Clean Water Current

The U.S. Department of Justice (DOJ) recently announced a series of actions aimed at addressing environmental justice. 

In addition to launching a new Office of Environmental Justice (OEJ), DOJ also issued a comprehensive environmental justice enforcement strategy, as well as an interim final rule restoring the use of supplemental environmental projects (SEPs) in settlement actions subject to certain new guidelines. 

The OEJ, which will be housed within DOJ’s Environment and Natural Resources Division (ENRD), will be led by Acting Director Cynthia Ferguson and guided by the new enforcement strategy.

That strategy, which was developed by ENRD in partnership with EPA’s Office of Enforcement and Compliance Assurance (OECA), is designed to ensure that DOJ is using all available legal tools to promote environmental justice in both civil and criminal enforcement.

The strategy calls on DOJ to prioritize cases that will reduce public health and environmental harms to overburdened and underserved communities, ensure meaningful engagement with impacted communities, and promote transparency regarding environmental justice enforcement efforts and results.

Separately, DOJ is taking public comment on its interim final rule revoking regulations issued by the Trump Administration which prohibited the use of SEPs in civil enforcement actions. 

SEPs are voluntary projects that provide environmental benefits to local communities that can help offset the penalties imposed by DOJ.  SEPs have long enjoyed strong support from the clean water community, industry, and environmental justice advocates.  However, the previous administration banned their use except in limited situations out of concern that they amounted to unlawful settlement payments to non-governmental third parties.

To address those concerns, concurrent with its SEPs rule DOJ issued a memorandum outlining guidelines for SEPs designed to ensure their appropriate use.  Pursuant to the memorandum, DOJ will require that SEPs have a clearly defined scope and a strong connection to the underlying federal violations at issue. 

DOJ will also ensure that the Department does not propose the selection of particular third parties to implement SEPs, retain post-settlement control over the management of funds, or require payments to third parties solely for general public education projects.

NACWA has long supported the use of SEPs and is considering filing comments supporting DOJ’s actions to allow the use of SEPs in Clean Water Act enforcement actions.  Please contact NACWA’s General Counsel Amanda Aspatore with any questions, comments, or concerns.