Daily Archives: February 2, 2021

Black long-term HIV survivors in Los Angeles experienced major trouble paying bills, housing and feeding themselves during the early days of the COVID-19 pandemic, and people who experienced such disruptions were five times less likely to be taking their HIV medications as prescribed.

These are the findings of a recent paper published in the Journal of Acquired Immune Deficiency Syndrome.

Participants were drawn from the Project Rise randomized controlled trial of antiretroviral treatment adherence among Black Americans living with HIV in Los Angeles. Most were cisgender gay or bisexual men. The median age was 50, with a median of 19 years living with HIV. More than half had ever been incarcerated, and 41% had incomes at or below $10,000 a year.

Participants had already been speaking with researchers in intensive structured motivational interviewing sessions aimed at increasing participants willingness to take the HIV medications theyd been prescribed. In addition to the initial month of sessions and two booster sessions, participants used pill bottles with electronic bottle caps (known as medication event monitoring systems, or MEMS) to record how often they opened the bottle to take their medications. Then researchers followed participants to track their medication adherence for 12 months.

When the pandemic arose, researchers contacted 136 study participants between May and July 2020 and asked them how the pandemic was affecting them materially and psychologically. They also asked about the participants level of mistrust in government officials and health professionals regarding news about the coronavirus and how likely they were to get a vaccine for SARS-CoV-2, the virus that causes COVID-19, when it became available.

One hundred and one participants agreed to answer questions. Nearly two out of three reported significant impact on their livelihoods and material stability due to the pandemic: 19% had lost their jobs or had to close their businesses, and the same proportion said they didnt have enough food to eat. Nearly one in three (29%), reported inability to pay key bills, like rent and utilities; 25% reported having difficulty traveling because transportation had been affected; and 33% reported working fewer hours. In addition, 8% newly experienced homelessness during the early days of the pandemic.

Almost everyone (97%) reported mistrust related to COVID-19, primarily of government officials. Half of participants said they believed COVID-19 was man-made, and 30% said they believed that theres a cure for COVID-19 that health care providers were withholding from Black people.

Overall, in the spring of 2020, people who espoused high COVID-19 mistrust were 15% less likely to say they would get a coronavirus vaccine. The same level of mistrust was associated with a 12% drop in willingness to get treated if they did have COVID-19.

Though they didnt provide data showing the correlation, study author Laura Bogart, PhD, of the RAND Corporation, and colleagues said this level of COVID-19 mistrust was associated with responses on general medical mistrust and HIV-related mistrust scales as well.

Both types of mistrust arose, in part, after perceived initial harmful or neglectful government responses to these infectious diseases, wrote the authors. Accordingly, the types of conspiracy beliefs that have arisen in response to both conditions have been similar, with manifestation of high endorsement of malicious intent theories (e.g., around governmental intentional harm to communities of color).

Click here to read the full study.

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COVID-19 Economic Impact Linked to Increased Risk for HIV Treatment Interruption Among Black Americans - POZ

by: WOODTV.com staff, Lynsey Mukomel

GRAND RAPIDS, Mich. (WOOD) The vaccine rollout in Michigan continues to slog along, with herd immunity still months away at the pace were going now.

The goal is to vaccinate 70% of Michigans population age 16 and up. Thats about 5.6 million people. Since each person needs two doses of both the Pfizer and Moderna vaccines the only two currently being used were talking about 11.2 million shots.

So far, the state has administered about 1 million shots.

Last week, the state averaged 37,000 shots a day. At that rate, were still nine months out from hitting the goal.

Even if the state reaches its goal of 50,000 shots daily, the 70% mark is still more than six months away.

But the states maximum vaccination capacity remains to be seen. It has been improving, up from 19,000 per day in the first week of January.

Health leaders believe they could reach 80,000 shots per day if the state gets more doses from the federal government.

Michigans biggest challenge with the vaccine rollout has been the limited supply of vaccine, lack of predictability regarding vaccine amounts week-to-week, and the lack of a national strategy until now, Dr. Joneigh Khaldun, the states chief medical executive, told federal lawmakers Tuesday as she testified before a congressional hearing. Despite this, Michigan has made significant strides. Yesterday, we announced surpassing 1 million doses of vaccine being administered statewide and we have jumped more than 20 places in the rankings over the past few weeks as it relates to our proportion of the population vaccinated. Michigan has made this progress because we have been intentional and focused.

What we need at the federal level is a larger and consistent vaccine supply, as well as additional funding to specifically address barriers to access, she added.

The state is also changing how it is distributing doses. Previously, counties requested how much they wanted. Now, the state will dictate what each provider gets. The goal is to prioritize vulnerable communities.

Places have been requesting doses but there was no guarantee people would get what they requested, Kent County Health Department Medical Director Dr. Nirali Bora told News 8 Tuesday. What were hoping is that the state is looking at the Social Vulnerability Index from the (U.S. Centers for Disease Control and Prevention). This really takes into account poverty, access, transportation, racial (and) ethnic disparities, all of these different factors that really make a community more vulnerable. And weve seen that COVID has disproportionately impacted some of these communities as it is, so that may help get vaccine where it needs to go.

As of Monday, Kent County, West Michigans most populous county, had given initial shots to about 10% of its population, Ottawa and Muskegon counties are at about 9% each and Allegan County is at 6%.

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Vaccine rollout speeding up, but herd immunity months away - WLNS

Rising consumer demand for wellness lifestyle real estate and communitiesin the recent past has aided the global wellness real estate software market in the recent past and is expected to continue the same trend over the forecast period. People are getting gradually aware about the impact of lifestyle and social factors on their well-being. Wellness real estate services are developing to enable healthier lives for individuals and communities. It comprises of various components, of which the primary types are wellness lifestyle estate and wellness communities. This industry is an evolving industry which identifies the potential to meet immense health challenges. Many activities like green and sustainable building movement, urbanism and intentional communities among others are being modified and executed in different ways into a novel and forthcoming wellness-focused real estate projects. Global wellness real-estate mainly includes investments, buildings, transactions, single family and multi-family housing. It also includes houses that are constructed beside destination spas, wellness retreats and hospitality projects.

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The need for wellness industry has been increasing day by day. The rising need for wellness establishment leads to the increasing demand for the wellness real-estate software in the market. Decades back, wellness buildings were normal buildings to stay, isolated and included care takers. After the outbreak of technology, the demand for wellness-based technologies steeply rose, which paved way for wellness real-estate software market. A major factor that drives the market is the changing attitude of people towards wellness institutions. On earlier days, people considered wellness real estate building for treating people who were affected by mental illness. Nowadays, modern working environment resulted in creating huge work pressure among the employees which forced them to adopt the wellness mechanism. It boosts the demand for the wellness real-estate software in the market. The Global Wellness Institute (GWI) claims that residential real estate will be a major trend that is drastically evolving throughout the wellness industry. Rising market share for tech companies in the real estate sector is creating a major revolution in the market. Even though technology has not completely consumed the wellness real estate sector, rising advancements in the technologies is driving the wellness real-estate software market. The market has also witnessed huge investments in real estate software. Its majorly due to the limited number of companies in the market which further attracts new investors due to the untapped potential within the market. Investment has followed in suit with over $2.2 billion in 97 modern wellness startups globally.

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In terms of revenue, global wellness real estate software market was valued at US$ 458.6 million in 2018 and is expected to reach US$ 835.5 million by 2027, growing at an estimated CAGR of 7% over the forecast period (2019 2027). The detailed research study provides qualitative and quantitative analysis of wellness real estate software market. The market has been analyzed from demand as well as supply side. The demand side analysis covers market revenue across regions and further across all the major countries. The supply side analysis covers the major market players and their regional and global presence and strategies. The geographical analysis done emphasizes majorly on the different geographical regions world wide

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Global Wellness Real Estate Software Market:

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Wellness real estate software market is projected to grow at a CAGR of 7% over the forecast period (2019 2027), owing to the rising investment...

Once again, the people of the United States are pressed to reflect on the complex problem of white racism. The recent murders of George Floyd, Breonna Taylor, and many other unarmed Black and Brown men and women by law enforcement officials are stimulating renewed concern about the persistence of this social-political-economic cancer in our nation.

Although enduring demands for corrective action are part of our countrys historic legacy for racial justice, there are a couple of key factors that distinguish the current call of conscience from past efforts. First, the availability of social media provides unequivocal evidence of the indisputable murders of unarmed Black and Brown men and women by law enforcement persons. This social media impact is penetrating some of the apathy that has marked Many white persons reactions to racial injustices in the past.

Second, the rising number of white persons, who willingly and publicly display their abhorrence of these murders by supporting the Black Lives Movement, is resulting in a level of a multiracial unity that has too often been absent in such large numbers in the past.

Despite these important advances, a major barrier impeding our country from more effectively expelling racism within the general public is the narrow ways many people especially white persons think about this social pathology. White persons, in particular, need to expand our collective understanding of the multidimensional nature of white racism and to take a stronger anti-racist stand in our future collective corrective actions.

As a white anti-racist, I have spent the past 40 years learning about many of the idiosyncrasies of white racism through my personal experiences as a racially-privileged individual. These experiences are complemented by the four decades I have spent as a faculty member and social scientist in a number of universities and colleges.

The insights I have gained from these experiences increased my understanding of the very narrow ways many perhaps most white people think about white racism. In order to stimulate more expanded and accurate ways of thinking about white racism in our nation and in our communities, it is helpful to describe how white racism continues to be manifested in different ways in our nation, state, and local communities. Here are four types of racism that continues in our country:

Overt intentional white racism is reflected among white persons commonly associated with the Ku Klux Klan and other domestic terrorist groups. What distinguishes this type of racism from others is the way white people openly, intentionally, and without any remorse express hatred and engage in violent actions towards persons-of-color. This form of white racism is unquestionably unacceptable. It nevertheless gains much attention from the mass media. Despite this media attention, it is important to understand that the overall negative impact of this type of white racism pales when compared to other forms of racism in the United States.

Overt unintentional white racism is similar to overt intentional racism in that both reflect open and public displays of racist thinking and behaviors. One main difference is that overt unintentional racism, while open and public, is not done consciously with intentional racist intent.

One example of this form of white racism occurred when I was working as a counselor in the athletic department of a large public university. During one of the mens basketball teams practices, a white player jokingly said to another player to, Get your cotton-picking hands off me, when this teammate was playing tight defense. This incident caused an uproar among Black players.

As I worked with the team to address the racially-charged situation, the African-American players acknowledged that they did not believe their white teammates comment was an intentional racist act, but rather unconsciously manifested out of ignorance to its negative impact on African Americans.

Ultimately, this event turned into an important learning experience as the white player expressed remorse and embarrassment. He also stated interest in learning more about the ways white people are exhibit overt unintentional racism without understanding its negative impact on many persons-of-color.

Covert unintentional racism refers to behaviors that are not overt, but nevertheless allow racial injustices to go unchallenged. An example of this type of white racism occurs when good-hearted and well-meaning white teachers, counselors, and administrators help to administer racially-biased tests and implement related education assessments in school settings.

Education researchers point out that numerous educational tests and assessment processes are not valid or reliable academic measures when used among racially-diverse students. These researchers explain how such racially-flawed tests and assessment processes often result in an adverse impact on many non-white students educational opportunities and outcomes.

It is important to acknowledge that even well-meaning white teachers, counselors and administrators, who are complicit in this racial injustice, inadvertently perpetuate institutional racism in our society. Anti-racist white allies acknowledge the importance of unveiling this form of covert unintentional racism so appropriate corrective actions can be implemented to eradicate this racial injustice in schools.

Covert intentional white racism is arguably the most pervasive and harmful racial injustice in our nation. This type of white racism has a serious negative impact among larger groups of persons-of-color when compared to the more limited adverse effect of overt intentional and unintentional white racism.

A person does not have to openly express racial hatred or articulate obscene racial comments publicly to be guilty of covert intentional racism. Instead, this form of racism occurs when white persons create policies and/or support another persons policies intentionally designed to disadvantage racial minority persons.

A pattern of actions by President Donald J. Trump are examples of this type of racism continues in our society. Examples of this pattern demonstrated by Trump include:

Trump being sued by the government in the 1970s for alleged racially discriminating housing policies while building his real estate empire in New York City;

In his support of the Stop and Frisk strategy in New York City as this institutionalized racist policy was implemented daily from 2004 2012; and

In President Trumps recent efforts to dismantle the Fair Housing Act a federal legislative policy that supports African Americans chances to secure fair housing opportunities in our nation.

The purpose of describing these four types of white racism is to help white persons develop a more accurate and expansive understanding of the different ways these complex problems continue to be perpetuated in our society. It is also hoped that the information presented will motivate white persons in Massachusetts to work with other anti-racist allies to promote a greater level of racial justice by finding ways to diminish the perpetuation of these forms of white racism in our communities.

Michael DAndrea is an associate professor in the Springfield College School of Social Work and Behavioral Sciences. He is the executive director of the National Institute for Multicultural Competence and president of the non-profit Social Justice Creations organization. He can be contacted by email at michaeldandrea1@gmail.com

Original post:

One House, One People: Broader understanding needed to address white racism (Guest viewpoint) - masslive.com

Navigating the Immigration Process: The William & Mary Law School Immigration Clinic is staffed by its director, Stacy Kern-Scheerer, Professor of the Practice, and, through private financial support, has welcomed an Immigrant Justice Corps Fellow attorney for the 2020-21 year. Courtesy W&M Law School

by David F. Morrill, W&M Law School | February 2, 2021

Through the William & Mary Law SchoolImmigration Clinic, students work under supervising attorneys to provide much-needed access to representation for immigrants living in Hampton Roads who have claims before the Department of Homeland Security (DHS) and the Department of Justice (DOJ).

The Clinic is committed to preparing the next generation of immigration attorneys for this challenging practice area and is one of the few nonprofit entities that providespro bonorepresentation on immigration matters in the Hampton Roads region.

The Clinic is staffed by its Director,Stacy Kern-Scheerer, Professor of the Practice, and, through private financial support, has welcomed anImmigrant Justice Corps Fellow attorneyfor the 2020-21 year. Every semester, students in the Clinic handle a variety of matters impacting the clients served by the Clinic.

The Clinic focuses on aiding noncitizens seeking relief as victims of crime (U visa), domestic violence (VAWA and Removal of Conditions), and human trafficking (T visa) and also represents individuals claiming asylum, as well as those currently held in detention seeking release on bond, DACA holders, and individuals applying for naturalization.

Student interest really helped propel the Clinics establishment. Current and prospective students understandably have a lot of interest in and passion for this area of the law. Immigration law and practice is challenging, timely and extremely impactful on communities, families and individuals. The Law School recognized this interest, and took steps to secure private starting funding for the Clinic.

The Clinics first semester was Fall 2019. Moreover, there is a huge need forpro bonoimmigration legal services everywhere, and the Williamsburg area is no exception. The Clinic provides students the opportunity to use and expand their legal training while filling an unmet need in the community.

The Clinic relies on private funding to sustain itself. I am delighted that a leadership gift from an undergraduate alumna of the university, and a pioneering social justice advocate and attorney,

Sybil Shainwald 48, LL.D. 19, established the Shainwald Immigration Law Clinic Fund. We are dependent on gifts to the Fund from alumni, parents and friends to continue the Clinics operation.

We are currently in need of private support in order to keep our Immigrant Justice Corps Fellow,Nicole Alanko 18, here in the Clinic next year. Given the high demand for our services, the demand in enrollment, and the intense nature of our work with the students and clients, another dedicated Clinic attorney (in addition to me) is imperative. Nothing is more critical to ensuring the Clinics continued success and growth.

The Clinic provides direct representation to immigrants in Hampton Roads. Our representation focuses on humanitarian immigration protections, such as asylum, Special Immigrant Juvenile Status (SIJS), U Visas (for survivors of crime perpetrated in the United States), T visas (for survivors of human trafficking), protections under the Violence Against Woman Act (VAWA), DACA, and medical deferred action.

Because the individuals, families and communities we serve have often experienced extreme harm, either in their home countries or in the United States, we are particularly committed to providing trauma-informed representation and advocacy.

We represent immigrants in their petitions before the U.S. Citizenship and Immigration Services, which is part of the Department of Homeland Security. For individuals and families in removal proceedings, we represent them in Immigration Court, which is part of the Department of Justice.

That is a great question, because the individuals and communities served by the Clinic are often in spaces that can be difficult to find and adequately reach. Being a trusted member of the immigration advocacy network in Hampton Roads is an essential aspect of the Clinics mission.

Word gets out by reaching out to organizations and individuals who work with immigrants. Even before the Clinic opened its doors, I did a lot of research into organizations serving the underserved immigrant communities in our area and in Richmond. I showed up wherever I thought partners might be. In the Clinics first semester, one student and I called and wrote letters and emails to every potential partner organization we could identify in Hampton Roads. We reached out to domestic violence shelters, trafficking shelters, houses of worship, victim advocates, social workers, refugee relief organizations, private immigration lawyers, community leaders, anyone we thought might come into contact with individuals we are here to serve and represent. I talked to anyone who would listen! Our outreach efforts have proven effective, because we now regularly get calls and referrals from the networks and partnerships we have formed.

The Clinics first client was a young woman seeking asylum, fleeing horrific violence she experienced in Central America. She came to the United States alone as a young teenager and was held in a youth detention facility for a while before being released to a family member in our area. We are representing her in her asylum petition. She is awaiting an asylum interview, which under the current backlogs, can take years. Hers, like the vast majority of our cases, will take months, if not years, to resolve.

There are no pre-requisites for the Clinic. What is most important is that a student coming into the Clinic is ready to learn and is committed to working hard for our clients.

The students are given an enormous amount of responsibility in the Clinic, with close supervision and guidance from me and our incredible Immigrant Justice Corps FellowNicole Alanko 18. Students have their own caseloads, but also work in assigned teams, which fosters an intra-Clinic community of support and understanding of the work we do.

In the Clinic, students gain experience with very practical lawyering skills: how to build client rapport and trust, craft interview plans, conduct interviews, work with interpreters, draft client and witness affidavits, develop a record through intentional evidence gathering, counsel clients effectively, and draft persuasive memos and briefs for submission to DHS and the DOJ.

In this Clinic, students put those skills to work in a challenging context. Many our clients are survivors of violence and trauma who have had to navigate (and continue to navigate) a great number of personal and structural barriers. The Clinic is committed to training trauma-informed advocates, which means we teach students to consider the impact of trauma on our clients at every stage of case development and preparation, from client interview planning to final trial preparation. The students also see first-hand the structural barriers to representation that our clients face, and that is often an eye-opening experience.

Clinic training also includes recognizing and mitigating the effects of secondary trauma and reflecting on professional identity. We openly discuss strategies for self-care, which are often necessary to reduce depression and burnout in our profession. I hope that in addition to the practice skills students learn that being an effective legal advocate is a multi-dimensional endeavor: you have to marry the practical lawyering skills with productive and informed client management, time management, teamwork, and self-care and reflection.

In just the first three semesters of the Clinics existencehalf of which has been under challenging COVID circumstancesClinic students have provided more than 2,600 hours of service to the Clinic and our clients. We estimate these hours to equal approximately $395,000 of services in the private market. We anticipate that these numbers will continue to rise.

We have seen an incredible growth in the number of Clinic clients after just a few semesters. Serving more immigrants and training more students go hand-in-hand, so I am very proud of how we have expanded both the number of clients we representandthe number of students who can enroll in the Clinic in this short span of time.

Good question. The system is truly Kafkaesque at times, which can be extremely frustrating for everyone, particularly our clients. Law students and lawyers, like most people, would like institutions and systems to work logically, but that is just not the way the world works sometimes. The students see that first-hand.

Before coming to William & Mary Law, I spent 10 years on Capitol Hill. During those years, I learned how to keep an even keel when everything at work seemed to be going sideways. I learned that if you let your frustration dominate your mood and your actions, you will be twice as exhausted and no closer to resolving whatever problem your client needs you to solve. Because of what I learned, I work with the students to take the red tape in stride, and channel our frustration into even stronger determination to help our clients navigate the system.

The COVID pandemic has certainly brought challenges. Many Clinic clients do not have reliable access to the internet or a computer. This means that meeting with clients through programs like Zoom is often not an option, and we have to rely more on the telephone. But, as you can imagine, conducting interviews about trauma over the phone is not ideal for numerous reasons.

It has not been easy. Even when the government makes COVID accommodations, like accepting scanned signatures instead of original signatures on documents, that only helps if your client has access to the technology to enable them to send you their scanned signatures. Weve had to be flexible and creative. Sometimes weve had to mask up and meet with clients in outdoor spacespicnic tables, parking lotsto conduct interviews and sign documents. It has been a learning experience for everyone, and the students have been extraordinary throughout.

It is true that translation and interpretation services are necessary in the vast majority of the Clinics cases. We have had to communicate with clients and other individuals who speak Spanish, Arabic, Urdu, Pashto, Russian and Qeqchi (and I might be forgetting a few others!). In some situations, we partner with community organizations who have interpreters. Most of our clients primarily communicate in Spanish.

This means that students who interview these clients, receive documents from the clients countries, or research conditions in the home countries must work with interpreters and translation services in order to fully represent their clients. Some of our students are bilingual, but many are not. We have had volunteer and paid positions for law students who are not students in the Clinic but who have Spanish interpretation and translation skills and experience they are willing to share with the Clinic. Having reliable, consistent and skilled Spanish interpreters is particularly imperative to the Clinic.

Next year, I hope to continue expanding the number of students in the Clinic, which would naturally allow for an increased caseload. We are also actively working on building partnerships across campus, such as with the Office of Community Engagement, the William & Mary School of Education counseling program, and professors in other academic disciplines, to support the work of our Clinic students and our Clinic clients.

Looking a bit farther into the future, hosting conferences, becoming a host site for Citizenship Day in Hampton Roads, and engaging students with state policy advocacy are all possibilities. I have a vision of the Clinic becoming a regional leader in immigration advocacy, providing the students with exceptional practical training and serving the underrepresented in our community. With the support from alumni and friends, and the ongoing commitment of our incredible students, I am confident we can do it.

To learn more about the Immigration Clinic, visit itsweb pageandblog.

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The Immigration Clinic: Q&A with Director Stacy Kern-Scheerer - William & Mary News

Selection of leadership at EPA (OECA) and DOJ (ENRD)

To head the U.S. Environmental Protection Agency (EPA), President Biden has selected (subject to Senate confirmation) Michael Regan, who currently leads the North Carolina Department of Environmental Quality. The new administration will also get to select the leadership subject to Senate confirmation for two key enforcement offices at EPA and the Department of Justice (DOJ): the Office of Enforcement and Compliance Assurance (OECA) at EPA and the Environment and Natural Resource Division (ENRD) at DOJ. Within EPA, OECA sets and oversees EPAs administrative, civil and criminal enforcement priorities. For more significant civil cases, as well as all criminal cases, OECA will typically work with ENRD attorneys to investigate the matters, settle them, or bring them to trial. Thus, the leadership of each office can significantly affect the shape and emphasis of federal environmental enforcement. Indeed, resource constraints mean that the federal government can never investigate and pursue every environmental violation. Thus, these leaders will necessarily influence enforcement efforts, where those resources are directed over the next four years. These leaders also sign off on the specifics of particularly large or high profile cases and settlements, meaning that their views will affect the final terms that EPA and DOJ are willing to reach in these larger cases.

SEPs are projects that defendants in environmental enforcement cases often have agreed to undertake to improve the environment, usually in exchange for some penalty relief or reduction. A defining characteristic of a SEP is that it is a measure not required for ongoing compliance with existing regulatory requirements. In March 2020, the head of DOJs ENRD issued a memorandum prohibiting almost all use of SEPs in ENRD negotiated civil settlements, notwithstanding that including such SEPs was a long-standing practice in civil settlements and SEPs were thought by many to often provide a means to help bridge divides that emerged during settlement talks. This directive analyzed certain statutory provisions, and concluded that SEPs de facto unlawfully diverted penalty dollars from the U.S. Treasury to private purposes, violating the Miscellaneous Receipts Act, among other statutory provisions.

In addition to prohibiting most SEPs, the Trump DOJ had ban the use of third-party payments in settlements, and ENRD had issued separate guidance further explaining this policy. Unlike a SEP, which involves the defendant directly spending money on a project, third-party payments were provisions where a defendant agreed to pay money to a non-governmental entity that was not the victim of the crime as part of a settlement resolution. The then-head of ENRD released several additional memos just days before the end of the Trump administration regarding the use of third-party payments in environmental settlements, the Divisions enforcement principles and priorities, and further recommendations on the use of enforcement discretion.

Because of their widespread use, the ENRD directive seemed to find few friends, however correct it may have been as a matter of law. It seems very likely that an early act of the incoming head of ENRD will reverse the no SEPs directive, freeing ENRD lawyers to return to seeking SEPs as a routine element of environmental consent decrees. In addition, the Biden administration included the DOJ-wide prohibition on third party payments in settlements on its first day list of agency actions to review, indicating that these prohibitions will be revisited. The new head of ENRD is likely to also set his own policies for environmental enforcement.

EPA regularly specifies and publicizes its national program priorities, called National Compliance Initiatives (NCIs), that are used to focus and guide its staff in executing their enforcement and compliance assurance responsibilities. In essence, the NCI areas represent areas for particular focus and heightened effort, but live alongside various day-to-day core enforcement activity. The current NCI strategy runs through September 2023, and includes six focus areas. The new administration might not wait until 2023 to put its own stamp on the NCIs and might consider moving the following regulatory programs from the day-to-day core enforcement program into a national initiative.

EPA has brought around 250 criminal, civil, and administrative enforcement cases in the past decade that relate specifically to GHG requirements under the Clean Air Act. These cases relate to the following requirements: renewable fuel standards requirements (204 cases), ozone depleting substance requirements (45 cases), light-duty vehicle GHG standards (1 case), and GHG new source review requirements (1 case). Other cases like aftermarket defeat device enforcement, enforcement of flare performance requirements, and VOC leak detection and repair enforcement have had the indirect effect of reducing GHGs along with non-GHG pollutants.

A Biden EPA will likely view these enforcement cases as a good start, but insufficient to ensure that existing and upcoming GHG regulations actually deliver on the administrations GHG reduction goals. We expect to see continued or increased climate-related enforcement in the following areas:

EPA has long had an EJ program, but the incoming Biden administration has strongly and consistently signaled that it plans to prioritize and heighten the focus on EJ, which is defined by EPA as 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. The goal of EJ is to provide everyone with the same degree of protection from environmental and health hazards, and equal access to the decision-making process to have a healthy environment in which to live, learn, and work and this principle is likely to guide EPAs enforcement focus during the next four years. The DOJ climate transition memo for the incoming administration has even proposed a new DOJ division to be known as the Environmental and Climate Justice Division, which would contain authorities and expertise currently housed in ENRD and DOJs Civil Rights Division. Such a reorganization will face hurdles, including potentially Congressional approval, but even the discussion of creating such a new division signals a future strong focus on EJ issues, even if this organizational proposal is not ultimately implemented.

In the short term, we expect the greater impact of EJ to be on the types of enforcement matters that are given priority, on the manner in which they are resolved and on facility siting and permitting issues not directly connected to enforcement. In particular, we expect to see a focus on environmental compliance, facility siting, and facility permitting issues that impact poor, minority, or Tribal communities. For example, candidates for close scrutiny, either by way of an enforcement investigation or permitting restrictions, would be facilities that are located in close proximity to such a community, especially if unauthorized emissions are believed to be reaching such a community. We would also expect the resolution of these cases to involve settlement terms designed to support the future health and welfare of such communities or to resolve harms to the health of community members from past exposure. While certain DOJ policies (such as the SEPs policy discussed above) currently limit the flexibility that ENRD has to craft settlements including such terms, the new administration is likely to revise any formal policy restrictions and to informally push where no firm policies are in place.

President Trump issued an Executive Order in May 2020 requiring that all executive branch agencies consider the principles of fairness in administrative enforcement and adjudication. The Office of Information and Regulatory Affairs (OIRA), within the White House Office of Management and Budget, issued in August 2020 a memorandum to further carry out the Executive Order, by directing all executive branch agencies to amend their rules and policies related to administrative enforcement in consideration of, among others, the following general best practices:

The head of EPAs OECA later issued a memo providing assurances that EPA satisfies these requirements and affirming EPAs commitment to them. While these orders and memos reflect somewhat inarguable principles, and it is possible that the new administration will not see benefit in expressly disavowing them, these broad principles leave substantial room in the joints in day-to-day application and new leadership may feel less commitment to the strictest levels of fidelity.

The Endangered Species Act (ESA) is designed to protect and recover at-risk species and the habitats on which they depend and includes criminal penalties for taking (which includes the harassment, killing, or capture) of listed species. Likewise, the Migratory Bird Treaty Act (MBTA) criminalizes the taking of migratory birds. There has long been friction about whether the MBTA prohibits only intentional conduct (such as hunting), or also applies to incidental take (such as birds harmed from wind turbine blades, electric transmission lines, or oilfield pits and evaporation ponds but where the point of the activity was not to achieve the take). The central question is what such laws require project developers and operators must do, if anything, to minimize or fully prevent incidental take. In short, the interpretation of this law and whether it prevents only deliberate take or also incidental take has serious implications for the risks associated with certain projects. Courts that have considered the question have split, and the regulatory pendulum may continue to swing in the new administration.

Two weeks prior to the start of the Trump administration, the Obama administrations Department of the Interior issued a memorandum concluding that the MBTA prohibits incidental take. The Trump administration withdrew that opinion and issued a new one, generally siding with and relying on opinions from the courts that concluded otherwise. Nevertheless, in August 2020, a court vacated this Trump opinion, a decision the government currently is appealing. In the meantime, the U.S. Fish and Wildlife Service finalized a rule in early January 2021 clarifying its regulations and applying the prohibition on take only to intentional conduct. The new rule goes into effect on February 8, 2021.

The Biden administration is likely to explore ways to go through the rulemaking process to withdraw it and finalize a new rule or may potentially use a vote of both houses of Congress under the Congressional Review Act to overturn the rule. Indeed, the Biden administration has already indicated in it a memo issued on its first day that this rule is among the agency actions it plans to revisit. Whatever course this rulemaking takes, the Biden administration is also likely to then put in place solicitors opinion similar or identical to the Obama administration opinion applying the MBTA to incidental take. However, even with such a solicitor opinion and a formal abandonment of the Trump rule on take enforcement being limited to deliberate take, that change would not alter judicial precedent in those circuits that have limited the MBTAs prohibition to intentional acts, including the Fifth, Eighth, and Ninth Circuits. Ultimately, resolution of the proper reach of the MBTA is likely to require involvement of the U.S. Supreme Court.

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Navigating The Transition: Key Environmental Enforcement Issues To Watch In The Biden Administration - JD Supra