WILLIAMS MULLEN
ENVIRONMENTAL NOTES
JANUARY 2021
BIDEN A DMINIS TR ATION
COULD QUICKLY ADOPT
MANY ENVIRONMENTAL
ENFORCEMENT POLIC Y
CHANGES
BY: CARRICK BROOKE-DAVIDSON
Federal environmental policies are likely to undergo
significant changes at DOJ and EPA under the Biden
administration, including alteration of many Trump
administration enforcement policies. Since many of
these existing policies are not regulations, it likely
will not be difficult for the incoming administration
to reverse or alter them. For policies that have
been adopted as regulations, any attempt to alter
them will have to be done using the Administrative
Procedures Act (APA). For policies that have been
issued as guidance or internal agency requirements,
they can be altered with the stroke of a pen.
Discussed below are some of the environmental
enforcement-related policy changes that can be
anticipated from the Biden administration.
DOJ Structure
The most significant change that could affect
environmental enforcement is the Biden
administration’s stated goal to create a new
litigating division at DOJ devoted to environmental
and climate justice. The role of environmental
justice in enforcement has been a complicated
and controversial topic. How this new division
would coordinate with DOJ’s existing Environment
and Natural Resources Division (ENRD) and with
EPA would have to be determined, but the stated
goal to create such a division indicates that
environmental jus tice and climate-related issues
can be expected to receive significant enforcement
resources.
In addition to this potential structural change, the
Biden administration can be expected to focus
on increased federal environmental enforcement.
Consequently, a number of existing DOJ and EPA
policies are likely to be changed as well. These are
discussed below.
OMB Directive
A significant Trump policy that affected all federal
enforcement was announced by OMB in August
2020. OMB Memorandum M-20-31 requested that
all federal agencies implement changes in their
enforcement practices to conform to the “best
practices” described in the memorandum. Among
the most significant requests were provisions for
a good-faith defense to enforcement actions,
implementation of disclosures of exculpatory
evidence (a practice that previously applied only
to criminal trials), and limitations on the use of
tolling agreements. The memorandum was issued
to implement the May 19, 2020 Executive Order
1392 4, Regulatory Relief to Support Economic
2
Recovery but many of its aspects echo the October
9, 2019 Executive Order 13892, Promoting the Rule
of Law Through Transparency and Fairness in Civil
Administrative Enforcement and Adjudication. The
memorandum requested agencies to issue final
rules by November 26, 2020. Neither EPA nor DOJ
have issued any new rules in response, and even
if there is any last minute rulemaking, agency
procedural rules can be modified or rescinded
without notice and comment rulemaking (see
below), meaning any rule issued pursuant to the
memorandum could quickly be altered. Moreover,
the document, as a White House memorandum,
could be rescinded on the first day of the Biden
administration. Whether any of these practices will
be re-implemented by the new President will have
to await developments.
DOJ Policies
There are several DOJ policies, some specifically
directed at environmental enforcement and other
more general policies that affect enforcement,
that likely will be rescinded or altered by the Biden
administration. Perhaps the most significant polices
are those that concern Supplemental Environmental
Projects (SEPs). SEPs have been used for decades
as an enforcement tool, allowing environmental
defendants to trade penalty reductions for
environmentally beneficial projects that go above
and beyond regulatory requirements. While SEPs
have not been without controversy over the years,
it appeared EPA had addressed many of the
concerns in a series of policies, the most recent of
which was issued in March 2015. DOJ under the
Trump administration, however, was more critical
of SEPs.
The first action to curtail SEPs was issuance of a
DOJ memorandum on June 5, 2017 by Attorney
General Sessions which generally prohibited
settlement payments to third parties in federal
litigation. It was feared this policy would severely
curtail SEPs in judicial settlements because
implementation of SEPs often involves third party
payments. EPA was not subject to the policy as it
applied only to judicial settlements in cases handled
by DOJ (unless an administrative case required DOJ
approval). However, there was concern among
many that DOJ’s policy would have a chilling effect
on the use of SEPs in settling administrative actions.
To address these concerns, the acting Assistant
Attorney General (AAG) of ENRD issued a lengthy
memorandum on January 9, 2018 that appeared to
substantially approve the use of SEPs that involved
third-party payments. This reprieve was relatively
short-lived. In August of 2019, after confirmation
of the new ENRD AAG Jeffrey Clark the previous
October, ENRD issued a policy that prohibited SEPs
in settlement of enforcement actions with state
and local governments. This change was arguably
required to conform to a general November 2018
DOJ policy. That policy prohibited settlements
with state and local governments that resulted in
greater relief than could be obtained if the case
were litigated to judgment. While the overarching
DOJ policy was seen as primarily directed at federal
consent decrees with police departments, it was
also viewed by ENRD as prohibiting SEPs with state
and local governments. The ENRD policy was also
hostile to SEPs in general, and this hostility was
born out by a subsequent ENRD memorandum
in March 2020 that prohibited the use of SEPs
altogether in judicial settlements. Again, while
not binding on EPA administrative settlements,
this policy was viewed as a severe blow to SEPs,
as they are most often implemented through
judicial consent decrees.
All the DOJ enforcement policies discussed
above are subject to being overturned by a new
administration. While the March 2020 memorandum
prohibiting SEPs goes to some length to argue that
SEPs are not just bad policy but illegal, it is not a
formal opinion of DOJ’s Office of Legal Counsel. As
set out on EPA’s SEP policy webpage, the issues that
Trump’s ENRD found troubling had previously been
explicitly considered and addressed in the revisions
to the SEP policy. EPA never rescinded its SEP policy
in the face of the DOJ memorandum, so even in the
Trump administration SEPs were still an option in
administrative settlements.
Recent litigation in the U.S. District Court for the
District of Massachusetts illustrates the underlying
ephemeral nature of the SEP prohibition, and
WILLIAMS MULLEN
