Latest Update December 15, 2020

Surfrider Foundation Joins Suit

The Surfrider Foundation works to protect clean water and healthy beaches for all people. Its members in the greater Chicago area — who frequently surf off the beaches of Lake Michigan near Chicago and Gary, Indiana — have benefited from dozens of SEPs in the region, including clean up efforts in the heavily industrialized Grand Calumet River. But the Trump administration’s unlawful prohibition of SEPs prevents such projects from being included in future settlements.

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In March 2020, the Justice Department abruptly and unlawfully terminated the use of an enforcement tool that included environmentally-beneficial projects in settlements for pollution-related violations. Jeffrey Bossert Clark — Trump’s Assistant Attorney General for the Department’s Environment and Natural Resources Division — unilaterally and unlawfully concluded that settlements including these tools, known as Supplemental Environmental Projects (SEPs), are not legally sound.

SEPs allow violators of environmental statutes to address the effects of their pollution, or to forestall future pollution, through projects that benefit communities. These projects have, for instance:

  • Forced the Massachusetts Bay Transit Authority’s commuter lines to switch to low-sulfur fuel, at a cost of $1 million
  • Led Sterling Suffolk Racecourse to allocate over $700k to monitor local watersheds and facilitate access to marshes near Boston Harbor
  • Required Clean Harbors of Braintree, Inc. to plant 800 trees in low-income and historically-disadvantaged neighborhoods following a hazardous waste incident

In prohibiting the use of Supplemental Environmental Projects, DOJ loses an effective tool for ensuring polluters contribute real-world remedies to the communities they have harmed, which are disproportionately low-income and/or communities of color. These environmental justice mechanisms have, in the past, successfully helped public schools replace unsafe drinking fountains and effectively reduced lead-exposure for low-income families.

“The Department of Justice has used supplemental environmental projects for decades to secure real-world benefits for the nation’s air and water, and the communities most affected by pollution. But Jeffrey Bossert Clark unlawfully took an axe to the use of SEPs in order to curb enforcement of federal environmental statutes.”

Travis Annatoyn, Democracy Forward Managing Senior Counsel

On behalf of the Conservation Law Foundation and the Surfrider Foundation, we sued the Department of Justice for unlawfully ending SEPs. Clark’s memorandum preventing the use of SEPs is a compendium of legal errors that fundamentally misunderstands long-standing departmental policy. Clark’s arbitrary and unreasoned legal interpretation violates the Administrative Procedure Act and should be set aside.

October 8, 2020

We filed suit.

The groups seek to set aside the DOJ’s rule — promulgated by Assistant Attorney General Jeffrey Bossert Clark — that wrongly concluded that Supplemental Environmental Projects (SEPs) can no longer be included in pollution-related settlements of federal environmental enforcement actions.

November 2020

The Government filed its Motion to Dismiss.

December 15, 2020

We amended our complaint to include Surfrider Foundation.

“Surfrider is pleased to join Democracy Forward and the Conservation Law Foundation in defending a critical tool for environmental justice,” said Staley Prom, Legal Associate for the Surfrider Foundation. “Our members, who are directly affected by water and air pollution, deserve to benefit from local projects that clean up the air they breathe and the water they recreate in."

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Travis Annatoyn

Managing Senior Counsel

Litigating against the unfaithful application of the nation’s environmental laws.

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Michael Martinez

Managing Senior Counsel

Former DOJ trial attorney challenging unlawful executive branch actions

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Robin Thurston

Managing Senior Counsel

Challenging Executive Branch illegality.

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