Eric Anthony DeBellis
Eric DeBellis is a 3L at Berkeley Law, where he is Senior Executive Editor of the Ecology Law Quarterly. This post is part of the Environmental Law Review Syndicate.
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. Agencies credit defendants for improving environmental conditions that otherwise go unaddressed. Rather than only writing a check, the defendant invests a portion of the would-be penalty amount in the affected community. 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.
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.