DOJ Signals New Strategy For ‘Environmental Justice’

Illustration by Giorguio Tadieski via Flickr.

The federal government intends to get tougher on corporate polluters that endanger “communities of color and low-income communities,” warns the head of the Department of Justice Environment and Natural Resources Division (ENRD).

Assistant Attorney General Todd Kim said a planned crackdown on companies that violate environmental laws was a key part of President Joe Biden’s commitment to use the “full capacity of the federal government” to tackle the climate crisis.

 “We know there are communities, including communities of color and low-income communities, that are disproportionately burdened by environmental hazards and harms, and that have struggled to get their concerns about violations addressed,” Kim said in prepared remarks to members of the American Bar Association in Washington DC Tuesday.

“To the extent a corporate actor violates either civil or criminal law in a manner that implicates environmental justice or the climate crisis, corporations should be aware that my division is paying particular attention to these issues.”

Kim said the president’s Executive Order 14008, issued January 21, committed federal environmental authorities to “combat the climate crisis with bold, progressive action.”

The Executive Order tasked the Justice Department to develop a “comprehensive environmental justice enforcement strategy” in cooperation with the Environmental Protection Agency and other partners aimed at designing “timely remedies for systemic environmental violations and contaminations, and injury to natural resources,” he said.

“Development of that strategy is underway,” Kim added, “and is something that corporate compliance officers and outside counsel will want to consider upon its release.”

ENRD, which has been called the world’s “largest environmental law firm” with over 400 prosecutors, has already litigated cases against energy companies over the use of “flaring” to burn off wastes from petrochemical plants and refineries, Kim said, citing cases brought against Dow Chemical Company and subsidiaries of a Dutch chemical company for violations under the Clean Air Act.

Enforcement actions have also been brought against some grocery chains, including at 453 Trader Joe’s stores, for “recordkeeping and refrigeration system leak detection violations,” Kim said.

Looking ahead, Kim said the government planned to focus “intensely” on three areas:

• • Cases directly enforcing against violations of regulations of emissions of greenhouse gases;
  • Cases that help protect carbon sinks, such as illegal logging prosecutions or vessel pollution cases that protect the ocean as a resource; and
  • Cases that protect the integrity of renewable energy programs by pursuing fraud and similar violations.

Companies hoping to avoid federal penalties should “integrate environmental compliance into [their]  culture” and “ensure that, if environmental problems arise, your company has systems in place to investigate, determine, and document what went wrong, and why,” Kim said.

Kim signaled that ENRD will “prioritize” prosecuting individuals who commit and profit from corporate malfeasance. Some 35 federal criminal prosecutors in its enforcement section are empowered to bring criminal actions under pollution control laws, laws protecting wildlife, animal welfare and natural resources; and occupational safety and health laws.

“At its core, enforcement seeks to ensure that certain public values are achieved, and that public goods—indeed, the public’s health—are protected,” he said.

“Nowhere is that more true than for enforcement efforts that mitigate climate impacts and strive to secure environmental justice.”

Additional Reading: Environmental Advocates File Lawsuit Against Oregon Justice Department Over Surveillance.