"A Trump-era Justice Department regulation is preventing the EPA from resuming broad use of a popular enforcement tool that the Biden administration has been asked to revive.
In an internal memo last week, EPA acting enforcement chief Lawrence E. Starfield directed staff to use “the full array of policy and legal tools available” to resolve civil enforcement cases and address environmental injustices. But supplemental environmental projects, or SEPs, remain off limits in most big cases due to a DOJ rule restricting third-party payments.
SEPs are environmentally beneficial projects companies can volunteer to do as part of a settlement for alleged violations, sometimes in exchange for lower penalties. A DOJ political official largely banned SEPs in 2020 after concluding they were illegal in most contexts, and the EPA followed along.
The Justice Department scrapped the anti-SEPs policy after President Joe Biden took office, but a broader third-party payments regulation finalized before his inauguration in December presents a bigger hurdle."
Ellen M. Gilmer reports for Bloomberg Environment May 5, 2021.
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