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Blog Post | May 10, 2021

Can An Appointee Loyal To BigLaw Be Trusted To Oversee The Army Corps Of Engineers?

2020 Election/TransitionBigLawClimate and EnvironmentDefense
Can An Appointee Loyal To BigLaw Be Trusted To Oversee The Army Corps Of Engineers?

President Biden announced last month the appointment of Michael Connor to be the Assistant Secretary of the Army for Civil Works within the Department of Defense, making him responsible for the entire Army Corps of Engineers.

Connor, an enrolled member of the Taos Pueblo tribe, was an early contender to lead the Department of the Interior (DOI), where he worked for upwards of 15 non-consecutive years across most of the Clinton and Obama presidencies. Instead, Deb Haaland was named to the position in a major victory for progressives. Having held the positions of Deputy Secretary, Bureau of Reclamation Commissioner, and Director of the Indian Water Rights Office at the DOI as well as Counsel to the Senate Committee on Energy and Natural Resources, he is undoubtedly experienced in the inner workings of government. 

However, despite Connor’s deep knowledge of issues related to natural resources, his time at the notorious BigLaw firm WilmerHale creates a myriad of corporate conflicts of interest. Connor was a partner with WilmerHale’s Energy, Environment and Natural Resources practice group, which is infamous for its defense of oil and gas giants including Anadarko and BP. The firm boasts that it helps coal, oil, and gas companies navigate “regulatory challenges” and provides counsel on the “full lifecycle of oil, gas and liquefied natural gas projects, from pre-permit strategy and permitting to implementation and functionality.” The firm lobbied on behalf of NiSource, a natural gas company, on issues related to pipeline safety. They also assisted NiSource with the sale of their subsidiary Columbia Gas, which faced a federal inquiry after a deadly explosion

Connor also worked with WilmerHale’s Environmental Enforcement and Litigation practice, which has represented chemical manufacturers and utility companies in investigations by OSHA and other federal regulatory agencies. In one recent case, the practice defended an unnamed corporate client in a federal Clean Water Act criminal investigation related to a Louisiana oil spill. WilmerHale attorneys also represented an oil and gas company in litigation over one of the largest chemical cleanups in the United States in a New Jersey river. 

At WilmerHale’s Denver office, Connor also rubbed shoulders with climate nightmare Ken Salazar, Obama’s Secretary of the Interior and longtime ally of oil and gas interests. In office, Salazar exempted BP from an environmental review in the Gulf of Mexico a year before the Deepwater Horizon spill, and then went on to join WilmerHale, which represented BP in litigation around the disaster. 

It is naturally concerning, then, that a lawyer who spent time at WilmerHale will now be responsible for overseeing the Army Corps of Engineers. The Army Corps is responsible for making decisions about Clean Water Act permitting for pipelines, including the Keystone XL, Dakota Access, and Line 3 Pipelines. They also manage dams, waterways, and wetlands, and oversee aspects of natural disaster planning and relief — the latter of which will be especially relevant as climate change exacerbates and increases natural disasters.

The job of the Assistant Secretary of the Army for Civil Works (commonly abbreviated as ASA (CW)) is absolutely critical to Biden’s promised whole-of-government response to the climate emergency. Importantly, the Clean Water Act tasks the Army Corps of Engineers with evaluating and issuing permits for any project that alters the shoreline of a river, is located near or within a wetland, or requires the dredging of a body of water. In practice, this means that many controversial (and objectively harmful) pipelines, like the Dakota Access Pipeline and Enbridge’s Line 3, and proposed mining projects like Polymet’s near the Boundary Waters Canoe Area Wilderness in Minnesota, cannot move forward without the Army Corps’ go-ahead. Each of these projects is deeply opposed by Indigenous and environmental activists.

Historically, it makes perfect sense why there is a severe lack of trust in this government body. Take, for, example, the Army Corps’ role in the devastation of Hurricane Katrina. A U.S. District Court found that the Army Corps failed to properly maintain the MRGO shipping channel linking New Orleans to the Gulf of Mexico. Even worse, officials were aware for 40 years that the shipping channel’s deterioration would compromise levees protecting vulnerable parts of New Orleans which collapsed when Hurricane Katrina hit. Independent investigative journalist Sandy Rosenthal found that, following the Army Corp’s “egregious design mistakes” in the steel flood walls, the Army Corps spent millions to shift the blame from their own wrongdoing to the “natural” disaster and the very residents who suffered losses of life and property in the storm.

In 2013, U.S. District Judge Stanwood Duval said of the Army Corp’s behavior surrounding Hurricane Katrina: “I feel obligated to note that the bureaucratic behemoth that is the Army Corps of Engineers is virtually unaccountable to the citizens it protects despite the Federal Tort Claims Act.”

Of course, the ASA (CW) does not work in a silo — no political appointee does — and some of this unaccountability is baked in by lack of Congressional oversight. As evidenced in Michael Grunwald’s “The Swamp,” the Army Corp’s project to restore the Everglades in vulnerable developed locations was politicized by Congressional infighting, which was undoubtedly not an isolated practice. 

Yet it is positions like the ASA (CW), with confusing names often buried in seemingly-unrelated departments, which remind us why the progressive wing of the Democratic party (and anyone who is willing to face the reality of climate change) must apply pressure throughout the entire federal government. 

The person who leads the Army Corps has immense precedent and agenda setting power, and it is imperative that this administration’s ASA (CW) both fully respects tribal sovereignty and prioritizes clean water and climate reality over destructive land use by powerful incumbent fossil fuel firms. And it’s very possible that Michael Connor will rise to the occasion — we certainly hope he surprises us. But the fact of the matter is that, historically, political figures who revolve in and out of BigLaw firms like WilmerHale, whose very profits depend on defending corporations who have shown they will lie, cheat, and steal to continue driving climate disaster, do not focus in government solely on the public interest.

Photo: “Deputy Secretary Michael Connor” by American Battlefield Trust is licensed under CC BY 2.0

2020 Election/TransitionBigLawClimate and EnvironmentDefense

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