Abstract
This Note fleshes out the history of SEPs and the recent arguments against them. First, Part I traces the history of SEPs, from the early use of third-party payments, through the development of formal policies governing SEPs, to the Trump and Biden administrations’ dueling approaches to them. Then Part II explains what’s wrong with SEPs. Expanding on the arguments made in the various Justice Department memoranda, this Note argues that SEPs contravene both the Miscellaneous Receipts Act (MRA) and the Antideficiency Act (ADA). Next, the Note argues that while their illegality might be remedied by statute, SEPs also present deeper—and ultimately insuperable—constitutional issues because of how they violate the Constitution’s grant of the appropriations power exclusively to Congress. Moreover, the legal precedents which are often invoked in favor of SEPs do not offer enough support to justify their use. As a result, the practice of including SEPs in consent decrees should be permanently ended. Finally, Part III considers how each branch of government might contribute to bringing about an end to SEPs and suggests that a legal challenge to a consent decree containing a SEP offers the best prospect for a stable resolution of the issue.
Recommended Citation
Andrew Olson,
Appropriations by Any Other Name: The Illegality and Unconstitutionality of Supplemental Environmental Projects,
100
Notre Dame L. Rev.
1349
(2025).
Available at:
https://scholarship.law.nd.edu/ndlr/vol100/iss3/9