Overseen by Assistant Attorney General Todd Kim, the Environment and Natural Resources Division (ENRD) is one of seven litigating components of the Department of Justice (DOJ). The ENRD is divided into ten sections, each with its own area of expertise. The Division fulfills a wide range of responsibilities. For instance, the ENRD is tasked with protecting the nation’s natural resources and enforcing U.S. civil and criminal environmental laws, including the Clean Water Act, Clean Air Act, and hazardous waste laws. The Division also handles tribal rights and resources cases. Other responsibilities include, but are not limited to, “facilitating cleaner energy and ensuring marketplace integrity; defending and adjudicating water rights for Federal agencies and Indian Tribes, as well as policies and decisions that support the generation of clean energy on Federal lands and the outer continental shelf; and, promoting international climate justice activities and the advancement of legislative and policy matters related to climate change.”
Through fulfilling its mandate, the ENRD can promote public health, protect American taxpayers, recover federal funds, and deliver other benefits in the interest of American residents. Additionally, ENRD litigation can help advance and reinforce the policy objectives of legislative officials and executive branch agencies. For example, recently the ENRD filed a complaint on behalf of the Environmental Protection Agency (EPA) against automotive parts manufacturer and distributor “Advanced Flow Engineering, Inc.” for violating the Clean Air Act by manufacturing and selling products that undermined emission controls. Hence, by enforcing the Clean Air Act, the ENRD helped reinforce the EPA’s policy objective of protecting people and the environment from dangerous pollutants.
However, in order to generate the aforementioned benefits, the ENRD will need to hire more employees, increase funding, and address systemic barriers to (more) litigation that serves the public good.
Employees (with a focus on attorneys)
| Fiscal Year (FY) | 2010 | 2011 | 2012 | 2013 | 2014 | 2015 | 2016 | 2017 | 2018 | 2019 | 2020 | 2021 | 2022* |
| Nº of employees | 459 | 459 | 537 | 537 | 537 | 537 | 537 | 537 | 517 | 537 | 541 | 541 | 559 |
| Nº of attorneys (among the employees) | 433 | 433 | 439 | 439 | 439 | 439 | 439 | 439 | 427 | 370 | 373 | 373 | 389 |
As of 2021, overall staffing levels are currently at their highest level since 2010, and the ENRD is hoping to hire even more employees for FY 2022. Since 2013, however, growth in overall staffing has largely stagnated, even as the size of the population and the economy have grown . Meanwhile, the number of attorneys has declined over time. These levels reached their lowest point in 2019 and have increased by only three attorneys since then. By comparison, the ten largest US law firms in 2020 had between 2000 and 4700 attorneys apiece.
ENRD attorneys take on both affirmative civil and criminal enforcement and defensive cases. Cases arise under approximately 150 federal environmental and natural resource laws like the Clean Air Act, Clean Water Act, Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), National Environmental Policy Act (NEPA), and “laws governing the management of public lands and resources held in trust for Indian tribes.”
Under Biden’s Executive Order 14008, which calls upon executive branch agencies to develop programs, policies, and activities to address high and adverse human health, environmental, climate-related, and other cumulative impacts on disadvantaged communities, ENRD’s responsibilities are set to grow. When policies, such asnew regulations, are challenged, the ENRD’s attorneys must defend these rules in federal court. However, implementing strategies to better identify and manage cases with environmental justice implications can be resource-intensive as it requires ENRD attorneys to do “additional research and information gathering, sensitive client counseling, and manage the usual pressures of defensive litigation”.
Effective enforcement is extremely beneficial for the environment, people’s quality of life, and the economy. In September 2013, the ENRD settled a case in which Safeway violated the Clean Air Act by failing to promptly repair leaks of a greenhouse gas and ozone-depleting substance used in refrigerators. Safeway agreed to pay a $600,000 civil penalty and implement a corporate-wide plan to significantly reduce emissions from refrigeration equipment at over 650 stores nationwide. Safeway’s Refrigerant Compliance Management System involves a centralized electronic refrigerant tracking and repair record system to ensure compliance with stratospheric ozone regulations. Additionally, the grocery chain pledged to reduce its refrigerant Corporate Wide Average Leak Rate from 25 percent in 2012 to 18 percent in 2015. Such enforcement actions help protect the climate by prompting guilty parties to take concrete action to stop their polluting behavior. Acting assistant attorney general for the ENRD Robert G. Dreher referred to the settlement as the first-of-its-kind and a model “for comprehensive solutions that improve industry compliance with the nation’s Clean Air Act”. Such enforcement cases also imply the need for ongoing monitoring and enforcement actions to ensure compliance requirements are met. For example, in the Consent Decree, clear consequences were outlined in the events that Safeway failed to reduce the Corporate-Wide Average Leak Rate to below 18 percent in 2015. To maximize the benefits of a given settlement, the ENRD will need sufficient resources to diligently monitor compliance.
In December 2020, the EPA and DOJ (ENRD) settled a case brought against Home Depot for violating the EPA’s Lead Renovation, Repair and Painting (RRP) Rule. The EPA discovered that Home Depot subcontracted (home-renovation) work to firms that did not always use “lead-safe work practices, perform required post-renovation cleaning, provide the EPA-required lead-based paint pamphlets to occupants, or maintain records of compliance with the law,” affecting hundreds of homes. In addition to changing its practices, Home Depot agreed to pay a $20.75 million penalty, the highest civil penalty obtained to date for a settlement under the Toxic Substances Control Act. This enforcement action has human health benefits, as lead exposure affects the nervous system in ways that can cause behavioral problems, learning disabilities, seizures, and even death. Health risks from lead exposure can be especially severe for children six years old or younger.
Enforcement actions also have direct economic benefits. By imposing criminal fines on bad actors, the ENRD can remove, or at least reduce, the economic benefits of non-compliance. That nudge helps level the playing field for law-abiding companies, which in turns increases competitiveness. Additionally, through fines, the federal government is able to fund conservation efforts like reducing environmental contamination and restoring natural resources damaged by oil spills or releases of hazardous substances into the environment.
In order to reap the benefits of effective enforcement, the ENRD needs to be better staffed to actually levy punitive fines and pursue criminal prosecutions. The ENRD wins the vast majority of its cases. In 2019 and 2020, the Division successfully resolved 94 percent of its cases. But there’s a catch. Both the number of attorneys and cases they take on have steadily declined. Most of the EPA’s criminal referrals in FY 2021 were not prosecuted, and nearly eight of ten cases have been closed primarily due to “insufficient evidence.” Furthermore, many environmental advocates have noted that even in cases that the ENRD wins, the penalties it imposes are insufficient to curb bad behavior.
One reason cases settle at too low a number is the government lacks the litigation resources to plausibly threaten to take all parties it deems guilty to court. To boost the number and quality of enforcement cases, and secure heavier fines and/or more transformative concessions, ENRD will likely need to hire more attorneys.
Funding
| Fiscal Year (FY) | 2010 | 2011 | 2012 | 2013 | 2014 | 2015 | 2016 | 2017 | 2018 | 2019 | 2020 | 2021 | 2022 |
| Appropriations ($ in millions) | $110 | $108 | $108 | $102 | $108 | $110 | $111 | $111 | $110 | $109 | $109 | $113 | $134 |
Biden’s FY 2022 budget r requests a significant budget increase compared to previous years. The division is seeking an additional $5 million and 18 positions (including 16 attorneys). These will support new responsibilities under President Biden’s Executive Order 14008, including promoting environmental justice. For instance, section 222 of the Executive Order directs the ENRD’s Office of Enforcement and Compliance Assurance and other client agencies to coordinate with EPA to develop a Comprehensive Environmental Justice Enforcement Strategy. The Comprehensive Environmental Justice Enforcement Strategy aims to provide timely remedies for “systemic environmental violations and contaminations and injury to natural resources.” Increased funding beyond what has been proposed is likely required to adequately carry out new initiatives and better support current staff in the period between when new funding becomes available and new hires are brought on board as Congress negotiates a funding agreement for the remainder of 2022.
In addition to increasing funding, the ENRD is “seeking a more durable budgetary approach to sustaining the Division’s important environmental enforcement efforts.” In its FY 2022 budget justification, the ENRD noted that environmental justice was not a focus of the Trump administration, alluding to how funding for different issue areas can vary from administration to administration.
Another vulnerability of the ENRD’s funding structure is that the funding it receives from the EPA is not entirely secure despite being key to keeping the Division well-staffed. Under the 1980 Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), the EPA reimburses the Justice Department for handling litigation on behalf of the EPA’s Superfund program(which forces polluters to pay to clean up sites contaminated with hazardous waste). These reimbursements are an important source of funding and allow the Division to hire more employees. For instance, in the DOJ’s 2018 budget proposal EPA reimbursements were expected to cover 115 of the ENRD’s 632 employees. Given the importance of EPA funding for hiring efforts, it should not be at the mercy of officials looking to gut the federal government. Yet, according to the DOJ’s FY 2018 budget request, Trump’s EPA administrator Scott Pruitt sought to cut EPA reimbursements entirely. Although he didn’t succeed, EPA reimbursements have declined since then. Up until 2018, the EPA paid over $20 million annually in Superfund reimbursements to the ENRD. From 2018-2020 EPA reimbursement decreased to under $20 million. In 2020, the EPA reimbursement was a little under $16.5 million, the lowest number to date. Had Pruitt gotten his way, there could have been significant layoffs at the DOJ, which in turn limits the ENRD’s ability to “prosecute environmental crimes like the Volkswagen emissions cheating scandal, seek civil penalties and natural resource damages in cases like the Deepwater Horizon oil spill in the Gulf of Mexico, and sue polluters that are responsible for Superfund hazardous waste sites.” Given what’s at stake, Congress should consider how reimbursement could be made a more reliable source of funding.
Systemic barriers
The ENRD has stated that environmental justice wasn’t a priority under Trump. As pollution prosecution continues to decline, one wonders whether, despite Biden’s markedly different rhetoric, it truly is a priority for the current administration. Falling numbers are not entirely the ENRD’s fault. It is difficult for the Department of Justice to make a case without it being given to them. Referrals from agencies like the Environmental Protection Agency (EPA) are key to boosting the prosecution of environmental violations and crimes.
Public Employees for Environmental Responsibility (PEER) found that EPA referrals for prosecutions in FY 2021 fell by one-third compared to FY 2010. This represents less than half the new cases that EPA referred to DOJ in 2013 and “the lowest number of new cases developed in 33 years”. The low numbers are likely due to insufficient staffing levels at the EPA. The EPA’s Criminal Investigation Division (CID) only has 161 agents, which is well below the 200-agent minimum set by Congress in the U.S. Pollution Prosecution Act of 1990. As stated by former EPA enforcement attorney and PEER’s Executive Director Tim Whitehouse, “[…] fewer agents mean fewer investigations, which later translates into fewer prosecutions and convictions” and “suggests prosecuting polluters remains a low priority at EPA.” Given that ENRD prosecution is somewhat dependent on EPA referrals, insufficient EPA capacity is a systematic barrier to more environmentally-beneficial prosecutions.
Still, although the ENRD does depend on agencies like the EPA to some degree, it nonetheless shares some of the blame for stunted prosecution levels. In FY 2021, most of the EPA’s criminal referrals were not prosecuted. Prosecutors were more likely to take on cases involving companies as opposed to individuals. However, eight out of ten of such cases were closed, primarily due to a purported lack of evidence. According to Davina Pujari, a former EPA enforcement attorney and a partner at law firm Hanson Bridgett, a “high percentage” of non-prosecution “creates a disincentive for EPA to work up and refer criminal cases to [the] DOJ”. This creates a vicious cycle: the DOJ’s low prosecution rate discourages the EPA from sending referrals, which in turn further reduces the DOJ’s prosecution rate as there is a smaller pool of referrals to choose from. Thus, the issues preventing the ENRD from reaching its potential are both executive branch-wide and self-reinforcing. To remedy this, the EPA’s CID and other key agencies like the Department of Interior should hire more agents to increase the number of referrals and ensure the ENRD is aware of the cases within its jurisdiction. At the same time, the ENRD should hire attorneys to ensure the Division is equipped to manage new referrals and better identify and manage cases with environmental justice implications. While these two steps would certainly help the ENRD reach its full potential, there is one more blaring issue to address.
The Revolving Door Project’s Hannah Story Brown unpacked another key systemic barrier to increasing environmental prosecutions and keeping polluters in check. While the ENRD files more environmental lawsuits than any other U.S. organization, its attorneys’ allegiance to their clients can result in the Division defending actors that actively undermine environmental regulations. For example, Trump’s ENRD bragged about successfully defending challenges to over 2,000 Bureau of Land Management oil and gas leases covering 3 million acres of federal lands, despite the fact that burning of fossil fuels is the leading cause of climate change. The ENRD also successfully defended multiple federal agencies in Juliana v. United States (9th Cir.), where the plaintiffs argued that agencies permitting activities related to greenhouse gas emissions were violating their constitutional right to a liveable climate, among other rights. Although the ENRD has to represent its clients, the Division also has the responsibility to ensure the government is adopting a reasonable legal position. Attorneys at the ENRD have a fair amount of leeway when balancing these two responsibilities. In her op-ed, Brown argues that because the ENRD has prosecutorial discretion over which enforcement cases to pursue and what remedies to seek out, and the right to exercise independent judgment as to what is in the country’s best interest, the Division has the potential to do much more on climate change than it currently is and has in the past.
The ENRD’s discretion can be both concerning and reassuring depending on who gets to call the shots. Who works in the executive branch matters and could determine whether agencies like the ENRD actually work to protect the environment.
The ENRD has the potential to be a key player in the fight against climate change. For instance, by winning the right cases, the ENRD can create positive precedent through court rulings, and subsequently, help create better policies. However, this is not a guarantee. As outlined, inadequate workforce levels, funding, and systemic dysfunction are holding the ENRD back from systemically and diligently protecting the public and the planet from the ramifications of environmental misconduct. An “all of government” approach and systemic change is needed to reform the complex and at times contradictory process of federal-level environmental litigation.
Image: “10/2/2013 Pollution” by barbourians is marked with CC BY-SA 2.0.