Last Thursday, May 5, U.S. Attorney General Merrick Garland issued a memorandum entitled “Guidelines and Limitations for Settlement Agreements Involving Payments to Non-Governmental Third Parties,” allowing the Department of Justice (DOJ) to resume use of Supplemental Environmental Projects (SEPs) as a part of environmental settlement agreements. As a result of this guidance, DOJ components — particularly the Environment and Natural Resources Division (ENRD) — will again be able to negotiate with defendants SEPs that benefit the environment and offset civil penalties in order to settle alleged violations of federal environmental laws.
DOJ’s reintroduction of SEPs as a tool for enforcement returns to a decades long practice that was generally seen as a “win-win” by federal agencies and the regulated community for improving the environment and public health. DOJ’s “return to normal” aligns with the current administration’s focus on environmental justice initiatives in communities of color, low-income communities, and tribal communities. The memorandum notes that alleged harms to communities resulting from environmental crimes can be difficult to address directly and was announced in conjunction with DOJ’s launch of a new environmental justice enforcement strategy and Office of Environmental Justice within ENRD, which Sidley’s environment justice team will discuss in detail shortly. However, DOJ’s reintroduction of SEPs comes with a twist from decades of prior practice: Senior DOJ officials must now approve payments to nongovernmental third parties.
Sidley Austin LLP provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Readers should not act upon this information without seeking advice from professional advisers.
Attorney Advertising—Sidley Austin LLP, One South Dearborn, Chicago, IL 60603. +1 312 853 7000. Sidley and Sidley Austin refer to Sidley Austin LLP and affiliated partnerships, as explained at www.sidley.com/disclaimer.
© Sidley Austin LLP