There is no delicate way to put it: Biden’s Department of Justice (DOJ) has been a striking failure so far. More than 10 percent of the way through this presidential term, Attorney General Merrick Garland has failed to remove Trump holdovers; is treating Trump as a completely typical president and refusing to prosecute his many crimes; is not reversing dangerous Trump-era legal positions; and is freely allowing corporate capture of his department.
Garland’s disappointing tenure is detrimental to progressive plans for many issues — criminal justice, police violence, labor rights, immigration, antitrust, and white collar crime prosecution, among others — but his potential to wreak havoc on necessary climate action is most staggering considering the existential stakes.
The DOJ includes an in-house environmental law firm known as the Environment and Natural Resources Division (ENRD), which has the crucial job of prosecuting cases on behalf of the government to enforce environmental laws like the Endangered Species Act, Clean Water Act, Clean Air Act, Safe Drinking Water Act, and Superfund law (one culturally topical case is their 2020 lawsuit against “Tiger King LLC”). The Biden administration will undoubtedly face myriad legal challenges on their proposed environmental regulations, and the ENRD will be responsible for both deciding which environmental rules to prioritize and defending those regulations in court.
This division is a hugely essential tool to combat climate change, but conservative lawmakers and corporate influence on the department have stymied much of its enforcement efforts in recent years. Under the Trump Administration and his ENRD Assistant Attorney General Jeffrey Bossett Clark (who later assisted in attempts to overturn the 2020 election), the division worked to make its work less transparent and effective, restricting federal funds for Superfund clean-ups and barring the use of supplemental environmental projects, or SEPs. This trend should not continue — but unfortunately, the Biden Administration’s ENRD has so far failed to do even the bare minimum of beginning to roll back the damage done by the Trump Administration. Even worse, despite promising early signs that Biden would prioritize an environmental justice approach across the executive branch, the division is moving forward with a number of Trump-era legal cases that threaten Biden’s climate priorities.
Just last month, Biden’s Justice Department defended a rushed permit approval process for Enbridge’s Line 3 pipeline. The DOJ found that the Army Corps of Engineers had properly taken into consideration environmental concerns and tribal rights (environmental and tribal leaders wholeheartedly disagree). Earlier this year, the Justice Department argued against Earthjustice to allow oil and gas leasing in sage grouse territory in the West. In another recent case, the ENRD pushed to keep Trump-era environmental review standards that narrowed the scope of federal environmental reviews under the National Environmental Policy Act. Most egregiously, the department’s ENRD has delivered for oil companies including ConocoPhillips Alaska Inc., arguing in court on behalf of ConocoPhillips’ Willow oil project in Alaska as well as other harmful projects like the Dakota Access Pipeline and the Resolution Copper Mining Project in Arizona.
In March 2021, President Biden nominated Todd Kim to lead the ENRD; he has still not been confirmed. Aside from some quiet, solid reception from environmental law group Earthjustice, the announcement received little feedback. This may have been for good reason — Kim’s resume largely consists of public-facing legal work as an Appellate Attorney for the U.S. Department of Justice, Solicitor General for the D.C. Attorney General, and a recent short stint as Deputy Counsel for Litigation, Regulation, and Enforcement at the Department of Energy. And while that career history does not explicitly scream environmental champion, neither does it give immediate cause for worry.
But a position as important as this one deserves a much closer look. And, before Kim is confirmed by the Senate, the public should understand that the ENRD’s problems do not look to be over once he is in office. Kim spent the last three years in the Appellate Practice at BigLaw firm Reed Smith. Reed Smith, though not the most well-known of BigLaw firms, is rotten to its core — it boasts that it counsels 25 of the world’s 35 largest oil and gas companies, 13 of the world’s 15 largest commercial and savings banks, and the world’s three largest pharmaceutical distribution and wholesale companies.
While at Reed Smith, Kim himself defended health industry profiteer BlueCross BlueShield against an appellate case alleging discrimination of insurance provision based on a patient’s HIV+ status. He also provided legal services to 3M, Anthem, Johnson & Johnson, Pfizer, State Street (which is a major investor in oil companies in the Amazon), United Airlines, and Continental Airlines, among others.
Reed Smith also represents ConocoPhillips, the oil giant behind the treacherous 30-year “Willow” drilling project in Alaska, which the Biden administration is now defending in spite of its pledge to cut U.S. emissions in half from 2005 levels in just over eight years, and in complete disregard of the International Energy Agency’s recent report which found keeping global temperatures from rising more than 1.5°C requires a complete and immediate end to fossil fuel expansion. Biden clearly recognized that the public would be upset by this, and mere days after news of the drilling project, announced his administration would suspend oil and gas leases in the Arctic National Wildlife Refuge (ANWR). But the Willow project is not remotely near the ANWR, and the ANWR has largely not been open for drilling for several decades anyways. To take advantage of the public’s limited geographic knowledge and try to deflect anger about a massive fossil fuel project illustrates that the Biden administration so far is more concerned about its image than actually mitigating climate disaster.
This decade demands an ENRD that is independent from corporate polluter influence and headstrong in its fights to reverse Trump’s incredibly destructive climate legacy. The obvious first step would be to drop legal defenses of Trump’s policies. But ENRD also requires a bold leader who will proactively and aggressively fight on behalf of the public good. Unless Kim acts to aggressively curb the anti-regulatory momentum in the ENRD’s caseload — likely until Garland directs him and environmental groups pressure him to do so — his legacy, and the fate of the planet, are in great danger.
Elsewhere, in a faraway part of the DOJ (down the hall) known as the “Civil Division”, BigLaw revolver Brian Boynton was appointed by Biden on his first day in office to be the division’s Acting Assistant Attorney General. The Civil Division litigates on behalf of the U.S. government and its many federal agencies regarding a wide swath of issues, and includes the Federal Programs Branch, which represents the Departments of Agriculture, Interior, and Energy. Underscoring the Civil Division’s potential to impact climate policy is their involvement in the case against BP over the Deepwater Horizon spill, the largest environmental disaster in U.S. history, alongside the ENRD.
Heading up the DOJ Civil Division is an enormous job — Boynton manages over 1,100 staff — which makes it all the more concerning that he has spent his career revolving between notorious BigLaw firm WilmerHale and the U.S. Department of Justice. Boynton made his millions at WilmerHale from legal work like suing the federal government on behalf of predatory for-profit colleges. The DOJ’s Civil Division is the main enforcement arm against for-profits’ legal violations, making this a concerning conflict of interest. Indeed, Boynton already used his position to shield Trump Education Secretary Betsy DeVos from testifying about her refusal to cancel student loans of people defrauded by for-profit colleges. WilmerHale as a firm has represented countless oil and gas companies, chief among them BP in the wake of the Deepwater Horizon oil spill.
Additionally at WilmerHale, Boynton also represented pharmaceutical companies including Moderna, insurance giants like Cigna and State Farm, defense contractors like Northrop Grumman, infamous union-buster Walmart, and numerous hedge funds and Big Ag interest groups. During the coronavirus crisis, he co-wrote an article advising companies on when and how to sue governments over COVID-19 restrictions (and later removed his name from the piece). WilmerHale itself has represented the Trump family, Facebook, Apple, JPMorgan Chase, and the Baltimore and Chicago police departments.
Having worked for WilmerHale twice already in between stints at the DOJ, Boynton is highly unlikely to change course now. He clearly cannot be trusted to prioritize climate action and environmental justice, and environmental groups would do well to understand that sooner rather than later.
The decisions the DOJ makes (or fails to make) in the next four years will have a cascading effect on the livability of our planet for generations and centuries to come. Garland should be recognized for his egregious and harmful behavior and held accountable at every possible moment, and Boynton should be replaced with a climate leader in a permanent capacity as soon as possible. As for Kim, we hope environmental leaders recognize him and the ENRD as crucial pressure points and collaborate to make the DOJ work on behalf of the climate and the global good, not against it.