How 93 US Attorneys’ Offices Can Enforce Environmental Justice

Almost 30 years after President Clinton issued an executive order calling on federal agencies to address environmental justice, community advocates from areas bearing the heaviest pollution burdens have pronounced the presidential order ineffective to date in producing significant changes in agency policies—and thus changes in polluter behavior. Cancer Alley still makes the news without change, even catching John Oliver’s attention. And Flint, Mich., didn’t garner federal attention until too late, after lead already harmed children’s brains.

President Biden’s executive order on tackling the climate crisis, however, could signal meaningful changes that might be afoot. Most recently, the Department of Justice issued a comprehensive environmental justice enforcement strategy, meant to guide DOJ enforcers. Much is new in this initiative. Most notably, the strategy itself was informed in part by community input.

Also noteworthy is the requirement to designate environmental justice coordinators in 93 US attorneys’ offices. In tapping this new reserve, the DOJ’s strategy memorandum notes that the US attorneys’ offices (USAOs) are “critical” because of “the intensely local nature of most environmental justice issues.”

Unless thoughtfully implemented, however, this strategy could easily be viewed both within the USAOs and the community of environmental justice advocates as yet another move that fails to reduce pollution and redress systemic injustice.

Steps to Erase Skepticism

Such skepticism would not be unjustified. The strategy doesn’t rely on dedicated funding for this effort. Moreover, US attorneys don’t typically enforce environmental laws—much less address environmental justice.

These offices traditionally haven’t had a significant role in prosecuting environmental matters, even if they are on the pleadings, because such enforcement typically is in the domain of the DOJ’s specialized section responsible for environmental enforcement (the Environmental Enforcement Section Environment within the DOJ’s Environment and Natural Resources Division). Relatedly, communities affected by pollution and USAOs do not have any relationships to speak of.

Listen to Local Communities

Some fundamental and early investment, however, could meaningfully marshal the powers of these offices throughout the nation.

First and foremost, US attorneys must understand the first tenet of environmental justice: communities speak for themselves. For communities to speak for themselves, US attorneys must be ready to listen. In simple terms, US attorneys must begin the hard work of building relationships.

In this work, US attorneys may need facilitators to ensure that the “listening” reflects the offices’ genuineness of the efforts. If successful, US attorneys just may be able to discover the best evidence in their enforcement cases and grow relationships that will lead to achievement of justice, not just enforcement of laws: communities may come to see the system of justice working for them.

Effective listening also requires homework. US attorneys must educate themselves to local histories of redlining and its connection to current pollution patterns. US attorneys must also understand that affected communities have experienced the-other-side-of-the-railroad treatment in all aspects of their experiences, not just with pollution.

Initiate Enforcement in Areas of Expertise

Second, US attorneys can demonstrate their commitment to the environmental justice strategy by initiating enforcement they are in the best position to bring. For example, US attorneys are experts in areas traditional environmental enforcers may not be familiar with; the former often have expertise in the False Claims Act and perhaps even civil rights prosecutions, arsenals the DOJ mentions as necessary in implementing environmental justice strategies.

Early identification of such cases would provide confidence to affected communities in the role US attorneys could play in addressing environmental injustice.

Hire Those Who Understand Environmental Justice

Third, even though funding hasn’t been designated for the appointment of environmental justice coordinators at their offices, US attorneys can make their next hiring decisions based on this strategy memorandum. The next hire should be familiar with the tenets of environmental justice and even have experience in environmental justice enforcement.

These hires would understand that, while many environmental matters relate to areas that light up red on screening tools for environmental and socio-economic vulnerability, that alone does not make a case an environmental justice matter.

Environmental justice cases require prosecutors to understand that they must find a way to communicate the details of the case so that the community can provide input in the prosecution and resolution of the case. A hire with an understanding of environmental justice would ensure that the USAOs develop meaningful relationships with representatives of the affected communities.

Finally, US attorneys must not be shy to pursue enforcement against local authorities that violate environmental laws. As community members know too well, lax local enforcement deepens pollution disparities that already exist.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Helen Kang is professor of law at Golden Gate University School of Law and director of the school’s Environmental Law and Justice Clinic, where students and professors provide legal services to communities in need, including through environmental enforcement. She previously served as a trial attorney in the DOJ’s Environmental Enforcement Section.