On August 21, Jeffrey Clark, the Assistant Attorney General (AAG) for the Environment and Natural Resources Division, issued a memorandum diminishing state and local governments’ ability to use supplemental environmental projects (SEPs)—environmentally beneficial projects that are not otherwise required by law—in settlements of federal environmental enforcement actions. The memorandum allows consent decrees and settlement agreements between the Department of Justice (DOJ) and state and local government entities to include SEPs only under extremely narrow circumstances. It further signals that DOJ is continuing to review whether SEPs may be used at all in settlements resolving civil environmental enforcement actions.

The memorandum specifically applies a November 2018 DOJ policy that restricted the federal government from entering consent decrees and settlements with state and local governments that “achieve general policy goals or []extract greater or different relief from the defendant than could be obtained through agency enforcement authority or by litigating the matter to judgment.” In its latest memorandum, DOJ determined that SEPs generally fall within this prohibition.

In support of its new policy on SEPs in cases involving state and local governments, DOJ raised concerns that SEPs lack direct congressional authorization and threaten congressional prerogatives, as well as those of state and local government entities. DOJ has further determined that America’s Water Infrastructure Act of 2018 (AWIA), Pub. L. No. 115-270, 132 Stat. 3765, did not authorize the use of SEPs in settlements of Clean Water Act enforcement cases brought against municipal entities. The AWIA explicitly authorized the use of integrated plans to coordinate and streamline the Clean Water Act compliance obligations of local entities operating publicly owned treatment works and storm sewer systems, both in permits and in the resolution of enforcement actions. DOJ concluded, however, that the AWIA should not be read to authorize SEPs in settlements with local entities.

Having concluded that SEPs fall within the prohibitions in DOJ’s November 2018 policy, the memorandum indicates that AAG Clark will be conducting a broader review of the availability of SEPs in civil enforcement actions. In the interim, the memorandum requires that SEPs with state and local entities must comply with the following limitations, in addition to those set out in existing policies:

• “The SEPs must be discrete projects representing a small component of the overall settlement in terms of duration, dollars, and scope of work;”

• SEPs should only be part of a settlement “as a matter of last resort.” If a SEP was negotiated before the November 2018 policy, a request for settlement authorization must demonstrate that the SEP cannot be removed “without jeopardizing the agreement or harming the interests of the United States.” If a SEP was negotiated after the November 2018 policy, a request for settlement authorization “must demonstrate that the settlement would not be possible without the inclusion of SEPs;”

• “The SEPs should provide broad benefits to the community, and not individuals;” and

• “The governmental defendant should certify that the SEPs do not violate any direct or implied restriction imposed by local, state or federal law.”

Even if a SEP meets all of these conditions, AAG Clark cautioned that exceptions “are meant to be rare.”

For over 25 years, SEPs have been used to effectuate productive settlement negotiations and have been a popular and useful mechanism for resolving protracted litigation. While SEPs are not considered penalty payments, nor are they agreed upon in lieu of penalties, the investment in a SEP is considered by EPA and DOJ in exercising their discretion to calculate a penalty. Although SEPs may not always be the most practical choice for a defendant, their use has helped realize significant social and environmental benefits in communities across the country. DOJ’s memorandum not only narrows the scope of settlement options in federal civil enforcement actions, but it also impacts those communities that would otherwise benefit from SEPs.