Washington, D.C. (May 12, 2021) - In late April 2021, the Environmental Protection Agency's (EPA) Office of Enforcement and Compliance Assurance (OECA) issued two memoranda that shed light on how the agency will implement President Biden's directives on environmental justice in environmental enforcement actions. The memoranda describe a significant shift in EPA's enforcement focus, moving beyond traditional actions against noncompliance to a new emphasis on mitigating harm and delivering benefits to communities affected by environmental non-compliance, including reparation for past harm. Further, EPA's new approach calls on enforcement staff to increase inspections, seek restitution for victims of environmental crimes, encourage greater public access to compliance data, and, where necessary, overstep state regulators. These new enforcement directives are immediately effective and, in some cases, contradict current Department of Justice regulations on civil judicial settlements.
In his first 100 days, President Biden established environmental justice as a cornerstone of the Administration's agenda. New Executive Orders (EO) mandate the advancement of environmental justice, with goals that include ensuring access to clean air and water and holding polluters accountable for harm to low-income communities and those of color (see our previous alert). Other EO directives established the White House Environmental Justice Advisory Council (WHEJAC), a cabinet-level federal advisory committee, led by White House Climate Advisor, Gina McCarthy, which is tasked with overseeing implementation of environmental justice policies across all federal agencies. The WHEJAC Charter is broad in scope. It encompasses an expansion of the federal government's efforts to address current and historic environmental justice, including updating the 1994 Clinton Administration EO 12898 to reflect newer definitions and interpretations, develop screening tools, strengthen Department of Justice enforcement, and increase community notice of environmental pollution and violations. These actions provide clear evidence that the Administration is taking strong steps to implement its environmental justice agenda.
At the same time, the OECA enforcement directives may prompt scrutiny, particularly from those industries and businesses that will be impacted. For example, these directives raise questions about the extent of EPA's legal authority for imposing reparation and restitution remedies for past environmental harm through an environmental enforcement action, or for overstepping the enforcement decisions of state authorities. The U.S. Supreme Court's recent, unanimous decision in AMG Capital Management, LLC, v. Federal Trade Commission struck down the Federal Trade Commission's long-assumed power to require restitution, and should give pause to bold attempts to impose similar remedies where statutory authority is unclear.
Another issue that could draw close attention is the expanding use by EPA and some states of updated environmental justice screening tools that will be critical to identifying the existence of and location of these communities, marking them for special attention in enforcement, permitting, and other significant government actions. In addition, some states are enacting environmental justice statutes that will create a separate, state environmental justice framework, creating a patchwork of differing enforcement standards and approaches.
Further, any effort to "modernize" EO 12898 must be done in a manner consistent with existing statutory authorities. While EO 12898 is grounded in Title VI of the Civil Rights Act, the Administration seems poised to adopt interpretations of the federal environmental statutes to support their availability to address environmental justice in permitting. The outcome of each of these initiatives will have a significant impact on how permits are evaluated, issued, and enforced, and affected business entities may want to take a close look at the scope of legal authority for these new measures.
Without a doubt, much is in motion on the environmental justice front, and an Administration impatient to achieve sweeping changes based on deeply held views is raising the stakes in ways that are critical to business operations. Companies should be staying current on these fast-moving developments and taking actions to engage and minimize business risk.
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