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Supplemental Environmental Projects (SEPs) have
long been used by the United States Environmental Protection Agency (USEPA) to
address issues of environmental justice. States are now taking EPA's lead.
Eight states have enacted SEP legislation. Moreover, at least, 6 States consider
environmental justice or demographics in their respective SEP legislation,
directives, or policies. As states gain greater familiarity with SEPs and their
use to address environmental justice situation, it is likely that that this
number will increase. What is a SEP?
A SEP is an environmentally beneficial project, which a violator is not
otherwise legally required to perform, but that is voluntarily undertaken as
part of a settlement of an environmental enforcement action. In recognition of
the project, the regulatory/enforcement agency will reduce the penalty amount
from what it otherwise might have been. In determining the degree to which the
violator's potential penalty should be mitigated, several regulatory agencies
consider factors including, among others, "environmental justice." EPA's
penalty policy, for example, provides that an otherwise permissible SEP that
reduces harm in an environmentally burdened minority or low-income community
will respond well on this factor.
The benefit to communities with environmental justice
issues is not limited to the environmental and health benefits directly or
indirectly attributable to the SEP. Violators, regulators, communities, and
local jurisdictions can also use the SEP development and implementation process
as an opportunity to improve relationships. By working with members of
communities and/or local government, violators can demonstrate a commitment to
compliance and help restore its local reputation, in addition to making a
tangible improvement to the environment of the affected community.
State SEP Authorities that address Environmental Justice
State SEP authorities encourage SEPs that address environmental justice either
by considering the issue as a penalty mitigation factor or by expressly
promoting the use of SEPs in minority or low-income communities.
1. Using environmental justice as a penalty mitigation
factor
The states of Colorado, Florida, and Virginia use
environmental justice as a factor in determining the appropriate penalty
mitigation that a violator will receive for its SEP. SEPs that perform well on
the environmental justice factor will garner the violator greater mitigation.
In Colorado, for example, to perform well on the environmental justice factor a
SEP must mitigate damage or reduce risk to a minority or low-income groups that
has historically been exposed to a disproportionate amount of pollution or
which is in some other way at environmental risk.
2. Encouraging the use of SEPs, as a matter of policy,
to address environmental justice
Massachusetts, Oregon, and Connecticut promote
environmental justice as an "overarching goal" or "desirable objective" to be
accomplished through the completion of SEPs. In response to concern that
certain groups are disproportionately burdened by exposure to pollutants,
Massachusetts' SEP policy, "especially encourages SEPs in communities where
environmental justice may be an issue." Connecticut is similarly committed to
incorporating environmental equity into its SEP policy, expressing a preference
for "pollution prevention project[s] that positively impacts communities where
environmental equity may be an issue." However, these states do not expressly
consider environmental justice as a penalty assessment consideration.
CConclusion
Many states have adopted statutes and policies authorizing the use of SEPs that
expressly encourage projects that address environmental justice issues. This
trend is likely to continue as the use of SEPs, generally, become more common
and as States look for tangible ways to improve environmental conditions in
environmentally burdened, minority and/or low-income communities.
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