Supplemental environmental projects (SEPs) are a Department of Justice and EPA enforcement tool that spurs polluters to undertake tangible, real-world projects that address the effects of their pollution, or forestall future pollution, in a way that benefits communities. These settlement projects have, in the past, successfully helped public schools replace unsafe drinking fountains and effectively reduced lead exposure for low-income families. SEPs ensure that polluters contribute actual remedies to the people they have harmed — which are disproportionately low-income and/or communities of color.
The Trump administration sought to eliminate the use of SEPs with a legally unsustainable memo penned by former Assistant Attorney General Jeffrey Bossert Clark and a last-minute December 2020 rule that stirred confusion around the use of environmental enforcement tools. We filed suit last fall on behalf of the Conservation Law Foundation and the Surfrider Foundation challenging the Clark memo as an arbitrary and unreasoned legal interpretation that fundamentally misunderstands long-standing departmental policy.
And while the Biden administration swiftly retracted the DOJ memo we challenged in our lawsuit, the Trump administration’s December rule on prohibiting settlement payments to non-governmental third parties has led to uncertainty as to what DOJ’s policy on SEPs actually is and whether EPA can still include them in its enforcement actions.
We filed a petition for rulemaking on behalf of the Conservation Law Foundation, Surfrider Foundation, and Sierra Club, urging the Justice Department to revoke the confusing Trump-era settlement payments rule and to begin a rulemaking expressly authorizing the use of SEPs. Without clear authorization, DOJ’s settlement practices will only become more difficult for the public to understand and will continue to be subject to frequent change.