We provided a number of examples in the prior post when the DOJ funded community service projects with settlement money while fully complying with the MRA. Indeed, these projects have become more common, not less, in recent years.
Why? In this 2012 U.S. Attorneys Bulletin (pdf), the Assistant Chief of the Environmental Crimes Section provided four reasons.
First, the government likes these settlements because prosecutors “often (and rightfully) want to rectify the wrongs caused by those who have violated environmental statutes.”
Corporations like them as well, as defendants find it “more palatable” to perform community service than pay a higher fine.
Judges also like these settlements. From their vantage point on the federal bench, they “perceive that they are doing more good for the community” by dedicating the settlement money for local projects “rather than sending it to  Treasury.”
And ultimately, community service “may result in good public relations for all parties involved.”
But you might ask: okay, so the MRA does not bar these settlements, but which law actually authorizes them? Answer: the U.S. Sentencing Guidelines, which authorize penalty reductions for community service. (For a detailed explanation of how, see part III.C. of this paper). Notably, it’s not in the environmental statutes.
This is how, and why, the DOJ has been doing this for over 20 years.
I like the MRA. It’s a good statute, an important statute. But let it be known: the MRA simply does not prohibit using settlement money to fund community service projects. No federal receipt of the money means no MRA bar. We’ve known that, and practiced it, for over two decades.
Andy Spalding is a senior editor of the FCPA Blog. He is an Assistant Professor at the University of Richmond School of Law.