EPA enforcement: A heightened emphasis on mitigation relief

Vol. 45 No. 4

David Markell is the Steven M. Goldstein Professor and associate dean for Environmental Programs at the Florida State University College of Law. The comments of EPA staff on a draft of this article were very helpful.

This article reviews key features of a November 2012 U.S. Environmental Protection Agency (EPA) Memorandum entitled Securing Mitigation as Injunctive Relief in Certain Civil Enforcement Settlements (2d ed. Nov. 2012) (hereinafter Mitigation Memorandum or Memorandum) (the agency issued its 1st edition of the Memorandum in September 2012). The agency issued the Memorandum for the purpose of “strongly encourag[ing] [EPA enforcement personnel] to seek mitigation, where appropriate, as a component of the injunctive relief they seek in civil judicial enforcement cases.” Implementation of the Mitigation Memorandum coincides with an agency effort to more fundamentally reconsider its approach to compliance promotion, which EPA calls its Next Generation (Next Gen) Compliance Initiative and characterizes as a “new paradigm” for promoting compliance. See e.g., U.S. EPA, Office of Enforcement and Compliance Assurance National Program Manager Guidance FY 2014 at 10–12 (June 12, 2013). As EPA revisits its approach to improving compliance more generally, the Mitigation Memorandum offers insights into EPA’s strategies for pursuing formal enforcement, including civil judicial cases.

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The Law of Adaptation to Climate Change: United States and International Aspects