The Nickel Report

On October 13, 2023, the US Department of Justice (DOJ) published its first annual report detailing the implementation of its Comprehensive Environmental Justice Enforcement Strategy (EJ Strategy). As we reported, in mid-2022, DOJ established an Office of Environmental Justice (OEJ), and the US Environmental Protection Agency (EPA) established a new Office of Environmental Justice (EJ) and External Civil Rights. DOJ’s OEJ is housed in the Environmental and Natural Resources Division (ENRD). DOJ intended its EJ Strategy to extend throughout the Department, in that OEJ’s mandate is to engage all DOJ bureaus, components, and offices in the collective pursuit of environmental justice. DOJ’s new report cites two main executive branch agencies involved in environmental protection and community development: EPA and the Department of Housing and Urban Development (HUD). The report touts efforts that DOJ views as EJ-related “successes” and details a number of authorities DOJ has relied upon in EJ-focused enforcement, including Title VI of the Civil Rights Act, the Clean Air Act, the Safe Drinking Water Act, and the Affordable Care Act. Building on these highlighted successes, DOJ states that it will continue its focus on enforcement proceedings where there is a nexus with environmental justice and will seek EJ-focused mitigation to resolve such proceedings. 

How DOJ Is Implementing its EJ Strategy

In each of its 94 United States Attorneys’ offices (USAOs), DOJ has appointed at least one civil or criminal prosecutor to serve as an Environmental Justice Coordinator (EJC). DOJ’s implementation of its EJ Strategy is based on four core “principles” that direct its attorneys to:

• Principle 1: Prioritize cases that reduce public health and environmental harms to overburdened and underserved communities;
• Principle 2: Make strategic use of all available legal tools to address EJ concerns;
• Principle 3: Ensure meaningful engagement with impacted communities; and
• Principle 4: Promote transparency regarding EJ enforcement efforts and their results.

DOJ’s Civil Rights Division is said to be identifying new opportunities to use Civil Rights Act Title VI investigations and other civil rights authorities to address environmental and public health effects. As detailed below, in its first-ever formal EJ investigation under Title VI, the Civil Rights Division secured an interim resolution agreement for equitable and safe wastewater disposal and management systems for black residents in Lowndes County, Alabama. The Civil Rights Division also plans to use other authorities such as the Fair Housing Act and Statements of Interest, which permit DOJ to attend to the interests of the United States in any case pending in a federal court to address discriminatory treatment related to environmental, public health, and quality of life issues.

Concurrently, DOJ’s Civil Division is using its enforcement tools to address environmental and public health issues affecting communities. For example, the report states that the Civil Division has prevented companies with federal rights of way or with federal oil and gas leases from using the bankruptcy process to avoid any decommissioning, reclamation, and remediation responsibilities that DOJ asserts could impact those living near federal lands. The division is also sharing information about relevant civil authorities with other DOJ offices and training USAOs to use the False Claims Act to promote EJ.

As part of its efforts to “make strategic use of all available legal tools,” DOJ has asserted that it will be incorporating more mitigation and Supplemental Environmental Projects (SEPs) into settlements. As part of its EJ Strategy back in 2022, DOJ restored SEPs as viable environmental violation settlement options. SEPs are voluntary projects that meet certain guidelines and have the potential to direct environmentally beneficial improvements to communities affected by environmental violations as a means of redress. For instance, in addition to civil penalties, one settlement included an amount certain to be spent on a lead-based paint abatement SEP implemented in lower-income properties located in the Chicago area, while another included a mitigation project to offset emissions of volatile organic compounds (VOCs). Some key examples of those enforcement actions are summarized below.

As part of its efforts for increased outreach and community engagement, DOJ has been holding listening sessions aimed at giving members of communities with potential EJ concerns more direct access to federal enforcement authorities, even while resolutions of enforcement matters affecting those communities are being negotiated. DOJ provides an example of reaching out to the residents of Jackson, Mississippi, to inform a federal consent decree in the Safe Drinking Water Act settlement discussed below. At the American Bar Association Section of Environment, Energy, and Resources’ (ABA SEER) 2023 Annual Fall Conference in Washington, DC, ENRD Assistant Attorney General Todd Kim reiterated that industry clients should “ensure that they are listening to their communities and meeting their obligations under federal environmental law. Failure to do so could result in federal enforcement.” Companies may frequently engage with the communities surrounding their facilities and act as supportive members of the communities in which they operate through a range of programs. Given the potential for increased EJ concerns, companies may want to catalog these efforts and ensure that their outreach and engagement efforts are appropriate.

DOJ’s Reported EJ Enforcement Trends and Examples

As part of implementation of its EJ Strategy and its stated goal of increasing transparency, DOJ posts press releases about the resolution of enforcement actions on its OEJ website. As noted above, DOJ has used a variety of enforcement authorities to address environmental violations and contamination in overburdened and underserved communities. During the first year of implementation of its EJ Strategy, DOJ brought enforcement actions under federal environmental, civil rights, worker safety, and consumer protection laws, as well as the False Claims Act. We summarize a few of those actions here.

• Clean Air Act (CAA) Authorities
  • In collaboration with the USAO for the Eastern District of Louisiana, a month after filing a lawsuit, ENRD attorneys sought an injunction on behalf of EPA under the rarely used CAA Section 303 authority in United States v. Denka. Use of Section 303 authority requires “imminent and substantial endangerment to public health or welfare, or the environment.” ENRD has sought immediate action by Denka Performance Elastomer, LLC  to curb alleged hazardous chloroprene emissions from its plant in LaPlace, Louisiana. According to DOJ, the plant, located 450 feet from an elementary school in St. John the Baptist Parish, was emitting carcinogens. The St. John the Baptist Parish is widely known as “cancer alley” and is predominately black. While Section 303 requires limited consultation with the state – only confirmation of the accuracy of the information upon which the federal government is basing its lawsuit, as part of assessing potential for violations – EPA and Louisiana’s Department of Environmental Quality are working together to conduct air monitoring in the St. John the Baptist Parish community. Notably, Louisiana’s issuance of Denka’s air permits was, in part, the subject of an EPA Title VI of the Civil Rights Act investigation for discrimination, which was challenged by the state in a separate suit in June of 2023, Louisiana v. EPA. Once Louisiana challenged EPA’s actions as regulatory overreach, EPA ceased its investigations and argued that Louisiana’s challenge is now moot. Louisiana is seeking to preserve its suit.
• Title VI
  • Expanding beyond more typical environmental litigation, DOJ’s Civil Rights Division represented the US Department of Human and Health Services (HHS) in a novel action against the Alabama Department of Public Health (ADPH), focusing on public health aspects of EJ and requiring programmatic changes in the way the state manages its sanitary sewer system. The case centered on Title VI of the Civil Rights Act of 1964 and Section 1557 of the Affordable Care Act. DOJ used the Title VI prohibition on discrimination to reach ADPH because the department accepts federal funds for its programs and activities. Closely tied to Title VI, DOJ’s Section 1557 of the Affordable Care Act also hangs on federal funding, prohibiting discrimination in any health program or activity – any part of which is receiving federal financial assistance – based on the grounds prohibited under Title VI. In May 2023, the Civil Rights Division secured an interim resolution agreement with ADPH overhauling its enforcement of its sanitation laws. The agreement, among other things, suspended criminal penalties and liens for residents in the majority-black Lowndes County without the financial means to purchase functioning septic systems. According to the agreement, characteristics of the soil in the county cause conventional wastewater systems to fail, leading to residents using a “straightpiping” method to divert sanitary and sewer wastewater away from their homes using a series of ditches or crudely constructed piping systems. The practice is said to be particularly common in low-income black neighborhoods and thus related ADPH enforcement actions would have been predominately against black residents. The agreement is designed to ensure the development of equitable and safe wastewater disposal and management systems for black residents in Lowndes County, Alabama.In Texas, the Civil Rights Division reached a settlement agreement in its EJ investigation into the City of Houston’s response to illegal dumping in black and latino neighborhoods. Among other things, the agreement establishes a three-year period of federal monitoring and data reporting and Title VI training for certain city employees.
  • The Eastern District of New York also secured an agreement from the City of New York to clean up radioactive materials on city-owned property.
• Water Laws
  • In Jackson, Mississippi, ENRD attorneys filed a Safe Drinking Water Act lawsuit on behalf of EPA, negotiating an interim order with city and state officials to name a court-appointed manager and begin to stabilize the city’s drinking water system.
  • In Oregon, a Civil Division suit prohibited a local irrigation district from continuing to divert water from the Klamath River without approval from the Bureau of Reclamation, since doing so could potentially harm downstream Tribal reserved water rights held for fisheries purposes.
• SEPs and EJ-Focused Mitigation
  • As a condition of its settlement of a lead paint case with Logan Square Aluminum Supply, Inc., DOJ’s terms included performance of $2 million of lead-based paint abatement work in lower income properties located in the Chicago area. This was in addition to paying a $400,000 penalty.

Continued Uncertainty Over How DOJ Evaluates EJ Impacts

DOJ touts its EJ Strategy as offering more transparency with regard to EJ enforcement; however, DOJ does not define “overburdened communities.” While it is understandable that different factors affecting a community may support a determination that a particular community is “overburdened,” a lack of any clear exemplary metrics at the federal level leaves the task of drawing distinguishing lines effectively with regulatory authorities that may already be operating with limited resources. The lack of direct federal guidance can be said to be contributing to a higher degree of inconsistency as to what may constitute an overburdened community at state and local levels. This lack of clarity has led to uncertainty and unpredictability for industry, making it difficult for companies to ensure they are adequately addressing EJ concerns.

DOJ’s close coordination with EPA provides some insight. In its annual report, DOJ specifically lists EPA and HUD as priority enforcement agencies that can provide guidance on the assessment of EJ impacts. Thus, EPA’s EJScreen tool will be utilized in federal efforts to identify overburdened communities. EJScreen provides data and information that can be customized by allowing users to choose to layer that information on maps down to the census track and block levels. Therefore, while the tool may be publicly available as a resource, EJScreen effectively provides numerous ways to combine data and criteria and thus various renditions of potential “cumulative effects” on a community – any of which could be viewed as overburdensome by regulators or advocates. DOJ’s process appears to add more subjectivity into the EJ assessment than EPA’s EJScreen tool alone. DOJ’s annual report focuses on person-to-person interviews to assess EJ impacts. DOJ collaborates internally to help federal investigative agencies assess EJ impacts during investigations of legal violations and to enhance interagency information sharing and coordination. To aid prosecutors and DOJ professional staff to assess the EJ impacts of civil rights and environmental violations, OEJ has developed resources such as interview training and best practice documents with ENRD, the Civil Rights Division, the Community Relations Service, and EPA’s Criminal Investigation Division. Unfortunately, detailed guides on how DOJ attorneys will develop outreach plans to help enforcement agencies identify EJ impacts during investigations are still being developed. In sum, this means there is added subjectivity and even less clear guidance for regulators and the regulated on how DOJ will view EJ impacts.

How DOJ Evaluates its Performance

DOJ identifies eight “quantitative and qualitative” measures of its progress:

1. Number of Environmental Justice Coordinators designated.
2. Percent of participants in CRS-facilitated EJ programs who perceive stronger community capacity to address alleged inequities.
3. Number of matters brought under civil rights statutes that address adverse environmental and public health effects.
4. Percent of environmental enforcement matters in or substantially affecting overburdened and underserved communities that are favorably resolved.
5. Percent of participants at OEJ-facilitated EJ events providing positive feedback on effectiveness.
6. Percent of trainees that provide positive feedback on effectiveness.
7. Number of trainings offered.
8. Number of participants at trainings.

As you can see, the more EJ enforcement actions brought, the higher the participation across the board in EJ-related DOJ events and activities, and the more effective feedback given by participants, then the higher the performance progress received. Thus, DOJ’s EJ Strategy seems to be keyed toward increased actions and qualitative effectiveness of DOJ’s EJ programming. Notably, however, the report does not give DOJ a score or rate its performance.

What Industry Can Expect Going Forward

Based on this report, it is clear that DOJ plans to continue its focus on enforcement actions with an EJ nexus. While some of its enforcement actions have been focused on individual companies and facilities, DOJ’s EJ-related enforcement is also focused on state and local permitting agencies that receive federal funding. Going forward, companies should be prepared to engage with their communities on EJ issues, respond to inquiries from DOJ and EPA related to EJ issues, and track actions that may involve their state and local permitting agencies. Where companies are the subject of an enforcement action, they can expect DOJ to seek to require EJ-related mitigation and SEPs.

In addition to enforcement, EPA plans to establish a new EJ advisory panel that will potentially add more scrutiny to EJ considerations in rulemakings, especially regarding the disproportionate effect of air pollution. Once formed, the Science Advisory Board’s Environmental Justice Science and Analysis Review Panel will provide feedback on revised technical guidance and offer its own recommendations on how to integrate EJ considerations into proposed rules. Relatedly, EPA seeks to revise key air pollution modeling guidance, which is expected to reduce disparities by broadening assessment options in EJ determinations.