EPA Announces Plans To Strengthen Enforcement And Advance Environmental Justice
On April 30, 2021, the Office of Enforcement and Compliance Assurance (“OECA”) of Environmental Protection Agency (“EPA”) issued new internal guidance (the “Memorandum”) outlining actions intended to strengthen enforcement and advance the protection of overburdened communities — meaning minority, low-income, tribal, or indigenous populations or geographic locations in the United States that potentially experience disproportionate environmental harms and risks.
The Memorandum comes on the heels of an announcement by Administrator Regan that reaffirmed the Biden administration’s commitment to environmental justice (“EJ”) enforcement matters and set out initial steps EPA will take to advance its EJ goals. Among them was to “[s]trengthen enforcement of violations of cornerstone environmental statutes and civil rights laws in communities overburdened by pollution.” OECA’s Memorandum outlines a plan to do just that by, among other things, pushing to:
- increase the number of facility inspections,
- strengthen enforcement and compliance,
- increase public engagement in overburdened communities, and
- signaling that EPA is willing to take action without state partner involvement.
This Memorandum is the first in what is expected to be a series of memoranda issued by EPA in response to the Biden administration’s emphasis on EJ.
Biden Administration’s Focus on EJ
The EPA defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” As we have highlighted in these previous articles, the Biden administration identified EJ as a priority on the campaign trail and continues to consistently prioritize EJ concerns. Within days of taking office, President Biden signed an executive order (“EO 14008”) stating that it is the “policy of [the] Administration to secure environmental justice and spur economic opportunity for disadvantaged communities that have been historically marginalized and overburdened by pollution and underinvestment in housing, transportation, water and wastewater infrastructure, and health care.” EO 14008 directed the EPA Administrator to strengthen environmental enforcement in underserved communities and create a community notification program to monitor environmental pollution and provide real-time data to the public. This Memorandum is one of the many steps EPA will take in response to EO 14008’s call to action.
Highlights of the Memorandum
The Memorandum discusses specific EJ policy goals and measures including, but not limited to:
- Increasing the number of facility inspections,
- Strengthening enforcement and compliance,
- Increasing public engagement in overburdened communities, and
- Prioritizing community health when deciding appropriate action when state partner agencies are involved.
1. Increase the number of facility inspections in overburdened communities.
EPA has begun an evaluation of what types of programmatic inspections actually address the most serious threats to overburdened communities and the number and nature of such inspections on a national and regional basis. Once this evaluation is complete, EPA plans to set new inspection goals that are informed by these results. Facilities in certain industry sectors or in certain geographic areas may see an up-tick in EPA inspections as a result.
2. Strengthen enforcement in overburdened communities.
The Memorandum emphasizes that strengthening enforcement should be achieved by resolving environmental noncompliance through remedies that have tangible benefits for affected communities. Examples of tangible benefits include: prevention of further pollution, pollution mitigation, penalties, Supplemental Environmental Projects (“SEPs”), and restitution for victims of environmental crimes. Notably,…