Audit, Compliance and Risk Blog

On May 12, 2022, the US Department of Justice (DOJ) published an interim final rule that revokes a Trump-era prohibition against its attorneys’ use of payments to third parties, including via “supplemental environmental projects (SEPs)”, in settlements with violators of federal environmental laws. (I discussed Trump Administration policies several times, most recently HERE). In these cases, DOJ acts as the attorney for the agencies, such as the Environmental Protection Agency (EPA), that enforce laws and regulations allegedly violated. This rule change would codify policy changes presented in a memorandum from Attorney General Merrick Garland to US attorneys. This change is designed to restore flexibility to DOJ’s US attorneys to trade penalty dollars for more rapid commitments by wrongdoers to undertake actions to offset harms caused by their violations.

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Within the US federal government, the Department of Justice (DOJ) enforces many civil and criminal laws directly, and also provides the attorneys who represent federal agencies in enforcement cases. For example, DOJ’s “US attorneys” represent the Environmental Protection Agency (EPA) in cases under the Clean Air Act, Clean Water Act, etc. In doing so, DOJ provides those attorneys with departmental policies to guide their activities – as a practical matter, DOJ policies supersede any conflicting client-agency policies. It’s therefore important, that since the Biden administration assumed office, Attorney General Garland and his deputies have moved aggressively to review and revise departmental policies inherited from the Trump administration. The remainder of this note discusses some of these changes.

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I’ve written numerous times in this space about specific efforts by the Trump administration to reduce environmental regulation and enforcement. A new study from the University of Michigan Law School quantifies reductions in the administration’s criminal enforcement levels. The report is part of the school’s “Environmental Crimes Project,” and includes the first two years of the Trump Administration as the latest in a 14-year series of federal environmental enforcement data. Readers should note that federal criminal environmental enforcement is brought by the US Department of Justice (DOJ) on behalf of the US Environmental Protection Agency (EPA); EPA and delegated state agencies bring their own civil cases, and most state criminal enforcement is brought by state prosecutors on behalf of state regulatory agencies (I summarized agency enforcement in the first year of the Trump administration HERE).

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It’s been 30 years since President George H.W. Bush signed the Americans with Disabilities Act (ADA) into law. ADA does more than just add “persons with a disability” to the list of groups protected against discrimination by Title VII of the Civil Rights Act of 1964 (based on race, sex, etc.). It is designed not just to protect these individuals’ employment opportunities, but also to ensure their access to public services and accommodation. The ADA Amendments Act of 2008 repudiated several U.S. Supreme Court decisions that had interpreted ADA narrowly, and clarified related issues highlighted by rulemakings and litigation up to that time.

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Effective March 12, 2020, the US Department of Justice (DOJ) prohibits its US attorneys from entering into settlements in which DOJ lowers penalties for defendants that agree to conduct “supplemental environmental projects (SEPs)”, if the SEP involves payments to a third party. This action is the latest in a series of DOJ moves against SEPs since President Trump took office. The first such step was a June 2017 DOJ management memorandum directing US attorneys NOT to agree to SEPs that include payments to third parties (I wrote about that memo HERE). The second was an August 2019 memorandum restricting use of SEPs in Clean Water Act (CWA) cases against state and local governments, in which DOJ rejected arguments that recent legislation allows them (I wrote about that memo HERE).

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