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Op-Ed | The American Prospect | March 15, 2022

Where the Government’s Environmental Lawyers Stand

Climate and EnvironmentCorporate CrackdownDepartment of JusticeEthics in GovernmentExecutive BranchIndependent Agencies
Where the Government’s Environmental Lawyers Stand

The Environment and Natural Resources Division of the Justice Department could help protect our planet’s future.

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Joe Biden pledged that as president he would hold polluters accountable. But in 2021, the number of criminal cases against polluters referred to the Justice Department dropped even lower than the year before. At best, DOJ officials have set their sights on bringing environmental crime enforcement back up to Obama-era levels—but not exceeding them. That’s a decidedly muted goal; environmental crimes enforcement was higher under George W. Bush than Obama, and has always been underfunded.

The ambition falls far short of what the government’s environmental litigators could bring to the fight for a livable planet. In the words of Hilary Tompkins, former solicitor of the Department of the Interior, “the fate of our world depends in large part on the trajectory of environmental law and policy.” Yet there’s little sign of the DOJ’s environmental lawyers embracing the unfortunately exceptional stakes of their work.

The Justice Department’s Environment and Natural Resources Division (ENRD), which files the most environmental lawsuits of any organization in the U.S., occupies a unique position. Unlike a private law firm, the Justice Department is obliged to represent its clients—other executive branch agencies—which lack the option of hiring another lawyer. (President Reagan’s anti-environmentalist secretary of the interior famously complained that he couldn’t fire his ENRD lawyer, who retorted in turn that she wished she could fire her client.)

When the EPA and other agencies actively sabotaged environmental protections under Trump, ENRD lawyers diligently defended them in court. The division is also dependent on other federal agencies for the majority of its caseload: The EPA and other agencies identify and investigate violators of environmental statutes, and then refer cases to the ENRD for legal action.

So the ENRD is limited to some degree by its clients’ choices. On the other hand, it also enjoys prosecutorial discretion in deciding which enforcement cases to pursue and how to pursue them. And according to two career ENRD attorneys, the division must “exercise its independent judgment as to what is in the best interests of the United States.” This balancing act, though challenging, affords the ENRD significant room to maneuver, with big consequences for the direction of environmental litigation.

Opportunities Past and Present

When a case is referred to the ENRD by the EPA or another agency, the assigned attorney conducts their own review and decides whether to recommend filing it. If they decide not to pursue it—the DOJ prosecuted between 24 percent and 63 percent of cases the EPA referred between 1987 and 2019—the case tends to not be redirected. So ENRD attorneys can effectively kill a case.

If they do decide to prosecute, the ENRD attorney prepares a briefing package, assessing the merits of the case and proposing what relief to seek. There is tremendous opportunity here for the designated attorney and their colleagues to strategize how to use the case to make environmental crimes unprofitable, or strengthen safeguards for communities and ecosystems.

Relief can take many forms: monetary penalties, supplemental environmental projects, injunctive relief that bars corporate offenders from certain future actions, corporate monitorships to ensure compliance with environmental laws, and more. Criminal prosecutions can target the individual executives most responsible for environmental crimes. (If that sounds unduly harsh, consider that we’re talking about cases like a boss knowingly exposing his employee to toxic cyanide gas, causing him permanent brain damage, and then lying to cover it up.) Prosecutorial discretion can amount to the difference between enforcement as a slap on the wrist or a significant deterrent.

Congress failing to pass legislation is one major obstacle to enforcement tackling the evolving environmental issues of the 21st century. But even back in the ’70s and early ’80s—the heyday of environmental lawmaking—enforcement litigation could drive its own change.

Take for example the 1980 Superfund law, whose strict, retroactive application of new liability standards drove corporations to change their hazardous waste disposal practices. It came about because, in 1979, the EPA decided to ask their regional offices to count the abandoned hazardous waste sites across the country—32,254—and they took that number to the Hill to testify about its dangers.

When James Moorman, then head of the ENRD (called the Lands and Natural Resources Division at the time), heard that number, he asked one of the attorneys he worked with to “figure out how we can bring a suit involving a hazardous waste site.” They prepared a memorandum to do so, despite the “paucity of relevant legal authority.”

Barbara Blum, then deputy administrator at the EPA, called Moorman and said she’d heard of the memorandum, and wanted to see it. He told her it wasn’t yet finished. Blum said OK, and then went ahead and publicly announced in April 1979 that the EPA and Justice Department were going to file 50 lawsuits in the next year over hazardous waste sites. This came as a surprise to Moorman. But the division rose to the occasion, filing over 50 lawsuits relying on the “imminent hazard” provision of the 1976 Resource Conservation and Recovery Act. The 1980 Superfund law clarified and expanded the agencies’ legal authority to pursue litigation they had already been pursuing.

This shows that there is precedent for ENRD lawyers to seek and even create opportunities to pursue environmental goals for the public benefit. Even if there weren’t, we are living in times that require unprecedented efforts to sustain a livable planet. As Berkeley environmental law professor Holly Doremus frames it, we are “facing the end of history—or as some have called it, the ‘no-analog’ world.”

An Urgent Need for Vision

In 2020, the ENRD procured a “favorable outcome” in 98.5 percent of its criminal cases, 98.9 percent of its civil affirmative cases, and 89.6 percent of its civil defensive cases. But what was it arguing in 2020? Then and now, the ENRD is mostly litigating cases that were opened under President Trump, contending with positions it adopted under Jeffrey Clark’s destructive leadership from 2018 to January 2021. (Clark is currently under criminal investigation for supporting Trump’s efforts to overturn the election.)

It can be challenging to evaluate, particularly from the outside, the scope of the division’s casework. (It doesn’t help that the ENRD hasn’t released 2020 or 2021 annual accomplishment reports.) But it’s apparent that the division slow-walked environmental enforcement under Trump, pursuing 70 percent fewer Clean Water Act cases and 50 percent fewer Clean Air Act cases in Trump’s first two years. Among the other “accomplishments” Clark touts for 2019 are defending challenges to over 2,000 oil and gas leases on federal land, vigorously defending the Dakota Access and Keystone XL pipelines, and taking the legal lead for acquiring land to build Trump’s border wall.

Under Trump and Clark, ENRD filed amicus (“friend of the court”) briefs on the side of fossil fuel companies like BP and pipeline developers like the PennEast Pipeline Company. ENRD lawyers worked as a team with fossil fuel company lawyers to block the Sierra Club from accessing certain Fish and Wildlife Service/EPA records, and defend the Forest Service’s authority to allow a pipeline to be drilled underneath the Appalachian Trail. They even tried to prevent an advocacy organization’s concern for the environment from qualifying as an “interest” that would allow them to intervene in a lawsuit.

Each year, thousands of cases roll over from the previous year. The ENRD must still resolve cases opened under Trump, making the continued decrease in new cases referred by the EPA to the Justice Department in 2021 even more worrisome. Without new cases, the ENRD cannot advance new priorities.

Todd Kim, the current head of the ENRD, stated in December 2021 that “enforcement of the criminal provisions of the environmental laws is a priority for me.” Yet while the Trump administration rushed to advance a planet-destroying agenda, Biden’s team has demonstrated none of the same urgency in abandoning that blueprint, let alone redrawing it.

Of all the cases that ENRD lawyers have argued in recent years, Juliana v. United States may best exemplify their failure of vision. Nearly seven years ago, a coalition of American teenagers sued the government, arguing that the government’s support for fossil fuel extraction and combustion violated their constitutional right to life, liberty, and property. If the government had chosen to settle, they could have been the youth plaintiffs’ best, and perhaps only, chance to compel the government to come up with a plan to prevent irreversible climate change. Instead, ENRD lawyers have been fighting to dismiss this lawsuit for years.

Under Trump, ENRD lawyers argued that a “judicially enforceable fundamental right” to a “climate system capable of sustaining human life” was “entirely without basis in this Nation’s history or tradition.” The subtext of this argument is fascinating. They are effectively arguing that America was founded on a fundamental ignorance of the interconnectedness of human and nonhuman life—and so we must persist in that ignorance.

When the Biden administration inherited this lawsuit, they chose to maintain the Trump administration’s position. In November, 48 lawmakers and over 165 organizations wrote to the Department of Justice urging them to end their opposition. As of the most recent filing, ENRD’s Todd Kim continues to seek the case’s dismissal, ignoring its massive potential to set judicial precedent that helps protect Americans from future climate catastrophe.

When the Ninth Circuit shot down the Juliana plaintiffs in 2020, Judge Staton’s extraordinary dissent wrote that “the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.” There is nothing preventing the government’s lawyers from sounding a similar alarm. They could support the Juliana plaintiffs’ bid to amend their complaint and proceed to trial. But that would require courage they have not yet shown.

The same hardheartedness can be seen at times in the government’s approach to more typical cases brought by environmentalists seeking more stringent enforcement of long-standing environmental-protection laws. ENRD could embrace settlements with environmental groups as a tool for advancing the nation’s interests, which would be difficult for the fossil fuel industry to undercut legally. A more ambitious legal agenda for people and the planet might mean losing more cases, but that’s a small price to pay—as the division itself recognizes in its performance targets—for a sustainable planet.

Former Supreme Court Justice William Brennan once wrote: “The law is not an end in itself, nor does it provide ends. It is preeminently a means to serve what we think is right.” In that spirit, it is vital that this country’s environmental litigators allow what they think is right to permeate their work.

IMAGE: “YOUTH_v_GOV_IMG_1615-1” by rawEarth is marked with CC BY-NC 2.0.

Climate and EnvironmentCorporate CrackdownDepartment of JusticeEthics in GovernmentExecutive BranchIndependent Agencies

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