On July 20, 2023, the U.S. Senate confirmed the long-awaited appointment of David Uhlmann as the new Assistant Administrator of the Environmental Protection Agency’s (“EPA”) Enforcement and Compliance Division.[1] Mr. Uhlmann brings to EPA valuable experience. He served seventeen years at the U.S. Department of Justice (“DOJ”) under both Republican and Democratic administrations, including serving as DOJ’s Chief of the Environmental Crimes Section for seven years.[2] Mr. Uhlmann has a reputation as “one of the Nation’s top prosecutors of criminal polluters.”[3] Considering his new role at EPA, we can expect more enforcement from the already active agency.
Under the Biden Administration, EPA has been active in the environmental enforcement area and has made a conscious effort to advance environmental justice, focusing federal enforcement resources on communities facing substantial burdens from non-compliance.[4] In its Strategic Plan for 2022 through 2026, EPA set a goal to conduct 55% of its inspections at facilities in areas with environmental justice concerns by 2026.[5] EPA has already met that goal, with 56% of EPA’s on-site inspections occurring at facilities in such areas.[6] This number is up from a baseline of 27%.[7] With the Biden Administration’s support,[8] and now with Mr. Uhlmann heading the Enforcement and Compliance Division, we expect to see the agency aggressively pursue the environmental justice goals set forth in its strategic plan.[9]
[1] Mr. Uhlmann was first nominated by President Biden in 2021, however, his nomination expired before the Senate was able to confirm his appointment. President Biden nominated Mr. Uhlmann again in 2022, but the Senate voted to discharge his nomination by a vote of 51 – 39. See White House, President Biden Announces Three Key Nominations (June 22, 2021), available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/06/22/president-biden-announces-three-key-nominations-2/; see also Roll Call Vote Summary, 117 Cong. 2 (Aug. 6, 2022), available at https://www.senate.gov/legislative/LIS/roll_call_votes/vote1172/vote_117_2_00285.htm
[2] 118 Cong. Rec. S3438 (daily ed. July 20, 2023) (statement of Sen. Carper), available at https://www.congress.gov/118/crec/2023/07/20/169/125/CREC-2023-07-20.pdf
[3] 118 Cong. Rec. S3443 (daily ed. July 20, 2023) (statement of Sen. Schumer), available at https://www.congress.gov/118/crec/2023/07/20/169/125/CREC-2023-07-20.pdf
[4] “Environmental justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA, Environmental Justice, available at https://www.epa.gov/environmentaljustice
[5] EPA, FY 2022-2026 EPA Strategic Plan, available at https://www.epa.gov/system/files/documents/2022-03/fy-2022-2026-epa-strategic-plan.pdf
[6] EPA, Enforcement and Compliance Annual Results for FY 2022: Environmental Justice, available at https://www.epa.gov/enforcement/enforcement-and-compliance-annual-results-fy-2022-environmental-justice.
[7] Id. EPA’s baseline is derived from data gathered between 2017 and 2019.
[8] For more information on some of the actions the Biden Administration has taken to assist EPA in advancing environmental justice, see https://www.kelleydrye.com/getattachment/News-Events/Publications/Articles/U-S-Justice-Department-Unveils-New-Efforts-to-Tack/US-Justice-Dept-Unveils-New-Efforts-to-Tackle-Environmental-Justice-Concerns_Real-Estate-Finance-Journal_Fall-2022.pdf
[9] For more information on how the agency is addressing environmental justice, see https://www.kelleydrye.com/News-Events/Publications/Client-Advisories/EPA-Unveils-Updated-Legal-Toolbox%E2%80%9D-to-Address-Envi
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