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ARTICLE · 04 JULY 2017

DOJ Directive Threatens Availability Of Penalty Mitigation Approach

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Although not explicitly identified in the directive, SEPs are likely to be affected by its broad prohibition against payments to third parties.

United StatesEnvironment
H. David Gold
H. David Gold
Rachel Jacobson
Rachel Jacobson
Bonnie Heiple
Bonnie Heiple
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A June 5, 2017, Department of Justice (DOJ) policy directive threatens the ongoing availability of Supplemental Environmental Projects (SEPs) in civil environmental settlements. SEPs have traditionally provided a means by which regulated entities may receive penalty mitigation for committing to projects related to the underlying violation and that result in a net environmental benefit. Based on the directive, DOJ is expected to issue guidance that could limit or eliminate the use of that important tool. Businesses should be on the lookout for follow-up guidance issued ‎by DOJ and how it may implicate settlement negotiations in environmental cases. 

The Announcement

"Effective immediately," Attorney General Jeff Sessions announced in the directive, "Department attorneys may not enter into any agreement on behalf of the United States in settlement of federal claims or charges, including agreements settling civil litigation, accepting plea agreements, or deferring or

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