DOJ Swiftly Moves to Reverse Ban on Supplemental Environmental Projects, and Other Enforcement Policies
(February 10, 2021) - The U.S. Department of Justice (DOJ) last week issued a memorandum withdrawing nine enforcement policies established by the Trump administration, including the controversial ban on the use of supplemental environmental projects (SEPs). The memorandum is one of the first actions taken pursuant to President Biden’s Jan. 20, 2021 Executive Order 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.
SEPs are projects which are voluntarily undertaken by defendants in enforcement actions that provide environmental benefits to local communities and can help offset penalties for violations of federal environmental laws including the Clean Water Act (CWA).
SEPs had long enjoyed widespread bipartisan support, and DOJ’s abrupt end of their use as an environmental enforcement tool under the previous administration, which was based on assertions that they violate the Miscellaneous Receipts Act, came as a surprise to many stakeholders. According to the new memorandum, DOJ is scrapping the SEPs ban because it is “inconsistent with longstanding Division policy and practice and may impede the full exercise of [DOJ’s] enforcement discretion.”
While the memorandum states that DOJ will be reviewing its manual to determine if any changes are needed to effectuate the policy change, it is unclear if or how the Biden administration intends to address the rule amending the agency’s internal regulations to discontinue the use of SEPs that DOJ issued in Dec. 2020.
In addition to the SEPs ban, the memorandum also withdraws a July 2020 CWA enforcement memo, which had outlined a policy disfavoring federal enforcement in civil CWA cases where a state had previously instituted a civil proceeding under an analogous state law. The memorandum likewise reverses Trump Administration policies pertaining to DOJ’s enforcement principles and priorities and equitable mitigation.
Please contact NACWA’s Chief Legal Counsel, Amanda Aspatore, with any questions.