Prepared Remarks for Ignacia S. Moreno, Assistant Attorney General for the Environment and Natural Resources Division, United States Department of Justice
New York City Bar Association
December 7, 2011
Many thanks to Jeff Gracer, Jonathan Kalmuss-Katz, and the New York City Bar Association for inviting me to speak with you today. Jeff is an old friend of mine, and I am delighted that he asked me to discuss the great work of the Environment and Natural Resources Division.
It is a pleasure to be here in New York City with you. This is my home, and I am glad to be back. I attended school here throughout my childhood and received my undergraduate and law degrees from New York University.
Today I have my mother and sister with me. I’d like to thank them for joining us. They are an inspiration to me, and are themselves steadfast public servants. I am lucky to have come from such a dedicated and loving family. Our own humble beginnings are a testament to the American tradition—the hope and opportunity that it accords its people. We are a family of immigrants—born in Cartagena, Colombia. I was six years old and spoke no English when I landed with my family at JFK Airport. I grew up in Washington Heights, an inner city neighborhood in New York City that lies north of Harlem. My father first worked as a dishwasher and my mother worked in a factory. They continued their education, became U.S. citizens, and had their own careers in public service. Both worked for the City of New York—my father worked for the Metropolitan Transit Authority and my mother worked for the New York City Department of Health.
They taught me important values: a robust work ethic, a love of learning, perseverance, faith, integrity, and a deep commitment to public service. We came to America with great hope, and our experience has vastly exceeded any of our expectations. To give back for all that I have received, I proudly serve the American people.
As you heard, I am the Assistant Attorney General for the Environment and Natural Resources Division of the United States Department of Justice, where I have had the honor of serving for over two years. This is my second tenure with the Division, and I am grateful for the opportunity to once again serve the American people and represent the interests of the United States.
I have been an environmental lawyer my entire career. I have worked in government service, private practice, and as in-house corporate counsel. My experience has given me a broad perspective on the matters that come before the Division.
The Division’s senior leadership hails from private practice, government, academia, and environmental organizations. Our collective experience gives us a 360-degree view of the complex environmental and natural resources issues that we handle.
Overview of the Environment and Natural Resources Division
The Environment and Natural Resources Division is a core litigating component of the U.S. Department of Justice. Founded more than a century ago, it has built a distinguished record of legal excellence. As Assistant Attorney General for theEnvironment and Natural Resources Division, I operate within the authority delegated to me by the Attorney General. By that delegation, the Division functions as the Nation’s environmental lawyer, representing virtually every federal agency in courts all over the United States and its territories and possessions in civil and criminal cases that arise under more than 150 federal statutes.
Our work furthers the strategic goals of the Department of Justice in several ways, by: preventing crime and enforcing federal laws; defending the interests of the United States; promoting national security; and ensuring the fair administration of justice.
The Division is responsible for approximately 7,000 active cases and matters, and is almost 700 strong—including more than 400 attorneys. U.S. Attorneys across the country, and our law enforcement counterparts in state, tribal, and local governments, all play a key role in the work that we do.
The work that we do in the Environment Division could not be more important. The Deepwater Horizon fire, explosion and oil spill in the Gulf of Mexico in April 2010 came into our homes through daily news coverage of the resulting tragic loss of life and environmental devastation. After that disaster, the importance of environmental and natural resources protection could not be clearer. In response, on December 15, 2010, the United States filed a civil enforcement action against nine defendants, including BP and Transocean, which is scheduled for trial early next year. The Deepwater Horizon oil spill serves as a sobering reminder that we must develop domestic energy resources safely and responsibly. It is in our national interest to do so.
The American people must not bear the costs of pollution or mismanagement of our natural resources. It is especially vital during these challenging economic times that violators are held accountable to the fullest extent of the law. Responsible companies play a key role in growing our economy and protecting the American people. It is in their best interest to support a system that levels the playing field by penalizing those who cut corners to gain an unfair economic advantage. The Environment Division will continue to vigilantly enforce applicable laws and regulations within existing authorities to ensure that we protect human health and the environment.
The Division’s Priorities and Accomplishments
The Division’s priorities are guided by our core mission, which includes:
First, strong enforcement of civil and criminal environmental laws to ensure clean air, clean water, and clean land for all Americans;
Second, vigorous defense of environmental, wildlife and natural resources laws and agency actions;
Third, effective representation of the United States in matters concerning the stewardship of our public lands and natural resources; and
Fourth, vigilant protection of tribal sovereignty, tribal lands and resources, and tribal treaty rights.
In all that we do, we will not forget communities lacking wealth, power or political influence. We will ensure that all communities are protected from environmental harms, including low-income and minority communities that too frequently live in areas overburdened by pollution.
We will continue to pursue the goals of Environmental Justice by ensuring that: all communities enjoy the benefit of a fair and even-handed application of the Nations’ environmental laws and affected communities have a meaningful opportunity for input in the consideration of appropriate remedies for violations of the law.
I am committed to fulfilling the Division’s core mission for the benefit of all of the American people.
ENFORCEMENT OF CIVIL AND CRIMINAL ENVIRONMENTAL LAWS
We remain focused on civil and criminal enforcement of the Nation’s environmental laws in order to: address air pollution from the largest and most harmful sources; improve municipal wastewater and stormwater treatment and collection to keep raw sewage, contaminated stormwater, and other pollutants out of our Nation’s rivers, streams, and lakes; compel, or recover the costs of, hazardous waste cleanup; and prosecute criminal violations of environmental, natural resources and other federal laws.
I am proud of the Division’s civil and criminal enforcement accomplishments in fiscal year 2011. For example, in our civil enforcement efforts, we secured nearly $626 million in civil and stipulated penalties, cost recoveries, natural resources damages, and other civil monetary relief, including over $375 million recovered for the Superfund. We also secured over $10.9 billion in corrective measures through court orders and settlements – the highest injunctive relief to date – which will go a long way toward protecting our air, water, and other natural resources.
In our criminal prosecution efforts, the Division concluded 50 criminal cases against 75 defendants, obtaining over 47 years in jail time and over $31.2 million in criminal fines, restitution, community service funds, and special assessments.
Working with the Environmental Protection Agency and other agencies, we obtained significant reductions in emissions and discharges of harmful pollutants that will result in tangible health and environmental benefits.
Safeguarding America’s Waters through Civil Enforcement
The Division has made it a priority to bring Clean Water Act cases nationwide to improve municipal wastewater and stormwater collection and treatment. Since January 2006, courts have entered more than 45 settlements in these cases, requiring long-term control measures estimated to cost violators approximately $21 billion. These cases often involve one of the most pressing infrastructure issues in the nation’s cities—discharges of untreated sewage from aging collection systems.
These are good examples of Environmental Justice cases because this infrastructure issue particularly affects older urban areas. Low-income and minority communities often live in these areas, making them more vulnerable than others to pathogens that threaten public health from raw sewage backups in their homes. Discharges of raw sewage also may lead to beach closures as well as public advisories against consumption of fish. This type of action protects the public and surface water bodies across the country.
At the same time, the Division recognizes that many municipalities across the country are facing difficult economic conditions that may make it particularly hard for municipalitiesto commit to the large expenditures needed to address sewer system overflows on a fixed schedule. We have the flexibility under the law and applicable federal policies to consider the unique circumstances affecting municipalities, including ability to pay, as well as the site-specific nature of relevant receiving waters and locally relevant construction requirements in shaping protective, fair, and just resolution of these cases.
This summer, we obtained injunctive relief in the amount of $4.7 billion against the Metropolitan St. Louis Sewer District for pollution controls that will result in the reduction of almost 13 billion gallons per year of overflows into nearby streams and rivers. We have also reached similar settlements including ones with Kansas City, Missouri and the Northeast Ohio Sewer District, among others. This work will continue to be a priority of the Division as our Nation’s infrastructure ages.
Protecting Clean Air through Civil Enforcement
The Environment and Natural Resources Division has litigated civil claims under the Clean Air Act’s New Source Review provisions against operators of coal-fired electric power generating plants for decades now. Violations in these cases arise from companies engaging in major life-extension projects on aging facilities without installing required state-of-the-art pollution controls, resulting in excess air pollution that has degraded forests, damaged waterways, contaminated reservoirs, and adversely affected the health of the elderly, the young, and asthma sufferers.
Through fiscal year 2011, 21 of these matters settled on terms that will result in reductions of over two million tons of sulfur dioxide and nitrogen oxide each year, once the more than $12 billion in required pollution controls are fully functioning.
In recent years, the Division negotiated two significant settlements under this initiative in United States v. Cinergy Corp. and United States v. Westar Energy. Under the Cinergy consent decree, Duke Energy Corporation, the successor to Cinergy Corporation, will install and operate $85 million worth of air pollution controls at its Gallagher Generating Station in New Albany, Indiana. Under the Westar consent decree, Westar will install $500 million worth of air pollution controls at its Jeffrey Energy Center plant near Topeka, Kansas.
When fully implemented, these air pollution controls and other measures will collectively reduce air pollution by more than 115,000 tons every year compared with pre-settlement emissions. Duke and Westar, respectively, also paid civil penalties of $1.75 million and $3 million, and will spend $6.25 million and $6 million on projects to mitigate the adverse effects of past excess emissions. The resulting health benefits are immeasurable.
We also have concluded almost 30 actions under an Environmental Protection Agency initiative to improve Clean Air Act compliance among petroleum refiners and to reduce significant amounts of air pollution from refineries nationwide through comprehensive, company-wide enforcement settlements. The first settlement was reached in the year 2000, and through fiscal year 2011, 106 refineries operating in 32 states and territories—more than 90 percent of the total refining capacity in the United States—are under judicially enforceable agreements to significantly reduce emissions of air pollutants. As a result of the settlement agreements, refiners have agreed to invest over $6 billion in new pollution controls designed to reduce emissions of sulfur dioxide, nitrogen oxide, and other pollutants by over 360,000 tons per year.
One such action is a settlement with Hovensa, L.L.C earlier this year. In late January 2011, Hovensa, the owner of the second-largest petroleum refinery in the United States, agreed to pay a $5.375 million civil penalty and spend more than $700 million in new pollution controls to resolve Clean Air Act New Source Review violations at its St. Croix, U.S. Virgin Islands refinery. Once fully implemented, the pollution controls required by the settlement are estimated to reduce emissions of nitrogen oxide by more than 5,000 tons per year and sulfur dioxide by nearly 3,500 tons per year. The settlement also will result in additional reductions of volatile organic compounds (VOCs), particulate matter (PM), carbon monoxide, and other pollutants that affect human health and air quality.
As part of an ongoing effort to ensure that all imported vehicles and engines comply with Clean Air Act requirements, the Division also reached an agreement last year in United States v. The Pep Boys—Manny, Moe & Jack, under which the defendants resolved allegations that they illegally imported and sold vehicles and engines from 2004 through 2009. The consent decree requires the defendants to pay $5 million in civil penalties, to export or destroy over 1,300 non-compliant vehicles and engines, and to mitigate the adverse environmental effects of equipment already sold to consumers, which is estimated at more than 7,000 tons of excess airemissions. This is the largest vehicle and engine importation case brought to date under the Clean Air Act, both in terms of the number of vehicles and engines imported and the penalty paid.
Our Clean Air Act enforcement initiatives yield other meaningful benefits to communities. For example, in 2010 the U.S. reached a company-wide settlement with Saint-Gobain Containers that requires the company to install pollution control equipment benefitting Environmental Justice communities downwind of the addressed facilities and monitoring systems at all of its U.S. based glass plants. And, in our settlement with Murphy Oil, the company agreed to construct and maintain an air monitor between its refinery and the neighborhood and post the air monitoring data on a public website.
Cleaning Up Contaminated Lands through Civil Enforcement
We also remain focused on compelling responsible parties to clean up lands contaminated by hazardous waste and recovering the costs of cleanup work by EPA. An important part of our work in this area is our enforcement of cleanup obligations in bankruptcy cases. The Division’s bankruptcy practice has grown in recent years. In bankruptcy cases, the Division files proofs of claim to protect environmental obligations owed to the United States by responsible entities filing for bankruptcy.
Our goals are to ensure fair resolution of the debtor’s environmental liability while protecting public health,the environment, and natural resources and eliminating or minimizing cost that would otherwise fall on the American taxpayer. Pursuing environmental obligations in bankruptcy cases helps to ensure that companies subject to environmental laws operate on a level playing field.
For example, in the Asarco case, we obtained the largest recovery of money for hazardous waste cleanup ever. Debtor American Smelting and Refining Company, L.L.C. (Asarco) paid $1.79 billion pursuant to its confirmed bankruptcy reorganization, which will be used to fund cleanup and restoration and reimburse those who have already incurred cleanup costs at 24 sites nationwide.
Company-wide and System-wide Settlements
While we are prepared to litigate a case to conclusion, the Division will settle civil enforcement actions when it is in the interest of the United States. We encourage companies to step up to the plate when they have violated the law. In appropriate circumstances, we will work with and give credit to companies who self-report. We emphasize the value of bringing company-wide cases for multi-media violations. Such company-wide cases reflect the priorities of our client agencies and the increased benefits to public health and the environment that can be achieved, including the advantages they offer to the American people, the government, and industry in efficiencies of scope and scale.
Through company-wide settlements, the public benefits through efficient and expedited resolution of historic and ongoing violations, and industry benefits because environmental compliance offers certainty, avoids the cost and risk of litigation and allows a negotiated schedule for important technology upgrades.
In a recent action against McWane, Inc., a national cast iron pipe manufacturer, we obtained a settlement in the amount of $4 million to resolve more than 400 violations of federal and state environmental laws. This comprehensive settlement brings McWane into full environmental compliance at 28 facilities nationwide, and imposes a penalty on the company for its civil environmental violations at those facilities over the past decade.
As a result of this agreement, McWane has completely re-engineered its environmental management systems to ensure that it remains in compliance, and has committed over $9 million to environmental projects that will remove significant amounts of pollutants from the environment and benefit the surrounding communities.
We are also taking an industry-wide approach to enforcement. For example, as I just discussed, more than 90 percent of the total refining capacity in the United States is under judicially enforceable agreements to reduce emissions of air pollutants.
An environmental case may be appropriate for criminal prosecution under a variety of factors. Criminal prosecutions of environmental violations of the law primarily address conduct that presents endangerment, shows disregard for public safety or environmental integrity, or demonstrates a pattern of fraudulent or recalcitrant conduct.
In our criminal enforcement work, prosecutors, where appropriate, bring charges against individuals and organizations for a broad range of criminal activities, which include polluting our Nation’s waterways, dumping illegal, harmful wastes into sewer systems, emitting hazardous pollutants into our air, secretly dumping dangerous hazardous wastes, engaging in illegal commercial fishing and logging, and taking endangered and threatened species.
There are a variety of criminal laws to bring environmental criminals to justice, including general Title 18 criminal statutes for obstruction of justice, fraud, and conspiracy, among others, as well as specific environmental and natural resources statutes like the Clean Water Act, the Clean Air Act, the Endangered Species Act, and the Act to Prevent Pollution from Ships.
The Division’s efforts have resulted in significant criminal sanctions, thereby protecting and enhancing public health and the environment and deterring others from violating federal laws in the future. From fiscal year 1997 through fiscal year 2011, the Division concluded criminal cases against more than 969 individuals and 377 corporate defendants, obtaining over 554 years of incarceration and $811 million in criminal fines and restitution. Let me share with you a few examples of our efforts to ensure clean air, clean water and clean land through criminal enforcement.
Cleaning Up Contaminated Lands through Criminal Enforcement
Our criminal enforcement efforts seek to ensure that hazardous waste is managed and disposed of properly. At its Metropolis, Illinois facility, Honeywell produced uranium hexafluoride, and knowingly stored more than 7,500 drums of radioactive and corrosive mud waste from its manufacturing process. In accordance with the terms of a plea agreement, in March 2011, Honeywell pleaded guilty and was sentenced to serve a five-year term of probation and to pay a fine of $11.8 million.
As conditions of probation, Honeywell must comply with the terms of an interim consent order that imposes a schedule for the processing of the radioactive and corrosive mud and it must implement a community service project whereby it will develop, fund, and implement a household hazardous waste collection program over a two-year period, at a cost of approximately $200,000.
Safeguarding America’s Waters through Criminal Enforcement
We also protect wetlands under the Clean Water Act, which prohibitsfilling jurisdictional wetlands without a permit. Wetlands are vitally important both as habitat for birds and aquatic species, as well as regulators of pollution and erosion.
Let me describe the prosecution of Eagle Recycling, which illegally dumped at least 8,100 tons of construction and demolition debris into wetlands in Frankfort, New York. In the Eagle Recycling case, the company and co-conspirators attempted to conceal illegal dumping by, among other things, forging the signature of the state officer on a permit they had fabricated. In April 2011, the company pleaded guilty to conspiring to violate the Clean Water Act and to defraud the United States. It agreed to pay a $500,000 criminal fine and implement and environmental compliance plan.
Protecting Clean Air through Criminal Enforcement
Another example of our criminal enforcement is a prosecution under the Clean Air Act targeting individuals who falsified vehicle emissions testing results. To meet Clean Air Act requirements, the State of Nevada requires vehicle emissions testing in certain areas that exceed national standards for carbon monoxide and ozone. For an extra fee, certain unscrupulous certified testers falsely entered passing emissions levels into the state’s computerized data collection system. Although the effect of an individual testing violation was small, the widespread emissions test fraud threatened the integrity of the entire system and allowed many polluting cars to remain on the road.
Ten separate defendants were charged and eight were arrested by federal and state law enforcement agentson the same day. Prosecutions like these demonstrate the government’s commitment to ensuring clean air and its intolerance for cheating, and thus deter future violators.
Protecting the Environment, Public Health, and Worker Safety
We prosecute those violations of environmental law that are often found with criminal violations of worker health and safety regulations. For example, the pipe foundries owned by McWane, Inc., were dangerous places in which to work, and violations of environmental laws were routinely committed there. Over a several-year period, the Division brought five criminal cases against McWane, which resulted in more than $25 million in criminal fines and approximately $5 million in environmental projects.
At its Atlantic States facility, evidence at the trial proved a corporate philosophy and management practices that resulted in an extraordinary history of environmental violations, workplace injuries and fatalities, and obstruction of justice. In April 2009, four Atlantic States managers were sentenced to serve 70, 41, 30, and six months of incarceration, respectively. And the company was sentenced to pay an $8 million fine, complete a four-year term of probation, and was put under the oversight of a court-appointed monitor.
Vessel Pollution and Stopping Illegal Logging, Wildlife Trafficking, and Commercial Fishing
Our criminal docket also demonstrates that by enforcing domestic laws that implement the international commitments of the United States, we protect the world’s resources and tackle shared problems in a way that, standing alone, no single state can do.
The simple truth is that our domestic environment cannot be fully protected without collaboration with our international enforcement partners. Supporting transnational enforcement cooperation facilitates our ability to prosecute offenses that extend across national boundaries. Our criminal enforcement of vessel pollution, illegal logging, illegal wildlife trafficking, and illegal commercial fishing are good examples.
First, the Division’s vessel pollution program reflects an ongoing, concentrated effort to detect, deter, and prosecute those who illegally discharge pollutants from ships into oceans, coastal waters, and inland waterways. Enforcement is chiefly under the International Convention for the Prevention of Pollution from Ships, known as “MARPOL,” and its federal implementing legislation, the Act to Prevent Pollution from Ships (APPS). These laws require vessels to maintain logbooks recording all transfers and discharges of oily wastes. In addition, these cases frequently involve obstruction of U.S. Coast Guard inspections, which are charged under appropriate provisions of the federal criminal code.
Since the late 1990s, the penalties imposed in vessel pollution cases prosecuted by the Division have totaled more than $230 million, and responsible maritime officials have been sentenced to more than 20 years of incarceration.
Our criminal enforcement also includes cases brought under the Lacey Act, initially enacted in 1900, which is the United States’ oldest wildlife protection statute and is intended to stop illegal logging, wildlife trafficking and commercial fishing.
Since the Lacey Act was amended in 2008, the Division has worked in collaboration with other federal agencies and counterparts abroad, to educate governments, industry participants, non-governmental organizations, and the public on the Lacey Act’s provisions to combat the international trade in illegally harvested plants and plant products, including timber.
Conservative estimates place the value of illegally harvested timber traded annually worldwide at $10 billion to 15 billion. Prosecutions of traffickers in illegally harvested timber and wood products made from illegal timber under the Lacey Act are a priority for the Division, and we will continue to bring these cases. Illegal wildlife trafficking globally is estimated to be worth between $5 billion to $20 billion annually.
The illegal transnational wildlife trade puts many species at risk of extinction, such as tigers, rhinoceros, and some primate species. Federal criminal enforcement of wildlife statutes, including the Lacey Act and the Endangered Species Act, plays a key deterrent role and augments state, tribal, and foreign wildlife management and enforcement efforts. Trafficking prosecutions run the gamut from local poaching to international smuggling rings to the taking of protected species.
Illegal commercial fishing encompasses such crimes as illegal fish harvesting, purchase of illegally harvested fish, and false labeling of fish under the Lacey Act as well as related general criminal violations. When fisherman and fish wholesalers do not comply with the law, they imperil the entire fishery, adversely impact the livelihoods of those who abide by the law, and commit a fraud on the U.S. consumer. The Division is focused on investigating and prosecuting this type of crime.
DEFENDING VITAL FEDERAL PROGRAMS AND INTERESTS
In addition to our enforcement of civil and criminal environmental laws, the Division’s core mission also includes defense of a broad range of environmental, natural resources, and wildlife laws, regulations, and agency actions. Success in our defensive litigation preserves vital federal programs and interests, allowing the implementation of environmental and natural resources laws and regulations and protecting the public fisc.
For example, over the past two years, the Environmental Protection Agency has developed a program under the Clean Air Act to regulate certain greenhouse gases emissions that contribute to global climate change. The agency has set limits for emissions of greenhouse gases from new passenger cars, light-duty trucks, and medium-duty passenger vehicles covering model years 2012 through 2016, and has promulgated regulations specifying a phased approach for addressing greenhouse gases from large stationary sources through stationary source permitting programs. These efforts generated a significant amount of litigation last year, which the Division will continue to defend vigorously.
PROMOTING RESPONSIBLE STEWARDSHIP OF PUBLIC LANDS AND WILDLIFE
A third component of the Division’s core mission includes litigation related to the management of public lands and associated natural and cultural resources. These cases involve federal land, resource, and ecosystem management decisions challenged under a wide variety of federal environmental statutes that affect more than a half a billion acres of land (totaling nearly one-quarter of the entire land mass of the United States) and an additional 300 million acres of subsurface mineral interests.
The Division’s land and natural resources litigation includes: original actions before the U.S. Supreme Court to address interstate boundary and water allocation issues; suits over management decisions affecting economic, recreational, and religious uses of the national parks and national forests; and actions to recover royalties and revenues from extraction or development of natural resources.
We also handle civil cases arising under the fish and wildlife conservation laws, including suits defending agency actions under the Endangered Species Act and the Marine Mammal Protection Act, which protects mammals such as whales, seals, and dolphins.
VIGILANT PROTECTION OF TRIBAL SOVEREIGNTY, TRIBAL LANDS AND RESOURCES, AND TRIBAL TREATY RIGHTS
President Obama and U.S. Attorney General Holder have made clear their commitment to Indian Country. In the words of Attorney General Holder, the Department of Justice is committed to “building and sustaining healthy and safe native communities; renewing our nation’s enduring promise to American Indians and Alaska Natives; and respecting the sovereignty and self-determination of tribal governments.”
Last Friday, I had the honor to participate in the third Tribal Nations Conference sponsored by the White House, and heard first-hand the President’s commitment to strengthen our government-to-government relationship with Indian Nations. In conjunction with that conference, the President stated, “I believe we are seeing a turning point in the relationship between our nations, and I promise to do everything I can to fight for a brighter future for First Americans and all Americans.” I fully share this vision and commitment, as does the Environment and Natural Resources Division.
We are increasing outreach to tribal leaders and communities to better understand their concerns and working more closely with them in carrying out these important responsibilities. In the past year, we have traveled around the country – from Arizona to Alaska, and from Montana to South Dakota – to meet with tribal leaders, to visit tribal lands, and to hear about and see first-hand their unique environmental and natural resources challenges, including: the effects of climate change on tribal lands and fishing grounds; limited access to culturally-important subsistence resources; and the increased pressures of development on sacred sites.
In so many ways, the vitality of this country’s Indian Nations is, and historically has been, tied to their relationship with the land. Today, the United States holds almost 60 million acres of land in trust for tribes and individual members. The Department of the Interior and the Division, working with tribes, seek to protect these lands and associated resources from trespass, impairment, or encumbrance.
The Division also litigates on behalf of the United States to protect the rights and natural resources of federally recognized Indian tribes and their members. This includes defending against challenges to statutes and federal agency actions designed to protect tribal interests, and bringing suits on behalf of the United States to protect tribal rights and resources.
The rights and resources at issue in our cases include tribal water rights, the ability to acquire reservation land, and treaty-protected hunting and fishing rights, among others. For example, the Division represents the interests of the United States for the benefit of Indian tribes and their members in complex water rights adjudications in nearly every western state in the United States. We currently have about 30 active water rights adjudications. Last year, the Division contributed to five landmark Indian water rights settlements approved by Congress, which, when fully implemented, will resolve complex and contentious Indian water rights issues in three western states – New Mexico, Arizona and Montana.
As another illustration of our affirmative litigation on behalf of Indian tribes, the Division had a very favorable outcome in a longstanding dispute over the boundaries and existence of a reservation. In Saginaw Chippewa Indian Tribe v. Granholm, the tribe, the United States, the State of Michigan, and local governments negotiated, and the federal district court entered, a historic settlement recognizing that the Isabella Reservation in south central Michigan is Indian Country. The settlement also encompasses various intergovernmental memoranda of agreement that resolve important issues of how the tribe, state, and local governments will work together.
We have secured important legal precedents confirming the inherent sovereign authority of tribal courts in cases involving the welfare of Indian children and supporting the exercise of tribal court jurisdiction over tribal lands.
In addition to our affirmative Indian litigation, we also defend claims asserted by Indian tribes against the United States on grounds that the United States has not properly managed the Tribes’ monetary and natural resources held in trust by the United States. The Department, with the Departments of the Interior and the Treasury, is exploring opportunities for resolution of tribal trust cases in an expedited, fair and just manner.
For example, in October, the U.S. reached a settlement with the Osage Tribe to pay $380 million in compensation for the Tribe’s claims of historical losses to its trust funds and interest income, as a result of the government’s management of trust assets. The settlement sets forth a framework to minimize future disputes and avoid unnecessary litigation, while promoting the Tribe’s self-governance and self-determination.
The Obama Administration has made it a priority, where possible, to right historical wrongs and to fulfill the promise of the government-to-government and trust relationship between the United States and our First Nations. This could not be more important.
PROMOTING NATIONAL SECURITY AND MILITARY PREPAREDNESS
Through our core mission, the Environment and Natural Resources Division makes a unique and important contribution to national security, a key priority of this Administration. Increasingly, the Division is responsible for defending agency actions that support the security of the United States. We promote safe disposal of nuclear waste and obsolete chemical weapons. We defend against challenges to critical training programs that ensure military preparedness. We exercise the federal government’s power of eminent domain to acquire the lands needed to fulfill critical military and homeland security functions.
One example is the Division’s support of the Strategic Border Initiative to secure the Nation’s borders. In 2007, the U.S. Congress mandated construction of fencing and related infrastructure at multiple points along the United States-Mexico border in order to enhance domestic security by curtailing smuggling, drug trafficking, and illegal immigration. Over the last two years, the Obama Administration has dedicated unprecedented resources to securing the border. The Division is working closely with the Department of Homeland Security and the U.S. Army Corps of Engineers to facilitate land acquisitions necessary for the construction of 225 miles of congressionally-mandated fencing along the United States-Mexico border. This effort has required acquisition by eminent domain of over 315 land parcels in Texas, New Mexico, Arizona, and California and extensive work to obtain timely possession for construction purposes and to address widespread title and survey issues. The Division has been working with the local U.S. Attorneys’ offices on five of the largest, most precedent-setting cases with valuation disputes totaling more than $100 million
APPELLATE AND SUPREME COURT LITIGATION
Before I conclude, I want to mention our appellate practice and the important role we play in supporting the Office of the Solicitor General as it formulates positions on behalf of the United States in cases handled by, or of interest to, the Division. The Environment and Natural Resources Division handles the appeal of cases arising under a multitude of statutes before the federal, and occasionally state, courts of appeals across the country. In addition, the Division frequently has cases that come before the U.S. Supreme Court. The U.S. Supreme Court also regularly solicits the Department’s views on filed petitions for certiorari.
In 2010 to 2011, the Supreme Court heard four Division cases: United States v. Tohono O’odham Nation, involving whether the Court of Federal Claims had jurisdiction to adjudicate a tribal breach of trust claim where the tribe had a related suit pending in federal district court; Montana v. Wyoming, which involved a dispute between the States of Montana and Wyoming over claims to water in the Yellowstone River Basin; American Electric Power Co., Inc. v. Connecticut, finding that Congress had displaced any public nuisance cause of action that may have existed under federal common law to address greenhouse gas emissions from power plants; and United States v. Jicarilla Apache Tribe, involving the government’s right to assert the attorney-client privilege to protect documents demanded by an Indian tribe in a breach of trust claim by the tribe against the United States.
In the current Supreme Court term, which began in October, the Court has thus far agreed to hear three important Division cases: PPL Montana v. State of Montana, which was argued before the Court this morning, addresses the standard for whether certain rivers and river segments in the West are “navigable” for purposes of determining state versus federal title to the riverbeds; Sackett v. EPA, which involves whether a landowner, who is alleged by EPA to have filled wetlands without a permit under the Clean Water Act, may seek immediate judicial review of an administrative compliance order before the agency seeks to judicially enforce the order; and Southern Union v. United States, which raises the issue of whether the Fifth and Sixth Amendments require that a jury, as opposed to a judge, must find the facts necessary to support the imposition of an enhanced criminal fine as part of the sentencing process.
In short, from jurisdiction in the Court of Federal Claims, to interstate water compacts, to climate change, to fundamental questions concerning the relationship between the United States and Indian tribes, to civil wetlands enforcement and criminal sentencing, the Division’s most recent cases before the Supreme Court truly serve to illustrate the remarkable breadth of our work.
I am very proud of the work that we do, and it would not happen without the tireless effort, creativity and initiative of the people we have in our Division. For the third year in a row, the Environment and Natural Resources Division was named the “best place to work” in the federal government out of 240 components surveyed. This is due in no small part to the varied, challenging, and important work that we do in the Division, but also to the collegiality, expertise, dedication, and professionalism of the Division’s employees.
Our people are leaders in the government and experts in their field. They are talented and diverse in ways that reflect the best of our Nation. We have made great strides this past year to protect human health and the environment, and will continue to do more. This is important work that, as I said earlier, ensures that all Americans have clean air to breathe, clean water to drink, and clean land on which to live. Our work protects our wildlife and natural resources and manages our land so that we can enjoy them today and in the future.
I hope that, in sharing our recent accomplishments and our priorities for 2012, that you have an appreciation of the great work of the Environment and Natural Resources Division, and the many amazing people who work every day in service to the American people.
Thank you for inviting me to speak with you today. It has been my pleasure.