Boston, M.A. — Today, on behalf of the Conservation Law Foundation (CLF), Democracy Forward sued the Department of Justice (DOJ) for unlawfully ending a 30-year-old policy that allowed DOJ to include environmentally-beneficial projects in settlements for pollution-related violations.
“The Department of Justice has used supplemental environmental projects for decades to secure real-world benefits for the nation’s air and water, and the communities most affected by pollution,” said Democracy Forward Managing Senior Counsel, Travis Annatoyn. “But Jeffrey Bossert Clark unlawfully took an axe to the use of SEPs in order to curb enforcement of federal environmental statutes. So we’re filing suit to ensure DOJ looks out for the environment and communities harmed by pollution instead of polluters’ bottom line.”
“This policy reversal is a slap in the face to communities battling pollution,” said Heather Govern, Director of CLF’s Clean Air and Water program. “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.”
In March, Clark, Trump’s Assistant Attorney General for the Environment and Natural Resources Division at DOJ, abruptly, unilaterally, and unlawfully concluded that settlements that include supplemental environmental projects (SEPs) are not legally sound. “The Clark Memo,” in which he details the conclusion, is a compendium of legal errors that fundamentally misunderstands long-standing departmental policy. Clark’s arbitrary and unreasoned legal interpretation violates the Administrative Procedure Act and should be set aside.
SEPs are an effective law enforcement tool that allow polluters to help remedy the effects of pollution in the very communities they have harmed. For decades, SEPs have benefitted low-income communities and communities of color that suffer most from illegal pollution. They have produced tangible, real-world results. Since 2005, DOJ has approved at least nine SEPs in and around the Boston area, where CLF members live and recreate. Those SEPs have, for instance:
- Forced the Massachusetts Bay Transit Authority’s commuter lines to switch to low-sulfur fuel, at a cost of $1 million
- Led Sterling Suffolk Racecourse to allocate over $700k to monitor local watersheds and facilitate access to marshes near Boston Harbor
- Required Clean Harbors of Braintree, Inc. to plant 800 trees in low-income and historically-disadvantaged neighborhoods following a hazardous waste incident
Around the country, DOJ has approved hundreds of SEPs with consequential, real-world benefits for communities, and the nation’s air and water. In 2017, for example, SEPs helped reduce lead exposure for low-income families in Lima, Ohio, and secured the installation of lead-filtering systems in public schools in East Chicago, Indiana.
The Clark Memo unlawfully upended a successful policy that is consistently described as beneficial for communities and industry alike. This suit seeks to vacate DOJ’s Clark Memo and prevent DOJ and EPA from implementing it.
The lawsuit was filed on October 8 in the U.S. District Court for the District of Massachusetts. Read the original complaint in full here.
Democracy Forward is a nonprofit legal organization that scrutinizes Executive Branch activity across policy areas, represents clients in litigation to challenge unlawful actions, and educates the public when the White House or federal agencies break the law.
Conservation Law Foundation forges lasting solutions to environmental challenges for the people of New England. For 50 years, CLF has taken on powerful opponents who would pollute our air and water and squander our resources. Our deep local knowledge, legal acumen, and policy expertise make CLF a prime mover in building our clean energy future, countering climate change, and safeguarding our communities. We never give up and go home because we are home.