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UPDATE: DOJ restores practice of utilizing SEP's to lawsuit settlements

(By Staley Prom) Today, the Surfrider Foundation has joined a lawsuit challenging a Department of Justice (“DOJ”) policy reversal that prohibits the federal government from including “Supplemental Environmental Projects” (“SEPs”) among its suite of relief in lawsuit settlements with environmental violators. 

SEPs are projects that defendant polluters agree to carry out in affected communities, and with a significant nexus to the alleged violation. For the past three decades, SEPs have served as valuable tools that result in meaningful, on-the-ground projects in affected communities. For instance, a polluter may elect to undertake a habitat restoration project or a low impact development project to increase stormwater retention in an area inundated by flooding or urban stormwater runoff as part of the settlement of an enforcement action brought by the DOJ’s Environment and Natural Resources Division (“ENRD”). SEPs are an especially important tool for environmental justice, helping to alleviate environmental impacts such as air and water pollution in communities most impacted by pollution. Among the most important beneficiaries of SEPs are low income and minority communities that disproportionately bear the worst effects of pollution.

The new policy, articulated in a March 2020 memorandum by the Assistant Attorney General of the DOJ’s ENRD, Jeffrey Clark, relies on an overbroad reading of the Miscellaneous Receipts Act to bar all SEPs. This position is contrary to decades of DOJ and EPA policy and legal interpretation.  

Represented by outside counsel at Democracy Forward, Surfrider joins co-plaintiff Conservation Law Foundation (“CLF”) in this lawsuit. CLF, based in New England, initially filed its lawsuit on October 8, 2020, in the U.S. District Court for the District of Massachusetts. Both organizations stand to suffer from the DOJ’s new policy, as groups whose members have consistently and positively benefitted from SEPs. By way of example, in the greater-Chicago area alone, DOJ has used SEPs to clean up the heavily industrialized Grand Calumet River, which discharges into the Southend of Lake Michigan at the Indiana Harbor; has used SEPs to secure millions of dollars worth of mercury reductions for the region; and has attained roughly half a dozen SEPs since 2005 reducing local air pollution. This area, including spots in Whiting, Indiana, just northwest of the Indiana Harbor, is a popular playground for Surfrider members, who surf there anywhere from 15 to 25 times per year – or more - when conditions are optimal. Therefore, SEPs in this region, contribute to healthier water and air for Surfrider members, as they surf and recreate in the lake and along the lakeshore, as well as along other U.S. coastlines.

“The Trump administration’s Department of Justice unlawfully prohibited the inclusion of projects that commit polluters to assist the communities they have harmed,” said Democracy Forward Managing Senior Counsel Travis Annatoyn. “Particularly because EPA has quietly expanded the impact of this unlawful policy, we’re proud to have Surfrider join our suit to defend this important enforcement tool.”

UPDATE:  Surfrider is pleased that, following this lawsuit, on February 4, 2020 the DOJ restored its long-standing practice of utilizing SEPs. On January 20, President Biden issued Executive Order 13,990, entitled “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis,” which proclaims: “It is … the policy of my Administration to listen to the science; to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change; to restore and expand our national treasures and monuments; and to prioritize both environmental justice and the creation of the well-paying union jobs necessary to deliver on these goals.”

The Order directed agencies to review their regulations and ensure consistency with these goals. Accordingly, DOJ ENRD revoked the March 2020 memorandum (along with 8 other documents), because, as Surfrider, CLF, and Democracy Forward argued in our lawsuit, the prohibition on SEPs is “inconsistent with longstanding Division policy and practice and […] may impede the full exercise of enforcement discretion in the Division’s cases.” With this successful outcome, plaintiffs voluntarily dismissed the lawsuit on February 5th. Surfrider and our partners are proud of our fight to ensure the DOJ and EPA follow the law and reverse the prior administration’s unlawful policy, and are glad that these agencies will continue being able to utilize SEPs to assist communities harmed by pollution.

Photo by Mike Killion @killertown