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OFFICE OF GENERAL COUNSEL (OGC)

OGC serves as the chief legal adviser to EPA’s policymaking officials. It also pro

vides legal support to regional actions and enforcement and compliance litigation.

OGC lawyers represent the agency in court alongside the Department of Justice,

typically defending agency actions.

Needed Reforms and New Policies

Review EPA’s Environmental Justice and Title VI authority. Wherever possible, the Biden Administration is broadening EPA’s use and interpretation of Environmental Justice (EJ)*? and Title VI of the Civil Rights Act of 1964°* beyond long-standing understandings of the legal limits of that authority. As a threshold matter, there is an opportunity to redefine EJ as a tool for the agency to prioritize environmental protection efforts and assistance to communities in proximity to pollution or with the greatest need for additional protection. Allocations of agency resources, increased EPA enforcement, and/or agency distribution of grants should be based on neutral constitutional principles.

In 2023, the Supreme Court is expected to provide guidance on the constitutionality of race-based discrimination as it considers Students for Fair Admissions v. University of North Carolina. Accordingly, the next Administration should pause and review all ongoing EJ and Title VI actions to ensure that they are consistent with any forthcoming SCOTUS decision.

Establish a policy of legally speaking with one voice. Some EPA offices (for example, the Office of Enforcement and Compliance Assurance and the Offices of Regional Counsel) assert legal positions and interpretations of the law that conflict with an Administration’s interpretation as articulated by OGC with input from program offices. It is unacceptable for the agency to have inconsistent legal positions, particularly with respect to key interpretative issues. All attorneys with authority to represent EPA—not necessarily all attorneys—should therefore be housed in OGC. These

offices include:

1. The Office of Enforcement and Compliance Assurance (OECA). OECA was established during the Clinton Administration. Enforcement attorneys tend to take legal positions to win cases or obtain settlements that may be inconsistent with those of OGC and program offices. OECA attorneys should be moved into OGC. Additionally, non-attorney program staff in OECA could be moved into their relevant program offices (for example, the Clean Air Act Enforcement Advisor could

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be moved into OAR). Beyond the avoidance of inconsistent legal positions, this policy would reduce the agency’s overall expenditures and duplication of work. To accommodate this new function, OGC could establish a new Deputy General Counsel for Enforcement position to manage the enforcement attorneys at headquarters and in the regions.

The Office of Congressional and Intergovernmental Affairs (OCIR). OCIR employees should not take legal positions. In all Administrations, White House Counsel is key with respect to oversight issues and has an important relationship with OGC. There must bea strategic relationship between OCIR and OGC, but OGC, in consultation with agency clients and White House Counsel, should assert EPA legal positions to Congress (for example, the assertion of interests regarding congressional subpoenas, witness availability and testimony, and document production).

The Office of Environmental Justice and External Civil Rights (OEJECR). OEJECR was established during the Biden Administration. EJ and civil rights functions were taken from OGC and moved into

a stand-alone office as well as spread through the regions. OEJECR should be disbanded; OEJECR’s attorneys should be moved back into OGC; and nonlegal staff (for example, EJ Policy Advisers) should be moved back into the Administrator’s office as is customary.

The Offices of Regional Counsel (ORCs). Regional EJ staff efforts, both in the ORCs and in the policymaking offices, are highly variable. EPA is therefore likely to take inconsistent legal positions. To the extent that legal positions are taken by the ORCs and/or regional staff, they should be coordinated and approved by OGC and the appropriate regional leadership. For example, nearly all regional offices have EJ Action Plans and/or EJ Implementation Plans. Region 1’s EJ Action Plan is six pages, and Region 2’s is 66 pages. The Region 2 EJ Action Plan, for example, specifies that “ORC will conduct EJ training for all legal staff...to provide attorneys with a simple standard EJ analysis they can use regardless of the context—enforcement, grants, permits, referrals,

etc.—of the case.”*°

In addition, EPA should refrain from publicly undermining the National

Environmental Policy Act (NEPA)* process at other agencies and should

instead focus on providing constructive, technical support during the

interagency process.