Defending SEPs

The Surfrider Foundation filed suit defending the continued use of Supplemental Environmental Projects, or “SEPs” in Department of Justice (“DOJ”) settlements with environmental violators. SEPs are projects that defendant polluters agree to carry out in communities negatively impacted by their pollution; and projects have a significant nexus to violations. For the past three decades, SEPs have served as valuable tools that result in meaningful, on-the-ground projects in affected communities. SEPs are an especially important tool for environmental justice, helping to alleviate environmental impacts such as air and water pollution in communities most burdened by pollution.  

Reversing decades of DOJ and EPA policy and legal interpretation, in a March 2020 memorandum, Assistant Attorney General of the DOJ’s Environment and Natural Resources Division, Jeffrey Clark, prohibited the use of SEPs in DOJ settlements. Represented by outside counsel at Democracy Forward, Surfrider has joined co-plaintiff Conservation Law Foundation in a lawsuit challenging the DOJ and EPA for ending the decades-long practice in which polluters may fund SEPs. 

Surfrider is pleased that, following this lawsuit, on February 4, 2020 the DOJ restored its long-standing practice of utilizing SEPs. On January 20, President Biden issued Executive Order 13,990, entitled “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis,” which proclaims: “It is … the policy of my Administration to listen to the science; to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change; to restore and expand our national treasures and monuments; and to prioritize both environmental justice and the creation of the well-paying union jobs necessary to deliver on these goals.”

The Order directed agencies to review their regulations and ensure consistency with these goals. Accordingly, DOJ ENRD revoked the March 2020 memorandum (along with 8 other documents), because, as Surfrider, CLF, and Democracy Forward argued in our lawsuit, the prohibition on SEPs is “inconsistent with longstanding Division policy and practice and […] may impede the full exercise of enforcement discretion in the Division’s cases.” With this successful outcome, plaintiffs voluntarily dismissed the lawsuit on February 5th. Surfrider and our partners are proud of our fight to ensure the DOJ and EPA follow the law and reverse the prior administration’s unlawful policy, and are glad that these agencies will continue being able to utilize SEPs to assist communities harmed by pollution.