The Nickel Report

The Biden Administration’s enforcement priorities began to take shape last week, as the US Environmental Protection Agency’s (EPA) enforcement arm issued a pair of memoranda encouraging the use of certain tools in civil enforcement and settlements and for prioritizing enforcement efforts in environmental justice communities. Lawrence E. Starfield, a senior career EPA official currently serving as Acting Assistant Administrator for EPA’s Office of Enforcement and Compliance Assurance (OECA), issued both memoranda. The memos demonstrate a concrete shift in EPA’s enforcement philosophy—doubling down on Next Generation or “NextGen” compliance tools and Supplemental Environmental Projects (SEPs), and focusing on environmental justice—under the new administration. The specific ways in which EPA enforcement staff will carry out these policies are not yet known and will develop over time, but it is important for regulated entities to be aware of, and prepared for, EPA’s use of NextGen compliance tools and focus on strengthening enforcement in environmental justice communities.

Using All Appropriate Injunctive Relief Tools in Civil Enforcement Settlements

The first memo, issued on April 26, 2021, directs EPA enforcement staff to utilize NextGen compliance tools in bringing enforcement cases and reaching settlements. In a return to an approach promoted under the Obama administration, the memo encourages OECA staff and EPA regional offices to use advanced monitoring, audits and independent third-party verification, electronic reporting, and increased transparency of compliance data to ensure that a facility returns to, and remains in, compliance.

The memo expressly withdraws and supersedes two previous policy statements issued under the Obama and Trump administrations. A 2018 EPA memorandum had reversed course on NextGen compliance tools and “largely restricted the scope of injunctive relief to compliance with applicable statutes or regulations.” Last week’s memorandum reiterates “many of the underlying principles from” and draws on the 2015 Obama-era memorandum to outline the range of NextGen compliance tools.

The memo explains these NextGen tools “can help EPA conserve oversight resources” by making settlement compliance information readily accessible and leveraging the public to aid in compliance monitoring. They include advanced monitoring of emissions; audits and independent third-party verification to ensure conformity with settlement obligations; electronic reporting; and increased transparency of compliance data, including public availability. The memo encourages use of each of these tools.

In addition, the memo encourages EPA to use settlement provisions that “address past harm to communities caused by the noncompliance or otherwise benefit communities impacted by noncompliance.” These include mitigation to redress ongoing or past harms; Supplemental Environmental Projects (SEPs) allowing alleged violators to undertake environmentally beneficial actions voluntarily and offset some potential penalties; and stipulated remedies to trigger specific projects in the event of future violations.

EPA’s full embrace of SEPs in the memo, in particular, signals a change from the past administration. SEPs have traditionally been a popular settlement tool with both regulated parties and communities that benefited from the projects. As we previously wrote about, however, the Trump Department of Justice curbed their use and eventually barred them in settlements entered by the Environment and Natural Resources Division (ENRD). Although the Biden Administration rolled back the relevant ENRD policies earlier this year, OECA’s memorandum acknowledges that a Justice Department rule prohibiting third party payments in judicial settlements issued in 2020 and still on the books, “severely limit[s]” current application of SEPs. As a result, at least for the time being, even under OECA’s new policy, SEPs will be available only in administrative settlements EPA reaches, and not in Justice Department-led judicial settlements. That may well change down the road, however, as the memorandum notes that “EPA is coordinating closely with DOJ on the subject of SEPs.”

Strengthening Enforcement in Communities with Environmental Justice Concerns

The second OECA memo was issued on April 30, 2021 and, as the title suggests, acts upon the administration’s early pledges to further environmental justice. Executive Order 14008, Tackling the Climate Crisis at Home and Abroad, highlighted “securing environmental justice” as a core goal. To fulfill EPA Administrator Michael Regan’s directive for the agency to “strengthen enforcement of violations of cornerstone environmental statutes and civil rights laws in communities overburdened by pollution,” the memo identifies civil enforcement measures geared toward increasing identification of noncompliance in environmental justice areas and resolving noncompliance in ways that address past harms to those communities. It also establishes an Enforcement Steering Committee, comprised of staff from both OECA headquarters and EPA’s regional offices, to organize the agency’s environmental justice efforts. EPA plans to issue additional memos on advancing environmental justice goals in the cleanup and criminal enforcement programs.

First, it calls for increasing onsite inspections of facilities in environmental justice communities, as well as leveraging offsite compliance monitoring tools to work around COVID-19 limitations. These remote tools include, Discharge Monitoring Reports under the Clean Water Act, Title V emissions reporting under the Clean Air Act, or the Toxics Release Inventory reporting program, for which EPA also announced a separate, environmental justice focused update plan last week.

Next, the memorandum directs EPA enforcement staff to focus on resolving noncompliance with environmental laws in “overburdened communities” by prioritizing “remedies with tangible benefits for the community.” To do so, the focus is not just on stopping noncompliance and addressing impacts associated with and seeking penalties for past noncompliance, but also on other types of mitigation that can help “overburdened communities” affected by environmental noncompliance. Such tools highlighted in OECA’s memorandum include “early and innovative relief,” like fence-line monitoring; including SEPs in some settlements; and seeking restitution for environmental crime victims.

OECA staff and EPA’s regional offices are also advised to increase communication with environmental justice communities, leveraging on-the-ground knowledge of “enforcement cases that most directly impact them.” In particular, the memo highlights a need to give communities more information about facilities and enforcement in their areas, educate communities about EPA resources (e.g., the EJSCREEN mapping and screening tool) and facility compliance information, and provide greater opportunities for affected communities to weigh in on site cleanup planning presumably beyond the community involvement already required by the National Contingency Plan.

Finally, although the memo reiterates its commitment to “endeavor to perform our enforcement and compliance work in partnership with” states and other co-regulators, it sets some limits on that and prioritizes “ensur[ing] the protection of communities regardless of where a person lives.” This reflects the current administration’s shift away from the policy of deference to states that was a hallmark of EPA’s enforcement policy under the previous administration, and signals a willingness to be more aggressive in states that are not, in EPA’s eyes, fulfilling environmental protection responsibilities.

It is premature to speculate as to precisely what these memos portend for future OECA enforcement policy and priorities but regulated entities should nonetheless be aware of the administration’s efforts to implement campaign commitments to focus on environmental justice. They should expect EPA to begin embracing additional compliance tools and voices in the enforcement process. An overall increase in federal environmental enforcement across the board is likely, too—particularly in environmental justice communities. And while regulated facilities should always endeavor to maintain compliance with all applicable environmental laws and obligations, those located in “overburdened” environmental justice communities should recognize the increased scrutiny and heightened risk of enforcement associated with noncompliance under the pair of OECA memoranda.