The Department of Justice’s strategy to advance environmental justice

After a halting start, the Biden administration has recently taken several steps to advance environmental justice and use enforcement of our nation’s environmental laws to protect communities of color and low-income and indigenous communities. This month, the Department of Justice (DOJ) has created an Office of Environmental Justice as part of a comprehensive environmental justice enforcement strategy for complementing the work of Environmental Protection Agency (EPA) programs.

In addition, EPA has updated a screening tool it uses to identify communities that face disproportionate environmental burdens, and requested additional environmental justice funding, along with more enforcement and monitoring resources to protect disadvantaged communities, and new authority and funding for environmental justice grants.

DOJ’s strategy provides a roadmap for using enforcement to advance environmental justice through coordinated efforts to identify and prioritize cases that will significantly reduce environmental and public health harms in overburdened and underserved communities.  The strategy focuses on addressing actual or threatened adverse impacts to public health or the environment from systemic environmental violations, contamination or injury to natural resources. It also calls for public engagement to ensure affected communities play a role in identifying their needs and deciding how to address them and a transparent enforcement process so that the public can understand the nature and purpose of actions being taken, and can monitor progress.

The strategy calls for identifying and employing the full range of available enforcement authorities and tools for addressing environmental violations and protecting affected communities.  The suite of tools obviously includes environmental protection laws, but may also extend to federal civil rights laws, worker safety and consumer protection statutes, as well as the False Claims Act. 

Consistent with that comprehensive approach, DOJ has already begun a civil rights investigation into the potential links between racism and the notorious wastewater disposal and infectious disease problems in Lowndes County, Alabama. That impoverished Black community has endured years of chronic water, flooding and sanitation woes, including unsafe drinking water and repeated sewage backups.

A particular challenge facing DOJ arises from the practical difficulty of using enforcement tools to provide redress to communities for the harms they have suffered from past violations. Fines and compliance orders, for example, can penalize violators for their past actions and prevent or deter future violations, but generally cannot undo damage from past violations or relieve communities of burdens from harms they have already suffered.

One mechanism for using the enforcement process to repair or mitigate the harm from a violation is through use of what are known as Supplemental Environmental Projects. Those are projects that provides a tangible environmental or public health benefit that cannot be legally compelled but that a defendant has proposed to include as part of the settlement of an enforcement action to help communities recover from previous harms or avoid future harms. DOJ had used these tools for decades, and they had produced many environmental benefits, such as abating lead contamination or providing monitoring equipment to communities to verify compliance with settlement terms. The Trump administration repudiated the use of these mechanisms and issued a rule prohibiting their use. The DOJ has now revoked that policy and issued a rule allowing such projects, reopening a promising avenue for providing benefits to communities harmed by violations.

Another useful way of focusing protection on disadvantaged communities is through mapping tools to help identify communities that may face disproportionate environmental burdens. EPA has recently released a revised draft of EJ Screen, which creates a nationally consistent approach for mapping environmental burdens and vulnerabilities at a community level. 

The tool uses a dozen indicators of potential environmental risk or harm, including high concentrations of harmful air pollutants such as small particulate matter, ozone and diesel particulate matter, or elevated air quality hazards such as toxics-related cancer risk. Other indicators include proximity to hazardous waste sites, underground fuel storage tanks, wastewater contamination discharges and traffic.

EJ Screen also includes demographic factors generally indicating a community’s potential susceptibility to environmental burdens. It uses seven factors: income and education level, unemployment rate, percentages of non-English speakers, people of color, people under age 5 or over 64.  This screening information can be useful for deciding how and whether to deploy enforcement resources to protect disadvantaged communities, and for other screening, outreach and analytical purposes.

The White House Council on Environmental Quality has also issued another screening tool using  similar but not identical criteria to inform how federal agencies direct the benefits of federal spending. This is most obviously useful in identifying disadvantaged communities for purposes of implementing the Justice40 initiative, which provides that 40 percent of the benefits of specified federal spending go to disadvantaged communities.  Justice40 is a centerpiece of the administration’s environmental justice policy and an important tool for repairing and redressing the effects of a legacy of environmental injustice.

These enforcement and mapping tools will be invaluable in advancing environmental justice. But Congress needs to fund them if they are to fulfill their promise to our nation’s marginalized and overburdened low income, indigenous and communities of color of fair treatment and full participation in our nation’s economic and social life.

David F. Coursen is a former EPA attorney and a member of the Environmental Protection Network, a nonprofit organization of EPA alumni working to protect the agency’s progress toward clean air, water, land and climate protection.