03.15.2021 Biden DOJ Quickly Rescinds Trump Environmental Enforcement Policies
Much attention has been devoted to environmental policies of the prior Trump administration that are likely to be reversed or altered by the new Biden administration. See, e.g., Biden Administration Could Quickly Adopt Many Environmental Enforcement Policy Changes, Williams Mullen Environmental Notes, January 2021. This prediction has been borne out by a recent memorandum (February 4, 2021) from the Acting Assistant Attorney General of the Environment and Natural Resources Division (ENRD), Jean Williams, withdrawing nine documents relating to environmental enforcement issued by the Trump ENRD.
These withdrawn documents, dating back to January 2018, addressed several issues, but the most significant concerned the use of Supplemental Environmental Projects (SEPs) in settlement of civil environmental enforcement cases. Four of the withdrawn documents addressed SEPs. SEPs are projects that a defendant agrees to perform that go beyond what is required for compliance with environmental laws and regulations. In return the defendant is given a reduction in penalty based on the cost to perform the SEP.
The Trump ENRD issued a series of policies at first limiting and then entirely prohibiting the use of SEPs in the settlement of civil judicial environmental enforcement cases. This was seen as a significant policy change, as SEPs have been used as a settlement tool under both Democratic and Republican administrations, dating back to the early 1980s. By withdrawing these documents, the Biden DOJ has put projects back on the table as potential components of settlement of environmental enforcement cases.
Another document that was withdrawn concerned the use of mitigation as a remedy. The memorandum states that it is DOJ policy to seek mitigation as a remedy, in appropriate cases, to correct past harm due to environmental violations. This remedy could be imposed in addition to penalties or prospective injunctive relief to correct on-going violations, the typical remedies sought in environmental enforcement cases.
As discussed in the memorandum, the basic principle is that the equitable powers vested in the courts give them the ability to order remedies that are designed to ameliorate past harms, i.e., mitigate the damage already done due to an environmental violation. In doing so the mitigation remedy can legally go beyond what is required to achieve current compliance with an existing law, regulation, or permit, and in this regard looks very much like a Supplemental Environmental Project (SEP), (a project that goes above and beyond that required to achieve compliance in return for a reduced penalty.) Therefore, it is interesting that the Trump DOJ promulgated a policy embracing mitigation, while at the same time prohibiting the use of SEPs in civil environmental enforcement settlements.
The distinction drawn is that SEPs, by reducing the penalty paid in exchange for the SEP project, intrude on Congressional spending authority, while mitigation remedies, which do not necessarily involve such a trade-off, do not. Another important legal distinction is SEPs are entirely creatures of settlements, i.e., SEPs arise out of the agreement of the parties. There is no basis in law for the government to request a SEP project as part of the relief to be unilaterally imposed on a defendant in a judgment handed down by a court. Mitigation, on the other hand, is viewed as an equitable remedy which the government may request and which a court may impose on a defendant, just as it may order penalties to be paid or pollution control equipment to be installed.
The withdrawal of the Trump DOJ mitigation document should not be viewed as a repudiation of mitigation as a remedy, even though it was the first DOJ document to formally embrace mitigation. It should rather be viewed as removing whatever limitations the policy put on the use of mitigation in environmental civil enforcement, so defendants should expect mitigation to be part of the relief sought in environmental civil enforcement cases.
Another significant enforcement policy that was withdrawn concerned limitations on DOJ overfilling, i.e., commencing a federal enforcement case after a state has initiated enforcement of state Clean Water Act enforcement actions. A July 2020 memorandum limited federal overfilling of state enforcement actions beyond the overfilling limitations already provided in the statute. These policy limitations on federal overfilling are now no longer in effect.