Wednesday, March 10, 2021
The Biden administration is seeking to reverse the Department of Justice’s (DOJ) controversial prohibition on the use of Supplemental Environmental Projects (SEPs) in civil settlements imposed by the Trump administration. The prohibition on the DOJ’s discretion to use SEPs in settlements of environmental cases was announced in a memorandum issued by Jeffrey Bossert Clark, Assistant Attorney General of the Environment and Natural Resources Division (ENRD) of the DOJ, on March 12, 2020. AAG Clark had expanded the rationale for disallowing the use of SEPs in new policy memoranda issued in his last days at the DOJ: “Guidance Regarding Newly Promulgated Rule Restricting Third-Party Payments, 28 C.F.R. § 50.28,” January 13, 2021, and “Equitable Mitigation in Civil Environmental Enforcement Cases,” January 12, 2021. AAG Clark’s position on SEPs was also the subject of the DOJ’s regulation promulgated in December 2020, 28 C.F.R. § 50.28, which sought to prohibit SEP payments to third parties.