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October 01, 2003

Integrating Environmental Justice at the Department of Justice

by Thomas L. Sansonetti

The primary mission of the Environment and Natural Resources Division (Division) of the Department of Justice (DOJ) is to enforce the nation's environmental and natural resource laws and defend federal agencies that carry out policies and programs to implement these and other laws. Our duty as legal practitioners extends not only to the agencies that we represent but also to the advancement of the public interest. Part and parcel of this duty is the commitment of the Division to the fair and consistent enactment and application of laws established by the government to manage natural resources and protect human health and the environment. In keeping with this commitment, the Division has worked to incorporate environmental justice into its mission since the issuance of President Clinton's Executive Order on Environmental Justice in February 1994. Exec. Order No. 12,898. The Environmental Protection Agency (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." The Division endorses this definition, which includes two core principles of the rule of law: (1) fair treatment and (2) meaningful involvement.

The first principle, fair treatment through fair and consistent enforcement, allows us to "level the playing field" for regulated entities so that no entity engaging in illegal action may gain from that activity to the detriment of its law-abiding competitors. Similarly, fair treatment ensures that illegal activities resulting in environmental degradation will not be tolerated regardless of where they occur. The principle of meaningful involvement is no less important; giving people a voice in decisions that affect their communities and their lives is a fundamental value in a democratic society. The United States has codified that value by enacting administrative and environmental laws such as the Administrative Procedure Act, the National Environmental Policy Act, and provisions in other environmental laws that allow citizens both to petition the government to take action, and to enforce laws through citizen suits.

The Division prioritizes environmental justice goals into its planning in key areas including:

Coordinated enforcement efforts. During the past few years, the DOJ, the Department of Housing and Urban Development (HUD), the EPA, and state and local governments throughout the country undertook a nationwide initiative to enforce the Residential Lead-Based Paint Hazard Reduction Act. This law requires landlords and sellers of older housing to warn prospective tenants and buyers of the dangers of lead paint. Civil and criminal enforcement actions brought by the Division as well as U.S. Attorneys' Offices have resulted in a series of successes. These civil and criminal enforcement actions, along with administrative actions taken by the EPA and HUD, resulted in the testing and cleanup of tens of thousands of dwelling units, the collection of hundreds of thousands of dollars in civil penalties, and the establishment of supplemental projects (including child health improvement plans) to conduct inspections, abatement projects, and free blood lead testing for children.

Collaboration with communities. In enforcing cases raising environmental justice concerns, the Division works with affected communities, soliciting their input when crafting settlements. Division attorneys regularly work with the EPA and low-income and minority communities to develop supplemental environmental projects that address community concerns. For example, the Division recently settled a Clean Air Act case against DuPont in connection with the release of a toxic cloud of hydrogen fluoride from a facility in Louisville, Kentucky. Under the terms of the proposed settlement, DuPont agreed to set aside a green buffer zone between the facility and the neighboring community, which the EPA designated an environmental justice area; and to fund a community information center and a Web site to provide environmental and health information.

Defense services. The Division defends cases that raise environmental justice concerns and takes proper account of such concerns. For example, the Division defended the decision of the United States to authorize the Makah Indian Tribe in the State of Washington to conduct subsistence whale hunts in accordance with quotas established by the International Whaling Commission. The Division defends the position that such hunts are part of the cultural heritage of the Makah and do not threaten the future viability of whale populations.

Collaborative interagency projects. The Division represents the DOJ in the Interagency Working Group on Environmental Justice established by Executive Order 12,898. Division personnel are actively involved in the group's efforts to identify environmental justice revitalization projects and work with diverse groups of public and private stakeholders and community organizations. In addition, the DOJ's Executive Office for Weed and Seed administers a community-centered program to weed out criminals and seed areas with economic development programs and youth services.

The Division is committed to fair and consistent enactment and application of programs and laws and believes that no community should be subject to environmental harms stemming from illegal activity.

In the course of litigation to which the United States is a party, the Department may also address environmental justice issues arising under Title VI of the Civil Rights Act; those activities are outside the scope of this article.

As published in Human Rights, Fall 2003, Vol. 30, No. 4, p.9-10.

Thomas L. Sansonetti

Thomas L. Sansonetti is the assistant attorney general of the Environment and Natural Resources Division at the U.S. Department of Justice. Formerly, he was the solicitor for the Department of the Interior.