Posted on July 1, 2022 by Kathy G. Beckett
Recent releases by the U.S. Department of Justice (DOJ) and U.S. Environmental Protection Agency (EPA) may be received by the regulated community as an announcement that the environmental justice principles will serve as the foundation for an enforcement initiative targeting them rather than initiating a collective effort with the goal of stakeholders focusing to solve unanswered and persistent problems. On May 5, 2022, DOJ’s press release titled, Justice Department Launches Comprehensive Environmental Justice Strategy, provided the following quote,
Although violations of our environmental laws can happen anywhere, communities of color, indigenous communities, and low-income communities often bear the brunt of the harm caused by environmental crime, pollution, and climate change, said Attorney General Garland. For far too long, these communities have faced barriers to accessing the justice they deserve. The Office of Environmental Justice will serve as the central hub for our efforts to advance our comprehensive environmental justice enforcement strategy. We will prioritize the cases that will have the greatest impact on the communities most overburdened by environmental harm.
The announcement included a possible positive solution by providing that there would be a return of Supplemental Environmental Projects (SEPs). Perhaps SEPs should allow that the entirety of the penalty go to the community adversely impacted to solve the problem. With an announcement focusing monies on solutions, the theme of tangible problem solving would have prevailed.
EPA’s Strategic Plan for 2022-2026 announced the goal to increase the percentage of inspections in areas of EJ concern to 45% in fiscal year 2022, 50% in fiscal year 2023 and 2024, and 55% in fiscal years 2025 and 2026. Perhaps those inspections could be designed to look for opportunities for thoughtful targeting where the violation directly contributes to the conditions of environmental injustice within the community and/or include compliance assistance and strategies, in order to rapidly address the deficiency. For example, encouraging a regulated entity to invest in environmental remediation solutions rather than threatening with legal enforcement diverting funds to legal defense strategies would provide for a path toward a quicker tangible result for the impacted community. As is sometimes the case, marginalized communities have struggling economics for business like the communities within which they operate. With an explanation of the inspection goals and outcomes, the theme of tangible problem solving would have shaped the program and responses to it.
EPA’s freshened EJScreen2.0 environmental justice screening and mapping tool was released recently to “better meet the Agency’s responsibilities related to the protection of public health and the environment.” If the goal is better information, EPA should make available access to the mapping tool to allow local communities to obtain a copy of EJScreen for the purpose of adding relevant verifiable information to their copy of the tool for their local use and study of environmental justice. EPA concedes that as “a screening tool it cannot capture all the relevant issues that should be considered (e.g., other environmental concerns). Any national screening tool must balance a desire for data quality and national coverage against the goal of including as many important environmental factors as feasible given resource constraints.” Accordingly, EPA should allow utilization of the EJScreen2.0 resource by local environmental justice committees and groups to facilitate targeted localized problem solving for the impacted community.
The regulated community and others are working to define and develop its environment, social, and governance (ESG) commitments that will positively impact EJ communities where people live and struggle. Small business, local facilities of larger business in addition to publicly traded companies all are assessing their active plans relative to corporate responsibility. It would be advantageous to all involved, including the regulated community, if the government EJ principles would target problem solving through efficient collaboration. The EJ dilemma needs to include the regulated community, in addition to government and local citizens in the timely delivery of solutions. That outreach is missing thus far.