Today, the WSJ reports on environmental groups’ practice of free-riding on federal environmental enforcement actions to shake down polluters. Led by Assistant Attorney General Jeffrey Clark, the environment division of the Department of Justice is now pushing to end the practice in a federal case involving DTE Energy, Michigan’s largest electrical utility and a major operator of natural gas pipelines. The Sierra Club intervened on the government’s side and is seeking court approval of a side agreement in which DTE would close three coal plants, in addition to the penalties and mitigation secured by the Justice Department.
The issue has an important constitutional dimension. The leverage that environmental groups use to extract these side deals (called “Supplemental Environmental Projects” or “SEPs”) derives largely from citizen-lawsuit provisions in laws like the Clean Air Act. Such provisions are supposed to supplement the government’s enforcement actions. But in fact, they often supplant the penalty that the government has sought in its enforcement action.
Such provisions amount to a delegation of a core executive function that the Constitution vests in the president. It allows private advocacy groups to override the government’s enforcement priorities with their own, and then profit from coercive use of penalties that arise under environmental protection laws, the faithful execution of which is entrusted to president and to the officials under his control.
To the extent advocacy groups induce private companies to agree to such SEPs by promising to give up on claims arising under federal environmental laws subject to federal enforcement, the practice is properly viewed as an unconstitutional infringement on a core executive function. The Justice Department is to be commended for standing up to it.