Barnes & Thornburg LLP
Charles M Denton, E. Sean Griggs, Jeffrey S. Longsworth, Robert A Weinstock and Bruce White
April 9, 2015
Settling federal environmental enforcement actions is one of the most important environmental legal challenges faced by regulated entities, be they multi-national corporations, small family businesses, public institutions, individuals, or municipalities. Regulated entities seeking amicable and optimal settlements with the U.S. Environmental Protection Agency (EPA) and Department of Justice (DOJ) must navigate complex substantive and procedural issues, negotiate stipulated penalties, monetary penalties, response costs and damages, and injunctive relief, and always account for financial assurance, insurance, monitoring, potential third-party claims, and other requirements that structure the parties’ post-settlement relationship. In short, the dance steps are multifarious and multifaceted – and your dance partner may not always appear to be the most coordinated or cooperative.
That said, one particular corner of federal environmental enforcement policy provides an opportunity to generate ‘win-win’ components of a settlement and create real environmental value for affected communities – Supplemental Environmental Projects (SEPs).