Co-Authored by E&W Law Partners John Irving and Susan Bodine
February 12, 2025
In her first day in office on February 5, 2025, Attorney General Pam Bondi issued a series of memoranda, including one that rescinded “Environmental Justice” policies of prior administrations. This post is intended to provide some historical context for the Attorney General’s action and to briefly explain the continuously swinging pendulum of policies related to EJ and settlement payments to non-governmental third parties.
The concept of Environmental Justice (EJ) is that low-income and minority communities may disproportionately bear the brunt of pollution and environmental harm, and that affirmative steps need to be taken to address that problem. Critics argue that EJ further bloats the administrative state, functions as a wealth redistribution scheme, and unlawfully injects racial considerations into agency decision making, particularly with respect to enforcement and the award of billions of dollars in grant funds.
Executive Orders
The federal government’s EJ efforts have evolved over the years. President Clinton issued Executive Order 12898 in 1994 directing federal agencies to “make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations in the United States …” Under the Clinton Executive Order, finding an EJ issue required finding the existence of adverse impacts that disproportionally fell on certain communities. When evaluating EJ considerations in rulemakings EPA typically found the rulemaking had no adverse impacts or that any adverse impacts did not disproportionally fall on minority and low-income populations,
President Biden’s 2021 Executive Order 14008 included more specific EJ efforts, making EJ the mission of every agency, and directing enforcement through EPA, DOJ, and DHHS. That Order established two EJ-related White House advisory councils, created the “Justice40 Initiative,” whereby 40 percent of federal benefits were to be focused on disadvantaged communities, and used EPA’s “EJSCREEN” database to create a climate and EJ screening tool. Under the Biden Executive Order, agencies were directed to assume disproportionate impacts based on the demographic makeup of the community.
On January 21, 2025, President Trump issued Executive Order 14173, titled Ending Illegal Discrimination and Restoring Merit-Based Opportunity, ordering “all executive departments and agencies to terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements.” The Order specifically revoked President Clinton’s Executive Order 12898 (after President Biden’s Executive Order 14006 was already revoked by President Trump’s initial Executive Order 14148).
EPA
Former EPA Administrator Michael Regan implemented President Biden’s Executive Order 14008 in April 2021, directing all EPA offices to clearly integrate EJ into their plans and actions. EPA’s Office of Enforcement and Compliance Assurance (OECA) then issued three guidance memoranda focusing EPA’s civil, criminal, and cleanup activities on communities with EJ concerns. EPA’s website states that Congress “appropriated $2.8 billion for financial assistance and $200 million for technical assistance” to implement EPA’s “Environmental and Climate Justice Program”. 1 In 2023, that spending included 98 awards for a total of $43.8 million in funding for community-based nonprofit organizations to help underserved and overburdened communities across the country.
We are likely to see memoranda implementing President Trump’s Executive Order 14173 from newly-confirmed EPA Administrator Lee Zeldin and from the yet-to-be-named OECA Assistant Administrator similar to what occurred in the early months of the Biden Administration. There already have been some signs of change, however. On February 11, 2025, EPA announced that it “has placed 171 employees in Diversity, Equity, Inclusion, and Accessibility and Environmental Justice on administrative leave, 11 and 160, respectively.”2 EPA’s website no longer touts the agency’s “EJSCREEN” database, and its link returns a “Page Not Found” notice (although EJ data appears to remain available in EPA’s Enforcement and Compliance History Online (ECHO) database).3
DOJ
Similar back-and-forth implementation efforts have occurred at DOJ. On May 5, 2022, Attorney General Merrick Garland issued a Memorandum titled Actions to Advance Environmental Justice, and Associate Attorney General Vanita Gupta issued a Memorandum titled Comprehensive Environmental Justice Enforcement Strategy.
On February 5, 2025, Attorney General Pam Bondi issued a Memorandum titled Rescinding “Environmental Justice” Memoranda, doing exactly that and stating, “Going forward, the Department will evenhandedly enforce all federal civil and criminal laws, including environmental laws.”
Prohibiting Settlement Payments to Third Parties and SEPs
On a somewhat related note, an ongoing debate continues with respect to payments to third parties in civil settlements and criminal case resolutions (plea agreements, deferred prosecution agreements, and non-prosecution agreements), as well as “Supplemental Environmental Projects” (SEPs). In civil environmental cases, there has been a practice of including third party payments in settlement agreements that require a defendant to make a payment to non-profit community or environmental groups. Proponents of the payments argue that they benefit the environment and the community, and they help the optics for the offender. Opponents argue that these kinds of payments are used to corruptly coerce defendants into making substantial payments to non-government third party advocacy groups favored by whatever administration is in power.
In civil environmental cases, there also has been a practice of including “Supplemental Environmental Projects” (SEPs) in settlement agreements. Unlike a third-party payment, a SEP is a project carried out by a settling defendant. EPA considers the project when setting penalty amounts. Proponents like SEPs because they can generate goodwill in a community while lowering penalties.
Opponents of both SEPs and third-party payments also argue that they are fundamentally unlawful (i.e., in violation of the Miscellaneous Receipts Act) because they are used to reduce penalties that would otherwise go to the U.S. Treasury. Opponents argue that payments should be made only in the form of penalties, to mitigate the harm caused by the violation, or to provide restitution paid directly to victims.
Third party payments were prohibited in the first Trump Administration. In June 2017, Attorney General Jeff Sessions issued a Memorandum prohibiting third party payments in civil and criminal cases. 4 In August 2019, Environment and Natural Resources Division (ENRD) Assistant Attorney General Jeffrey Clark issued a Memorandum that prohibited the use of SEPs. ENRD AAG Clark issued another Memorandum in March 2020 that set forth the legal reasoning for prohibiting SEPs.5
Those policies were reversed during the Biden Administration. On February 4, 2021, Acting ENRD AAG Jean Williams withdrew the memoranda of her Trump Administration predecessors. On May 5, 2022, Attorney General Garland issued a Memorandum titled Guidelines and Limitations for Settlement Agreements Involving Payments to Non-Governmental Third Parties. On July 28, 2023, ENRD AAG Todd Kim issued a Memorandum titled Community Service Payments in Environmental Cases.
On February 5, 2025, Attorney General Pam Bondi issued a Memorandum titled Reinstating the Prohibition on Improper Third-Party Settlements, rescinding the Biden Administration memoranda and policies on the topic.
Conclusion
It is not unusual, of course, for Democrat and Republican administrations to implement fundamentally different policies and priorities through executive action. These battling Executive Orders and agency memoranda on EJ, third party payments, and SEPs are interesting examples of that. Both issues are likely to be sources of continued disagreement well into the future.
1 https://www.epa.gov/environmentaljustice/environmental-justice-grants-funding-and-technical-assistance
3 https://www.epa.gov/newsreleases/epa-places-171-deia-and-environmental-justice-employees-administrative-leave
3 https://echo.epa.gov/
4 https://www.justice.gov/archives/opa/press-release/file/971826/dl
5 The August 2019 and March 2020 memoranda are no longer available on DOJ’s website.
