Elevating EJ: How EPA’s New Environmental Justice Office Raises the Stakes for EJ Enforcement and IRA Funding Opportunities

The new OEJECR will not oversee enforcement of environmental laws, but it will provide assistance to EPA’s enforcement office on how officials can collaborate and engage with communities where enforcement actions occur. Importantly, regulated entities can expect scrutiny from OEJECR if any part of their operations involve potential civil rights issues. For example, historically, EPA has enforced federal civil rights laws in the environmental context through its External Civil Rights Compliance Office, the office responsible for ensuring that recipients of federal funding do not discriminate on the basis of race, color, national origin, sex, disability, and age. Now, OEJECR will enforce laws like Title VI of the Civil Rights Act of 1964 with a larger budget and with more resources across regional offices. This will support the agency’s strategic goal to strengthen civil and criminal enforcement in overburdened communities.² At the same time, the inclusion of EPA’s Conflict Prevention and Resolution Center — which is supposed to help the agency resolve disputes in a timely, cost effective manner — in the new office may mean that EPA will emphasize alternative dispute resolution measures to resolve civil rights complaints and investigations.

With a Senate-confirmed assistant administrator at the helm, OEJECR will have the political clout and influence over policy decisions that mirror the other major programs. Financially, EPA hopes to invest close to $295 million in its national EJ program in Fiscal Year 2023, which is more than the approximately $236 million it received for its enforcement programs and the $282 million it received for its clean air and climate programs for Fiscal Year 2022.³

Finally, like the other major programs, OEJECR will be featured in all ten EPA regions. As EPA explained in its Fiscal Year 2023 budget request, the new EJ investments will provide these regions “with more capacity to integrate environmental justice across their programs and regularly engage with and support community and state, tribal, and local partners.”

Additionally, OEJECR elevates the opportunities for states, tribes, municipalities, and nonprofit organizations to receive grants and the funding Congress provided in the IRA. As we previously discussed, the IRA prioritized EJ by providing tax credits, grants, and funding to disadvantaged communities, including $3 billion for environmental and climate justice block grants and $60 billion for other EJ initiatives. The new national office will oversee the implementation and delivery of this $3 billion grant program, along with several other EJ-related funding programs. It will take some time for all $3 billion to reach final destinations, but entities should be aware that the funding ultimately may result in more enforcement attention, especially through groups pursuant to citizen suit provisions or through citizen group referrals to traditional enforcement authorities. This is because the IRA specifically identifies “community-led air and other pollution monitoring” and “facilitating engagement of disadvantaged communities in . . . public processes,” as eligible activities for the $3 billion program.⁴ Additional pollution monitoring may provide preliminary evidence of noncompliance with pollution regulations, while additional resources to promote enhanced engagement and coordination among community groups in areas with compliance and enforcement issues may allow more active reporting to traditional enforcement authorities or even pursuit of their own citizen suits under relevant environmental laws, such as the Clean Water Act and Clean Air Act. Thus, regulated entities should be aware that the IRA raises the stakes of potential noncompliance with environmental laws and regulations.

Takeaways

The creation of a new office dedicated to EJ and civil rights further elevates these issues as priorities of the Biden administration. EPA will be directing more federal resources and scrutiny to entities operating in or near communities already overburdened by pollution. Additionally, funding from the IRA will flow to disadvantaged communities, which may conduct their own pollution monitoring and report violations to relevant authorities. Accordingly, the regulated community should continue to increase attention to and proactively comply with relevant environmental laws and regulations, particularly those related to civil rights and EJ efforts.

Stay tuned for more updates on this topic and read V&E attorneys’ previous posts about Environmental Justice in our Environmental Series.

¹ EPA defines “environmental justice” as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”

² EPA defines “overburdened communities” as “minority, low-income, tribal, or indigenous populations or geographic locations in the United States that potentially experience disproportionate environmental harms and risks.”

³ EPA is seeking approximately $291 million and $524 million, respectively, for its enforcement and clean air and climate programs for Fiscal Year 2023.

⁴ Pub. L. No. 117-169, § 60201 (2022).