ENVIRONMENTAL JUSTICE:

Initiative offers 'opportunity,' not a burden, DOJ tells wary industry

Second of two stories on the Obama administration's environmental justice efforts. Click here for the first story.

In seeking to persuade industry that the term "environmental justice" should be embraced rather than opposed, it could be said that Ignacia Moreno has adopted a velvet glove approach.

As head of the Justice Department's Environment and Natural Resources Division, Moreno has an iron fist. It's her duty to pursue civil and criminal cases against companies and individuals accused of violating environmental laws.

But when it comes to environmental justice, she's a saleswoman.

In a recent interview at the department, Moreno stressed her dedication to environmental justice -- defined as the concern that certain communities, especially those with large minority populations, are more likely to be exposed to environmental perils than wealthier and whiter areas -- while also maintaining a dialogue with industry.

Unlike U.S. EPA, which has leeway to incorporate environmental justice concerns into its decisionmaking processes, including permitting, DOJ has a more rigid role and a more politically sensitive one.

That is because DOJ has the discretion to choose which cases to pursue.

Moreno adopted a conciliatory tone when discussing her dealings with industry in the context of environmental justice. It was in keeping with the post-2010 election landscape that has seen the White House seek a warmer relationship with the business community.

Moreno, who was born in Colombia but grew up in New York City, is perhaps ideally placed to make the pitch. While she says she has a "100 percent commitment" to the environmental justice cause, she also has experience as a corporate lawyer.

Indeed, the 49-year-old's last job before being nominated to her current position in 2009 was as an in-house environmental lawyer at General Electric Co.

As Moreno describes it, there are two ways DOJ takes environmental justice into account: by listening to the views of the community and then trying to negotiate settlements that address those concerns.

"It sounds simple, but it isn't," she said.

Politics at issue

In recent months, Moreno has been reaching out to the corporate world by speaking with various groups, including the Corporate Environmental Enforcement Council, an industry group for lawyers and others who work on environmental issues.

Moreno said there was "a lot of interest in talking about environmental justice" among the members that led to a "very good and productive conversation"

The group's executive director, Steve Hellem, was reluctant to discuss how members view the administration's initiative.

"It's too early to have a conversation," Hellem said. The group has had "good communications" with both DOJ and EPA, he added.

Others are more outspoken.

Donald Elliott, EPA general counsel during the George H.W. Bush administration and now a lawyer at Wilkie, Farr & Gallagher, said that at one event where Moreno spoke about environmental justice, several industry people in the audience "were rolling their eyes a little bit."

The concern, according to Elliott, is the Obama administration's assumption that it is "a proven fact that minorities are routinely exposed to greater environmental hazards than others" is a view not everyone shares.

Elliott said he got the impression from Moreno that environmental justice "would be an important factor in the exercise of prosecutorial discretion," which some see as problematic.

The elephant in the room is a concern among some conservatives that a Democratic administration, especially one led by an black president with minorities in prominent positions, including Moreno herself and Attorney General Eric Holder, also black, might be tempted to favor minorities over whites.

Exhibit A in this debate was DOJ's decision to drop a voting rights case against two New Black Panther Party members who allegedly intimidated voters during the 2008 election at a Philadelphia polling place.

Critics had suggested that politics influenced the decision, although a report by DOJ's Office of Professional Responsibility found no wrongdoing.

That case was handled by DOJ's Civil Rights Division, generally seen as more likely to be subjected to political pressures than Moreno's division, but some conservative-leaning lawyers nevertheless appear concerned that the episode is representative of the department in general.

"It suggests to some people there are certain groups that are entitled to more protection than others, which is what makes people uncomfortable," Elliott said. He stressed that he has seen no evidence of that occurring and noted that the business community has plenty of other issues that it worries about a lot more than environmental justice.

Other lawyers who work on environmental cases, including Jim Rubin, a lawyer now at SNR Denton who spent 15 years in the environment and natural resources division, do not believe there is a problem with DOJ factoring environmental justice concerns into its decisionmaking as long is it does not trump the underlying facts in the case.

"They would not prosecute a case based on politics," Rubin said.

In an email response on the issue, Moreno said the department focuses on "the facts and applicable law" when deciding which cases to pursue.

"Our goal in considering environmental justice, is to ensure that all communities enjoy the benefit of a fair and even-handed application of the law and that affected communities have a meaningful opportunity for input in the consideration of appropriate remedies for the violations of the environmental laws," she said.

Political considerations "play absolutely no role," she added.

'Sweetening the pot'

Away from the potentially political issue of which cases to pursue, other aspects of the environmental justice initiative as approached by DOJ are less controversial.

During settlement negotiations, for example, DOJ lawyers can push for the company to take on a supplemental environmental project.

Lawyers familiar with environmental litigation say such projects have been part of settlements for years and are a way for the government to ask companies to undertake some mitigation measures. In return, the company might face a less stiff financial penalty.

"Companies like them because they are a way to sweeten the pot," Rubin said.

The projects are useful for DOJ and EPA because they can determine how the money is spent. By contrast, fines go straight into the Treasury and are never seen again.

For DOJ and EPA, environmental justice considerations can help determine what kind of project the company is asked to undertake.

An example cited by Moreno is a September 2010 agreement with Murphy Oil USA over Clean Air Act violations. The firm agreed to install an ambient air monitoring station near its Meraux, La., refinery in order to assuage concerns within the community about ongoing pollution.

Moreno refers to corporations that are willing to play ball as "forward-leaning companies" and makes the argument that it can be a "win-win" situation.

"This is not anything that will provide any additional burden on the company," she said. "Rather it's really an opportunity."

Commitment to the cause

Moreno maintained that at least some businesses are genuinely interested in taking the environmental justice concept on board.

Business leaders, she said, "really are in the best position to address some concerns that have been raised by environmental justice communities."

Moreno stressed that the discussions should not unduly alarm environmental justice advocates, who might fear the administration is getting too cozy with the corporate world.

"Not at all," she said. "Rather, we are going to bring business leaders into the conversation."

It's a sentiment shared by Vernice Miller-Travis, an longtime environmental justice advocate who serves on EPA's National Environmental Justice Advisory Council.

"I'm not worried," Miller-Travis said. That is because so many prominent officials in the Obama administration, including Attorney General Holder and EPA Administrator Lisa Jackson, have demonstrated their commitment to the cause in the past.

Moreno's velvet-glove approach in reaching out to industry is also a strategy that meets with Miller-Travis's approval.

"Sometimes you can get a lot further in a conversation that is not about litigation," she said.

Moreno, meanwhile, bridles at the suggestion that the administration may not be as keen on environmental justice now as it was before last year's election that gave Republicans control of the House.

She insisted that the administration will continue with the balancing act of pursuing the environmental justice agenda while also reaching out to the business community.

"The time has come, now, to address the inequities of the past and to make sure that we work toward making environmental justice a reality for all Americans," she said. "Not just Americans who have a voice."

Click here to read a transcript of the interview with Moreno.