August 16, 2022

Bringing Back a Critical Solution for Communities Damaged by Illegal Pollutants

Additional Environmental Projects (“SEPs”) were created decades ago to address the damage done to communities caused by pollutants violating environmental laws, sometimes for years. When the Trump administration broke down the regulatory framework for SEPs and reversed years of bilateral and public support for these programs, it was unclear how communities would get the support they needed to address the environmental and health damage caused by industry mismatch. Last month, Biden issued the Department of Justice (“DOJ”) a temporary rule of thumb restoring the viability of SEPs in settlement negotiations.

Typically in our legal system, when someone wrongs another, they may be ordered to pay compensation for the damage done. If the fault is illegal or criminal, the perpetrator may be prosecuted, resulting in possible penalties and/or imprisonment, as well as the payment of compensation to the victim or compensation to reintegrate them. For example, if I steal $10,000 from a bank, I could be prosecuted for theft; In addition to paying a fine and going to jail, I will be asked to return the $10,000 to the bank to be whole again. This approach is more deceptive when it comes to violators of the environment.

When companies break environmental laws and pollute more than allowed, determine what is necessary to bring the company into compliance and punish them appropriately. accomplished. However, figuring out how to fix the damage done to the affected community is more difficult. If a cement company exceeds Clean Water Act permits and dumps illegal toxic waste into a community waterway for years, how do you identify and then measure the damage done to all people in that community who drink or use unsafe water? If a refinery has been exceeding air pollution limits for years, including by releasing illegal quantities of the carcinogenic benzene, might not particularly harm (eg cancer) be manifest for years to come? Such calculations are even more difficult if a community has more than one source of pollution.

SEPs were created decades ago to address this enforcement issue. SEPs “An environmentally beneficial project or activity that is not required by law but that the defendant agrees to undertake as part of the resolution of an enforcement action. SEPs are projects or activities that go beyond what may be legally required for the defendant to return to compliance and provide environmental and/or public health benefits in addition to those achieved through compliance with applicable law.” Therefore, if a company is prosecuted for violating the Clean Air Act, in addition to paying fines and taking mitigation measures to ensure future compliance, the corporate defendant, those who treat asthma sufferers in nearby underserved communities, or who electrify Buyers can provide funding for traveling medical vans. School buses for the community have been damaged. Since the 1980s, SEPs, also called community service projects in federal criminal cases, have Management, civilianand judicial enforcement matters.

A Flexible Implementation Tool

During my 15 years as a state and federal environmental attorney before I came to Earthjustice, I saw the goodness of SEPs firsthand. Indeed, some of the corporate defendant-funded projects to repair the damage done to affected communities were the things I was most proud of in the settlement and advocacy agreements I negotiated. Not only did SEPs seek to account for damage caused by negligence or willful non-compliance (sometimes over many years), but SEPs ensured that those most affected by environmental violations benefit from enforcement solutions. A few examples of SEPs from my years as a federal and state attorney include:

  • In 2001, after an illegal tire pile fire in one of the country’s most polluted areas caused evacuations due to toxic fumes, residential Including a SEP donating $65,000 to a County Environmental Trust Fund to assist the County in various environmental projects, including the management of illegal tire piles.
  • In 2009, Shore Terminals LLC was found guilty of willful Clean Air Act violations at its Bay Area fuel terminal. As part of millions of dollars confession agreementShore Terminals has paid $750,000 in SEP funding to fund projects that will improve air quality in surrounding communities.
  • In 2013, the U.S. Attorney’s Office for the Northern District of California, where I have worked for over a decade, Established the San Francisco Bay Estuary Conservation Fund Funding local environmental protection and restoration projects with $8.7 million in initial funding from various federal criminal environmental prosecutions. One of the many contributing funds later came from Wal-Mart. admit guilt and ultimately agreeing to pay more than $110 million for violating federal and state laws by failing to properly manage hazardous waste in thousands of stores nationwide. As part of the criminal defense, $4 million of the $20 million national community service projects are set aside to fund related projects in the Bay Area, where dozens of stores are located.
    State of US Renewable Energy.

Westley Tire Combustion Plant workers sit on a hill and watch tires burn after a lightning strike in September 1999.

Bart Ah You / Modesto Bee /

SEPs are also used in civil environmental enforcement cases brought by communities:

  • DTE Energy and Detroit Edison in 2020 ingrained A Clean Air Act enforcement lawsuit with the Sierra Club, represented by Earthjustice, is one where more than $2 million went to community benefits, such as replacing diesel polluting school and municipal transit buses with electric buses.

SEPs make the most of a bad situation. We must always remember that a community has been harmed and that damage can rarely be truly reversed. PKPs, while imperfect, offer the best tools currently available and benefit everyone involved in trying to remedy this harm. The government’s dual objectives of deterrence and reparation for the harm caused by illegal behavior are provided both by the enforcement action itself and accompanying the SEP. Affected communities receive new resources to address the effects of pollution caused by noncompliant organizations. And the defendants get the opportunity to partially repair the damage they have done to the neighboring community. It’s also worth noting that they generally cannot claim a tax benefit or public recognition for community funding under a settlement or advocacy agreement. no surprise, Reagan EPA observedHe, “[i]In general, the regulated community has been very receptive to this practice.” During my time prosecuting environmental cases at the federal and state levels, both civil and criminal, I found the same welcome.

For over four decades, every administration, regardless of political party, has valued SEPs as a dynamic enforcement mechanism. All this time, the question was never how to restrict them, but How to expand SEPs.

Trump administration’s comeback

Then, beginning in 2016, the Trump Administration reversed decades of bilateral and popular support for SEPs, undermining government effectiveness in the face of escalating environmental hazards.

It started off quietly, with broad notes from political appointees in DOJ’s Division of Environment and Natural Resources regarding payments to third parties that are slowly starting to erode the use of SEPs in environmental litigation. Momentum built and finally ENRD banned SEPs in agreements with private parties, such as corporate defendants. After the 2020 elections, the Ministry took an unusual step. Coding a ban on SEPs By rulemaking just 35 days before President Biden was sworn in.

Restoration of the Biden administration

On Day One of the Biden-Harris Administration, the President issued: Executive Order 13,990“Restoring Science to Protect Public Health, the Environment, and Combat the Climate Crisis.” The order prompted all federal agencies to review Trump-era regulations and actions that were inconsistent with the Biden Administration’s goals, such as “holding polluters accountable, including those who disproportionately harm communities of color and low-income communities.” White House especially called last minute Trump DOJ’s review decision against SEPs.

Follow up last month Petition from Democracy Forward On behalf of Biden DOJ, Conservation Law Foundation, Surfrider and Sierra Club a temporary rule of thumb restoring the viability of SEPs in settlement negotiations. Earthjustice and many of our partners are posting comments to support this announcement as we welcome this important enforcement tool. We also urge the Biden-Harris Administration to further develop community engagement best practices so that SEPs live to their full potential and meet the most pressing needs of communities.

Ideally, of course, there would be no environmental violations in the first place. We hope the Biden-Harris Administration will continue to enforce stronger compliance with and enforcement of our environmental laws. recent efforts to show. SEPs play a critical role in these efforts and offer an effective way to repair the hard-to-measure damage done to communities living in the shadow of industries that ignore our pollution laws. Good to see this critical tool for justice is back.

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