In its first year, the Biden administration has reversed several anti-environmental policies of the former President. Donald Trump
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The old administrations are gone The famous two-for-1 policyThe law required federal agencies to eliminate two regulatory requirements for each new regulation they proposed. Numerous Trump-era policies that reduced water quality and air quality protections have been repealed. The U.S. Environmental Protection Agency, (EPA), and other federal agencies are now focusing on the growing dangers posed due to the climate crisis.
It is a puzzle that the current administration doesn’t have a plan to restore an environmental tool that has been proven effective and highly beneficial over the years. Supplemental Environmental Projects (SEPs).
SEPs are environmental-beneficial projects. They are often undertaken by environmental law violationors in settlement agreements made with EPA or a state environment agency. These agreements usually include some reductions in monetary sanctions. They can be used to benefit both the environment and industry by allowing violators to present a more environmentally friendly face to the public. They may also enable defendants to obtain federal and state tax advantages that they might not otherwise have. The violators also agree to improve and protect the environment with funds that, through ordinary penalties, would merely be absorbed in the federal or state treasury.
Settlement agreements that establish a SEP are subject to a variety of legal guidelines under policies set by EPA and other states. The most important requirement is to establish a nexus between the project and the violation. The relationship may only be established when the project will reverse the negative effect or the overall risk to the public health caused by the violation or if it will reduce the likelihood of similar violations in the future.
The project must also fall within one of the following categories. These projects include those that prevent or remediate adverse public health effects of the company’s pollution, restore or preserve human-created environments or help a local emergency response program or plan program.
SEPs are not allowed for certain types of projects. These include contributions for environmental research at a college, university, or public educational or environmental awareness programs. Also, projects such as charitable contributions that, although beneficial to a local community, are not related to environmental conservation.
SEP violators must also pay monetary penalties for either the severity of their environmental violations, or the economic gain they have derived from violating environmental laws.
The SEPs program was initiated by EPA and most states around the mid-1990s. The program was widely used and enjoyed great success until it was stopped by the Trump administration. In fiscal 2006, EPA settled 220 cases requiring environmental defendants implement SEPs. These cases had a total value of more than $78 millions. Although not all polluters choose to settle with SEPs in settlements, many did so and the program was widely regarded as a win/win for industry, government, and the general public.
It is both surprising and disappointing that neither the U.S. Department of Justice nor EPA have revived the SEPs program, given its notable past achievements and widespread popularity. This situation may change after David Uhlmann is confirmed by the U.S. Senate as the administration’s nominee for assistant administrator for enforcement, compliance assurance, and enforcement.
EPA’s failure to restart the SEPs program in the interim is a troubling and anomalous feature of its renewed enforcement efforts.
Joel A. Mintz is a professor emeritus of Law at Nova Southeastern University College of Law, Florida. He is also the C. William Trout senior fellow. He is the author of or co-author 11 books, and many law journal articles and commentaryaries. He served six years in the U.S. Environmental Protection Agency. He currently serves as the director of the Center for Progressive Reform.