Feds sued over no longer allowing polluters to pay for environmental projects

A conservation group sued the federal government on Thursday over an action taken this year to no longer allow polluters to reduce their fines by paying for projects to help the environment. 

A Department of Justice (DOJ) memo issued in March said that the Special Environmental Projects (SEPs), which had been used for about 30 years, violate a law requiring money received by the government to go to the U.S. Treasury. 

The memo was first reported by E&E News.

DOJ argued that SEPs could only legally be allowed with express authorization from Congress and that the projects have been “controversial for decades.” It then suspended their use “both in light of their inconsistency with law and their departure from sound enforcement practices.”

However, The Conservation Law Foundation (CLF) argued in a new lawsuit that SEPs aren’t funded with money that would have otherwise gone to the Treasury, and that the money isn’t actually received by federal officials. 

It argued that because the Environmental Protection Agency (EPA) calculates civil penalties separately from SEPs, they “do not rob the agency of funds ‘destined’ for the treasury.”

The suit also argued that because these projects reduce pollution, they are a “win-win” and that communities that face disparate impacts will be harmed by its undoing. 

“This policy reversal is a slap in the face to communities battling pollution,” said a statement from Heather Govern, CLF’s Clean Air and Water program director. “Communities of color have suffered for decades with dirty air and unsafe water, and supplemental projects help right these wrongs.”

“Such an unlawful scheme cannot be allowed to stand,” she added.

Jonathan Brightbill, principal deputy assistant attorney general of the Justice Department’s Environment & Natural Resources Division, said in a statement that the department will “vigorously defend this suit.”

He also noted that the decision was “undertaken in consultation with EPA, which has itself adopted the Department’s position in its approach to its own administrative settlements.”

SEPs allow companies to reduce their civil penalties by allowing them to pay for steps like cleaning up streams or replacing old, inefficient school busses. Companies typically agree to projects that correspond with the parts of the environment they polluted, such as air or water.

CORRECTION: This story was corrected on Oct. 9 to show that E&E News first reported the DOJ memo.