Last month, Attorney General Sessions barred DOJ from entering into settlements that provide for payments to non-governmental persons not a party to the dispute. At the time, I peered into my crystal ball and proclaimed that the practice of incorporating supplemental environmental projects into environmental settlements was “hanging by a thread.” For once, my speculation was accurate.
Yesterday, DOJ notified the District Court for the District of Columbia that the United States and Harley-Davidson had jointly agreed to modify a consent decree that had already been lodged with the Court. The original decree provided for a $3 million SEP, to replace old woodstoves. Notwithstanding that SEPs have traditionally been used to mitigate penalty amounts, the modified decree did not increase the penalty to Harley-Davidson; it merely eliminated the SEP. Well done, Harley-Davidson lawyers!
In modifying the decree, DOJ explicitly cited to the Sessions memorandum, noting simply that:
Questions exist as to whether this mitigation project is consistent with the new policy.
The only question remaining at this point is whether other defendants will be able, like Harley-Davidson, simply to pay smaller penalties or whether, going forward, penalties will increase where SEPs are unavailable as mitigation. I know where this administration’s proclivities lie, but I’m going to stop speculating while I’m ahead of the game.