Seyfarth Synopsis: United States Environmental Protection Agency (USEPA) Administrator Michael S. Regan and Attorney General Merrick B. Garland announced the Department of Justice's (DOJ) comprehensive enforcement strategy to advance environmental justice. USEPA and DOJ believe they have developed a strategy that positions the Biden Administration to leverage all available legal tools to secure protections for communities that have been negatively affected by pollution and environmental injustices. The Administration is restoring Supplemental Environmental Projects (SEPs), which EPA's enforcement program previously used to provide environmental and/or public health benefits to communities harmed by environmental violations.
The new enforcement strategy arises out of President Biden's "Executive Order on Tackling the Climate Crisis at Home and Abroad," which sets out the Administration's priorities regarding securing environmental justice and spurring economic opportunity. The Executive Order also creates a "White House Environmental Justice Interagency Council" that is tasked with developing a "strategy to address current and historic environmental injustice by consulting with" the "White House Environmental Justice Advisory Council," which was created through the same Executive Order, and with local environmental justice leaders." Development of a comprehensive environmental justice enforcement strategy is another priority set out in the Executive Order.
USEPA and the DOJ engaged in listening sessions with impacted communities and other stakeholders to develop the strategy. In the past, SEPs were used in USEPA settlements to support projects that designed to bring benefits to environmental justice communities, including:
(i) projects to abate lead paint hazards in housing or provide blood lead level analyzers to community health clinics;
(ii) installation of enhanced air filtration systems at schools in heavily industrialized areas;
(iii) projects to enhance the emergency response capabilities of local fire departments or hazardous emergency response teams, and
(iv) installation and operation of a fence line monitoring system.
SEPs are considered in accordance with USEPA's SEP Policy, which ensures there is a sufficient connection between the SEP and the actual or alleged violation. The SEP Policy allows USEPA to provide monetary penalty relief, just as USEPA has discretion to consider a defendant's good faith and cooperation when deciding on a penalty and other terms of a settlement.
USEPA and the DOJ will use SEPs as a case settlement tool at the discretion of the Attorney General and subject to guidelines and limitations set forth in a memorandum released earlier this week. The Attorney General notes in the memorandum that, when used appropriately, SEPs "allow the government to more fully compensate victims, remedy harm, and punish and deter future violations," particularly in cases involving harms to communities affected by environmental crimes. The DOJ's Environment and Natural Resources Division (ENRD) is being asked by the Attorney General to employ the following non-exhaustive list of guidelines and limitations for settlement agreements involving SEPs :
- Settlement agreements must define – with particularity – the nature and scope of the projects that a defendant has agreed to fund;
- Any SEPs must have a "strong connection" to the federal law violation at issue, the project(s) "must be consistent with the underlying statute being enforced" and should "advance at least one of the objectives of that statute";
- To the extent feasible, the SEP "should be designed to reduce the detrimental effects of the underlying violation" and discourage recidivism;
- The DOJ or its client federal agencies will not provide recommendations for third-party non-governmental organizations to receive payments to implement any particular project and will not propose specific entities to be beneficiaries of any such project. However, the DOJ and its client agencies can specify the "type of entity" to benefit from a SEP; and
- Settlements involving SEPs cannot provide the DOJ or any federal agency with additional resources to perform activities for which appropriations have been made.
The DOJ also announced the creation of the first-ever Office of Environmental Justice within ENRD, which will be used to implement the new comprehensive enforcement strategy.
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