Predicted Uptick in Environmental Enforcement Coming to Pass

The uptick in environmental enforcement by state attorneys general that we predicted appears to be coming to pass. New York Attorney General Letitia James recently announced that the switch to the Biden Administration has allowed her office to shift its focus from litigation against the federal government to increased environmental enforcement. James explained that "the attitude and relationship has changed" with the new administration, which will enable "more collaboration and coordination." Newly confirmed EPA Administrator Michael Regan echoed this sentiment in a recent speech before the Environmental Council of the States, where he reaffirmed the EPA's "commitment to working collaboratively and cooperatively with the states to protect public health and the environment." While it's still early, companies should expect to see increased state enforcement, particularly in states with Democratic attorneys general likely to be in step with the Biden Administration's policies.

This increase in state enforcement likely will come at the same time as increased enforcement at the federal level. Todd Kim, Biden's nominee to lead the Justice Department's Environment and Natural Resources Division (ENRD), is well-respected, and his past experience within ENRD and as solicitor general for Washington, DC suggests he will be supportive of career prosecutors within ENRD. Many of ENRD's enforcement tools were constrained by policies in place under the Trump administration, policies that already are being shelved. If confirmed, Kim would play an important role in enforcing environmental laws and fulfilling the new administration's pledge to ramp up criminal environmental prosecutions.

To prepare for this shift in environmental enforcement, there are a number of proactive steps companies should consider taking now, particularly if they conduct activities that have the possibility of impacting vulnerable communities and raising environmental justice concerns. Companies should:

• Evaluate and if possible enhance their relationships with regulatory officials, particularly at the state level, but also at the federal and local level.
• Review existing environmental management systems to make sure they are current and help achieve compliance.
• Consider the quality of past and future compliance audits to confirm they are sufficiently rigorous to withstand renewed EPA scrutiny.
• Ensure that all facilities know exactly what to do if federal inspectors or criminal agents arrive for a surprise inspection or to execute a warrant.
• If serious noncompliance is discovered, give consideration to prompt correction and voluntary self-disclosure to reduce any likelihood of criminal prosecution.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.