The Enforcement Angle: DOJ’s Environment & Natural Resources Division
The United States has an intricate system of laws, regulations, policies, and programs to respond to environmental and public health concerns. Enforcement is vital to that system’s effectiveness. The U.S. Department of Justice’s Environment & Natural Resources Division (ENRD) is tasked with enforcing the United States’ civil and criminal environmental laws, including the Clean Air Act, Clean Water Act, and hazardous waste laws. Their mission also involves the protection of the Nation’s natural resources and handling cases relating to tribal rights and resources.
EPA Acts on Interstate Transport Requirements for Ozone Under State Implementation Plans
On Tuesday, January 31, EPA Administrator Michael Regan finalized EPA’s disapproval of State Implementation Plan (SIP) submissions for 19 states regarding the interstate transport of ozone under the 2015 eight-hour ozone national ambient air quality standards (NAAQS) of 70 parts per billion. Under the Clean Air Act, states were required to submit SIPs for the 2015 eight-hour ozone standard by October 1, 2018. The Clean Air Act required the SIPs to include “good neighbor” provisions, which prohibit emissions that either significantly contribute to nonattainment in a neighboring state or interfere with maintenance of the NAAQS in a neighboring state.
White House Council on Environmental Quality Moves Updates to National Environmental Policy Act Implementation Rule
On Monday, January 30, 2023, the White House Council on Environmental Quality (CEQ) sent to the Office of Management and Budget (OMB) Phase 2 of its proposal to revise the National Environmental Policy Act (NEPA) implementing rules released under the prior administration. Litigation surrounding the prior administration’s rules is stayed pending CEQ’s ongoing efforts. OMB review is a necessary prerequisite before CEQ can publish any new rule in the Federal Register and follows release of Phase 1 of CEQ’s implementing rules last April, which the administration described as restoring pre-2020 requirements for agencies to assess direct, indirect, and cumulative effects of proposed actions under NEPA.
EPA Proposes Enforcement Initiatives Addressing PFAS, Climate Change, and Environmental Justice
On January 19, 2023, the U.S. Environmental Protection Agency (EPA) published a Notice soliciting public comment on its proposal to add environmental justice, climate change, and per- and poly-fluoroalkyl substances (PFAS) contamination to its National Enforcement and Compliance Initiatives (NECIs) for the 2024–2027 fiscal year cycle.
EPA Publishes Extensive Guidance on Agency Authority to Address Cumulative Impacts
On January 11, 2023, the U.S. Environmental Protection Agency (EPA) issued guidance on the agency’s legal tools to address cumulative impacts. In “EPA Legal Tools to Advance Environmental Justice: Cumulative Impacts Addendum,” (“Cumulative Impacts Guidance” or “Cumulative Impacts Addendum”), the agency set forth a host of legal authorities that it believes it and other stakeholders can use to address the cumulative effect of pollutants on overburdened communities. While EPA was careful to note that the guidance does not have any legal force, the document suggests numerous ways that EPA might seek use legal process to address cumulative impacts. Stakeholders need to be aware of this guidance because EPA’s broad interpretation of its authority to address cumulative impacts could affect the full range of agency action from permitting to enforcement to project siting to cleanup decisions and more.
EPA Publishes Principles to Address Environmental Justice in Air Permitting
On December 22, 2022, the U.S. Environmental Protection Agency’s (EPA or the Agency) Office of Air and Radiation (OAR) published a memorandum, which outlines “an interim operating framework” to OAR division directors in all EPA regions “for identifying, analyzing, and addressing environmental justice concerns in Clean Air Act (CAA) permitting” (Guidance).
EPA Announces Second Update to EJSCREEN: EJSCREEN 2.1
On October 11, 2022, the U.S. Environmental Protection Agency (EPA or the Agency) announced the second update to the Agency’s environmental justice (EJ) mapping and screening tool — EJSCREEN 2.1. EPA uses the tool to identify areas that may have higher environmental burdens and inform several Agency functions, including permitting, enforcement, outreach, and compliance. This is the fourth EJ mapping or screening tool launched or updated this year by the Biden administration, following the U.S. Department of Health and Human Service’s (DHHS) Environmental Justice Index (EJI), EPA’s EJSCREEN 2.0, and the White House’s Climate and Economic Justice Tool.
U.S. EPA Office of Land and Emergency Management Publishes Environmental Justice Action Plan
On September 30, 2022, the Office of Land and Emergency Management within the U.S. Environmental Protection Agency (EPA or the Agency) published an action plan, “EJ Action Plan: Building Up Environmental Justice in EPA’s Land Protection and Cleanup Programs” (EJ Action Plan). EPA describes the EJ Action Plan as “a key component” of its implementation of President Joe Biden’s Executive Orders 13985 and 14008 to promote environmental justice (EJ).
U.S. EPA Establishes New Office of Environmental Justice and External Civil Rights
On September 24, 2022, the U.S. Environmental Protection Agency (EPA) announced the establishment of a new national program office, the Office of Environmental Justice and External Civil Rights, which will span all 10 EPA regions and be supported by more than 200 staff. The new office will be led by a U.S. Senate-confirmed Assistant Administrator, who will be announced at a later date. According to the EPA, the new office will address environmental justice matters by providing grants and technical assistance, enforcing federal civil rights laws, developing and implementing environmental laws, regulations, and policies, and providing support in alternative dispute resolution.
New York State Launches First-of-its-Kind Statewide Mobile Air Monitoring Program
As previously reported, the second quarter of 2022 ushered in a bevy of federal action by the White House, U.S. Environmental Protection Agency, U.S. Department of Justice, and U.S. Department of Heath and Human Services to address environmental justice through numerous agency functions.