Joel Smith


In March 2020, the head of the Department of Justice’s Environmental Natural Resources Division (“DOJ ENRD”) issued a decision that fundamentally altered the federal government’s ability to address environmental harm. The decision removed a valuable tool from the negotiation toolbox that Department of Justice (“DOJ”) attorneys used for decades when negotiating settlements in civil enforcement of federal environmental protection laws. This policy change had the potential to significantly impact resolution of complex environmental disputes. In February 2021, the new Chief of the DOJ ENRD rescinded the 2020 memo in response to an executive order from newly elected President Joe Biden. While the rescinding of the 2020 memo does restore the pre-2020 status quo, both actions show the power that executive leadership has to unilaterally alter the course of environmental dispute resolution. The tool the 2020 memo prohibited is called a Supplemental Environmental Project (“SEP”).



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