There have been substantial environmental regulatory pressures under the Biden Administration.  Much of this pressure has come under the umbrella of Environmental Justice (EJ) and Anthropogenic activity associated with climate.  Recently, the US House of Representatives has attempted to slow these efforts while the Biden Administration is doubling down on their efforts.

House Attempts to Cut EPA Budget

The United States House of Representatives recently passed H.R. 4821.  This bill intends to cut spending by the Environmental Protection Agency by 40%.  According to Chairwoman, Kay Granger, “The Biden Administration’s EPA extreme anti-energy policies and unchecked regulations have stifled economic opportunities, raised costs for Americans, burdened businesses and domestic energy producers, and increased our dependence on foreign adversaries like China.”

According to a blog by Barnes & Thornburg, “In addition, the legislation would repeal the administration’s waters of the United States (WOTUS) regulation, and the administration’s Phase 1 and 2 rules for the National Environmental Policy Act.  It rescinds or prohibits funding for a number of EPA rules on greenhouse gas emissions from power plants and light, medium, and heavy-duty vehicles.  It also prohibits agencies from using the social cost of carbon in cost-benefit analyses.”

This effort by the House might indicate that we are in for a protracted budget battle and perhaps another government shutdown.

Inaugural Comprehensive EJ Enforcement and Strategy Report

While the House of Representatives is trying to rein in the EPA, they will have an uphill battle as the Biden Administration continues to focus its efforts on a robust environmental regulatory agenda.  These efforts are spearheaded by the continued use of the Bill Clinton-era, Environmental Justice Executive Order.

We have covered the persistent focus on EJ under President Biden numerous times.  This administration has shown no sign of backing down from its commitment to EJ, and on October 13, 2023, the inaugural Comprehensive Environmental Justice Enforcement Strategy Annual Report was released.  In this 28-page report, the US Department of Justice outlines its enforcement efforts as well as its plans moving forward.

We discussed the EJ Strategy in our September 22, 2022, blog.  In that blog, we included information about the requirement that each of the 94 Offices of the United States Attorneys designate an EJ coordinator.  As mentioned in our blog last year, the EJ Strategy is carried out by a number of federal agencies including Environment and Natural Resource Division (ERND), Civil Rights Division, Office of Tribal Justice, the Federal Bureau of Investigations, and many more.

In “The Nickle Report”, by the law firm Hunton Andrews and Kurth (Hunton), they quote ERND Assistant Attorney General Todd Kim who reiterated that industrial clients should “ensure that they are listening to their communities and meeting their obligations under federal environmental law.  Failure to do so could result in federal enforcement.”  These outreach efforts should be documented as well.

As pointed out in the report by Hunton and elsewhere, the DOJ has used a variety of enforcement authorities to address environmental violations and contamination in what are called “overburdened and underserved communities,” which is not defined.  In the first year of implementation of its EJ Strategy, the “DOJ brought enforcement actions under federal environmental, civil rights, worker safety, and consumer protection laws, as well as the False Claims Act” (Source: The Nickle Report).

Science Advisory Board Review Panel; Nominations Request

In addition, on October 23, 2023, the EPA issued a notice in the Federal Register that would indicate that the administration is going to continue to “ratchet up” their EJ efforts.  This notice states that the EPA Science Advisory Board, “requests public nominations of scientific experts to form a panel to review the revised Technical Guidance for Assessing Environmental Justice in Regulatory Analysis (Environmental Justice Technical Guidance or EJTG) and develop a self-initiated commentary outlining recommendations on advancing environmental justice science in rulemaking.”

It’s clear that the Biden Administration is determined to continue to use various agencies to increase environmental enforcement under the auspices of the EJ program.

Law Firm Suggests Caution

As the law firm Baker Botts recently wrote, “Regulated entities should expect that the government will reach out to learn whether their facilities present environmental and public health concerns.  If they do, the government appears focused on finding opportunities to utilize Title VI of the Civil Rights Act of 1964 as an enforcement tool.  In addition, EPA has signaled that it will ask DOJ to build EJ and climate remedies into administrative, civil and criminal case resolutions whenever possible.”

We, and others continue to caution companies with operations in areas that may be viewed as overburdened and underserved (again, this is undefined) to be aware of these efforts.

If you need assistance with an environmental issue, contact us at info@dragun.com or 248-932-0228.

Dragun Corporation does not use artificial intelligence in drafting our blogs or any other material.

Alan Hahn drafted this blog.  Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management.  He has worked in environmental management for 45 years.  He has written hundreds of blogs and articles.  His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.

Jeffrey Bolin, M.S., reviewed the blog.  Jeff is a partner and senior scientist at Dragun Corporation.  He is a published author, frequent speaker, and expert witness.  His expertise in environmental due diligence, PFAS, vapor intrusion, and site assessments has led to projects in the US, Canada, and overseas. See Jeff’s Bio.  

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