DOJ Issues More Guidance Impacting Environmental Enforcement

On Nov. 8, 2018, the Department of Justice (DOJ) Office of Public Affairs issued a press release indicating that then-Attorney General Jeff Sessions signed a memorandum (presumably before resigning) the day before that provides direction to all civil litigating components and United States Attorneys' Offices imposing new "Principles and Procedures for Civil Consent Decrees and Settlement Agreements with State and Local Governmental Entities." Like the DOJ memoranda described in blog posts dated Jan. 30, 2018 and Mar. 13, 2018 this latest DOJ memorandum could have wide-ranging impact on environmental enforcement. The change in policy is based upon the need to "afford the subject governmental entity the respect and comity deserving of a separate sovereign" under constitutional and policy considerations raising sensitive federalism concerns.

Although not directed specified to environmental enforcement, the new policy significantly impacts such enforcement against state and local governmental entities, including territorial and tribal entities. The November 7 memorandum sets out requirements for notification and approval of consent decrees and settlement agreements from the highest levels of the Justice Department. These requirements are for a proposed settlement or consent decree which involves "long-term" monitoring of compliance or "long-term" structural or programmatic obligations on the part of the state or local government, where "long-term" is defined to be twenty-four months or longer. In addition, any case which raises novel questions of law or policy also requires review by DOJ leadership. Procedurally, in seeking the required approvals, the case team must present a justification memorandum which details not only the allegations but also the anticipated defenses, the estimated costs of compliance and a rationale on why the consent decree's benefits justify those costs.

Furthermore, the new policy identifies four factors to consider in determining whether a consent decree is justified:

1. the defendant has an established history of recalcitrance or is known to be unlikely to perform;
2. the defendant unlawfully attempted to obstruct the investigation;
3. the defendant has engaged in a pattern or practice of violations of federal law, and other remedies (other than court supervision) have proven ineffective;
4. a consent decree is necessary to procure statutory protection for the defendant, including for example, contribution protection under Superfund. Consideration of these factors, and the theme of the November 7 memorandum, all indicate that settlements with state and local governmental entities by court-ordered consent decrees are disfavored, except in exceptional circumstances.

In addition to the notice and approval procedures, the memorandum lays out presumptive substantive requirements for cases where a consent decree is deemed appropriate, with any exceptions requiring approval from leadership. Specific requirements include:

1. the obligations of the consent decree should generally last for no more than three years and should be no longer than necessary to achieve an effective remedy;
2. the consent decree must include a "sunset" provision and provide specific, measurable actions which trigger; termination, including the opportunity for partial termination, of obligations;
3. ongoing court supervision must be specified;
4. obligations must be narrowly tailored to remedy the injury claimed;
5. the consent decree must not be used to achieve general policy goals or extract greater or different relief from the defendant than could be obtained through agency enforcement or litigation; and
6. a consent decree which involves taking control of a state or local institution must be limited in scope and structured to return responsibility to the relevant officials as soon as the injuries caused by the legal violations alleged have been remedied.

Similar provisions also apply to settlement agreements which are not court supervised to the extent relevant. Lastly, the memorandum outlines the requirements for use of a monitor (whether court-ordered or by agreement), which is disfavored under this policy.

While the full impact of these changes will not be known until implementation begins, a quick perusal of press releases concerning historic settlements and consent decrees with local governmental entities indicates they would not pass muster under this new memorandum. Specifically, the Boston Water & Sewer Consent Decree executed in 2012 is still being implemented and is likely to be for a long duration. Other related Clean Water Act settlements like that with the City of Gloucester, Massachusetts or Lebanon, New Hampshire similarly require substantial infrastructure improvements which likely will take longer than three years to implement. For example, the Lebanon, New Hampshire settlement requires infrastructure upgrades costing approximately $30.2 million and phased work which will not be completed until 2020. The policy also appears to preclude the use of Supplemental Environmental Projects (SEPs) for local government settlements like that in Frederick, Maryland for underground storage tank violations. SEPs, by definition, "are projects that could not be required or compelled by EPA, and are not otherwise legally required (at the federal, state or local level)."

Only time will tell whether these changes are welcomed by local governments, which often justify the politically-unpopular expense of needed infrastructure upgrades through court order.