In a memorandum dated March 12, 2020, the US Department of Justice’s Environment and Natural Resources Division (ENRD) ended its use of supplemental environmental projects (SEPs) in civil settlements with private defendants. This removes an important tool used by the federal government to enforce environmental regulations. It accompanies the Trump administration’s scale-back of environmental enforcement as a whole.
ENRD has historically used SEPs in lieu of having violators of environmental regulations pay monetary penalties. ENRD’s new position is that civil penalties are “money for the Government” under the Miscellaneous Receipts Act, and that the diversion of money to SEPs instead of civil penalties violates the Miscellaneous Receipts Act. Previously, ENRD argued that the Act was not violated, as the penalty was not owed to the government until the settlement was finalized.
Although this memorandum only addresses civil settlements, a footnote at the end suggests the usage of SEPs in criminal settlements will also end.
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