On May 5, 2022, the Department of Justice (“DOJ”) announced that it would be taking three actions intended to “enhance the [DOJ]’s efforts to secure environmental justice for all Americans.” The actions involve issuing a comprehensive environmental justice enforcement plan to help guide DOJ in enforcing federal environmental laws; creating an office within DOJ specifically focused on environmental justice; and reviving the use of supplemental environmental projects (“SEP”) as a method of settling environmental disputes. According to DOJ, the new measures will provide “timely and effective remedies” for environmental violations and injuries to natural resources in “underserved communities that have been historically marginalized and overburdened.” This includes low-income communities, communities of color, and Tribal communities.
While the environmental justice enforcement plan and additional office within DOJ are new, the use of SEPs goes back decades. A look at past SEPs, particularly those made with agricultural producers, will be useful to understand what future SEPs may look like.
What is Environmental Justice?
The three actions announced by DOJ are aimed at addressing environmental justice concerns. DOJ notes that it is taking these actions specifically in response to an Executive Order 14008, Tackling the Climate Crisis at Home and Abroad (“EO 14008”), in which President Biden directed federal agencies to make environmental justice “a part of their missions.” The term “environmental justice” has risen in prominence in recent months, but it does not necessarily have a fixed definition. It can mean different things in different contexts. Therefore, before examining the actions announced by DOJ, it is useful to understand what the Department means when it uses the term “environmental justice.”
Various federal agencies have adopted relatively similar definitions of “environmental justice.” For example, both the United States Department of Agriculture and the Environmental Protection Agency (“EPA”) define 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.” EPA specifies that the goal of environmental justice will be achieved when everyone enjoys “the same degree of protection from environmental and health hazards, and equal access to the decision-making process to have a healthy environment in which to live, learn, and work.”
In EO 14008, President Biden described environmental justice as a method of “developing programs, policies, and activities to address the disproportionately high and adverse human health, environmental, climate-related and other cumulative impacts on disadvantaged communities, as well as the accompanying economic challenges of such impacts.” In a 2017 report, DOJ stated that “a goal of environmental justice is to provide all Americans – regardless of their race, ethnicity, or income status – full protection under the nation’s environmental, civil rights, and health laws.”
Taken in context of the actions announced by DOJ, environmental justice refers to the idea that all people, regardless of their background, should have equal access to development and enforcement of environmental laws. Additionally, DOJ’s implementation of environmental justice will focus on addressing the disproportionate impact environmental violations have had on underserved communities, such as low-income communities and communities of color.
What Action is DOJ Taking?
DOJ has announced three specific actions that it is taking to address environmental justice: the adoption of a comprehensive environmental justice enforcement plan, the creation of the Office of Environmental Justice (“OEJ”), and the return of SEPs. Each action is intended to further the goals of environmental justice.
Environmental Justice Enforcement Strategy
In EO 14008, President Biden directed all federal agencies to develop an environmental justice enforcement strategy that would “seek to provide timely remedies for systemic environmental violations[.]” The Environmental Justice Enforcement Strategy (“the Strategy”) released by DOJ was developed as a response to EO 14008. According to DOJ, the Strategy “provides a set of principles and actions to continue [the Department’s] work to advance environmental justice through the enforcement of federal laws.” To accomplish this objective, the Strategy outlines a series of principles that DOJ can use as a roadmap for both civil and criminal enforcement of environmental violations. The principles direct DOJ to:
- Prioritize cases that will reduce public health and environmental harms to overburdened and underserved communities;
- Make strategic use of all available legal tools to address environmental justice concerns;
- Ensure meaningful engagement with impacted communities; and
- Promote transparency regarding environmental justice enforcement efforts and their results.
According to these principles, DOJ will further environmental justice concerns by using its resources to address the environmental violations that have impact the public health and natural resources of underserved communities. As part of its effort to identify the most pressing cases and develop appropriate remediation measures, DOJ will work with impact communities and remain transparent about the actions it is taking. To read the text of the Strategy, click here.
Office of Environmental Justice
DOJ announced that it would be launching its “first-ever” Office of Environmental Justice (“the Office”) to help implement the Strategy. The Office will be located within the Environment and Natural Resources Division (“ERND”) within DOJ. The ERND is a litigating branch of DOJ focused on enforcing civil and criminal provisions of environmental statutes. Lawyers at the ERND focus particularly on filing lawsuits against alleged violators of pollution-control laws, bringing and defending cases under federal wildlife laws, and for litigating under statutes related to the use of public lands.
According to the Strategy, one of the first actions the OEJ will be charged with is to create a DOJ Environmental Justice Enforcement Steering Committee. The Steering Committee will be co-haired by Assistant Attorneys General of ERND and the DOJ’s Civil Rights Division. It will be responsible for ensuring that the Strategy is appropriately implemented, and will work with EPA and other federal agencies to develop or enhance protocol for assessing the environmental justice impacts of environmental violations being investigated by those agencies. In other words, not only with the OEJ work to ensure that DOJ is prioritizing environmental justice concerns, it will help federal agencies that investigate environmental violations ensure that they are also prioritizing the same concerns.
Supplemental Environmental Projects
In order to further its environmental justice goals, DOJ issued an Interim Final Rule in the Federal Register to revive the use of SEPs in resolving violations of federal environmental laws. Most enforcement actions that the government takes against alleged violators of environmental laws end in a settlement agreement between the plaintiff and defendant instead of a court ruling. Those settlement agreements can include monetary penalties, requirements that the alleged violator stop carrying out the alleged violation, and mitigation measures that the alleged violator may be required to take. An SEP can become a part of a settlement agreement in situations where a voluntary project carried out by the defendant would help to resolve the environmental violation. SEPs are usually developed in partnership between the defendant, DOJ and EPA, which has issued policies on how SEPs should be crafted and implemented.
According to EPA, an SEP is defined as “environmentally beneficial projects which a defendant agrees to undertake in settlement of an enforcement action, but which the defendant, or any other third party, is not legally required to perform.” EPA goes on to define “environmentally beneficial” as actions that “improve, protect, or reduce risks to public health or the environment,” and to clarify that SEPs may not include actions which the defendant is likely to be legally required to perform, such as injunctive relief that could be issued by a court. Additionally, all SEPs must address the environmental violation at the heart of the government’s enforcement action. For example, if the defendant is alleged to have violated an air pollution law, then any SEP it agrees to must address the alleged air pollution.
Defendants that agree to undertake an SEP will typically receive lower financial penalties in the final settlement agreement than defendants that do not undertake SEPs. Because SEPs are created as part of settlement agreements, they are not funded by EPA or any other government agency. This means that the defendant who has agreed to conduct the SEP is responsible for managing the funds, and may designate payments to third-parties to help implement the SEP. For example, a defendant that agrees to an SEP in order to mitigate unlawful water pollution may designate payments to a local group that can facilitate cleanup of the polluted waterbody. For more information about how SEPs function, read EPA’s 2015 SEP policy available here.
The use of SEPs was discontinued in 2017 in a memorandum from the Attorney General that prohibited the DOJ from entering into settlement agreements that provide for payments or benefits to non-governmental third-parties. In a follow-up memorandum issued in 2020, the ERND Deputy Assistant Attorney General clarified that he believed SEPs violate the Miscellaneous Receipts Act which requires that all monetary penalties received by the government for violations of federal law should go directly to the United States Treasury. The memo argued that SEPs violated the law because they diverted penalties that would otherwise go to the Treasury to instead be used for environmentally beneficial projects. That memo was codified into a regulation that was adopted by DOJ in 2020. The recent actions announced by DOJ on May 5, 2022 include a new regulation to repeal the ban on settlement agreements that direct payments to third-parties. The regulation is being published as an “interim final rule,” which means that it will take immediate legal effect, but DOJ is taking comments that may affect the final version of the rule.
Agriculture & Supplemental Environmental Projects
SEPs have been used in settlements concerning a variety of agriculture-related cases, but have been most common in cases involving concentrated animal feeding operations (CAFOs). Because SEPs are voluntary agreements between the government and a defendant, each one is unique in the size and scope of what it requires. The following are examples of two past agricultural SEPs that demonstrate what an SEP can look like, and may take in the future.
In 2001, Premium Standard Farms (“PSF”) and Continental Grain Company (“Continental”) reached a settlement with EPA and an environmental citizen’s group to resolve alleged environmental violations from twenty-one CAFOs owned and operated by the companies. PSF and Continental were alleged to have committed violations of the Clean Water Act (“CWA”), the Clean Air Act, and the Comprehensive Environmental Response, Compensation, and Liability Act at their Missouri-based swine operations. As part of the settlement, PSF and Continental agreed to fund a $300,000 SEP to reduce air emissions and odors from their barns. The barns covered by the SEP were selected based on proximity to property lines and local residences in order to maximize the benefit the SEP would have on public health.
More recently, in 2013 Branstad Farms located in Iowa, agreed to perform a $26,000 SEP as part of a larger settlement over allegations that the cattle-feeding facility had violated its Clean Water Act permit. According to EPA, Branstad Farms violated both the record-keeping and sampling requirements of its CWA permit. The SEP required Branstad Farms to restore wetlands located on its property, and to put those wetlands under a perpetual easement with the Natural Resource Conservation Service so that the wetlands could remain undeveloped in perpetuity. Along with the SEP, the settlement agreement between EPA and Branstad Farms included a penalty of $5,100 that Branstad Farms was required to pay to the United States Treasury. If Branstad Farms had not settled, and instead been found by a court to have violated the CWA, it could have faced penalties of up to $25,000 for each day it was found to be in violation of its CWA permit. 40 C.F.R. § 122.41 (a)(2).
SEPs can take a variety of forms and costs based on the negotiating parties and the environmental violations involved. Communities can benefit from activities carried out under SEPs, while defendants can benefit from reduced penalty payments.
The actions taken by DOJ indicate that the Department is taking steps to address environmental justice concerns in order to “secure environmental justice for all Americans.” The Strategy adopted by DOJ lay out the pathway that the Department intends to follow in order to meet its environmental justice goals. Central to the Strategy is the creation of the OEJ, and the revival of SEPs. While it is currently unclear exactly how the Strategy will be utilized going forward, it seems likely that investigations of alleged violations undertaken by OEJ will include a focus on environmental justice issues, and that future settlements of environmental lawsuits could include the use of voluntary SEPs that would help to reduce the impact of environmental violations on underserved communities.
To read DOJ’s announcement, click here.
To read the Strategy, click here.
To read the interim final rule concerning SEPs, click here.
To read DOJ’s memo on guidelines and limitations for SEPs, click here.
To read the settlement agreement between EPA and PSF and Continental, click here.
To read the settlement agreement between EPA and Branstad Farms, click here.