Partner Francis Lyons, a former U.S. Department of Justice (DOJ) environmental enforcement attorney and U.S. Environmental Protection Agency regional administrator, was quoted on the DOJ’s push to block “side deals” that include settlement terms greater in scope than what the federal government would agree to.
The DOJ objected to citizen suit settlements that include funding for environmental improvement projects, because it could give outside groups too much power. The agency has indicated that it will limit those types of arrangements in settlements more broadly. This follows a recently announced DOJ policy that disallows the use of Supplemental Environmental Projects (SEPs) to offset civil penalties in environmental enforcement cases brought by the government, which have been used for decades.
"For those of us who have been following this and waiting to see if the other shoe might drop regarding citizen suits, with this brief, the other shoe just dropped,” Frank said.
He added that businesses, in addition to advocacy groups, favor environmental projects aimed at cleaning up pollution because they can be used to facilitate settlement negotiations and provide an alternative to forcing a company to pay fines.
"Any kind of environmentally beneficial project is a useful tool for resolving the matter both for the [nongovernmental organizations] that bring the suits as well as for the defendants in these cases," Frank said.
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