Environmental Regulatory and Policy Developments

Recently, it has become difficult to prioritize our attention regarding environmental issues.  There are a lot of regulatory and policy developments of which we need to be mindful.  Below, we “get in the weeds” on some developments regarding Environmental Justice (EJ) but we also cover a few other issues including important updates on topics we have previously covered.

First, a brief mention with respect to Environmental, Social, and Governance (ESG).  We have covered this topic in two recent blogs (August 23, 2022, and July 20, 2022).

Banking “Climate Cop”

A September 12, 2022, article in the New York Times provides additional information on ESG.

“The federal agency overseeing the country’s largest banks has hired its first climate cop.”

“The office of the Comptroller of Currency announced on Monday that Ye Chen would be the agency’s chief climate risk officer.  Dr. Chen will focus on developing a new system to assess climate-driven risks to banks, and figure out how to monitor and manage them.”

The article is firewall-protected so we cannot provide any further details or a link.

Comprehensive Environmental Justice Enforcement

Under the Biden Administration, EJ, along with climate change, have arguably been the cornerstone of the President’s domestic environmental policy.  You will find references to both EJ and climate issues as part of nearly all the administrative actions.  As the President has stated, they are using the “whole of government” approach in these initiatives, which, as stated above, even affects our banking system.

On May 5, 2022, the United States Department of Justice (DOJ) issued a memo to the “Heads of Department Components United States Attorneys.”  The subject of the memo was “Comprehensive Environmental Justice Enforcement Strategy.”

In this memo, the DOJ outlines four principles of their EJ program, explains the principles/goals, and how they will achieve the goals.  We share some excerpts from two of the principles outlined in the memo below.  Note that much of the information below is taken directly from the DOJ Memo and is provided in quotations.

Principle: “We must prioritize cases that will reduce public health and environmental harms to overburdened and underserved communities.”

Overburdened and underserved communities typically are understood to mean urban areas where, historically, various manufacturing, petroleum processing, chemical processing, etc… have been sited.  It can also include rural communities near agricultural operations.

“There are communities around the nation that bear the effects of pollution disproportionally, resulting in greater rates of illness and death, developmental impairments in children, and a variety of economic harms.  The Department – whether in DOJ-initiated investigations or working with EPA (Environmental Protection Agency) or other federal partners on referred matters – must identify those cases that will result in significant reductions in environmental and public health harms, or injury to natural resources in overburdened and underserved communities.”

They also state that enforcement actions must be among the Department’s top priorities.

A Contingent of Federal Agencies

The memo states that in order to ensure this principle is implemented the DOJ has created an Office of Environmental Justice within the Environment and Natural Resource Division (ERND).  This new division will convene a standing DOJ Environmental Justice Environmental Steering Committee.  The following agencies will be represented in this committee:

• DOJ
• Deputy Attorney General
• Associate Attorney General
• ERND
• Civil Rights Division
• Civil Division (of DOJ)
• Executive Office for US Attorneys
• Office of Justice Program
• Office of Tribal Justice
• Office of Access to Justice
• Community Relations Service
• Federal Bureau of Investigations
• Department’s Law Enforcement Agencies and other “relevant components.”

With respect to protocols for assessing EJ impacts, the memo states that the protocols should include, at a minimum, methods to identify and assess actual or threatened adverse impacts to public health or the environment from systemic environmental violations, contamination, or injury to natural resources.

Each US Attorney’s Office (there are 94 Offices of the United States Attorneys) is to designate an EJ coordinator within their office.  Each office “shall consider appropriate outreach efforts to identify areas of environmental justice concern in communities within its district, and shall establish and publicize a procedure for members of the public to report environmental justice concerns within that office’s jurisdiction.”

Enforcement under Environmental Justice

Principle: “We must make strategic use of all available legal tools to address environmental justice concerns.”

“The Department must consider and make effective and appropriate use of all enforcement authorities and tools that might remedy environmental violations and contamination, including tools outside the traditional environmental statutes.  These tools may include enforcement actions under the environmental protection laws, but also actions under the civil rights laws, worker safety and consumer protection statutes, and the False Claims Act” (emphasis added).

With respect to the enforcement tools, “These include remedies that provide effective relief for the impacted community and individual victims, remedies that will penalize and deter violations (including civil and criminal fines and penalties, and incarceration), remedies that will stop ongoing violations, secure cleanup, and ensure future compliance” (emphasis added).

“These (remedies) may entail measures that, for example, restore or retrofit or replace school buses or other vehicles with less polluting engines, or require changes at an industrial facility to reduce emissions below legal limits to offset harms caused by past or ongoing violations.”

“Specific to Title VI of the Civil Rights Act of 1964, CRT (Civil Rights Division) should consider using its authority under Executive Order 12250, Leadership and Coordination of Nondiscrimination Laws (November 2, 1980) to ensure Title VI is consistently and effectively enforced throughout the federal government in a manner that will advance environmental justice including by identifying and addressing race and national origin discrimination in programs and activities receiving federal financial assistance…CRT shall consider issuing a memorandum under Executive Order 12250 that distinguishes compliance with civil rights law and from compliance with environmental laws, reiterates the obligation to comply with both…” (emphasis added).

There is much more in the document, which you can access here.

Updates on WOTUS and PFOA/PFOS

There are (at least) two other potentially significant moving parts with respect to environmental compliance.  First is the proposed regulation that will, once again, attempt to define regulated waters or waters of the United States.  As shared by Troutman Pepper, the Biden Administration has sent the final rule to the Office of Management and Budget.

Additionally, an anticipated proposed rule has been published that will designate Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances.  See our September 8^th blog for more information.  Also, see our PFAS Resources Page.

Environmental regulatory/policy developments combined with nationwide and global economic pressures are creating a challenging business environment.  We will do our best to keep our pulse on the environmental developments and share those updates in future blogs.

If you have questions or need assistance with an environmental issue, you can contact us at 248-932-0228.

This blog was drafted by Alan Hahn. 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 and 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.

This blog was reviewed by Matthew Schroeder, M.S., P.E. Matt is a senior environmental engineer at Dragun Corporation.  Matt has 30 years of experience with soil and groundwater remediation, vapor intrusion, and more recently with PFAS. Specific to PFAS, Matt has completed the ITRC PFAS Training; is a member of Michigan PFAS Action Response Team, Treatment Technology Roundtable, and Michigan Manufacturers Association PFAS Work Group; and participated in PFAS Experts Symposium. Matt is a frequent speaker, author, and expert witness. See Matt’s bio.

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