A new Justice Department directive ordering each of the nation’s 93 U.S. attorneys to designate an environmental justice coordinator will bring a sharper focus to the issue, former U.S. attorneys tell Bloomberg Law.
That order is almost certain to be carried out meticulously, because U.S. attorneys “want to be well loved and superstars in their community, and they want their boss in D.C. to regard them highly,” said Ronald Tenpas, a former U.S. attorney in Illinois under President George W. Bush.
“So if you tell them, ‘Every six months you’ll be forced to report on what you did on EJ,’ that’s probably going to affect behavior,” said Tenpas, who also was an assistant U.S. attorney in Maryland and Florida under Bush and President Bill Clinton.
The interagency memo circulated by Associate Attorney General Vanita Gupta directs the point person in each U.S. attorney’s office to find areas of concern in their regions and set up and publicize a procedure for the public to report environmental justice concerns.
Gupta’s memo also orders the Executive Office for U.S. Attorneys (EOUSA)—which oversees and supports the 93 offices—to track and report each year on environmental justice matters handled by each U.S. attorney’s office.
‘Window Dressing’ Risk
But because U.S. attorneys are politically-appointed, Senate-confirmed officials, they see themselves as being accountable to the deputy attorney general—not the EOUSA, said Tenpas, who also served as assistant attorney general at Justice’s environment division under Bush and is now a partner at Vinson & Elkins LLP.
Thus, the success or failure of the new effort will hinge on whether or not Gupta directs the executive office to require detailed tracking—such as a scoresheet on which each office must report its yearly results—rather than a “three-page homework narrative report on all the great things we’re doing,” Tenpas said.
If EOUSA’s oversight isn’t rigorous, “this is more likely to become window dressing,” he said. “No one’s going to want to write in at the end of the year and say, ‘We did nothing,’ but you can probably be relatively less engaged in this and still dress it up at the end.”
Line prosecutors may also be able to use Justice’s new emphasis on equity to gain more support for other cases that might not otherwise be considered environmental justice matters, according to Kevin Minoli, former principal deputy general counsel at the EPA during the Obama administration and now a partner at Alston & Bird LLP.
“People may learn how to repackage what they’re already doing in the context of EJ,” Minoli said.
That wrinkle could be ironed out if Justice were to come up with a clear definition of an environmental justice community that includes race as a factor, Minoli said.
Kari Fulton, frontline policy coordinator at Climate Justice Alliance, agreed, saying she worried that, without a definition that includes race, environmental justice could “become a punchline that doesn’t necessarily get down to the front lines.”
Another critical factor is whether Justice makes new funding available for the U.S. attorneys to hire new staff to take on environmental justice, said McGregor Scott, a former two-time U.S. attorney for the Eastern District of California under Bush and Donald Trump.
A Justice Department spokeswoman confirmed that the agency’s budget request doesn’t include a line item for the 93 new hires, adding that it’s not uncommon for DOJ to task existing staff with new responsibilities.
Nevertheless, without new funding from Congress, the Justice Department will be under far less pressure to explain its environmental justice results to lawmakers, according to Scott, now a partner at King & Spalding LLP.
In such situations, “an assistant U.S. attorney will get this assignment and say, ‘I’ve got 10 other things to do today, and this is probably number 11 on that list,’” he said.
Scott also said the effort is likely to work best if each U.S. attorney has the discretion to decide how to put the directive into practice.
“One size does not fit all,” he said. “You can have extreme variances in the nature of the problem in this specific area.”
But U.S. attorneys don’t have the discretion to flatly ignore directives from main Justice, Scott said.
Environmental justice advocates applauded the decision to have more coordinators.
The move is likely to make a meaningful difference in “states with no regard for overburdened communities that have become sacrifice zones,” said Catherine Flowers, rural development manager at the Equal Justice Initiative.
In predominantly white districts where environmental justice hasn’t historically been a top concern, the designation of a point person in each U.S. attorney’s office “will definitely shift the conversation,” added Omar Muhammad, executive director of the Lowcountry Alliance for Model Communities.
But Muhammad expressed caution that “even if you have that point person, it could still be a heavy lift for those communities to be able to move the needle, particularly in states that have been resistant to these sorts of changes.”
Leslie Fields, national policy advocacy and legal director at the Sierra Club, said she hopes the effort results in more enforcement in EJ areas. That would not only clean up the environment and punish violators, but send a public signal to other companies, Fields said.
The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.