Legal Blogs and Updates

The U.S. Department of Justice (DOJ) has announced several initiatives to advance environmental justice interests, including restoring federal prosecutors’ authority to include special environmental justice projects in settlements and establishing a federal Office of Environmental Justice.

These changes affect federal environmental violations and settlements with the DOJ. The State of New Jersey has already enacted similar state-level environmental justice initiatives, including:

1. the availability of supplemental environmental projects in settlements of state enforcement actions with the New Jersey Department of Environmental Protection;
2. the establishment of a New Jersey Office of Environmental Justice; and
3. the introduction of the Community Collaborative Initiative, which works closely with urban communities to support revitalization and growth.

The Trump administration barred the federal inclusion of supplemental environmental projects in settlements for environmental law violations in 2017. These restrictions were withdrawn last year by the DOJ pending a review, and Attorney General Merrick Garland has now issued a memorandum stating that environmental projects can again be used in settlement negotiations with the following conditions:

• the settlement agreements must define with particularity the nature and scope of the specific project;
• the projects must have a strong connection to the violation at issue; and
• the DOJ cannot propose any particular third party to receive payments or be the beneficiary of any projects as part of the settlement.

Moreover, the DOJ must approve the projects before “an admission or finding of liability in favor of the United States.”

The DOJ also announced the establishment of a new office within the Environment and Natural Resources Division, titled the Office of Environmental Justice, and issued its environmental justice strategy.  The Office of Environmental Justice will be led by Cynthia Ferguson, who worked as an attorney with the DOJ for over a decade. The released strategy provides that authorities prioritize enforcement of environmental laws and civil rights statutes, especially in cases aimed at reducing environmental and public health harms to overburdened and underserved communities. It also requires U.S. attorneys to designate an environmental justice coordinator to identify and develop procedures for reporting areas of concern.

The changes introduced by the Department of Justice will likely expedite federal environmental enforcement cases impacting environmental justice communities and alter the negotiation process for the settlement of such cases. Connell Foley will continue to monitor these developments and the new role of the U.S. Office of Environmental Justice.