Pursuing Environmental Justice Through Criminal Enforcement

”Environmental Justice” is an effort intended to address the disproportionate adverse impacts of pollution on disadvantaged communities, primarily comprised of minorities and lower-income people. Environmental Justice (“EJ”) has been a part of the United States’ official policy since the 1990s but the Biden Administration has now made Environmental Justice a priority in decision-making for all federal agencies. The Environmental Protection Agency (“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.” The Agency has issued numerous policies to advance the President’s goals, including increased funding to support EJ activities, increased civil enforcement activities in EJ communities, and increased criminal enforcement in communities overburdened by pollution.

Lawrence Starfield, the Acting Assistant Administrator for the EPA Office of Enforcement and Compliance Assurance (“OECA”), issued a Memorandum on June 21, 2021, to the 10 EPA Regions and the EPA Office of Criminal Enforcement, Forensics and Training outlining an intention to strengthen Environmental Justice through criminal enforcement. The overall direction of the Memorandum is to strengthen enforcement of “cornerstone environmental statutes” focused on EJ communities by improving outreach to victims, strengthening tools for the detection of environmental crimes, and ensuring that investigations are successful in allowing the Department of Justice (“DOJ”) to prosecute such crimes.

The first effort outlined in the Memorandum is to strengthen the detection of environmental crimes. EPA aims to maintain regular and open communication regarding increased facility inspections in EJ communities. Criminal investigators should coordinate with civil investigation and enforcement activities and better track cases with EJ concerns. Criminal case teams are encouraged to use EPA’s EJSCREEN mapping tool, a dataset that combines environmental and demographic indicators that can be searched by geographic areas to identify potential environmental criminal cases. The objective is to put more emphasis on investigations in order to provide DOJ with stronger cases to prosecute.

Second, the Memorandum identifies ways that the Agency will improve outreach to victims of environmental crimes. Working with DOJ, EPA will enhance the screening of all criminal cases and integrate EJ considerations into every environmental criminal investigation and prosecution. There will be additional training and coordination with the EPA Regions. EPA will pursue new efforts to disseminate information relating to pollution, victim services and the status of cases, and to better engage with the populations at risk.

Perhaps the greatest impact of the focus on criminal enforcement will result from enhancing the remedies sought in environmental crimes that occur in overburdened communities. For example, EPA intends to push for greater punishments, such as increased penalties and/or prison sentences for individual offenders, to achieve greater deterrence. EPA intends to urge prosecutors to seek sentences imposing advanced monitoring, audits and/or court-appointed monitors and public disclosure of relevant data as well. The Agency also plans on seeking restitution, mitigation and/or community projects, sometimes referred to as Supplemental Environmental Projects, to redress and remediate the consequences from a crime. Mandating payments to third parties who are not direct victims is currently prohibited by a regulation promulgated in the waning days of the Trump Administration, but it is anticipated that the current Administration will rescind that rule as it has rescinded many others.

OECA did not define “cornerstone environmental statutes,” but several federal environmental laws contain criminal provisions. For example, the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA,” sometimes referred to as Superfund), the Clean Air Act (“CAA”), the Clean Water Act (“CWA”), the Resource Conservation and Recovery Act (“RCRA”), the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”) and the Toxic Substances Control Act (“TSCA”) each provides the imposition of criminal fines and penalties as well as imprisonment for knowing violations of the applicable requirements.

President Biden has significantly increased  EPA’s budget, enabling the Agency to pursue increased criminal enforcement. The businesses located in urban areas where there tend to be greater concentrations of EJ communities located near industrial facilities will likely be more affected than those located in rural areas. However, Environmental Justice will be an important factor wherever communities predominately made up of people of color, indigenous people, or lower-income families reside nearby. Such businesses will face increased scrutiny on potential air emissions, discharges to water, waste generation, water usage, noise, and construction issues. Familiarity with Environmental Justice locations, concerns and requirements will help companies comply with environmental laws and limit criminal prosecutions.

See how your site measures up to environmental justice issues here: https://ejscreen.epa.gov/mapper/.