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January/February 2025

Environmental justice as an enforcement policy and business strategy

Todd S Kim

Summary

  • Environmental justice should be no more controversial an idea than justice itself.
  • Enforcement informed by environmental justice entails acting on behalf of communities suffering disproportionately from pollution and other environmental ills while communicating with those communities to understand their concerns and interests. 
  • Businesses too can benefit and head off environmental risks by engaging with and listening to neighboring communities, as well as maintaining robust corporate governance and practicing effective risk management. 
Environmental justice as an enforcement policy and business strategy
Luis Alvarez via Getty Images

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Environmental justice should no more be a controversial idea than justice itself. As a government and as a society, we should help those who need help the most. And so, at the Department of Justice’s Environment and Natural Resources Division (ENRD), we’ve been prioritizing enforcement on behalf of communities of any type if they suffer disproportionately from pollution and other environmental ills. Industry should expect such enforcement to continue and should understand there are other powerful incentives to be a good neighbor to these communities.

By holding polluters accountable to the law, effective enforcement ensures that industry properly accounts for the effects of its operations and that businesses that cheat don’t get an unfair advantage against law-abiding competitors. Enforcing with principles of environmental justice in mind entails understanding how an environmental violation affects the surrounding community’s health and quality of life, listening to that community, and shaping remedies that don’t just correct the violation going forward, but where appropriate, mitigate the harms it caused.

Being a responsible corporate neighbor is not all that different. It too requires accounting for how pollution affects overburdened and underserved communities. Maintaining robust corporate governance and practicing effective risk management are key strategies to avoid creating environmental problems in the first instance, and to minimize the harm if something does go wrong. Keeping a good relationship with the community—hearing their concerns and discussing solutions—limits the risk of conflict, adverse publicity, and litigation.

Adopting these practices protects the bottom line. The alternative approach of prioritizing short-term profits over environmental compliance can prove to be significantly more expensive and consequential for businesses in the long run, with federal and state governments, citizen-suit plaintiffs, tort lawyers, and others ready to take action when called to do so—and with shareholders, investors, and customers watching.

Here’s an example (one among many)of what can happen when a company fails to adopt good practices. The day before Thanksgiving in 2019, dual explosions at a Texas Petrochemical Company (TPC) facility in Port Neches injured five workers and released 11 million pounds of hazardous substances into the surrounding community, requiring everyone within a four-mile radius to evacuate. TPC failed to follow its own operating procedures, including monthly flushing of the production lines that would have prevented the buildup of explosive butadiene, and settled 27 civil claims under the Clean Air Act. TPC’s mismanagement and focus on profit has cost TPC $12.1 million in civil penalties. It also cost residents, who are contending with public-health effects from the release. As part of the resolution of civil claims, the United States required TPC to invest $80 million to improve safety not only at the facility where the explosions occurred, but also at TPC’s second facility near the Houston Ship Channel. TPC also must do the work of a responsible corporate neighbor that it should have done before, including hosting community meetings about the continuing risk, publicly releasing incident reports, and providing real-time data from new fenceline air monitors. These remedies were designed with the community in mind, because Department of Justice (DOJ) and Environmental Protection Agency (EPA) personnel engaged with the Port Neches and Houston communities over the course of the litigation.

Such community-centered strategies are critical to our enforcement work here at ENRD. ENRD attorneys sat in EPA’s Community Center in East Palestine, Ohio, to take public comment directly from residents affected by the February 2023 derailment of a Norfolk Southern train carrying hazardous materials. Those comments shaped our motion to enter a $350 million settlement with the railroad, in federal court. In another example, after record rain and flooding overwhelmed the City of Jackson, Mississippi’s primary water treatment plant, causing it to fail and leaving residents without drinking water or running water for more than a week, ENRD filed a lawsuit under the Safe Drinking Water Act against the city. The court appointed a third-party manager to stabilize the drinking water system the same day. DOJ and EPA personnel met with the business community, educators, health workers, and communities of faith to learn about the challenges that Jackson faced in the wake of the catastrophic loss of running water, and also about the broader context: that these residents had been without reliable access to safe drinking water for years, receiving as many as 300 “boil-water” notices in two years.

Community-centered strategies also rely heavily on federal, state, and local partnerships. During this administration, we launched a concerted interagency effort to address lead paint pollution, engaging across federal agencies and partnering with local health departments. We also worked through our criminal enforcement attorneys and U.S. attorneys’ offices to build out environmental enforcement task forces with state and local counterparts. ENRD’s Office of Environmental Justice is instrumental in facilitating these goals and increasing transparency about DOJ’s environmental justice efforts. With points of contact for environmental justice now in every one of the 94 U.S. Attorneys’ Offices—some with entire environmental justice units and others forming geographic task forces—we have strong partnerships ready to hold violators accountable.

DOJ’s renewed emphasis on environmental justice is significant but should not be controversial. Our programs recognize that permit violations are not paper violations, but pollution violations that put real people at risk. Some people live in heavily industrialized communities, or in communities where lax enforcement has resulted in unacceptably high levels of air and water pollution. DOJ’s long-standing practice is to take such circumstances into account—for instance, the Principles of Federal Prosecution direct attorneys to consider the “impact of an offense on the community in which it is committed.” Environmental justice at ENRD means continuing our ordinary work of enforcing environmental laws with greater awareness of the context for the harm and of our responsibility to listen to those impacted, so we can do the most good.

It is the mission of the Department of Justice to uphold the rule of law, to keep our country safe, and to protect civil rights for everyone, including the most vulnerable. The business community can be a powerful ally on each aspect of this mission. Being a responsible corporate neighbor by adopting sound corporate practices, listening to the community, and acting on what you learn will help you manage risk and prevent problems, all while serving the public good.

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