To date, nearly 30 years after President Clinton issued an executive order urging federal agencies to act on environmental justice, community leaders from areas of the greatest pollution have invalidated the executive order to authorize significant changes in agency policies — and therefore changes in polluter behavior – to bring about . Cancer Alley continues to make headlines and even catches John Oliver’s attention. And Flint, Michigan, caught federal attention too late after lead had already damaged children’s brains.
However, President Biden’s executive order to address the climate crisis could signal significant changes that may be underway. Recently, the Department of Justice issued a comprehensive Environmental Justice Enforcement Strategy to provide guidance to Department of Justice enforcers. Much is new in this initiative. Most importantly, the strategy itself was partially influenced by community input.
Also of note is the requirement to appoint environmental justice coordinators in 93 US law firms. In tapping into this new reserve, the DOJ’s strategy memorandum notes that U.S. legal offices (USAOs) are “critical” because “most environmental justice issues are very local.”
However, if this strategy is not carefully implemented, it could easily be viewed both within the USAOs and the environmental justice community as another step that fails to reduce pollution and remedy systemic injustice.
Steps to eliminate skepticism
This skepticism would not be unjustified. The strategy does not rely on any specific funding for this effort. Additionally, U.S. attorneys typically do not enforce environmental laws — let alone deal with environmental justice.
These agencies have not traditionally played a significant role in pursuing environmental matters, even when included in the pleadings, because such enforcement typically falls within the purview of the DOJ’s specialized division in charge of environmental enforcement (the Environmental Enforcement Section Environment within the DOJ’s environment). and Department of Natural Resources). Accordingly, pollution-affected communities and USAOs have no meaningful relationships.
Listen to local communities
However, some fundamental and early investments could meaningfully pool the powers of these agencies across the country.
First and foremost, US attorneys must understand the first principle of environmental justice: communities speak for themselves. In order for communities to speak for themselves, US attorneys must be willing to listen. Simply put, US attorneys need to start the hard work of building relationships.
In doing this work, US attorneys may need moderators to ensure that “listening” reflects the seriousness of the offices’ efforts. By doing this, US attorneys may be able to find the best evidence in their enforcement cases and build relationships that lead to justice, not just law enforcement: communities can see how the justice system works for them.
Effective listening also requires homework. US attorneys need to educate themselves about the local history of the redlining and its connection to current pollution patterns. US attorneys also need to understand that affected communities have received treatment on the other side of the railroad in all aspects of their experiences, not just pollution.
Initiate enforcement in subject areas
Second, US attorneys can demonstrate their commitment to the environmental justice strategy by initiating enforcement for which they are best suited. For example, US attorneys are experts in areas that traditional environmental enforcers may not be familiar with; The former often have expertise in the False Claims Act and perhaps even civil prosecution, arsenals the DOJ mentions as being necessary for implementing environmental justice strategies.
Identifying such cases early would give affected communities confidence in the role US attorneys could play in addressing environmental injustices.
Hire those who understand environmental justice
Third, US attorneys can base their next hiring decisions on this strategy memorandum, although no funding has been allocated to appoint environmental justice coordinators in their offices. The next employee should be familiar with environmental justice principles and even have experience in enforcing environmental justice.
These employees would understand that while many environmental matters relate to areas that flash red on environmental and socioeconomic vulnerability screening tools, this alone does not make a case an environmental justice matter.
In environmental justice cases, prosecutors need to understand that they must find a way to share the details of the case so that the community can contribute to the prosecution and resolution of the case. An attitude with an understanding of environmental justice would ensure that USAOs develop meaningful relationships with representatives of affected communities.
Finally, US attorneys must not be afraid to take action against local authorities that violate environmental laws. As community members know only too well, lax local enforcement deepens already existing disparities in pollution.
This article does not necessarily represent the opinion of the Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Helen Kang is Professor of Law at Golden Gate University School of Law and Director of the school’s Environmental Law and Justice Clinic, where students and professors provide legal services to communities in need, including through environmental enforcement. She previously served as a trial counsel in the DOJ’s Environmental Enforcement Section.