (the “OEJ”).

Comprehensive Reform

First, the Department will release a new comprehensive reform strategy consistent with the President’s Executive Order on Tackling Climate Crisis at Home and Abroad. According to Associate Attorney General Vanita Gupta, who also delivered remarks, the Department is focused on addressing widespread environmental disparities that members of minority, Tribal, and low-income communities consistently face. The comprehensive strategy prioritizes:

  • Enforcing environmental laws and civil rights statutes, including Title VI of the Civil Rights Act of 1964, which bars recipients of federal funding from discriminating based on race, color, or national origin.
  • Undertaking more cases that reduce environmental harm experienced by overburdened communities like communities of color, Tribal communities, and low-income communities.
  • Developing procedures for evaluating the environmental justice impacts of DOJ investigations.
  • Building deeper connections with communities deeply affected by environmental injustices.

Additionally, the strategy requires all 93 U.S. Attorneys across the country to designate an environmental justice coordinator to assist in identifying topics of concern in their respective communities and creating protocols for the public to report those concerns. According to Associate Attorney General Gupta, this strategy “underscores the department’s commitment to ensuring that all Americans have access to clean water to drink, clean air to breathe and healthy, thriving communities where they can live, work and raise their families.”

The Office of Environmental Justice

Second, the Department will establish the Office of Environmental Justice (the “OEJ”) within the Environment and Natural Resources Division (the “ENRD”) as part of the Biden administration’s strategy to prioritize environmental efforts. The OEJ would be responsible for overseeing and guiding the Department’s extensive environmental justice efforts. Assistant Attorney General Todd Kim named Cynthia Ferguson, an experienced ENRD attorney, as Acting Director.

Supplemental Environmental Projects

And third, the Department will issue an Interim Final Rule that would restore supplemental environmental projects as a law enforcement tool in “appropriate circumstances and subject to guidelines of a memorandum issued by the Attorney General.” The Interim rule would allow polluters to subsidize projects that aid environmental efforts as part of the legal penalty for violating environmental laws.

Before its termination in 2017, the Environmental Protection Agency (the “EPA”) and the ENRD used supplemental environmental projects to aid communities most directly affected by violations of federal environmental laws. There will be a public comment period on the new guidelines and limitations once released.

Conclusion

Many polluting projects have historically been situated in minority and low-income communities, exposing these communities to additional health risks. The DOJ has set its sights on further expanding the scope of criminal enforcement, restoring changes made by the previous administration, and underscoring its commitment to underserved communities. Seeing the Biden administration’s environmental enforcement goals come to fruition seems be a large responsibility now put in the hands of the newly established OEJ.