DOJ Advances Environmental Justice Strategy in Partnership with EPA
Commentary by Ilan T. Graff
The DOJ and EPA outlined a series of actions as part of a comprehensive approach to securing environmental justice.
In a memorandum, Attorney General Merrick B. Garland described the DOJ's new approach to environmental justice, which includes:
- the creation of a new Office of Environmental Justice within the Environment and Natural Resources Division ("ENRD");
- publication of a comprehensive environmental justice enforcement strategy, developed by the ENRD and EPA, pursuant to E.O. 14008; and
- issuance of an Interim Final Rule to resume the use of supplemental environmental projects where justified, subject to the guidelines and limitations for settlement agreements involving payments to non-governmental third parties.
AG Garland said the Office of Environmental Justice will serve as the "central hub" to "advance [DOJ's] comprehensive environmental justice enforcement strategy." Cynthia Ferguson, an experienced ENRD attorney, was named Acting Director of the new office.
Commentary
The newly announced strategy identifies the False Claims Act ("FCA") as one of the tools that prosecutors should consider deploying in service of environmental justice. This follows the DOJ's announcement last fall that it would be pursuing FCA liability against government contractors with misleadingly deficient cybersecurity programs (see related coverage). DOJ leadership's emphasis on applying the FCA to environment-related misrepresentations is yet another reason for companies to be attentive to accuracy in ESG reporting.