June 7, 2021

Written by Susan Parker Bodine and John Irving, Partners, Earth & Water Law, LLC

EPA’s recently released FY 2022 Congressional Justification (CJ) of Appropriations, a budget document that provides more detailed insight into how the agency intends to implement the Biden Administration’s focus on Environmental Justice (EJ) and Climate Change and incorporate those concepts into its enforcement efforts. While it remains to be seen, of course, what funding and staffing levels Congress ultimately approves, the CJ sheds light on the agency’s policy priorities and how it intends to apply whatever funding it receives. As expected, Climate Change and EJ will be a major focus. However, EPA also is seeking increased enforcement funding to address per and polyfluoroalkyl substances (PFAS) and coal combustion residue (CCR) rule compliance.

The CJ explains how EPA plans to implement recent policy statements from both the White House and the EPA. President Biden issued several Executive Orders (Nos. 13990, 13992, and 14007) in January directing federal agencies to prioritize EJ and Climate Change in their operations and resting EJ enforcement responsibility with EPA, DOJ, and DHHS. On April 7, 2021, EPA Administrator Regan directed all EPA offices to integrate EJ into their plans and actions. On April 26, 2021, EPA’s Office of Enforcement & Compliance Assurance (OECA) issued a guidance memo directing its staff to use all appropriate injunctive relief tools early in the enforcement process, including monitoring and audits. OECA issued a second enforcement guidance memo on April 30, 2021, titled Strengthening Enforcement in Communities with Environmental Justice Concerns that calls for increased inspections, injunctive relief, Supplemental Environmental Projects (SEPs), and victim restitution in those communities.

EPA requests $11.233 billion, nearly $2 billion more than EPA’s FY 2021 enacted budget of $9.265 billion; and Full Time Equivalent (FTE) staff of 15,324, 1,027 more FTE than the FY 2021 level of 14,297. The CJ includes the following items that are particularly relevant to enforcement:

• An additional $26.2 million and an additional 49 FTE for civil enforcement, in part to “develop and implement a comprehensive action plan for integrating environmental justice, climate, PFAS, and coal combustion residuals (CCR) rule considerations throughout all aspects of EPA’s Civil Enforcement Program;” increase climate and EJ-focused inspections; to prioritize climate and EJ considerations in case-selection (e.g., to emphasize areas where greenhouse gas emission can be reduced while providing co-benefits in underserved communities), and to expand the inclusion of mitigation and resilience remedies in case resolutions.
• An additional $7.8 million and an additional 32 FTE for criminal enforcement, in part to “support the development of a specialized Criminal Enforcement task force within [OECA] to address EJ issues and casework, in partnership with the DOJ;” develop an Environmental Justice enforcement strategy; “focus criminal enforcement resources on the Nation’s most vulnerable populations” using data mining and mapping; and increase assistance to victims of environmental crimes in EJ communities. This last item refers to the announcement of “the nation’s first-of-its-kind Environmental Crimes Victim Assistance Program” by Acting Associate Attorney General Matthew Colangelo on April 20, 2021. It is to be a joint program with EPA.

Much of EPA’s enforcement work is carried out in partnership with DOJ. Similarly, DOJ is seeking $5,000,000 and 10 FTEs for the Environment and Natural Resources Division (ENRD) to expand the use of existing authorities in affirmative cases to reduce greenhouse gas (GHG) emissions and to address the impacts of climate change and continue defensive and other ENRD work related to climate change. ENRD will also implement the Division’s new environmental justice responsibilities under Executive Order 14008.

Other noteworthy items include:

• Establishment of a new EJ program office with a Senate-confirmed Assistant Administrator “to coordinate and maximize the benefits of the Agency’s programs and activities for underserved communities.” [This would make for interesting internal politics at the agency, where other Assistant Administrators are already responsible for enforcement, various grant programs, and tribal affairs.]
• An increase of $72.2 million and 113 FTE for EPA’s Office of Research & Development (ORD) that would include the creation of a “Center for Environmental Social Sciences” that would “address the complex interactions between pollution sources, exposures, non-chemical stressors, and communities” by “employ[ing] social science experts in sociology, economics, anthropology, geography, demography, political science, decision science, behavioral science, risk and science communication, translational science, community engagement, and urban planning.”
• An additional $282 million and 170 FTE for EPA’s Environmental Justice Program, including $140 million in new EJ grants.
• An additional $100 million for community air quality monitoring.
• Increased funding and upgrades to EPA’s data resources like EPA’s ECHO database, EJSCREEN tool, and the development of the Climate and Economic Justice Screening Tool that is called for in Executive Order 14008.

EPA’s budget request also signals significant regulatory activity (including new oil and gas, hydrofluorocarbo, power plant, and even PFAS air emissions rules), with proposed increases in the Office of Air and Radiation, the Office of Water, and the Office of General Counsel to support new rulemakings.

Regardless of what EPA’s enacted appropriations bill ultimately includes, the agency has now made its enforcement priorities clear and provided some detail about how it intends to implement direction from the White House and the Administrator. In particular, it is clear that EJ and climate concerns will affect the agency’s exercise of its enforcement discretion in targeting, case selection, decisions to pursue civil versus criminal remedies, decisions to pursue cases administratively or refer them to the Department of Justice for judicial civil or criminal proceedings, and the type of injunctive relief that is sought.

Companies can expect increased enforcement attention in communities with EJ concerns and in climate-related matters, whether or not EPA’S civil and criminal enforcement budgets increase. There is a window of opportunity to identify facilities that fall into these categories, to conduct confidential environmental audits to address risks and non-compliance, and to meaningfully engage with communities.