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May 6, 2022

DOJ and EPA Announce New Enforcement Strategy to Advance Environmental Justice

Lynn L. Bergeson Carla N. Hutton

On May 5, 2022, the U.S. Department of Justice (DOJ) and the U.S. Environmental Protection Agency (EPA) announced a series of actions intended to secure environmental justice for all Americans. In addition to launching a new Office of Environmental Justice within DOJ, Attorney General Garland also announced a new comprehensive environmental justice enforcement strategy to guide DOJ’s work and an interim final rule that will restore the use of supplemental environmental projects (SEP) in appropriate circumstances.

Consistent with President Biden’s Executive Order on Tackling the Climate Crisis at Home and Abroad, Associate Attorney General Vanita Gupta issued a comprehensive environmental justice enforcement strategy to guide DOJ’s litigators, investigators, and U.S. Attorneys’ Offices nationwide to advance the cause of environmental justice through the enforcement of federal laws. Developed by DOJ’s Environment and Natural Resources Division (ENRD) in partnership with EPA, the strategy will ensure that the entire DOJ “is using all available legal tools to promote environmental justice.”

DOJ also launched its first-ever Office of Environmental Justice (OEJ) within ENRD. According to DOJ, this new office will be a critical resource as DOJ implements the new comprehensive enforcement strategy. Cynthia Ferguson, an experienced ENRD attorney with more than a decade working on environmental justice issues, will be Acting Director.

Finally, DOJ announced an interim final rule, scheduled to be published in the May 10, 2022Federal Register, that will restore the use of SEPs in appropriate circumstances and subject to guidelines and limitations set forth in a separate memorandum issued by the Attorney General. In its May 5, 2022, press release, EPA states that SEPs “are local projects that defendants can agree to undertake as part of an enforcement case settlement to help rectify environmental violations. SEPs help to fulfill the goals of the underlying statutes being enforced and can provide important environmental and public health benefits to communities that have been harmed by environmental violations.” SEPs are considered in accordance with EPA’s SEP Policy, which ensures there is a sufficient connection to the violation. The SEP Policy provides for consideration of a defendant’s willingness to implement a SEP as part of EPA’s decision about whether, and on what terms, to settle an enforcement matter, just as EPA has discretion to consider, as appropriate, a defendant’s good faith and cooperation when deciding on a penalty and other terms of a settlement. Publication of the interim final rule in the Federal Register will begin a 60-day comment period.