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Biden Bolsters DOJ Focus on Environmental Justice, Climate (3)

Jan. 27, 2021, 6:02 PM; Updated: Jan. 27, 2021, 8:53 PM

The Justice Department must consider establishing an environmental justice office under a sweeping executive order President Joe Biden issued Wednesday.

The order aims to carry out Biden’s pledge to take a “whole of government” approach to addressing climate change and the disparate effects of pollution on disadvantaged communities—calling on agencies across the executive branch to devote resources to the cause.

It directs the Justice Department to consider adding an office “to coordinate environmental justice activities among Department of Justice components and United States Attorneys’ Offices nationwide.” It also directs the department to consider changing the name of its existing Environment and Natural Resources Division to the Environmental Justice and Natural Resources Division.

Biden’s order further calls on the division to coordinate with the Environmental Protection Agency and others “to develop a comprehensive environmental justice enforcement strategy, which shall seek to provide timely remedies for systemic environmental violations and contaminations, and injury to natural resources.”

The language of the order differs from how it was described in a press briefing Wednesday, when White House climate adviser Gina McCarthy said the order calls on the Justice Department to create an office of “climate justice.”

“We know the communities who are being hurt, and we know we have to start enforcing the standards today in ensuring that they are part of the solution,” she said.

A DOJ spokesperson said the department “will implement the Executive Order and will share additional specifics on the office as we get further into the implementation process.”

Fresh Name?

DOJ’s Environment and Natural Resources Division has long overseen a broad portfolio of enforcement cases and defense of agency actions. A name change to emphasize environmental justice, if adopted, would be a symbolic but powerful move, said Baker Botts LLP attorney Nadira Clarke, an ENRD lawyer from 1992 to 1997.

“I wouldn’t want to overstate it, but it does feel significant to me,” she said. “It’s been an upward climb to make it a more representative division in terms of the lawyers in it and the cases that have been brought.”

“There is a way in which having the name change would symbolize not only what has been achieved to date but also what should be perhaps the focus going forward, or the shift that is expected,” Clarke added.

ENRD has gone through names changes before, said Vinson & Elkins LLP attorney Corinne Snow, who served in ENRD during the Trump administration. It was once called the Lands Division, a nod to its early focus on public lands litigation, and has had multiple names since then.

‘Power Struggle’

The executive order also envisions a new office devoted to environmental justices issues, but it wasn’t immediately clear where such an office would fit within DOJ’s organizational structure.

“In order for it to be really effective, I think that would be a hard thing to do if it’s just a component section of ENRD,” said Sidley Austin LLP attorney David Buente, a former DOJ lawyer from 1979 to 1990.

He explained that an office within the existing division wouldn’t have enough authority to handle issues that arise in other divisions and U.S. attorneys offices scattered around the country.

Instead, a new environmental justice office could be a stand-alone component that’s part of the office of the attorney general, he said.

But an environmental justice office outside of ENRD could create “a bit of tension and power struggle,” said former DOJ environment lawyer Amanda Shafer Berman, now a partner at Crowell & Moring LLP.

“It would be tough to figure out how an Office of Environmental Justice housed outside ENRD could work efficiently and cooperatively with the ENRD attorneys who are handling most of the environmental cases that the Department handles on a day-to-day basis,” Berman said in an email.

‘Problematic’ Plan

Several former DOJ lawyers pointed to the existing Office of Tribal Justice, which coordinates on tribal issues across the department, as a good model for an environmental justice office.

The Office of Tribal Justice reports directly to top DOJ officials and serves as a point of contact for tribes navigating the department—a setup that would translate well for environmental justice issues, said Lois Schiffer, who led ENRD during the Clinton administration.

“It works well in assuring that the large number of offices in the department that may have a role in environmental justice can be recognized and work in the most effective way,” she said.

In addition to ENRD, the Civil Rights Division, Civil Division, Office of Justice Programs, and several other DOJ components work on issues that could have an environmental justice angle, she said.

But creating a new office could be a heavy lift, said Baker Botts LLP attorney Jeffrey H. Wood, who was acting head of ENRD during the first half of the Trump administration.

“It’s easier to open a new office than it is to staff it and fully resource it,” he said.

Some lawyers in private practice have adopted a wait-and-see approach on the value of a new environmental justice office.

“At the end of the day, they could probably accomplish more in the short term if they just focused on the working groups and prioritizing these issues as opposed to creating a new office,” Vinson & Elkins’s Snow said.

Holland & Hart LLP lawyer Tom Sansonetti, who led ENRD during the George W. Bush administration, said environmental and climate justice issues fit better within the portfolios of policymaking agencies, including the EPA and the Interior Department, rather than DOJ.

“I think it’s a little more problematic to place the responsibility for environmental justice and climate change in the hands of the litigators,” he said.

Enforcement Actions

The Justice Department and the EPA faced criticism for their approach to environmental enforcement during the Trump administration. The agencies adopted a “compliance assistance” focus, prioritizing education and outreach to companies instead of violation notices and penalties.

Recent data show some increases in civil penalties and criminal fines collected during the Trump administration, but they also show declines in the number of civil enforcement cases, inspections, and criminal prosecutions.

Wednesday’s order calls on the EPA to ramp up enforcement actions that target violations with a disproportionate impact on underserved communities.

“We must hold polluters accountable for their actions,” the order said. “We must deliver environmental justice in communities all across America.”

The Department of Health and Human Services, which is also named in Biden’s climate order, has worked before on environmental justice issues. The agency participated in the Obama administration’s Federal Interagency Working Group on Environmental Justice, issued its first environmental justice strategy in 1995, and released progress reports every year from 2012 to 2017.

—With assistance from Shira Stein.

(Updated with additional reporting throughout.)

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloomberglaw.com

To contact the editor responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com

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