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Environmental Edge
May 7, 2021

EPA Memo Details How Environmental Justice Will Impact Civil Enforcement Actions

Environmental Edge: Climate Change & Regulatory Insights

US EPA Administrator Michael Regan made clear early in his tenure that environmental justice (EJ) will be a leading priority for the agency. Recently, the acting chief of US EPA’s enforcement office, Lawrence Starfield, released the first of three interagency memoranda that provides insight into how EJ concerns will shape agency enforcement during the Biden-Harris Administration. This memorandum describes how EPA will implement its civil regulatory enforcement program to address environmental harms in underserved communities. Future memoranda will address EPA’s cleanup and criminal enforcement programs. These memoranda further the directives in Executive Order 14008, including “strengthen[ing] enforcement of environmental violations with disproportionate impact on underserved communities.” The memorandum sets out three steps EPA’s Office of Enforcement and Compliance Assurance plans to take to advance EPA’s EJ goals.

1. Increased Facility Inspections in Overburdened Communities

EPA intends to ramp up its facility inspections in underserved communities that have historically been overburdened with environmental harms. To that end, EPA will set new inspection goals after evaluating the types of programmatic inspections best-suited to address the most serious threats and the history of such inspections in overburdened communities. Starfield acknowledges in the memorandum that EPA’s ability to conduct inspections is constrained by the COVID-19 pandemic, but advises that “[w]hen an inspection can be safely performed and failure to inspect a facility could threaten to impact the community’s health, then the inspection to assess the threat would be deemed mission critical and appropriate under the Agency’s guidance.” Starfield encourages the continued use of offsite compliance monitoring tools to facilitate these goals.

2. Implementation of Remedies With Tangible Benefits for Underserved Communities

Starfield calls on EPA officials “to think creatively, and use all available tools and settlement provisions” to implement remedies that address concerns faced by pollution-burdened and underserved communities, including:

  • Injunctive relief measures that remediate pollution and address past harms.
  • Early and innovative relief measures, such as fence-line monitoring and transparency tools.
  • Supplemental Environmental Projects (SEPs) in settlements, where appropriate, and to the extent the Biden-Harris Administration can resume use of this remedy.
  • Restitution for victims of environmental crimes.

3. Increased Engagement with Underserved Communities

In the memorandum, Starfield instructs EPA officials to increase communities’ access to compliance data about facilities, pollution, and enforcement activities, as well as enforcement program resources. For example, he suggests providing more information through press releases and public meetings, making it easier for the public to search for EJSCREEN information and Enforcement and Compliance History Online (ECHO) compliance history data, and increasing opportunities for community engagement in the development of cleanup and reuse agreements. in the memorandum, Starfield calls on EPA officials to develop additional approaches to increase community engagement.

Looking Forward: Inter- and Intra-Agency Action

In addition to the three enforcement goals set out above, Starfield acknowledged that EPA does not work on environmental enforcement and EJ alone. He noted that, while EJ is a shared goal and responsibility of other agencies and state and local regulators, EPA should “not hesitate to step in and take necessary action” if a co-regulator is failing to addressing a situation where an underserved community’s health may be impacted. Lastly, Starfield established an Enforcement Steering Community consisting of senior officials from OECA and the regional offices, which will oversee and coordinate the enforcement office’s EJ work within the Agency.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.