Supplemental Environmental Projects Have Been Effectively Used in Citizen Suits to Deter Future Violations as Well as to Achieve Significant Additional Environmental Benefits

Supplemental Environmental Projects (SUPs) are environmentally benefical projects included in settlements of environmental law enforcement cases. Courts have addressed SEPs in two contexts: where proposed by parties in consent decrees and where courts have fashioned SEPs as apart of the relief ordered in an enforcement case. SEPs have been extensively used in both government and citizen enforcement cases despite the nearly universal absence of any explicit legislative authorization by Congress. Congress has tangentially recognized the place of SEPs in the penalty and deterrence scheme by giving the Administrator of the United States Environmental Protection Agency (EPA) and the Attorney General of the United States oversight of settlements (which may include SEPs) proposed in Clean Water Act citizen suits by providing an opportunity for comment on proposed settlements before thy are entered by the federal district court. Congress has not enacted any statutory language to guide the input from the EPA or the Department of Justice on settlements in general or SEPs in particular. The U.S. Comptroller General has been the most critical voice regarding SEPs on fiscal and legal grounds, determining in 1993 that federal SEP settlements violated the Miscellaneous Receipts Act (MRA). The SEP Policy adopted by the EPA in 1998 addressed such concerns and implemented measures to guide its use of SEPs in environmental enforcement cases