The Biden administration is seeking to reverse the Department of Justice's (DOJ) controversial prohibition on the use of Supplemental Environmental Projects (SEPs) in civil settlements imposed by the Trump administration. The prohibition on the DOJ's discretion to use SEPs in settlements of environmental cases was announced in a memorandum issued by Jeffrey Bossert Clark, Assistant Attorney General of the Environment and Natural Resources Division (ENRD) of the DOJ, on March 12, 2020. AAG Clark had expanded the rationale for disallowing the use of SEPs in new policy memoranda issued in his last days at the DOJ: "Guidance Regarding Newly Promulgated Rule Restricting Third-Party Payments, 28 C.F.R. § 50.28," January 13, 2021, and "Equitable Mitigation in Civil Environmental Enforcement Cases," January 12, 2021. AAG Clark's position on SEPs was also the subject of the DOJ's regulation promulgated in December 2020, 28 C.F.R. § 50.28, which sought to prohibit SEP payments to third parties.

President Biden's Executive Order 13,990 on January 20, 2021, directed all federal agencies to review and address actions taken during the prior administration that conflict with the new administration's environmental policy. Accordingly, on February 4, 2021, the Biden ENRD issued a memorandum withdrawing nine Trump-era policy documents, listed below, which had established new enforcement priorities and settlement policies, including a few eleventh-hour policy memoranda issued by AAG Clark during his last days as acting head of the Civil Division and AAG of the ENRD: Continue reading >