Biden’s DOJ Withdrew Trump-Era Guidance Banning Supplemental Environmental Projects
But Eleventh Hour Trump-Era Rule Highlights Need for Additional Action
Washington, D.C. — Today, the Conservation Law Foundation, the Surfrider Foundation, and the Sierra Club petitioned the Department of Justice’s (DOJ) Environment and Natural Resources Division (ENRD) to issue a rule expressly authorizing the use of supplemental environmental projects (SEPs) in environmental enforcement settlements. The groups—which are represented by Democracy Forward—also urged DOJ to revoke a Trump-era rule that has caused confusion about whether SEPs can be included in settlements.
“Communities of color and low-income communities are facing higher risks and serious health issues from air and water pollution,” said Heather Govern, Vice President and Director of the Clean Air and Water Program at Conservation Law Foundation. “We must preserve the use of supplemental environmental projects because they put money back into these negatively-affected communities with the goals of pollution reduction and environmental justice.”
“We’re hopeful the administration will take this next step so that it’s clear SEPs are once again in the toolbox for cleaning up polluted communities,” says Staley Prom, attorney for the Surfrider Foundation.
“SEPs are critical to fulfilling the promise of environmental protections such as the Clean Air Act and Clean Water Act by ensuring that those who commit environmental violations take steps to benefit the communities that bear the brunt of the pollution,” said Sierra Club Senior Attorney Peter Morgan.
SEPs are tangible, real-world projects polluters undertake in communities that have been harmed by their illegal pollution. DOJ has included SEPs in settlements resolving cases involving violations of environmental laws for decades. The Environmental Protection Agency (EPA) has also used them in its enforcement actions.
But the Trump administration sought to eliminate the use of SEPs. First, Trump’s DOJ prohibited their use in a memo issued by former Assistant Attorney General Jeffrey Bossert Clark. Democracy Forward challenged the memo in a lawsuit on behalf of the Conservation Law Foundation and the Surfrider Foundation last fall. Then, in December 2020, DOJ issued a rule prohibiting settlement payments to non-governmental third parties, which has stirred unwarranted confusion about whether this ban applies to SEPs.
While the Biden administration swiftly retracted the DOJ memo challenged in the groups’ lawsuit, the Trump administration’s rule 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. On April 26, for instance, EPA issued a memo encouraging staff to use “the full array of policy and legal tools available” in settlements. The memo listed SEPs as one such tool but cautioned that their inclusion is “severely limited” by the Trump-era rule and should therefore only be included in certain limited settlements until further guidance is issued.
In the petition for rulemaking filed today, the environmental advocacy groups urge DOJ to revoke the Trump administration’s rule and begin a rulemaking expressly authorizing the use of SEPs.
“Supplemental environmental projects are a critical settlement tool used to secure real-world benefits for the environment and for communities most impacted by pollution,” said Democracy Forward Managing Senior Counsel Michael Ceja Martinez. “The new administration should repeal the Trump-era rule that causes confusion as to their use and replace it with one that expressly authorizes SEPs and establishes clear standards for their use in the years to come.”
Read the groups’ full petition for rulemaking—submitted to DOJ on June 14, 2021—here.
Democracy Forward is a nonprofit legal organization that represents organizations, individuals, and municipalities in impact litigation to keep corruption out of policymaking.
Conservation Law Foundation forges lasting solutions to environmental challenges for the people of New England. For 50 years, CLF has taken on powerful opponents who would pollute our air and water and squander our resources. Our deep local knowledge, legal acumen, and policy expertise make CLF a prime mover in building our clean energy future, countering climate change, and safeguarding our communities. We never give up and go home because we are home.
The Surfrider Foundation is a nonprofit grassroots organization dedicated to the protection and enjoyment of our world’s ocean, waves and beaches, for all people, through a powerful activist network. Founded in 1984 by a handful of visionary surfers in Malibu, California, the Surfrider Foundation now maintains over one million supporters, activists and members, with more than 170 volunteer-led chapters and student clubs in the U.S., and more than 700 victories protecting our coasts.
The Sierra Club is America’s largest and most influential grassroots environmental organization, with more than 3.5 million members and supporters. In addition to protecting every person’s right to get outdoors and access the healing power of nature, the Sierra Club works to promote clean energy, safeguard the health of our communities, protect wildlife, and preserve our remaining wild places through grassroots activism, public education, lobbying, and legal action.
Conservation Law Foundation
The Surfrider Foundation