Environmental and Toxic Tort Advisor

Department of Justice Revives SEPs as Part of Environmental Justice Enforcement Strategy Roll Out

May 16, 2022

Robert W. Petti

Chicago

In recent days, the U.S. Department of Justice (DOJ) has made a series of announcements aimed at addressing environmental justice concerns and enforcement practices. The actions taken by DOJ include the establishment of the new Office of Environmental Justice (OEJ), the launch of DOJ’s comprehensive Environmental Justice Enforcement Strategy, and the release of an Interim Final rule to restore DOJ’s ability to include supplemental environmental projects (SEPs) in settlements. 

On May 5, it was announced that the new OEJ will reside within DOJ’s Environment and Natural Resources Division (ENRD) and, according to Attorney General Garland, will “serve as the central hub for [DOJ’s] efforts to advance [the] comprehensive environmental justice enforcement strategy.” The office will support environmental justice investigations, develop implementation instructions, and resource materials related to environmental justice, prioritize meaningful engagement with communities affected by environmental crime and injustice, and develop a plan for increased transparency regarding environmental justice work within the agency as part of DOJ’s Environmental Justice Enforcement Strategy.  

The Environmental Justice Enforcement Strategy outlines four guiding “principles” along with specific actions to facilitate implementation: 

  • Prioritize cases that will reduce public health and environmental harms to overburdened and underserved communities. With this principle, DOJ is committing to prioritizing cases that will have the greatest impact on the most overburdened communities impacted by environmental harm. To implement this principle, an Environmental Justice Enforcement Steering Committee will be created to develop strategies for evaluating environmental justice impacts during investigations, designate environmental justice coordinators in U.S. Attorneys’ Offices, pursue Tribal environmental justice and create environmental enforcement task forces to coordinate with local and regional authorities including EPA’s enforcement office. 
  • Make strategic use of all available legal tools to address environmental justice concerns. With this principle, DOJ will pursue timely remedies in enforcement matters, including remedies to stop ongoing violations and remedy past violations. Of note is the principle’s focus on using statutes not typical of environmental enforcement to advance results in affected communities. This includes possible violations of Title VI of the Civil Rights Act, the Occupational Safety and Health Act, the Consumer Product Safety Act, the Federal Food, Drug, and Cosmetic Act, and the False Claims Act (FCA). Significantly, under the FCA a company found to make false statements about the environmental and public health impacts (think about a company’s ESG Statement) could face treble damages if they receive federal funding. 
  • Ensure meaningful engagement with impacted communities. This principle seeks to provide communities with a voice in government decisions that affect the community. As such, attorneys will be directed to develop case-specific community outreach plans as part of their investigation with the referring agency. 
  • Promote transparency regarding environmental justice enforcement efforts and their results.  This principle aims to provide greater transparency as DOJ develops standards to assess enforcement outcomes and track progress under the strategy to provide greater accountability to the public. 

Finally, DOJ’s ability to use SEPs is being restored under an Interim Final Rule. SEPs are voluntary projects that provide environmental benefits to local communities that can help offset the penalties imposed by DOJ.  This move restores the use of this settlement tool that the previous administration banned, except in limited situations, out of concern that they amounted to unlawful settlement payments to non-governmental third parties. 

To address those concerns, 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. It remains unclear exactly how SEPs will be utilized and implemented differently than in the past.  

One thing is clear with these announcements, the Administration’s goal of a greater emphasis on environmental justice in overburdened communities is being advanced within DOJ. With that in mind, it will benefit all industries to work closely with their enforcement counsel to be cognizant of the complexities in this new enforcement and settlement landscape.  


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