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Conservationists see holes in Justice Dept’s climate change strategy

In the wake of the Supreme Court's slash at agency authority to regulate harmful emissions, the Biden administration faces an uphill battle in the fight against global warming.

WASHINGTON (CN) — Pioneering a campaign for environmental justice with the realities of climate change in mind, U.S. Attorney General Merrick Garland kicked off the month of July with a much-anticipated strategic plan for the Justice Department.

The timing — only one day after the Supreme Court ruled that the power to regulate carbon dioxide emissions lies with Congress, not the Environmental Protection Agency — couldn't be worse.

“It … does not take into account or anticipate the recent West Virginia v. EPA ruling as the [political] right continues to find ways to undermine the ability to enforce regulation around pollutants like greenhouse gasses and basic rights,” said Marion Gee, co-executive director of the Climate Justice Alliance, referring to Garland's plan and the case that the justices decided 6-3 on Friday, part of a batch of contentious opinions that allowed Republican appointees to flex their supermajority muscles.

Garland's Strategic Plan for the Justice Department lays out goals through the year 2026 and tackles issues that the agency's last top officer, William P. Barr, left out.  

The 90-page plan calls for prioritizing law enforcement actions that will “achieve [greenhouse gas] emission reductions and relief that mitigate the impact of past violations, and hold violators accountable for committing environmental crimes.” 

“We will also mount defensive litigation to protect government action that addresses greenhouse gas emissions and promotes climate resilience and the health of the environment,” according to the plan. 

Gee told Courthouse News that Garland’s environmental justice strategies in the plan are “critical” — but not clear. 

“It is not evident in the performance measures how [environmental justice] communities will report illegal pollution or how they will partner with local community-accountable organizations to enforce laws that should be protecting frontline communities,” Gee said. 

Justice Department spokesman Wyn Hornbuckle told Courthouse News that tracking the agency's “Energy Intensity” output will serve as “a key indicator for the next four years for us to track how we are doing in implementing our own strategy on climate change.” 

Dana Johnson, senior director of strategy and federal policy for We Act for Environmental Justice, told Courthouse News that joint environmental law enforcement efforts by the Justice Department and the EPA have declined “dangerously” over the past 15 years. 

The breakdown in collaboration, she said, means that environmental law violations are slipping through the cracks because the two agencies are “not effectively” addressing issues in “overburdened, fenceline communities facing environmental injustice.” 

“The lack of response has had a disproportionate effect in communities of color and areas of low income,” she said, referring to those whose homes are unavoidably affected by industrial or other damaging output from neighboring operations. 

The city of Flint, Michigan, came into the national spotlight in 2014 after local officials started using water from the Flint River without treating it properly, in a purported effort to cut costs. 

Complaints from the majority-Black community about discolored, foul-smelling water, along with skin rashes and hair loss, were largely written off by government officials. And it wasn’t until national news outlets picked up on researchers’ reports showing high lead levels detected in the blood of local children that the city switched back to treated water from Lake Huron in October 2015.  

By then, however, it was too late: Flint children already had dangerous levels of lead in their blood, and the pipes underneath the city became contaminated with lead during the 18-month switch and needed to be replaced. 

Banding together with the American Civil Liberties Union and the National Defense Resources Council, residents in 2016 filed the first of several civilian environmental lawsuits against Michigan officials under the Clean Water Act. 

The state-run Michigan Civil Rights Commission has since determined that the government’s lackluster response to residents’ complaints was the “result of systemic racism.” Eight years later, court cases are still being filed and residents are still dealing with health problems and economic consequences caused by the Flint water crisis. 

Johnson said it is the DOJ’s duty in In underserved communities like Flint to step up and boost enforcement action “holistically” — meaning the agency should assess the cumulative impacts of exposure to air and water pollution, toxic chemical and hazardous materials. 

She also called for “better engagement and responsiveness to community concerns" and said Garland should form an internal watchdog within the Justice Department to monitor compliance. 

Since taking office 15 months ago, Garland launched the DOJ’s first-ever civil environmental justice investigation in November to determine whether the Alabama Public Health Department is operating its wastewater programs in a way that discriminates against Black residents. In May, he issued the department’s first environmental justice strategy and established a new Office of Environmental Justice.

But as Johnson sees it, Garland’s focus on enforcement efforts should take a backseat to a more pressing environmental justice issue: protecting voter’s rights. 

“The first step to achieving environmental justice is to ensure that people living in communities of color and areas of low income can participate fully in the decision-making process for leadership at every level of government,” she said. 

Her call-to-action on Wednesday came the same day the Justice Department sued Arizona over a new law that requires residents to show proof of citizenship to register to vote in federal elections. 

Assistant Attorney General Kristen Clarke, who leads the Civil Rights division at the Department of Justice, said the law runs afoul of decades of legal precedent.  

“For nearly three decades, the National Voter Registration Act has helped to move states in the right direction by eliminating unnecessary requirements that have historically made it harder for eligible voters to access the registration rolls,” Clarke said in a statement on Wednesday. 

By passing the law, Clarke said Arizona has turned “the clock back on progress” through “unlawful and unnecessary requirements” that would bar eligible voters from certain federal elections. 

The law is among the more than 440 restrictive voting bills that have been introduced in state legislatures since 2020, which Gold says is why “protecting the right to vote critical to advancing environmental justice.” 

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