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Surge in environmental justice enforcement prompts intensified corporate attention to community issues

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A gas flare burns at a fracking site in rural Bradford County, Pennsylvania January 9, 2012. REUTERS/Les Stone

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July 28, 2021 - It's a scenario playing out in communities throughout the United States today – neighborhood and community activists challenging the activities of industrial and manufacturing companies, citing concerns about air and water pollution, traffic, risk of catastrophic accidents, and even noise. As interests collide, local, state, and federal regulators are alert and poised to respond. Why? Because these interactions raise at their core "environmental justice."

Taking a "whole of government approach," the Biden Administration has made environmental justice a top priority by increasing environmental cops on the beat where industrial facilities are concentrated, directing grant monies to disadvantaged fenceline communities, and using technology to map and identify pollution hot spots. On day one, President Biden issued an Executive Order stating that it is "the policy of [the Biden] Administration to listen to the science ... and to prioritize ... environmental justice."

Federal agencies from the Environmental Protection Agency and the Department of Justice, to the Interior and Energy Departments, the Departments of Housing and Urban Development, and Education are moving swiftly in coordination to advance their shared goal of protecting minority people overburdened by pollution.

Communities have brought legal actions and raised environmental justice issues to local, state, and federal officials for decades. While there is really no federal environmental justice law, the civil rights laws, environmental protection laws, and zoning laws can be used to advance environmental justice principles articulated in policy documents, speeches, and executive orders. President Clinton in 1994 signed the first executive order on environmental justice, requiring all federal agencies to take proactive steps in this space, and every administration since has kept the order in place.

So, what's new about the Biden Administration's focus? Initially, the very definition of environmental justice has expanded to mean more than just cleaning up the air and water – it means increased pollution monitoring, getting tough on environmental violators in communities of color and of disadvantaged economic status, and using technology to identify these communities. Under Biden Administration executive orders, environmental justice is linked with climate justice, economic justice, and ensuring that communities are more fully and equally included in discussions about what industry will come to – or be accepted in – their backyard.

With the Administration's strong backing, EPA and the Justice Department are directing tax dollars to programs intended to identify and more aggressively prosecute environmental crimes committed in overburdened communities and launching a new Environmental Crime Victim Assistance Program. EPA announced it will speed up and prioritize landfill and other contaminated site cleanups in these neighborhoods. Recent DOJ complaints against facilities for environmental violations include express statements of federal concern with the impacts on vulnerable communities of color and low-income.

Environmental and civil rights groups are calling on the Biden Administration to more intentionally deploy the Civil Rights Act's enforcement powers to address environmental justice allegations. Bringing all parts of the federal system together to address environmental justice – essentially moving beyond EPA – is a game changer.

Further, the Administration's approach to environmental justice is placing a spotlight on not just correcting environmental harm but providing benefits to disadvantaged communities – even incorporating concepts of reparation for past environmental violations. Industrial facilities are often concentrated in specific geographic areas, so with this focus regulators are including assessment of cumulative pollution impacts on a community – finding legal authorities to aggregate one company's environmental footprint with that of other proximate facilities. EPA Administrator Michael Regan recently announced that EPA lawyers are looking at the current federal environmental laws to maximize consideration of cumulative impacts, and that Congress may want to consider amending the laws to explicitly include environmental justice.

Also part of the Biden environmental justice enforcement initiative is, leveraging the adage that "knowledge is power," making more company environmental performance data available for use by ordinary citizens. Most environmental laws already contain provisions for any person to become a "citizen attorney general" and bring their own suit to enforce environmental law under certain circumstances. Combine citizen suit powers with more data transparency and access, with state and federal grants to help communities and non-governmental organizations buy environmental monitoring equipment and hire experts to analyze and synthesize data, and you have key ingredients of the Administration's initiative.

Through the Environmental, Social, and Governance (ESG) movement, worker safety, responsible environmental behavior, and positive community relations are at the forefront of corporate values. Investors, boards of directors, customers, suppliers, unions, and employees expect companies to be good neighbors, to reduce their pollution impacts, and to contribute to the community more than the bare minimum. Even with strong ESG programs, companies are taking a hard look at their community relationships with the Administration's enforcement push in disadvantaged communities.

Companies are deploying systems to track legal, regulatory, and policy developments relating to environmental justice, assessing geographic location, historic facility operation and performance, and the company's reputation in a community. They are setting public facing environmental justice goals that prepare them to address the legal, regulatory, and operational risks that come with increased scrutiny by local, state, and federal regulators of their permits, activities, and overall footprint in a community. Making these goals even more meaningful and effective, companies are developing measurement tools and ensuring that employees at all levels know about the goals' adoption and importance.

Again, there is no federal environmental justice law that a company can be accused of violating. Federally, while environmental justice policies and directed dollars can prioritize a community and the companies operating there for federal inspections and review, the federal government still has to demonstrate violations of environmental law or regulations. Recently, the federal government halted operations at a Virgin Islands refinery based on its concerns that the facility was impacting its largely minority neighbors, but the halt was rooted in the facility's violation of the federal Clean Air Act. The EPA also raised issues with a coking plant in the Southeast due to environmental justice impacts – but the underlying violations also were of the federal Clean Air Act.

Minority community groups are calling on the Biden Administration to permanently revoke a Clean Water Act wetlands permit issued by the Army Corps of Engineers to build a plastic facility in the Southwest. The Department of Transportation has used the federal Civil Rights Law to temporarily stop a Southwest highway project anticipated to cause flooding and minority household displacement. And some states have enacted comprehensive environmental justice laws that more neatly provide a foundation for a standalone environmental justice case. As these examples show, environmental justice issues might temporarily delay a project, but a baseline violation of a federal or state law must occur for enforcement action to move ahead.

Assuming an action does go forward and penalties are assessed against the company, the Biden Administration is bringing back a key tool for resolving environmental violations that fell out of favor in the previous Administration – supplemental environmental projects or SEPs. Under a SEP a company can offset part of its penalty for violating federal environmental law by undertaking a project that benefits the community that experienced the violation. A company responsible for a chemical spill can through a SEP reconstruct a wetland, support green community job training programs, or even purchase emergency response equipment for a local fire department. Since penalty dollars go to the U.S. Treasury, and not back to the community harmed by an illegal environmental event, SEPs are a way to invest in the community.

The concentrated focus on environmental justice will undoubtedly impact case selection and deployment of government, resources. These actions will, in turn, raise important considerations with regard to corporate operations for the foreseeable future. Understanding the movement, the motivation, and the mechanisms of environmental justice will benefit communities and companies for years to come.

Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias. Westlaw Today is owned by Thomson Reuters and operates independently of Reuters News.

Nadira Clarke is a partner in Baker Botts' Environmental Safety & Incident Response group. She is based in Washington, D.C. She can be reached at nadira.clarke@bakerbotts.com.

Alexandra Dapolito Dunn is a partner in Baker Botts' Environmental Safety & Incident Response group. She is based in Washington, D.C. She can be reached at alexandra.dunn@bakerbotts.com.

Lily Chinn is a partner in Baker Botts' Environmental Safety & Incident Response group. She is based in San Francisco. She can be reached at lily.chinn@bakerbotts.com.

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