Demonstrating a new emphasis on enforcement against corporate polluters, the DOJ has announced the formation of a new Office of Environmental Justice (the “OEJ”). The OEJ will coordinate with other governmental agencies to target in particular entities which cause harm to underprivileged communities.
On May 5, in a step which marks another shift from the policies of the prior administration, Attorney General (AG) Merrick Garland announced that the Justice Department is opening an Office of Environmental Justice. AG Garland said the OEJ “will serve as the central hub for our efforts to advance our comprehensive environmental justice enforcement strategy,” with the office working alongside a number of other intradepartmental agencies, including the Civil Rights Division and United States Attorneys’ offices and the Environmental Protection Agency, to “prioritize meaningful and constructive engagement with the communities most affected by environmental crime and injustice.”
AG Garland went on to state: “In our environmental enforcement efforts, we will prioritize the cases that will have the greatest impact on the communities most overburdened by environmental harm,” he said, noting that “communities of color, indigenous communities, and low-income communities often bear the brunt of the harm caused by environmental crime, pollution and climate change.” To aid in these efforts, the DOJ is planning to reinstate an enforcement tool that was eliminated under the previous administration, namely including “supplemental environmental projects” to remediate environmental damage as part of settlement agreements.
Speaking alongside AG Garland, EPA Administrator Michael Regan stressed the importance of the department’s ability to use the supplemental projects in cases, saying: “Communities, particularly those with environmental justice concerns, deserve the assurance that their government will take vigorous enforcement action when polluters flout the law and jeopardize their well-being.”
The new office will be headed by Cynthia Ferguson, an attorney working in the DOJ’s existing Environmental Enforcement Section of its Environment and Natural Resources Division.
This administration continues to distinguish itself from the previous one with its renewed and reinvigorated emphasis on environmental protection and climate change mitigation. Particularly if the OEJ follows through and seeks ongoing remediation projects as a necessary component of settlements, targeted companies can expect hefty price tags to accompany any enforcement actions. Management liability insurance policies may provide only limited coverage to the entity for OEJ actions but ought to respond to securities fraud class actions and corporate derivative suits which could follow. Individual directors or officers should be entitled to coverage, potentially even for government investigations, to the extent that they are targeted. Companies should consult with their brokers about the adequacy of their coverage, and should be wary of carrier attempts to add environmental/climate-related exclusions or broaden the scope of existing pollution exclusions.
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