May 27, 2020

An ELI Member Webinar

On March 12, 2020 the Environment and Natural Resources Division (ENRD) of the Department of Justice (DOJ) issued a memorandum prohibiting the use of supplemental environmental projects (SEPs) in settling civil disputes effective immediately. Historically, companies have leveraged SEPs in settlement negotiations with ENRD by agreeing to undertake a project with environmental or health benefits, often tailored to the specific alleged violation(s), in exchange for reduced financial penalties. Many view SEPs as streamlining the settlement process. However, DOJ reasons that SEPs are inconsistent with the Miscellaneous Receipts Act by circumventing revenue that otherwise would be deposited to the Department of Treasury.

How will ENRD’s prohibition on SEPs affect ongoing settlement negotiations? How might companies adjust their settlement negotiation strategies in light of this change? What are the limitations of this memorandum, and how could such be applied? Our panelists explored these questions and more by diving into this memorandum and its potential impacts on settlement negotiations.

Corinne Snow
, Counsel, Vinson & Elkins LLP, Moderator
David Batson, Expert Consultant, Environmental ADR & Allocation, AlterEcho, former Senior ADR Specialist & ADR Counsel, Environmental Protection Agency
Jonathan Brightbill, Deputy Assistant Attorney General, Environment and Natural Resources Division, Department of Justice
Lawrence Susskind, Ford Professor of Urban and Environmental Planning, Massachusetts Institute of Technology; Director of the Teaching Negotiation Resource Center, Program on Negotiation, Harvard Law School

Closing Remarks: Adam Babich, Professor of Law, Tulane Law School

ELI members will have subsequent access to any materials/a recording of this session (usually posted w/in 48 hours). If you are not an ELI member but would like to have access to archived sessions like this one, go HERE to see the many benefits of membership and how to join.

Supplemental Materials:
Kakade, Seema M., Remedial Payments in Agency Enforcement (March 28, 2019). 44 Harvard Environmental Law Review 117 (2020); U of Maryland Legal Studies Research Paper No. 2019-05