Environmental Justice at the Department of Justice
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The Department of Justice serves as the federal government’s lawyer. Under President Biden, DOJ’s Environment and Natural Resources Division (ENRD) is responsible for defending the administration’s climate and environmental justice initiatives in court, in addition to enforcing existing environmental laws on behalf of EPA. The Civil Rights Division (CRD) also plays a crucial role in enforcing the administration’s environmental justice agenda, including enforcing antidiscrimination laws.
In executive order 14008, President Biden directed DOJ to develop a “comprehensive environmental justice enforcement strategy” in partnershp with EPA. Biden also ordered ENRD to create an Office of Environmental Justice to coordinate EJ activities among US Attorneys’ Offices nationwide. On May 5, 2022, DOJ released its comprehensive EJ enforcement strategy and announced the opening of the new EJ Office, among other new initiatives.
In this section we track ENRD’s and CRD’s stated enforcement priorities and structural changes at each Division. For case-specific enforcement decisions, see Press Releases for ENRD and CRD, or ENRD’s Environmental Crimes Monthly Bulletins.
- July 22, 2022: DOJ’s Civil Rights Division announces a new environmental justice investigation into the City of Houston’s operations, policies and practices related to illegal dumping. The investigation will review whether the City discriminates against Black and Latino Houston residents in responding to requests for municipal services, including illegal dumping, in violation of the Title VI of the Civil Rights Act. The investigation was prompted by a complaint from Lone Star Legal Aid. Anyone with relevant information can contact the Federal Coordination and Compliance Section by email at [email protected] or by phone at 1-888-TITLE-06.
- May 10, 2022: DOJ publishes an interim final rule revoking a Trump rule prohibiting the use of supplemental environmental projects (SEPs) in settlement agreements. The new rule is effective immediately, though DOJ is accepting comments on the rule until July 11, 2022.
- May 5, 2022: DOJ releases a new “comprehensive environmental justice enforcement strategy,” developed in partnership with EPA. The strategy will guide DOJ’s litigations, investigators, and US attorneys in enforcing federal environmental laws. DOJ also issues a memo restoring the use of supplemental environmental projects (SEPs) in consent decrees and settlements. SEPs are one of the few enforcement tools available to directly redress the impacts of environmental violations on communities. The Trump DOJ had phased out the decades-long use of SEPs starting in 2017.
- Mar. 9, 2022: DOJ announces a $121.4 million settlement with Chevron Phillips Chemical Co. to resolve claims for its industrial flaring activities. The settlement includes $3.4 million in civil penalties for alleged violations of the Clean Air Act and Texas state pollution laws and requires a $118 million payment to upgrade three petrochemical manufacturing plants located in Texas’s “Cancel Alley”.
- Dec. 14, 2021: Todd Kim, assistant attorney general of ENRD, says his division will prioritize enforcement of the criminal provisions of environmental laws, as well as fraud, conspiracy and obstruction of justice when they are committed alongside environmental violations. He says he is “paying particular attention” to corporate violators of civil or criminal laws implicating environmental justice or climate change.
- Nov. 9, 2021: For the first time, DOJ’s Civil Rights Division announces it will open an environmental justice investigation into the wastewater disposal and infectious disease and outbreaks programs of the Alabama Department of Public Health and the Lowndes County, Alabama, Health Department. CRD will examine whether these departments violated Title VI of the Civil Rights Act by forcing Black residents to “disproportionately and unjustifiably bear the risk of adverse health effects associated with inadequate wastewater treatment.” Catherine Flowers, founder of the Center for Rural Enterprise and Environmental Justice and now member of the WHEJAC, has long called attention to these issues, including instigating a study in 2017 that more than one in three residents in Lowndes County tested positive for hookworm infection.
- Sep. 28, 2021: Chief of the recently created Environmental Justice Team at EDNY, Matt Silverman, states that the team’s mission is to advance environmental justice in all activities, not only in enforcement, but also in supporting environmental cleanups, new infrastructure, and permitting actions. Silverman highlighted the ample tools available under existing law that can be used to safeguard environmental protections for vulnerable communities. (For more on DOJ’s Title VI regulations and attempted rollbacks under former President Trump, see EELP’s analysis here.)
- Sep. 15, 2021: The Civil Rights Division, with other offices, will conduct a review of DOJ’s implementation and administrative enforcement of Title VI and the nondiscrimination provisions of the Safe Streets Act among recipients of federal funding. This review will be informed by DOJ’s Equity Team implementing Biden’s Racial Equity Executive Order (EO 13985).
- April, 2021: The ENRD-EPA Victim Assistance Team (VAT) (see “New Initiatives” below for more on VAT) develops new victims’ rights materials to assist prosecutors and investigators in protecting the rights of environmental crime victims, including model charging language, a victim impact statement template, and issues checklist.
- Feb. 4, 2021: ENRD’s Deputy Assistant Attorney General Jean Williams withdraws nine Trump-era documents defining enforcement priorities and procedures. The withdrawal includes the Trump administration’s ban on the use of Supplemental Environmental Projects (SEPs). Restoring the use of SEPs allows ENRD to require polluters to invest directly in communities affected by environmental violations, in addition to paying fines to the Treasury. For more on the Trump-era policy, see DOJ Phases Out Supplemental Environmental Projects in Environmental Enforcement.
- June 1, 2022: The U.S. Attorney’s Office for the Western District of North Carolina announces Caroline McLean will become the office’s new environmental justice coordinator. Her job will include overseeing the office’s EJ strategy and prosecution of criminal and civil environmental cases in low-income and minority areas.
- May 19, 2022: AG Garland names Rachel Rossi to lead DOJ’s Office for Access to Justice, which has led the agency’s efforts to address the housing and eviction crisis, increase access to legal aid, promote bail reform, and address barriers to reentry for previously incarcerated people. The office was created under President Obama, and shut down under President Trump. Rossi previously worked as a state and federal public defender in Los Angeles, and as criminal justice counsel to Senator Dick Durbin.
- May 5, 2022: Cynthia Ferguson is named acting director of DOJ’s new Office of Environmental Justice within ENRD. Ferguson previously served as ENRD’s senior litigation counsel for environmental justice, and represents DOJ on the White House Interagency Environmental Justice Council.
- Mar. 9, 2022: The U.S. Attorney’s Office for the Northern District of West Virginia appoints its first environmental justice coordinator, Max Nogay, to respond to air, water, and hazardous waste issues raised by West Virginia citizens. Nogay will enforce both civil and criinal environmental laws, attend relevant community meetings, and coordinate trainings for prosecutors and investigators.
- July 27, 2021: The Senate votes 58 to 41 to confirm Todd Kim to lead ENRD. Kim originally joined the Biden administration as deputy general counsel in the Department of Energy. Kim previously worked as an appellate attorney at ENRD, and was the District of Columbia’s first solicitor general.
- May 25, 2021: The Senate votes 51 to 48 to confirm Kristen Clarke to lead DOJ’s Civil Rights Division, making her the first woman of color to lead the Division. Clarke previously served as president for the Lawyers’ Committee for Civil Rights Under Law. She began her career at DOJ where she prosecuted policy brutality, hate crimes, human trafficking cases and enforced voting rights laws.
- April 21, 2021: The Senate votes 51 to 49 to confirm civil rights attorney Vanita Gupta as associate attorney general, the third-highest position at DOJ. Gupta is the first woman of color to serve in the position, where she will oversee both CRD and ENRD.
- May 5, 2022: DOJ announces the launch of the first-ever Office of Environmental Justice within ENRD, which will “support [EJ] investigations and litigation and facilitate outreach by [DOJ] to communities with environmental justice concerns.” The agency also releases a new “comprehensive environmental justice enforcement strategy,” developed in partnership with EPA. The strategy will guide DOJ’s litigations, investigators, and US attorneys in enforcing federal environmental laws.
- April 14, 2022: DOJ releases its first ever Equity Action Plan, as required under Executive Order 13985. The plan includes steps to address the inclusion of equity considerations in DOJ grant processes; improve communication with communities with limited English proficiency; and continue efforts to reform law enforcement practices, including new guidance for federal prosecutors. The summary of DOJ’s Equity Action Plan can also be found here.
- Mar. 28, 2022: The Biden Administration’s proposed FY 2023 budget includes $1.4 million to establish an Office for Environmental Justice. The budget also includes $6.5 million for DOJ’s Environment and Natural Resources Division (ENRD) to “secur[e] environmental justice and combat the climate crisis.”
- Dec. 6, 2021: The same day as the first Tribal Nations Summit since 2016, the White House releases a memorandum of understanding (MOU) signed by 17 federal agencies, including DOJ, committing to increase consultation and collaboration with Tribes in recognition of existing treaty and reserved rights. The MOU includes agency-specific commitmemts including to create a searchable treaty database, and integrate tribal treaty and reserved rights early into agency decision-making, in particular work to address the climate crisis. (See pp. 3-4 of the MOU for more).
- Oct. 29, 2021: Attorney General Garland restores DOJ’s Office for Access to Justice, which aims to provide services to people who cannot afford lawyers and increase legal representation for historically underserved communities. In a report, DOJ outlines a phased approach to restoring and expanding the office’s functions.
- June 24, 2021: Acting U.S. attorney for the Eastern District of New York, Jackquelyn Kasulis, announced the creation of an Environmental Justice Team in the Office’s Civil Division to address environmental hazards in overburdened communities.
- June 9, 2021: DOJ and EPA announce a new interagency Environmental Crime Victim Assistance Program, which “will help achieve environmental justice by ensuring crime victims in communities disproportionately burdened by environmental harm are able to equally participate in the criminal justice system.” Prosecutors will invoke crime victim statutes to obtain compensation for environmental crime victims.
- Jan. 27, 2021: President Biden tasks DOJ’s Environment and Natural Resources Division (ENRD) with creating a “comprehensive environmental justice enforcement strategy” in his Climate Crisis Executive Order. In the same order, Biden also asks DOJ to consider creating an Office of Environmental Justice within ENRD to coordinate EJ-related activities within the DOJ and States Attorneys’ Offices.
- April 12, 2021: President Biden’s FY 2022 budget request includes $44 million for DOJ’s environmental justice efforts. However, only $5 of the $44 million would go to ENRD, while the remaining $39 million would go to the Bureau of Prisons to address facility repair and enhanced sustainability. The budget request also includes an additional $33 million for DOJ’s Civil Rights Division, Community Relations Service, and other programs addressing police reform, the prosecution of hate crimes, and enforcing voting rights.