Attorney: Environmental justice is ‘a new era of EPA enforcement'

Columbus, Ohio — The ideal of Executive Order 12898 seems noble enough, that no group of people should bear a disproportionate share of negative environmental consequences that can result from commercial or governmental policies.

Signed into law by President Bill Clinton in 1994, EO 12898 was intended to address environmental injustice by developing a strategy to combat it, reported fellow Crain publication Rubber News.

"Environmental justice began as a social movement in the 1960s, in Black communities dealing with pollution," said Reed Sirak, an attorney with Cleveland-based Benesch, Friedlander, Coplan and Aronoff LLP. "It continues to be a key movement for [President Joe Biden's] administration in directing its environmental policy."

Sirak spoke May 24 as part of the EHS Summit, organized by the Association for Rubber Products Manufacturers and the Manufacturers Association for Plastics Processors.

"My concern is that we've seen an increase in the off-site investigations of an otherwise compliant business," Sirak told an audience of about 150 at the Marriott Downtown Columbus. "When the EPA gets involved, they typically find something.

"And sometimes that means a headline can be created [for a particular business] that can be worse than the penalties themselves."

In May 2022, the Biden administration established a separate Environmental Justice Office within the U.S. EPA's Environment and Natural Resources Division, a regulatory division that Sirak says is ushering in "an entirely new era of enforcement at the EPA."

"The strategy provides a road map for using the Justice Department's civil and criminal enforcement authorities and tools to achieve President Biden's call," according to the OEJ's website. "The department seeks to advance environmental justice in underserved communities that have been historically marginalized and overburdened, including low-income communities, communities of color, and tribal and indigenous communities."

For EHS professionals at their respective businesses, all of this behooves an intimate understanding of the EPA's current stance, Sirak said.

"There is an increased enforcement focus on facilities and projects in minority and low-income communities to address legacy pollution and non-compliance," Sirak said. "Increased reinforcement means more inspectors at facilities or expansion projects in minority and low-income areas."

Specifically, this can mean increased fenceline monitoring measures "to ensure compliance and detect violations."

"Overall there has been an increased focus on permitting, compliance plans, environmental reviews and federal contracting and procurement," Sirak said. "All of this can be a painful process that ends in some type of penalty. And in 2023, we are starting to see what that means. For you all, that means the EPA is making environmental justice the very center of their citation policy."

Enforcement actions from the EPA actually decreased each year between 2012 and 2020, while an uptick was seen in non-compliance actions in 2021, Sirak said.

"As we come out of COVID, we are seeing an increase in off-site compliance monitoring, a trend that is likely to continue," he said. "This will play into environmental justice and how the EPA is using that data."

The social movement that is, at least in part, pushing EPA policy — such as protests and complaints to the EPA — now involves "meaningful involvement" between communities themselves and EPA regulatory decision-making.

Witness the litany of litigation between EPA and Denka Performance Elastomer LLC in LaPlace, La., where the EPA has filed a lawsuit against Denka for its alleged excessive chloroprene emissions. The lawsuit is based in part on civil rights complaints filed by two predominantly Black community groups in St. John the Baptist and St. James parishes.

Both of the parishes are located in the Mississippi River Chemical Corridor, known colloquially as "Cancer Alley."

Denka has called the litigation "politically motivated" and without merit, saying that "the best available science" should govern the emission measurements systems used.

In this case, the civil rights investigations into two Louisiana permitting agencies have been dropped. However, the lawsuit, filed in March by EPA, still is ongoing.

Sirak noted that such EPA policies driven by the public, for the public—such as "meaningful involvement"—can be a slippery slope.

Ostensibly, such involvement means that people have a voice on issues that affect their environment health. But Sirak cautioned that "meaningful involvement" also means public contributions to the EPA process — essentially crowdsourcing, according to Sirak — that can influence regulatory decisions.

"It means that the decision makers will actually seek out and facilitate involvement in the regulatory process," Sirak said. "And this is something we do not see very often. Really, it is an alien concept in environmental law in that they are going to the victim and asking, 'what can we do?'

"The decision makers are seeking out those who are impacted, who have never before been involved with environmental policy and regulatory decisions. And in my experience, these people are very often NIMBYs — the 'not in my backyard' folks."

Sirak added that while politics play a factor in this, so does funding.

"The EPA only has so much money to spend ... and there has been an uptick in the total dollars recouped in these areas," he said. "What is happening is that those in the communities themselves are partnering with the EPA in enforcement. And that's why we call this a new era of enforcement."

While the concept of environmental justice started in the 1960s in Black communities overburdened by pollution, a sit-in in Warren County, N.C., in September 1982 (based on the proposed construction of a hazardous landfill) accelerated the notion.

President Clinton penned EO 12898 into law in February 1994, and now President Biden is doubling down on environmental justice with another executive order in April 2021 — which directly led to the OEJ being established in May 2022.

"Woven into the Biden administration is funding environmental justice initiatives," Sirak said. "EPA Administrator Michael Regan is directing the agency to consider any environmental impacts on overburdened communities that could be disproportionate.

"Now we are talking about potential harm, as opposed to direct harm, being caused."

About $400 million has been appropriated by Congress to fund environmental justice initiatives, according to the EPA website.

The primary goal of the April 2021 EO is to increase the number of inspections at facilities in overburdened communities using the "EJ Screen," a compliance tool that breaks down health impacts in certain geographic areas.

"And this tool is helpful ... we can now be proactive and understand where our facilities are," Sirak said. "But the EPA also is touting collaboration with states, a balancing act in itself as this opens up the possibility that the states are not paying attention. And the EPA retains the right to overfile if states are not taking appropriate action."

Sirak takes issue with the April 2021 EO's second goal, which is to "provide tangible benefits to communities."

"And this means the EPA can require injunctive relief before a company can defend itself in court," Sirak said. "All of this is part of 'meaningful involvement.' "

A third goal of Biden's memorandum is to "increase engagement with communities about enforcement cases that most directly impact them."

"My concern here is the use of these new apps such as Nextdoor and Smell My City," Sirak said. "EPA uses the latter for crowdsourcing reports, essentially weaponizing crowdsourcing.

"The government is using the public as its investigators. I don't know about you, but I'd rather my investigators be trained as opposed to someone smelling something and reporting it to the government."

Sirak said the EPA is listening—he is just not sure to whom.

"Enough people complaining spurs the EPA to take action," he said. "So what can we do? It all centers around being proactive.

"If you have a plan, you can dramatically increase the trust between the regulator and the regulated. Understand where you want to go with your facility ... and that incorporating an environmental justice policy creates a much longer runway for you to go from non-compliant to compliant."