Environmental enforcement by the federal government will reboot in 2021. But environmental enforcement is a spigot, not a switch—its machinery requires time and sequencing to return to full capacity. That said, there are enforcement tools that may be deployed swiftly including mitigation and supplemental environmental projects (SEPs). This article previews the likely resurgence of these tools and highlights their utility to an enfeebled government enforcement system. Incorporating these tools into appropriate cases can be accomplished relatively quickly, presenting opportunities to pursue restorative and corrective justice for communities suffering disproportionate environmental burdens.
Mitigation in the environmental enforcement context remedies or offsets harm from violations. It is distinct from injunctive relief targeted to bring an entity into compliance with the law. These actions redress pollution where the harm occurs—often in minority communities. For example, mitigation might include discharge limitations lower than legally required to remedy a violator’s prior excess discharges.
Mitigation is rooted in the inherent equitable power of courts and its parameters are shaped by statutory language. As the U.S. Supreme Court said in Porter v. Warner Holding Co., a district court’s inherent equitable authority is available to “secur[e] complete justice,” and is at its height when the public interest is at stake. Unless explicitly restricted by Congress, courts can use this authority to enjoin otherwise lawful conduct to remedy harm from past illegal actions. Accordingly, environmental mitigation can be pursued in litigation and settlements.
SEPs, by comparison, are projects a defendant is not required to undertake by law, and, thus, are used only in settlements. According to the U.S. Environmental Protection Agency (EPA), “[t]he primary purpose of [its] SEP Policy is to encourage and obtain environmental and public health . . . benefits that may not otherwise have occurred in the settlement of an enforcement action.” Unlike mitigation, project expenditures may offset a portion of a violator’s civil penalty.
Since their introduction in federal enforcement in the 1980s, SEPs have evolved in response to legal and policy critiques, most significantly concerning the Miscellaneous Receipts Act (MRA). The MRA mandates that “an official or agent of the Government receiving money for the Government . . . shall deposit the money in the Treasury. . . . ” SEPs must meet a complex rubric of requirements to avoid running afoul of the MRA. Additionally, they must possess a nexus to the violations at issue such that the SEP reduces the likelihood of future violations and the adverse public health and/or environmental consequences of the violations.
Mitigation and SEPs are not without their limitations. And like any enforcement tool, there are matters in which their pursuit may not be appropriate. Yet, despite varying levels of enthusiasm between administrations, mitigation and SEPs generally remained available to enforcement attorneys. Indeed, federal consent decrees over the last 20 years contain hundreds of such projects across several environmental statutes. For example, the United States sought mitigation in power plant agreements spanning multiple administrations and addressing hundreds of thousands of tons of illegally emitted sulfur dioxide, nitrogen oxide, and mercury. The projects offset excess emissions of those pollutants, the choking impacts of which exacerbate already-impaired air quality in downwind communities.
The Trump administration adopted a much narrower approach toward these tools than any recent administration. Appointees limited and ultimately prohibited SEPs in government agreements through a series of memoranda. Further, the administration took aim at mitigation. It objected to a separate settlement between the Sierra Club and DTE Energy (apart from their own consent decree in the case) that contained millions of dollars’ worth of mitigation benefiting environmentally burdened communities. The Eastern District of Michigan granted the Sierra Club’s motion over the United States’ objection, ruling that the separate agreement was a private settlement and not a consent decree requiring court approval. It “reject[ed]” the United States’ contentions regarding the projects’ alleged legal and policy flaws. Instead the court emphasized that the projects “accomplish[] an enormous environmental benefit that is fully consistent with the goals of the [Clean Air Act].” In January 2021, the outgoing head of the U.S. Department of Justice’s (DOJ’s) Environment and Natural Resources Division issued a memorandum ostensibly restraining the use of mitigation. The memorandum provides “precautions” to the Division in the form of new “touchstones” that attorneys would be required to analyze before pursuing mitigation in their cases.
The administration’s changes prompted frustration among both private and public interest communities. Defendants often pursue SEPs to offset some of their civil penalties and garner goodwill in communities harmed by their violations. Environmental organizations favor the use of SEPs to generate concrete benefits where violations cause epidemiological and ecological harm. They denounced the changes, and one group even filed suit over the administration’s ban on SEPs.
For all the dismay surrounding the Trump administration’s circumscribed view of mitigation and SEPs, it is probably short-lived. The Biden-Harris administration is poised to rescind the Trump-era policies. The new administration could quickly revive mitigation and SEPs to serve environmental justice goals because they demand fewer resources than other initiatives requiring longer-term investments. Complex initiatives may necessitate hiring additional staff such as facility inspectors, and funding agency enforcement branches at more significant levels. But mitigation and SEPs can be incorporated in matters currently referred to DOJ and in the referral pipeline. As implemented under the Obama-Biden administration, staff can review EJSCREEN metrics and census tract data to prioritize cases with environmental justice concerns. Interdisciplinary teams could then develop projects to pursue in accordance with legal parameters. SEPs may be the more expeditious tool to leverage given their flexible nexus requirement and support from defendants. Mitigation must be tailored specifically to redress the violation(s) at issue, and could require evidentiary development to cultivate project options.
Achieving meaningful progress toward goals of corrective and restorative justice will require federal attorneys, technical staff, and defendants to make early efforts to engage the communities harmed by the violations at issue. Many of these communities will have borne a disproportionate share of environmental externalities and suffered chronic under-enforcement. Residents may experience health conditions linked to pollutant exposure, such as respiratory or neurological disorders. All parties will need to grapple with the consequences of the violations at issue to generate relevant curative action.
The Biden-Harris administration is likely to reestablish DOJ and EPA’s commitment to the rule of law and statutory mandates through multiple enforcement initiatives. Pursuant to the January 27, 2021 Executive Order, many of these initiatives will benefit traditionally marginalized communities and will focus on enforcement and remedies. While not a panacea for environmental harms, mitigation and SEPs could immediately contribute to such an agenda. Attorneys from across the practice spectrum should anticipate a renewed use of these tools in service of justice for those harmed by environmental violations.
