by Eric Anthony DeBellis, Senior Executive Editor of the Ecology Law Quarterly.
This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment.
Introduction
The overwhelming majority of environmental enforcement actions settle out of court, but overlooking settlements as merely a mechanical means to save time and court costs is a mistake. An agency’s approach to settlement has tremendous environmental justice implications that go largely unnoticed.
In a traditional enforcement settlement model, the government claims the exclusive right to speak for the people. It brings an enforcement action against the defendant, and the two parties negotiate a penalty amount. The defendant signs a settlement agreement and pays the penalty to the Treasury. This is the “Speeding Ticket” settlement model. This model is expedient, but it excludes affected communities. The Speeding Ticket model remains the norm today, but several state and federal agencies have begun to explore an alternative tool: the supplemental environmental projects (SEP).
A SEP is an environmentally beneficial project that a defendant undertakes voluntarily as part of a settlement agreement; in exchange, the violator pays a reduced penalty amount.[1] Agencies credit defendants for improving environmental conditions that otherwise go unaddressed.[2] Rather than only writing a check, the defendant invests a portion of the would-be penalty amount in the affected community.[3] SEPs shift focus toward a model where an offender works to right harms caused by her actions, an enforcement paradigm more closely resembling restorative justice.[4]
Through the lens of restorative justice, I evaluate SEP policies the U.S. Environmental Protection Agency (EPA) and the California Legislature issued earlier this year. Part I introduces restorative justice as a framework for evaluating agency settlement policies. Part II illustrates the failures of the Speeding Ticket settlement model as a means to achieve justice. Part III introduces the new federal and California SEP policies. Part IV makes recommendations for how EPA and the California Environmental Protection Agency (Cal EPA) can administer their SEP policies to better reflect restorative justice values.
I. Restorative Justice as an Alternative to the Punishment Paradigm
Punishment lies at the heart of traditional American legal philosophy, situating the State as the law’s underwriter and enforcer. The punishment paradigm focuses on the injurer as an adversary to the State. This ideology has evolved; the most notorious contemporary iterations are “Tough on Crime” rhetoric and mass incarceration policies.[5] Critics of the approach have denounced retributivism as sadistic in theory,[6] racist in application,[7] excessively costly,[8] and creating more harm than it prevents.[9]
Restorative justice offers an alternative model,[10] treating punishment not as an end but a means to achieving positive, constructive change for both offenders and victims.[11] Restorative justice focuses on the relationship between the injurer and the injured and re-positions the State as a mediator.[12] The State’s role in restorative justice is not to impose a resolution but to support the parties in reconciliation and mutual rehabilitation.[13]
As a values proposition, restorative justice seeks to move past the conventional punishment paradigm to improve outcomes for both parties.[14] The Centre for Justice and Reconciliation defines restorative justice as “a theory of justice that emphasizes repairing the harm caused by [unlawful] behavior . . . best accomplished through cooperative processes that allow all willing stakeholders to meet.”[15] Two factors make a dispute resolution method consistent with restorative justice: correction and participation.
A model is corrective if it eliminates wrongful gains and counteracts harm.[16] Fines can eliminate wrongful gains, and investing all or part of a fine in ameliorating victims’ injuries can lessen harms, satisfying the corrective element. However, restorative justice demands more than correction. It also calls for stakeholder participation.[17]
The restorative justice model does not treat parties to a dispute as adversaries.[18] Instead, it promotes reconciliation.[19] The offender confronts her actions’ consequences, potentially reducing repeat offenses.[20] Victims voluntarily involved in the dispute resolution process tend to express more satisfaction with the outcome.[21] Further, the traditional enforcement regime’s shortcomings make the need for an alternative approach evident.
II. The Failure of the Speeding Ticket Settlement Model
The Speeding Ticket model’s efficacy relies on assumptions that do not hold true in the context of environmental enforcement. First, the model assumes that environmental law noncompliance injures the “public interest” generally and uniformly, but most environmental harms are localized. For example, even the generally diffuse impacts of climate change affect certain vulnerable places—like coastal regions that flood first as oceans rise—more than others.[22] Similar adverse impacts tend to concentrate on particularly vulnerable groups, including people of color, lower income, and greater linguistic isolation.[23] Yet the Speeding Ticket model does not target reinvestment of penalty funds in the communities that bear the brunt of environmental harm. Instead, settlement funds enter the state or federal general budget, not earmarked for any particular use.[24]
A recent tragedy in rural Texas illustrates this paradox. In 2013, a fertilizer plant in West, Texas, exploded, killing fifteen people.[25] The chemical inventory the company had filed with the West Volunteer Fire Department neglected to mention thousands of tons of highly combustible ammonium nitrate located onsite.[26] When a fire broke out at the plant, first responders were not prepared for the blast.[27] This omission violated federal law, but the United States was not the real victim. By writing a check to the U.S. Treasury, West Fertilizer did nothing to heal or rebuild the community in the wake of tragedy.
The Speeding Ticket approach improperly implies that depositing monetary penalties into a State’s general fund will compensate injured communities. A recent controversial settlement between the New Jersey Department of Environmental Protection (NJDEP) and Exxon illustrates how this approach cuts out the most important stakeholders.
In 2004, NJDEP brought an enforcement action against Exxon claiming injury for over a century of unlawful natural resources destruction arising out of two oil refineries.[28] Exxon conceded liability for the cost of restoring these natural resources, and a state judge found Exxon strictly liable for these costs in summary judgment,[29] leaving only the questions of the penalty amount. NJDEP sought $8.9 billion for the cleanup: $2.5 billion for primary restoration of the properties and $6.4 billion to restore wetlands and forestlands the facilities’ pollution damaged.[30] After a decade of failed negotiations, the State settled for $225 million—less than three cents on the dollar.[31] Worse still, the Christie Administration had passed a temporary budget provision the previous year authorizing diversion of $175 million from the settlement to reduce the state’s budget deficit.[32] The loophole was set to expire at the end of the fiscal year, making prompt settlement necessary to ensure the state could redirect funds to boost its budget figures.[33] The Governor’s office ensured most of the largest environmental enforcement settlement in New Jersey’s history went from restoring overburdened communities to supplementing the administration’s ledger.[34]
The Speeding Ticket settlement model fails to ensure justice because it frames the settlement process as a battle between government bureaucrats and corporate defense lawyers. The model takes for granted the penalty should be in the form of a fine paid to the government. Moreover, the model provides injured parties no means of redress and fails to facilitate communication between stakeholders. Recognizing the Speeding Ticket model’s inadequacy, state and federal agencies have utilized SEPs to improve settlement outcomes.
III. Unpacking the Federal and California SEP Policies
Several agencies have developed unique SEP policies.[35] Here, I examine the EPA and Cal EPA policies, both newly updated in 2015. This Part highlights several similarities and difference between the policies. I proceed to deconstruct the two approaches and identify potential opportunities for improvement in Part IV.
A. EPA’s New SEP Policy
In early 2015, EPA updated its SEP policy for the first time since 1998, incorporating several wholly new aspects.[36] The policy defines a SEP as “an environmentally beneficial project or activity that is not required by law, but that a defendant agrees to undertake as part of the settlement of an enforcement action.”[37] The policy requires an analysis of each individual element to define the universe of eligible projects.
First, an eligible SEP must be “environmentally beneficial,” in that it must “improve, protect or reduce risks to public health or the environment.”[38] Second, the defendant must undertake the project, “in settlement of an enforcement action.”[39] In other words, the SEP must arise out of the settlement negotiation process, with opportunity for EPA to comment before the agency approves the settlement.[40] Third, EPA prevents double-counting by excluding project a defendant must perform anyway.[41]
Additionally, the project must have a sufficient nexus to the violation[42] by reducing the likelihood of similar future violations or harms (subject-matter nexus).[43] Projects also should benefit the geographic area where the violation occurred (geographic nexus).[44] As Part IV illustrates, choice of nexus requirement significantly affects how directly corrective a SEP policy is. Stricter nexus requirements better comport with restorative justice by ensuring SEPs more directly address the violation and victims themselves.
The policy promotes environmental and restorative justice goals by emphasizing and seeking community input in settlement agreements, striving to incorporate involvement of populations historically left unheard through the settlement process. The policy states that the agency “should encourage input on project proposals from the local community that may have been adversely impacted by the violations,” and to solicit that input “as early in the SEP development process as possible.”[45] Further, EPA personnel assigned to the case who happen to be “aware of community interest in particular SEPs . . . should feel free to share that information with the defendant.”[46] However, the policy offers no means for EPA personnel or defendants to become aware of such information. Confidentiality concerns constrain the agency from reaching out to community stakeholders.[47]
EPA also must comply with a statute that treats adjusting settlements after issuing a consent decree like stealing from the U.S. Treasury.[48] The Miscellaneous Receipts Act (MRA) requires that “an official or agency of the Government receiving money for the Government from any source shall deposit the money in the Treasury as soon as practicable without deduction.”[49] For generations, whether an agency could credit a SEP’s value against the penalty amount in a settlement remained unclear.[50]
The Comptroller General issued a declaration in 1993 clarifying that MRA allowed enforcement agencies to “adjust penalties to reflect . . . concessions exacted from the violator.”[51] In other words, agencies could credit defendants for community projects included in settlement agreements. The catch was timing.[52] The rule allows EPA to approve a SEP before negotiating a lower settlement amount to offset the costs of the SEP.[53] This workaround functions because the agency never “received” the money spent on the SEP, so the Treasury had no claim to it.[54] Once the agency and defendant finalize the settlement and enter into a consent decree, the full penalty amount must go to the Treasury.[55] Confidentiality concerns limit the agency’s ability to communicate about settlement negotiations so once negotiations produce a final agreement, the MRA bars EPA from changing the SEP to reflect community feedback.
B. Cal EPA’s SEP Policy: AB 1071
In late 2015, the California Legislature passed AB 1071, requiring Cal EPA to issue a new SEP policy.[56] The statute declares, “environmental justice communities,” which “are located in areas disproportionately impacted from multiple sources of pollution,” need additional resources devoted to supporting “community-led solutions” to their environmental health woes.[57] SEPs serve to provide “direct environmental and public health benefits” in these communities.[58] AB 1071 directs Cal EPA to “focus on . . . engaging community-based organizations through an accessible and open public process.”[59]
To achieve these objectives, Cal EPA must establish a SEP policy that includes four key provisions.[60] First, the policy must create a public process to solicit potential SEPs from “disadvantaged communities.”[61] Cal EPA may assign “disadvantaged community” status based on socioeconomic factors, but the underlying statute does not mention indicators like race, ethnicity, or national origin.[62] Second, AB 1071 replaced Cal EPA’s 25 percent maximum recommended portion of the total settlement amount the agency may dedicate to a SEP[63] with a 50 percent hard cap.[64] Third, Cal EPA must publish an annual list of potential SEP options online.[65] Fourth, Cal EPA must consider the relationship between the violation’s location and the proposed SEP.[66]
IV. Recommendations
A. General Restorative Justice Priorities
Restorative justice principles provide three general prescriptions for SEPs. First, a SEP should correspond to the type of harm the violation caused (subject-matter nexus). Second, a SEP policy should target SEP benefits on the community the violation harmed or threatened (geographic nexus). Third, a SEP policy should enable members of the affected community to directly participate in the SEP.
Restorative justice requires subject-matter nexus. The more closely the SEP’s benefits track the associated violation’s harm, the more directly the SEP corrects for the violation. Agencies should premise SEP-eligibility on direct responsiveness to the harm. Stringent subject-matter nexus requirements hold a defendant to the corrective aspect of restorative justice.
Geographic nexus similarly furthers restorative justice’s corrective ends. In the fertilizer factory case, a SEP proposing to improve air quality in Houston would do nothing for West. Enforcing a strict geographic nexus better achieves the corrective result upon which restorative justice is premised.
Restorative justice’s participation element dictates a SEP policy should provide affected communities with a forum to represent their interests. The Speeding Ticket model’s fails, in part, because it falsely supposes the government adequately represents victims’ interests. By contrast, restorative justice maintains a harmful act is wrongful not because it violates the law, but because it hurts victims.[67] A SEP policy cannot force the State to better represent the interests of its environmental justice communities, but it can give affected communities a forum to assert their needs and invite offenders to collaborate in the healing process. Restorative justice prescribes an agency must embrace affected communities’ participation and incorporate offenders into efforts to correct harms.
B. Recommendations for EPA
i. Corrective Elements
The EPA SEP policy’s strict nexus requirement sets it apart from AB 1071 as a corrective model. EPA requires that an eligible project have a “sufficient nexus” to the violation itself.[68] However, the agency’s environmental justice criterion for evaluating proposed SEPs leaves out crucial factors in identifying harm. For example, social identity factors are absent from the policy. The agency need only consider whether a community “may have been disproportionately exposed to pollution or is at environmental risk.”[69]
The first step in correcting a harm is identifying it. Thus, the policy’s goal to remediate harm in historically overburdened communities comports with restorative justice, but its silence on social identity factors understates these communities’ vulnerabilities. Environmental justice communities not only suffer greater pollution.[70] They also suffer other risks due to generations of environmental racism and classism, which track factors like race and poverty.[71] The agency cannot adequately evaluate a project’s corrective potential without considering the community’s historical pollution burden when it evaluates environmental and public health vulnerability.[72] To remedy this, I suggest EPA expressly incorporate social identity factors associated with increased environmental health risk into its environmental justice criterion for evaluating SEP proposals.
ii. Participation Elements
EPA’s SEP policy largely fails to foster participation by providing a strictly one-way line of communication. The defendant may reach out to community members for information during settlement negotiations, but the public has no forum to provide this information until after the settlement’s terms are set. EPA’s policy calls for “meaningful involvement,”[73] but the policy lacks a mechanism to bring about such involvement. Moreover, the policy provides no system to seek SEP ideas from the public. The agency solicits public comments on already-negotiated settlement agreements,[74] but the agency stops considering changes before the public comment period begins.[75] As a result, EPA’s SEP policy provides only the appearance of public participation. Accordingly, I recommend that EPA develop a process for local advocates to make their communities’ needs known before an enforcement action arises.
The current system provides no means to connect defendants with firms who would perform SEPs. Without a forum for soliciting and maintaining SEP proposals from the public, the burden of developing SEP ideas falls squarely on the defendant and the EPA attorney. Both parties want to settle the matter expediently and are not necessarily inclined incentivized to invest the effort necessary to devise a well-designed SEP during negotiation. Rather than rely on the settling parties to assemble a SEP proposal, EPA should maintain an up-to-date online repository of potential partner organizations and SEP proposals.[76]
In fact, EPA considered exactly such a database—regional SEP “banks” or “libraries”—in a 2000 interim guidance document.[77] EPA dropped this effort, finding it redundant with another database called Enforcement and Compliance History Online (ECHO).[78] ECHO provides the agency and public with information on past settlements.[79] ECHO’s breadth is impressive, but it lacks depth and provides only generic descriptions of past approved SEPs.[80] This information can aid those seeking general information, but every enforcement action presents unique considerations. Rough overviews of past settlements offer little to inspire ideas tailored to a particular community’s needs. ECHO looks backward. I suggest the agency develop a forward-looking database.
To develop such a database, EPA can draw on several existing examples. EPA Region 1 maintains a SEP library[81] in “black box” form; the webpage provides contact information and instructions for submitting proposals.[82] However, it offers no way for the public to view other proposals for guidance. A submitter cannot see her own submission to ensure its availability without contacting the agency. This interface holds the program back.
Instead, I recommend an online format modeled after the Illinois EPA’s (IEPA) “Idea Bank.”[83] Via an online tool, environmental services providers can submit SEP proposals, including the project descriptions, expected environmental benefits, estimated cost, regional availability, and contact information.[84] IEPA posts all valid submissions on the webpage. It also keeps the database current by deleting old submissions. The only drawback is the Ideas Bank does not have a space for community advocates to propose projects.
Each EPA enforcement region should adopt a publicly available SEP library modeled after IEPA’s Ideas Bank, though I suggest a few modifications. First, the agency should add community organizations’ SEP ideas alongside those of environmental services contractors. Second, EPA should delete outdated posts as IEPA does but should notify submitters annually and request updates to outdated submissions.
C. California
AB 1071 holds Cal EPA to a higher standard in facilitating community participation but undermines corrective justice by allowing the agency to stretch the connection between the SEP and the violation. Cal EPA has yet to issue regulations implementing AB 1071. Though this Part criticizes some specific policy choices the legislature made in drafting AB 1071, these recommendations address issues left open for Cal EPA to resolve in implementation.
i. Participation Elements
AB 1071’s public participation mandates are a potential strength, requiring Cal EPA to create a public process for engaging community organizations,[85] solicit SEP proposals from disadvantaged communities,[86] and compile candidate projects into an annual list on its website.[87] This list speaks to the same themes discussed in the federal EPA analysis, so similar recommendations are appropriate. However, the AB 1071 framework raises a participation concern. AB 1071 only requires Cal EPA to facilitate participation from designated disadvantaged communities. This is antithetical to a restorative justice framework, which asks for equal application anywhere a violation harms a community. Accordingly, I recommend Cal EPA not overlook communities it would not designate as disadvantaged.
ii. Corrective Elements
AB 1071 raises two causes for concern. First, AB 1071 requires caps credit for SEPs at half the penalty amount,[88] meaning that at least half would go to the California Treasury, a discretionary fund. I disapprove of the legislature’s seemingly arbitrary limit.
Second, AB 1071 lacks a firm nexus standard.[89] Cal EPA’s nexus requirement is looser than EPA’s. It recommends that projects should have an “adequate nexus” to the violation, whereas the federal EPA’s policy requires that projects must have such a nexus.[90] The act emphasizes SEPs’ value to disadvantaged communities, but it does not limit SEPs to those communities. It gives Cal EPA a choice: consider geographic nexus as a factor or as a requirement.
Cal EPA’s first option is to go no further than to treat geographic nexus as a factor. This approach maximizes Cal EPA’s discretion. A defendant aware of a SEP opportunity in Watts could contribute for credit against her penalty for a violation in Richmond. This approach would encourage community organizers to compete, devising more compelling SEP ideas that might stand out on projects lists. Troublingly, it would allow the defendant to allocate benefits to a community that, though classified as disadvantaged, experienced no direct impact from the underlying violation. A competitive SEP market may create perverse incentives by advantaging communities with representatives better positioned to appeal to defendants.
Cal EPA could impose a nexus requirement only for violations in disadvantaged communities as a middle road approach. A nexus requirement serves both a disadvantaged community and the community where the violation occurred. A defendant still could perform a SEP in a disadvantaged community. Under no circumstances could Cal EPA credit a defendant for performing a project in a community not designated as disadvantaged.
This approach appeals to some because it allocates environmental benefits to communities that suffer the greatest environmental harms. Proponents would argue regardless of where a violation occurred, disadvantaged communities need SEPs more than non-disadvantaged communities do.
The restorative justice model prescribes otherwise. Restorative justice emphasizes the rehabilitative value of a defendant cooperating within the actually harmed community. Restorative justice principals require a SEP have a strong nexus. Accordingly, I advise Cal EPA to impose a strict nexus requirement similar to the federal EPA’s standard.
Conclusion
A corrective and inclusive SEP policy offers true reparation. Though the foregoing analysis has focused on two SEP policies’ imperfections, these agencies do not have to provide for SEPs. The Speeding Ticket Model asks less of them. SEPs are major undertakings and require significant efforts from the agency. The very existence of these SEP policies marks substantial progress in incorporating restorative justice into environmental enforcement efforts. These SEP policies reflect important and admirable efforts.
These two agencies have refined their SEP policies as tools to achieve justice, but the mission continues. After generations of neglect, healing the relationship between government, polluters, and communities living with the toxic legacy of environmental injustice will take time and effort. I hope these recommendations will contribute to the ongoing conversation shaping enforcement agencies’ role in achieving environmental justice, an objective that is as noble as it is elusive.
[1] Supplemental Environmental Projects (SEPs), EPA, http://www2.epa.gov/enforcement/supplemental-environmental-projects-seps (last updated February 9, 2016).
[2] Id.
[3] Id.
[4] See generally Ctr. for Justice & Reconciliation, Prison Fellowship Intl., What Is Restorative Justice? (2005), http://www.d.umn.edu/~jmaahs/Correctional%20Assessment/rj%20brief.pdf (explaining restorative justice).
[5] For a brief history of the “Tough on Crime” movement in American politics, see V.F. Nourse, Rethinking Crime Legislation: History and Harshness, 39 Tulsa L. Rev. 925, 928–37 (2004).
[6] E.g., Whitley R.P. Kaufman, Honor and Revenge: A Theory of Punishment (2012).
[7] E.g., Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012); Race, Crime, & Punishment: Breaking the Connection in America (Keith O. Lawrence ed., 2011), http://www.aspeninstitute.org/sites/default/files/content/docs/pubs/Race-Crime-Punishment.pdf; Walker Newell, The Legacy of Nixon, Reagan, and Horton: How the Tough on Crime Movement Enabled a New Regime of Race-Influenced Employment Discrimination, 15 Berkeley J. Afr.-Am. L. & Pol’y 3 (2013); Jonathan D. Glater, Race Gap: Crime vs. Punishment, N.Y. Times (Oct. 7, 2007), http://www.nytimes.com/2007/10/07/weekinreview/07glater.html.
[8] E.g., Zvi D. Gabbay, Justifying Restorative Justice: A Theoretical Justification for the Use of Restorative Justice Practices, 2 J. Dispute Resolution 349, 353, 364 (2005).
[9] E.g., Deirdre Golash, The Case Against Punishment: Retribution, Crime Prevention, and the Law (2005); James P. Lynch & William J. Sabol, Urban Inst., Did Getting Tough on Crime Pay? (1997), http://www.urban.org/research/publication/did-getting-tough-crime-pay/view/full_report; James Gilligan, Punishment Fails. Rehabilitation Works., N.Y. Times (Dec. 19, 2012, 11:43 AM), http://www.nytimes.com/roomfordebate/2012/12/18/prison-could-be-productive/punishment-fails-rehabilitation-works.
[10] Jacqueline J. Larsen, Aus. Inst. Criminology, Restorative Justice in the Australian Criminal Justice System 1–2 (2014), http://www.aic.gov.au/media_library/publications/rpp/rpp127.pdf.
[11] Restorative Justice Principles and Values, Correctional Serv. Can., http://www.csc-scc.gc.ca/restorative-justice/003005-0006-eng.shtml (last updated Aug. 7, 2012).
[12] See id.
[13] Id.
[14] Id.
[15] Restorative Justice, Ctr. for Justice & Reconciliation, http://restorativejustice.org/restorative-justice/ (last visited Oct. 21, 2015).
[16] Ernest J. Weinrib, The Gains and Losses of Corrective Justice, 44 Duke L.J. 277, 277 (1994).
[17] Restorative Justice Principles and Values, supra note 11.
[18] Id.
[19] Larsen, supra note 10, at 23–28.
[20] See Mark S. Umbreit et al., Ctr. for Restorative Justice & Peacemaking, The Impact of Restorative Justice Conferencing: A Review of 63 Empirical Studies in 5 Countries 10 (2002), http://www.cehd.umn.edu/ssw/RJP/Projects/Victim-Offender-Dialogue/Restorative_Group_Conferencing/Impact_RJC_Review_63_Studies.pdf (finding the results of several victim-offender mediation studies demonstrated reduced recidivism in participating offenders).
[21] See id. at 2–3 (inferring from meta-analysis of restorative justice mediation studies that increased victim participation accounted for at least some of victims’ higher satisfaction rates with the outcomes of certain mediation models).
[22] E.g., The Consequences of Climate Change, NASA, http://climate.nasa.gov/effects/ (last updated Dec. 17, 2015); Abby Phillip, Which U.S. Cities are the Most Vulnerable to the Impact of Climate Change?, Wash. Post (May 6, 2014), https://www.washingtonpost.com/news/post-nation/wp/2014/05/06/which-u-s-cities-are-the-most-vulnerable-to-the-impact-of-climate-change/; Planning for Changing Sea Levels, U.S. Army Corp Eng’rs, http://www.corpsclimate.us/Sandy/ (last visited Dec. 15, 2015).
[23] See, e.g., Envtl. Justice & Health Alliance for Chem. Policy Reform, Who’s in Danger?: Race, Poverty, and Chemical Disasters (2014), http://www.comingcleaninc.org/assets/media/images/Reports/Who’s%20in%20Danger%20Report%20and%20Table%20FINAL.pdf; Rachel Massey, Environmental Justice: Income, Race, and Health (2004), http://www.ase.tufts.edu/gdae/education_materials/modules/Environmental_Justice.pdf; Bob Bolin et al., The Geography of Despair: Environmental Racism and the Making of South Phoenix, Arizona, USA, 12 Human Ecology Rev. 156 (2005); Steve Wing et al., Environmental Injustice in North Carolina’s Hog Industry, 108 Envtl. Health Perspectives 225 (2000); Cheryl Katz & Envtl. Health News, People in Poor Neighborhoods Breathe More Hazardous Particles, Sci. Am. (Nov. 1, 2012), http://www.scientificamerican.com/article/people-poor-neighborhoods-breate-more-hazardous-particles/; see also Overview of Demographic Indicators in EJSCREEN, EPA, http://www2.epa.gov/ejscreen/overview-demographic-indicators-ejscreen (last updated June 9, 2015).
[24] Robert Esworthy, Cong. Research Serv., RL34384, Federal Pollution Control Laws: How Are They Enforced? 27 (2014).
[25] Bill Chappell, Death Toll in West, Texas, Fertilizer Explosion Rise to 15, Nat’l Pub. Radio (Apr. 23, 2013), http://www.npr.org/sections/thetwo-way/2013/04/23/178678505/death-toll-in-west-texas-fertilizer-explosion-rises-to-15.
[26] M.B. Pell et al., Special Report: Poor Planning Left Texas Firefighters Unprepared (May 22, 2013, 9:41 PM), http://www.reuters.com/article/2013/05/23/us-chemical-emergency-specialreport-idUSBRE94L19020130523.
[27] Id.
[28] Benjamin Weiser, Exxon Settles $9 Billion Pollution Case in New Jersey for Far Less, N.Y. Times (Feb. 27, 2015), http://www.nytimes.com/2015/02/28/nyregion/exxon-mobil-settles-with-new-jersey-over-environmental-damage.html.
[29] N.J. Dep’t of Envtl. Prot. v. Exxon Mobil Corp., 923 A.2d 345, 351 (N.J. Super. Ct. App. Div. 2007).
[30] S.P. Sullivan, State Announces Settlement in Controversial Exxon Mobil Pollution Case, NJ.com (Mar. 5, 2015, 3:16 PM), http://www.nj.com/news/index.ssf/2015/03/state_announces_settlement_in_controversial_exxon.html.
[31] S.P. Sullivan, N.J. Senate Condemns Christie’s Exxon Settlement, NJ.com (Mar. 16, 2015, 4:29 PM), http://www.nj.com/politics/index.ssf/2015/03/state_senate_condemns_christies_exxon_settlement.html.
[32] David Sirota, Chris Christie Backed Law that Lets Him Divert ExxonMobil Settlement from Environmental Cleanup, Intl. Bus. Times (Feb. 27, 2015, 10:27 PM), http://www.ibtimes.com/chris-christie-backed-law-lets-him-divert-exxonmobil-settlement-environmental-cleanup-1831558.
[33] Id.
[34] Id.; State of New Jersey, The Governor’s FY 2015 Budget, at D-126 (2014), http://www.state.nj.us/treasury/omb/publications/15budget/pdf/FY15BudgetBook.pdf.
[35] E.g., Supplemental Environmental Projects, Va. Code Ann. § 10.1-1186.2 (2015); Colo. Dep’t of Pub. Health & Env’t, Final Agency-Wide Supplemental Environmental Projects Policy (2008), https://www.colorado.gov/pacific/sites/default/files/DEHS_SEP_DeptPolicy.pdf; Conn. Dep’t of Envtl. Prot., Policy on Supplemental Environmental Projects (1996), http://www.ct.gov/deep/lib/deep/enforcement/policies/seppolicy.pdf; Ind. Dep’t of Envtl. Mgmt., Fact Sheet: Supplemental Environmental Projects (SEPs) (2011), http://www.in.gov/idem/files/factsheet_sep.pdf; Mass. Dep’t of Envtl. Prot., Policy on Supplemental Environmental Projects (2009), http://www.mass.gov/eea/docs/dep/service/seppol07.pdf; Ohio EPA, Supplemental Environmental Protection Guidance (2006), http://www.epa.ohio.gov/portals/35/swerp/sep_guidance_dec06.pdf; Supplemental Environmental Projects, Ill. EPA, http://www.epa.illinois.gov/topics/compliance-enforcement/sep/index (last visited Nov. 9, 2015).
[36] EPA, U.S. Environmental Protection Agency Supplement Environmental Projects Policy 2015 Update 1 (2015), http://www2.epa.gov/sites/production/files/2015-04/documents/sepupdatedpolicy15.pdf.
[37] Id.
[38] Id. at 6.
[39] Id.
[40] Id.
[41] Id. at 6–7; see id. at 1.
[42] Id. at 7–8.
[43] Id.
[44] Id.
[45] Id. at 18.
[46] Id.
[47] Id. at 19–20; see 40 C.F.R. §§ 2.201–2.311.
[48] See Act of March 3, 1849, 31 U.S.C. § 3302(b) (2012); see also Andy Spalding, The Much Misunderstood Miscellaneous Receipts Act (Part 1), FCPA Blog (Sept. 30, 2014, 1:28 AM), http://www.fcpablog.com/blog/2014/9/29/the-much-misunderstood-miscellaneous-receipts-act-part-1.html (introducing the complications this statutory language imposes on agencies looking to incorporate SEPs into settlement agreements).
[49] Act of March 3, 1849, 31 U.S.C. § 3302(b).
[50] Andy Spalding, The Much Misunderstood Miscellaneous Receipts Act (Part 2), FCPA Blog (Sept. 30, 2014, 1:28 AM), http://www.fcpablog.com/blog/2014/9/30/the-much-misunderstood-miscellaneous-receipts-act-part-2.html.
[51] Memorandum from James F. Hinchman, Comptroller Gen. of the U.S., to John D. Dingell, Chairman, Subcomm. on Oversight & Investigations, House Comm. on Energy & Commerce 1 (Mar. 1, 1993), http://www.gao.gov/assets/200/195921.pdf.
[52] See Spalding, supra note 52.
[53] See id.
[54] See id.
[55] See id.
[56] A.B. 1071, 2015–16 Leg., Reg. Sess. (Cal. 2015).
[57] §§ 1(a)(1)–(2).
[58] § 1(a)(3).
[59] § 1(b).
[60] See § 2(b).
[61] §§ 2(a)(2), (b)(1); see Cal. Health & Safety Code § 39711 (West 2015).
[62] Health & Safety § 39711.
[63] Cal. EPA, Cal/EPA Recommended Guidance on Supplemental Environmental Projects 7 (2003), http://www.calepa.ca.gov/Enforcement/Policy/SEPGuide.pdf.
[64] A.B. 1071 § 2(b)(2).
[65] §§ 2(b)(3), (c).
[66] § 2(b)(4).
[67] Ctr. for Justice & Reconciliation, supra note 4, at 1.
[68] EPA, supra note 37, at 7.
[69] Id. at 20.
[70] Jason Corburn, Environmental Justice, Local Knowledge, and Risk: The Discourse of a Community-Based Cumulative Exposure Assessment, 29 Envtl. Mgmt. 451, 456 (2002).
[71] See id.
[72] See id.
[73] EPA, supra note 37, at 3.
[74] Id. at 4.
[75] Interim Guidance for Community Involvement in Supplemental Environmental Projects, 68 Fed. Reg. 35,884, 35,885 (June 17, 2003).
[76] Further, the EPA’s website is overdue for an overhaul in general.
[77] Draft EPA Guidance for Community Involvement in Supplemental Environmental Projects, 65 Fed. Reg. 40,639, 40,641 (June 30, 2000).
[78] E-mail correspondence with Beth Cavalier, Analyst, EPA Office of Civil Enforcement, Special Litigation & Projects Div. (Nov. 13, 2015) (on file with author).
[79] Id.
[80] E-mail correspondence with Assoc. Reg’l Counsel, EPA Office of Reg’l Counsel, Region 5 (Nov. 16, 2015) (on file with author).
[81] Supplemental Environmental Projects (SEPs) Library, EPA, http://pubweb.epa.gov/region1/enforcement/sep/index.html (last updated May 9, 2014).
[82] See id.
[83] See Supplemental Environmental Projects, Ill. EPA, http://www.epa.illinois.gov/topics/compliance-enforcement/sep/index (last visited Nov. 9, 2015); see also SEP Idea Bank Instructions, Ill. EPA, http://www.epa.illinois.gov/topics/compliance-enforcement/sep/instructions/index (last visited Nov. 9, 2015).
[84] See Project Deposit Form, Ill. EPA, http://www.epa.state.il.us/cgi-bin/en/sep/sep.pl (last visited Nov. 9, 2015) (SEP proposal submission form).
[85] A.B. 1071 § 1(b).
[86] § 2(b)(1).
[87] §§ 2(b)(3), (c).
[88] § 2(b)(2).
[89] EPA, supra note 37, at 7 n.8.
[90] See Cal. EPA, supra note 65, at 3.
