DOJ ends use of supplemental environmental projects as settlement tools

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The U.S. Department of Justice (DOJ) recently issued a memorandum stating that settlements, including consent decrees, entered by the U.S. Environmental Protection Agency (US EPA) and other federal agencies can no longer include a Supplemental Environmental Project (SEP), unless the SEP is expressly authorized by Congress. Companies and individuals accused of violating environmental laws or permit requirements commonly agree to perform SEPs to fund projects that go beyond compliance instead of paying a higher cash penalty to the U.S. Treasury. Going forward, companies, individuals and local governments will no longer have SEPs as a settlement option. The new policy takes effect immediately, according to Assistant Attorney General Jeffrey Bossert Clark, who heads the Justice Department’s Environment and Natural Resources Division.

The Ohio Environmental Protection Agency (Ohio EPA) and Ohio Attorney General’s Office have not yet indicated what effect, if any, the DOJ SEP memorandum will have on their practices involving SEPs. Historically, SEPs have been employed in settlements of both administrative and civil enforcement actions. Ohio EPA’s SEP guidance can be found here

We will continue to update this information as we learn how the recent change to federal policy applies to state-level enforcement decisions in Ohio. 

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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