The Biden administration made it clear from day 1 that addressing environmental justice (EJ) issues would be a top priority. With the initial groundwork completed, the Departments of Justice (DOJ) and Health and Human Services (HHS) announced an interim resolution agreement in their EJ investigation into the Alabama Department of Public Health and the Lowndes County Health Department (collectively ADPH) in Lowndes County, Alabama.

“ADPH cooperated throughout the investigation and agreed to the interim resolution agreement that puts ADPH on a path forward towards ensuring the development of equitable and safe wastewater disposal and management systems in Lowndes County,” says a DOJ press release.

The May 5, 2023, announcement “marks the first time the DOJ has secured a resolution agreement in an (EJ) investigation under federal civil rights laws,” according to an Earthjustice press release.

The announcement was made on the 1-year anniversary of the DOJ’s launch of its Office of EJ (OEJ) and its Comprehensive EJ Enforcement Strategy.

Background

In November 2021, the DOJ and HHS launched an investigation into whether the ADPH’s conduct violates Title VI of the Civil Rights Act of 1964 (Title VI) and Section 1557 of the Affordable Care Act (ACA).

“Title VI prohibits recipients of federal funds from discriminating on the basis of race, color or national origin in their federally funded programs and activities,” continues the DOJ press release. “Section 1557 provides that an individual shall not be excluded from participation in, denied the benefits of or subjected to discrimination under, any health program or activity, any part of which is receiving federal financial assistance, based on the grounds prohibited under Title VI.”

After nearly 18 months, the investigation uncovered areas of concern in the ADPH’s operations and compliance with Title VI and Section 1557.

Specific issues included:

• The ADPH’s enforcement of sanitation laws threatened residents of Lowndes County with criminal penalties and even potential property loss for sanitation conditions they weren’t able to alleviate.
• The ADPH engaged in a consistent pattern of inaction and/or neglect concerning the health risks associated with raw sewage.
• Despite the ADPH’s awareness of the issues and the disproportionate burden and impact placed on black residents in Lowndes County, it failed to take meaningful actions to remedy these conditions.

Agreement

Under the agreement, the actions the ADPH agreed to take to address public health in Lowndes County include:

• Suspending criminal penalties and liens: The ADPH will suspend enforcement of sanitation laws that could result in criminal charges, fines, jail time, and potential property loss for residents in Lowndes County who lack the means to purchase functioning septic systems. The ADPH will ensure Lowndes County residents are informed about the suspension of the criminal penalties and liens.
• Examining public health risks within Lowndes County: The ADPH will coordinate with the Centers for Disease Control and Prevention (CDC) to measure the level of health risks different populations experience from raw sewage exposure. The ADPH agrees to work collaboratively with the CDC and adopt any public health recommendations it provides.
• Launching a public health awareness campaign: The ADPH will develop a public health awareness campaign using radio, print ads, flyers, mailers, door-to-door outreach, and other appropriate ways to ensure residents receive critical health and safety information related to raw sewage exposure.
• Providing public health educational materials for Lowndes County healthcare providers: The ADPH will create or supplement education materials for healthcare providers for Lowndes County residents, including school-based health centers and community-based organizations, to provide more information on symptoms and illness related to raw sewage exposure.
• Conducting assessments to determine appropriate septic and wastewater management systems: The ADPH will conduct a comprehensive assessment to determine the appropriate septic and wastewater management systems for homes within Lowndes County and use that information to prioritize properties to receive systems based on risk of exposure to raw sewage. The ADPH can’t use this information for criminal penalties or liens.
• Creating a sustainable and equitable Public Health and Infrastructure Improvement Plan: Within 1 year, the ADPH will create a plan to improve access to adequate sanitation systems and address public health risks associated with raw sewage exposure.
• Consistently engaging with the community: In carrying out each aspect of the interim resolution agreement, the ADPH will consistently engage with community residents; local government officials; experts in wastewater, infrastructure, soil, and engineering; and EJ advocates. The ADPH must also engage with community stakeholders on at least a quarterly basis regarding its progress in creating and implementing the final Public Health and Infrastructure Improvement Plan.

As a result of the ADPH’s decision to enter into this interim voluntary resolution agreement, the departments have agreed to suspend their investigation. Under Title VI, the DOJ is required to informally resolve an investigation that indicates noncompliance. If the ADPH doesn’t comply with the agreement, the departments will reopen their investigation.

“Today starts a new chapter for Black residents of Lowndes County, Alabama, who have endured health dangers, indignities and racial injustice for far too long,” Assistant Attorney General Kristen Clarke of the DOJ’s Civil Rights Division says in the DOJ press release. “Our agreement puts Lowndes County on a path to long overdue reform as the state now takes steps necessary to provide access to basic sanitation services, end exposure to raw sewage and improve health outcomes for marginalized communities. This agreement marks the first [EJ] settlement ever secured by the Justice Department under our civil rights laws. Our work in Lowndes County should send a strong message regarding our firm commitment to advancing [EJ], promoting accountability and confronting the array of barriers that deny Black communities and communities of color access to clean air, clean water and equitable infrastructure across our nation.”

Year 1 activity

The DOJ issued a fact sheet outlining its accomplishments in the first year since it announced its Comprehensive EJ Enforcement Strategy and the OEJ. In addition to the interim settlement with the ADPH, those accomplishments include:

Enforcement

• The Civil Rights Division continues its investigation into the city of Houston’s operations, policies, and practices concerning illegal dumping and the impacts on communities of color in Houston.
• The Environment and Natural Resources Division (ENRD) filed a Clean Air Act (CAA) lawsuit on behalf of the EPA and sought immediate action by Denka Performance Elastomer, LLC, to curb hazardous emissions from its plant in LaPlace, Louisiana. An elementary school lies 450 feet from the facility.
• ENRD attorneys filed a Safe Drinking Water Act (SDWA) lawsuit on behalf of the EPA and negotiated an interim order with city and state officials to name a court-appointed manager and begin to stabilize the Jackson, Mississippi, drinking water system.
• Each of the 94 U.S. attorneys’ offices has designated at least one civil or criminal prosecutor to serve as an EJ coordinator. These attorneys and their teams have secured:
• Felony convictions for mismanagement of an industrial waste landfill in Alloy, West Virginia;
• Indictments for selling contaminated grape juice to the National School Lunch Program in Yakima, Washington; and
• A 16-month sentence for a contractor who violated federal lead paint safety laws when renovating low- and median-income housing in Indianapolis, Indiana.

Capacity-building and training

• The Federal Bureau of Investigation (FBI) has joined or formed six environmental task forces with the EPA across the United States.
• Eighty-nine U.S. attorneys’ offices have created EJ community reporting systems.
• The DOJ’s National Advocacy Center in Columbia, South Carolina, now includes EJ training in its seminars for U.S. attorneys’ offices.
• The OEJ and the Executive Office for United States Attorneys host monthly EJ trainings for the Department’s EJ Coordinators.
• The ENRD and the Civil Rights Division conduct witness interview trainings for professional staff to encourage the use of community impact statements in enforcement actions.
• The ENRD offers a mandatory EJ training for all new attorneys each fall and incorporated EJ in a training for state attorneys general staff.
• DOJ personnel held listening sessions with community leaders in Warren and Sansome Counties, North Carolina; in the Detroit/River Rouge area; in Houston, Texas; and throughout the Northern District of West Virginia (Wheeling/Martinsburg).

Tribal justice

• In November 2022, the ENRD and the Office of Tribal Justice (OTJ) co-hosted a listening session for tribes alongside the White House Tribal Leaders Summit.
• In February 2023, the ENRD and OTJ co-hosted a Defending and Strengthening Tribal Homelands Summit at the DOJ’s National Advocacy Center. Over 3 days, tribal and federal participants discussed enforcing tribal treaty rights, securing tribal water rights, and partnering with tribes to implement climate adaptation plans.

State EJ actions

On April 17, 2023, the New Jersey Department of Environmental Protection (NJDEP) announced the final adoption of regulations to implement New Jersey’s landmark EJ Law.

“The EJ Law and implementing rules are the first in the nation aimed at reducing pollution in historically overburdened communities and communities of color that have been subjected to a disproportionately high number of environmental and public health stressors,” according to a press release issued by New Jersey Governor Phil Murphy.

Under the EJ rules, when proposing to locate certain pollution-generating facilities in an overburdened community, an applicant must prepare an EJ impact statement and engage directly with members of the proposed host community by hosting a public hearing. The applicant must also collect all public comments and respond to them in writing.

The NJDEP will then evaluate whether pollution from the proposed facility would cause or contribute to environmental and public health stressors at levels disproportionate to those in less burdened communities. The EJ rules require permit applicants to avoid and minimize such stressors, including through the use of added pollution control technology. If disproportionate impacts aren’t avoidable, certain new facilities could be limited, or existing facilities could be subject to additional permit conditions that reduce environmental and public health stressors affecting the community.

There are eight types of facilities covered by the NJDEP EJ rules:

• Major sources of air pollution, such as gas-fired power plants and cogeneration facilities;
• Resource recovery facilities or incinerators;
• Sludge processing facilities, combustors, or incinerators;
• Sewage treatment plants with a capacity of more than 50 million gallons per day;
• Transfer stations or other solid waste facilities or recycling facilities intending to receive at least 100 tons of recyclable material per day;
• Scrap metal facilities;
• Landfills, including landfills that accept ash, construction or demolition debris, or solid waste; and
• Medical waste incinerators, except those attendant to hospitals and universities.

“Significantly, the public hearing and EJS requirements pertain not only to new permit applications but also to permit renewals for existing facilities,” advises a Day Pitney LLP article in Lexology.

New Jersey’s EJ actions follow other states that have enacted EJ regulations, including California, Oregon, and New York.