Many thanks to my good friend, Jim Rubin, for inviting me here today.
It is always a pleasure for me to see my long-time friends at the D.C. Bar. I have been a D.C. Bar member since 1991 – that is 20 years – and have served on various Bar committees and participated in pro bono activities sponsored by the Bar.
So I can’t resist making a pitch to you that you get involved in the D.C. Bar’s many programs and pro bono clinics. As a lawyer, you can provide immense value in serving the District of Columbia community. And it will feel good to do!
Today, I am here to discuss some notable accomplishments and my priorities for the Environment and Natural Resources Division for the coming year.
First, let me tell you about myself. I was born in Cartagena, Colombia. I was six years old and spoke no English when I landed with my family at JFK Airport in New York City. My family came to America with great hope, and our experience has vastly exceeded any of our expectations. It’s been an amazing journey for which I am very grateful.
For this reason, I have always asked: “What can I give back for all that I have received?” For me the answer has been: public service.
I am honored to have the opportunity to serve in the Administration of President Barack Obama under the leadership of Attorney General Eric Holder. And, my friends, there is no better place to serve than at the Environment and Natural Resources Division of the Department of Justice.
I have been an environmental lawyer my whole career. I first practiced at Hogan & Hartson, and served in the Division for seven years during the Clinton Administration. I later practiced at Spriggs & Hollingsworth and worked as counsel for the General Electric Company.
Since my return to the Division, I have assembled a seasoned and highly-regarded management team that hails from the Division, environmental groups, academia, the Environmental Protection Agency (EPA), and the private sector. Our collective experience gives us a 360 degree view of the environmental and natural resources issues that we must address.
In the Environment Division, as “the Nation’s environmental lawyers,” we take on some of the Nation’s most pressing environmental issues.
In my first year, the Division worked on a number of challenging matters, such as: the United States’ civil and criminal investigations of the Deepwater Horizon oil spill; support of the interagency response to the spill; defensive litigation relating to the government’s response to the oil spill; challenges to EPA’s greenhouse gas regulations; litigation over the operation of the Central Valley Project and the Federal Columbia River Power System; the tribal trust litigations; litigation related to water quality issues in the Everglades; challenges to the U.S. Fish and Wildlife Service’s decision to list the Polar Bear as a threatened species; and litigation seeking to compel additional actions to prevent migration of Asian carp into the Great Lakes. We also had a number of important Supreme Court matters, which I will discuss later in my remarks.
I am very proud of the work that we do. We are committed to achieving results that will be meaningful to the American people. In defending and enforcing the Nation’s environmental laws, for example, we strive to ensure that all Americans have the benefit of a safe, healthy, and clean environment and that national treasures like the Chesapeake Bay are protected for future generations.
Overview of the Environment Division
The Environment Division is one of seven litigating Divisions in the Department of Justice. We have over 400 lawyers, and more than 700 total employees. We represent the United States in civil and criminal cases that arise under more than 150 statutes. We manage over 7000 active cases and matters, and we represent virtually every federal agency in courts all over the United States and its territories and possessions.
As before, I could not be more committed to fulfilling the Division’s core mission:
Roadmap of Priorities for 2011
The Division’s priorities for 2011 are guided by its core mission and will build on the successes of, and the progress made, in 2010. Today, I would like to tell you about what I have been doing for the past year and discuss our plans for the coming year to further the Division’s mission. The priorities for 2011 fall into three overarching categories.
The first category is strong enforcement of environmental laws to protect human health and the Nation’s air, water, land, and wildlife in collaboration with our client agencies and U.S. Attorneys’ Offices. Our top enforcement priority is to hold fully accountable those responsible for the tragic loss of life and disastrous oil spill in the Gulf of Mexico. On December 15, 2010, the United States took a significant step forward by filing a civil enforcement action against nine defendants, including BP and Transocean.
As we enforce the Nation’s environmental laws, we also will seek to make environmental justice a reality by addressing the concerns of low-income and minority communities that bear a disproportionate burden from pollution.
Second, we will continue to vigorously defend federal agency programs and actions, including: our ongoing defense of EPA’s regulation of greenhouse gas emissions; our defense of litigation involving our Nation’s parks, wildlife, and other natural resources; and our litigation in support of the national security of the United States.
Third, we will continue to protect tribal sovereignty, safeguard tribal lands and resources, and honor tribal treaty rights. We also will continue to seek to resolve in a fair and expeditious manner the tribal trust litigations, which involve allegations of government mismanagement of tribal assets and natural resources by 114 separate tribes in 96 lawsuits.
Naturally, there are some priorities that cut across one or more of these categories – and I will mention a few of them – but I think these three categories will serve as a useful framework for my remarks today.
ENFORCEMENT OF ENVIRONMENTAL LAWS: OVERVIEW
Let me start with enforcement. Civil and criminal environmental enforcement is a high priority for this Administration, for Attorney General Holder, and for me as head of the Environment and Natural Resources Division.
We are still in the process of collecting our enforcement data for the 2010 fiscal year, but I can give you a few statistics today.
As you will see, the 2010 fiscal year was an extraordinarily busy year and a very successful one. The Division secured over $6.5 billion in injunctive relief in civil enforcement cases. We also obtained over $81 million in civil and stipulated penalties. In addition, the Division secured commitments by responsible parties to perform over $750 million in work to clean up hazardous waste sites. We also recovered over $725 million for the Superfund. On the criminal side, the Division concluded 50 criminal cases against 79 defendants, resulting in about 28 years of jail time and over $89 million in criminal fines and restitution.
Importantly, the Division’s efforts resulted in significant reductions in the emission and discharge of pollutants, thereby protecting and enhancing public health and the environment. While achieving these impressive results, I am proud to say that the Division also was ranked as the #1 Best Place to Work in the federal government.
We will build on our 2010 work in 2011 and I will highlight a number of our enforcement priorities for this year, including: Deepwater Horizon, air and water pollution, environmental justice, hazardous waste cleanup, criminal enforcement, and building partnerships to leverage our efforts.
Enforcement: Deepwater Horizon
The tragic explosion of the Deepwater Horizon oil rig on April 20, 2010, claimed the lives of 11 workers. It also marked the beginning of a massive oil spill that would take more than three months to contain and have long-lasting and devastating impacts on natural resources in the Gulf of Mexico. From the outset, Attorney General Holder, Tony West, who heads the Civil Division, and I have traveled numerous times to the Gulf. We have seen the devastation caused by the oil spill, and have heard the despair of local citizens whose way of life has been threatened and possibly changed forever.
In December of last year, the Department of Justice filed a lawsuit against nine defendants, including BP, Transocean, and others, in the Gulf oil spill multidistrict litigation proceeding. The United States’ complaint asks the court to impose civil penalties under the Clean Water Act. It also asks the court to declare eight of the defendants liable without limitation under the Oil Pollution Act of 1990 for government removal costs, economic damages, and damages to natural resources.
Our civil and criminal investigations are ongoing. Assistant Attorney General West and I are working in close partnership with U.S. Attorney Jim Letten, other Gulf U.S. Attorneys, and a host of federal agencies in conducting these investigations. Since we are involved in litigation, I will forgo any specifics. But as the Attorney General explained at the Department’s press conference this past December, the Department has taken a critical step forward to ensure that those responsible for the oil spill are held accountable.
As you know, the Division’s work in this area is not limited to the Department’s enforcement action and ongoing investigations. Lawyers in almost every section of the Division work on matters relating to the oil spill. The Division supported the interagency response to the spill and continues to defend a number of lawsuits filed against federal agencies and officials since April 20. These and other actions by the government are critical to our efforts to avoid another similar disaster, and we will defend challenges to these actions.
Deepwater Horizon has become the Division’s top priority and will remain so for the foreseeable future. But despite this new challenge, we remain focused on all of our core responsibilities.
Enforcement: Clean Air Act Overview
In our enforcement work, we partner closely with EPA and have aligned our enforcement priorities. The majority of our civil enforcement cases are referred to the Division by EPA, and reflect the national priorities established by the Agency.
Earlier this year, EPA announced its National Enforcement Initiatives for the next three fiscal years. One of EPA’s most important initiatives is addressing air pollution from the largest sources, especially the coal-fired utility, cement, glass, and acid sectors.
In the coming year, enforcement of the Clean Air Act’s New Source Review Program will remain a priority. And we will continue to seek to resolve cases involving company-wide violations in ways that benefit the American people, the communities most impacted by air pollution, and the government.
Two examples of the kinds of results that we will strive to achieve are the company-wide settlements reached in 2010 with Saint-Gobain Containers, the Nation’s second-largest container glass manufacturer, and the Lafarge Company, the Nation’s second-largest manufacturer of Portland cement. These cases serve as excellent examples of businesses working with government to achieve meaningful results. Both of these cases address violations at all of the companies’ plants nationwide, achieve significant emissions reductions of 41,000 tons of harmful pollutants per year, and require the installation of pollution controls valued at approximately $280 million.
Company-wide settlements like this one are win-win settlements. The government benefits through efficient and expedited resolution of historic and ongoing violations. Industry benefits because environmental compliance offers certainty, avoids the cost and risk of litigation, and allows a negotiated schedule for important technology upgrades. And communities located near industrial facilities directly benefit from emissions reductions.
Let me be clear: those who violate the law will be held accountable to the fullest extent of the law. But, we will work with companies who step up to the plate and help identify effective solutions.
Violations Arising Across Industries
Another priority for the coming year is to continue enforcement initiatives to address air pollution across an entire industrial sector. An example of this type of approach is our civil petroleum refinery initiative. As recently as September 2010, we reached a settlement with Murphy Oil USA. The settlement will require Murphy Oil to spend more than $142 million to install new and upgraded pollution reduction equipment at two petroleum refineries in Wisconsin and Louisiana. Once installed, the new equipment will reduce emissions of sulfur dioxide and nitrogen oxides by nearly 1400 tons per year. Murphy Oil also will complete a supplemental environmental project to reduce odors and control emissions of volatile organic compounds.
And there is more to come.
Enforcement: Clean Water Act
Another enforcement priority for the Environment Division, as well as for EPA, is keeping raw sewage, contaminated stormwater, and other pollutants out of our Nation’s rivers, streams, and lakes. Raw sewage contains pathogens that threaten public health. Discharges of raw sewage lead to beach closures, as well as public advisories against consumption of fish. Clean Water Act enforcement also protects national treasures like the Chesapeake Bay.
The Division has brought cases nationwide to improve municipal wastewater and stormwater treatment and collection. These cases often involve one of the most pressing infrastructure issues in the Nation’s older cities – discharges of untreated sewage from aging collection systems. This infrastructure issue particularly affects older urban areas, where low-income and minority communities often live.
An example of a case addressing this kind of issue is an enforcement action by the United States against Kansas City, Missouri. Under a settlement reached last year, Kansas City will make $2.5 billion in improvements over 25 years to its outdated and dilapidated sewer system.
Similarly, just weeks ago, the United States and the State of Ohio reached a settlement with the Northeast Ohio Sewer District that will protect and improve the water quality of Lake Erie and waterways in the Cleveland, Ohio, area. The Sewer District will spend $3 billion to install pollution controls to reduce discharges of raw sewage.
These are just a few examples of our enforcement efforts in the Clean Water Act area. And there’s more to come.
Enforcement: Hazardous Waste Cleanup
What about hazardous waste?
Hazardous waste cleanup is another priority area for the Division in 2011. We will continue to bring actions to protect communities and the environment from exposure to hazardous substances.
In October 2010, for example, the United States and the State of Wisconsin filed a complaint against numerous companies and two municipalities to require continued cleanup of PCB contamination at the Lower Fox River and Green Bay Site. The Fox River was once described as “the hardest working river in the world” because of the amount of industry that used the waterway. But hundreds of thousands of pounds of PCBs were discharged into the River between the mid-1950’s and the early 1970’s. The cleanup of the site is intended to reduce PCB levels to protect the environment and to ensure that people can safely eat the River’s fish. We are also seeking to recover government cleanup costs and natural resource damages at the Site; total cleanup costs and damages are expected to exceed $1 billion.
Enforcement: Environmental Justice
Several of the settlements that I have already mentioned include provisions designed to address what will continue to be a high priority for the Environment Division in 2011 – environmental justice.
Environmental Justice is a high priority for President Obama, Attorney General Holder, and for me, as well as others at the Department. The Administration has announced that it will conduct regular meetings as well as listening sessions on environmental justice, and conducted a White House forum on environmental justice in December of last year.
At the Department of Justice, Civil Rights Division Assistant Attorney General Tom Perez and I have met throughout the past year with numerous environmental justice advocates to hear their concerns. When I first met with these advocates, they told me they had not been in the main Department of Justice building in nine years. I promised them that their next visit would not take another nine years – and it has not.
We are very fortunate that the President and the Attorney General are champions of our work on environmental justice. I would like to ask for your support in making environmental justice a reality.
In the Environment Division, we have established a Division-wide environmental justice workgroup. At my direction, each of the Division’s nine sections is working on a section-specific environmental justice plan.
Along with Assistant Attorney General Perez, I participated in a listening session in the Atlanta area with EPA and the U.S. Attorney in December. Assistant Attorney General Perez and I also hosted a town hall meeting in the Great Hall at Main Justice on December 13, to promote environmental justice awareness, policies, and ongoing efforts.
I also have engaged corporate America in our discussions on environmental justice. Last month, I met with the Corporate Environmental Enforcement Council to discuss the Division’s enforcement agenda. We spent much of our meeting talking about environmental justice. I emphasized to them what they already know – that environmental compliance makes good business sense and that it is an important part of being a good neighbor.
Going forward, corporate America needs to be part of the conversation on environmental justice. The counsel I met with last month were very interested in discussing environmental justice further, and I plan to convene a corporate roundtable on environmental justice in the coming months.
Our management of the Environment Division’s civil enforcement docket presents a unique opportunity to further the cause of environmental justice. Our enforcement actions seek to reduce air and water pollution and clean up hazardous waste sites for the benefit of all communities throughout the Nation.
Notwithstanding our enforcement efforts, disadvantaged communities often face disproportionate pollution burdens. Sources of pollution – the targets of our enforcement actions – are often located in or near these communities. The critical challenge that we face every day is how to find ways to reduce disproportionate pollution burdens in the course of resolving our cases.
In collaboration with EPA, we are exploring new approaches to further two important principles: (1) outreach to affected communities; and (2) careful consideration of creative remedies that will best benefit the health, welfare, and environment of these communities.
Let me review a few success stories.
As I described earlier, our agreement with Kansas City will require that the City spend $2.5 billion over the next 25 years to make major, long-needed improvements to the City’s sewage collection and treatment systems.
The settlement will improve public health and the environment throughout the City. But it also includes three aspects of relief that are tailored to address the impacts of the violations on disproportionately burdened communities.
First, Kansas City’s sewer system is in greatest need of repair in the City’s urban core. Decaying sewer lines and other problems cause sewage to back up into the basements of homes in this vulnerable part of the City.
The settlement addresses this problem by prioritizing sewer rehabilitation projects in the urban core. The projects will be expedited to provide more immediate relief to residents in this area.
Second, the settlement requires the City to take early action to reduce overflows of untreated sewage into the Blue River, which runs through the urban core.
Third, the settlement requires the City to spend $1.6 million to implement a voluntary sewer connection and septic tank closure program. This program will provide funding to encourage and assist low-income residents to close their septic tanks and connect to the public sewer.
All three aspects of the settlement were the product of community outreach. Representatives from the City and EPA met with community groups, organizers, and individuals to learn about local problems and needs. These meetings helped us shape the settlement to serve the principles of environmental justice.
Another success story is a settlement reached by the United States with the owner of a petroleum oil refinery to resolve Clean Air Act violations and reduce the pollution produced by the refinery. The settlement also has three significant components.
First, the refinery will have to meet stringent pollution control requirements if it expands certain operations.
Second, the settlement requires the company to construct and maintain an air monitor between its refinery and the local neighborhood and to continuously monitor levels of sulfur dioxide, particulate matter, and volatile organic compounds.
Third, the company will have to post the air monitoring data on a public Internet website. This is the first refinery settlement to require this kind of monitoring and the disclosure of data on a publicly-available website.
These two settlements are among the examples of how we have incorporated environmental justice into the mission of the Environment Division in a practical and meaningful way. I am delighted to list these settlements among the Division’s achievements, and it is a Division priority to pursue similar settlements in the future.
In our enforcement of the Nation’s environmental laws, we must not forget communities lacking wealth, power, or political influence. As we commemorate Dr. Martin Luther King, Jr.’s legacy, I ask you to join me in making environmental justice a reality.
Enforcement: Criminal Enforcement Overview
Let me turn now to criminal enforcement.
As you may know, we have handled a number of high-profile criminal cases over the years arising under the Clean Air Act, the Clean Water Act, and other landmark pollution statutes.
In 2011, the Division will continue to work on several important criminal enforcement priorities. Let me name a few.
I will start with the Worker Safety Initiative. This is an effort to combine environmental and worker health and safety investigations. We seek to expand environmental criminal investigations to encompass worker health and safety concerns. We also train Occupational Safety and Health inspectors to spot potential violations of environmental laws.
We also have a Vessel Pollution practice area, which focuses on the prosecution of individuals and corporations involved in deliberate pollution from ships and the deliberate falsification of official ship records. Over the past 10 years, the criminal penalties imposed in vessel pollution cases have totaled more than $216 million. Responsible shipboard officers and shore-side officials have been sentenced to over 20 years of incarceration. Also, in every one of our vessel pollution cases that is concluded, we require the defendants to implement an environmental compliance plan, with the goal of ensuring that the underlying illegal conduct does not occur again in the future.
Lacey Act enforcement is another priority area. The Lacey Act makes it unlawful to send or receive in interstate or foreign commerce fish, wildlife, or plants taken in violation of federal, state, or foreign law. The Division handles an active docket of Lacey Act cases in which we prosecute individuals and corporations who trade in illegally taken fish, wildlife, and plants. The Division also participates in and encourages international efforts to combat illegal logging and wildlife trafficking.
Lacey Act: Profish Prosecution
A recent and local example of Lacey Act enforcement is the criminal prosecution of “Profish,” one of the District of Columbia’s largest seafood wholesalers. In July 2010, following a five-week jury trial, Profish, as well as a part owner and an employee, were found guilty of purchasing illegally harvested striped bass, known locally as rockfish. The part owner and the employee each were sentenced to serve over a year in jail. Profish was ordered to pay $300,000 in restitution. Each of the defendants was ordered to pay criminal fines, with Ocean Pro paying $575,000, the part owner paying $60,000, and the employee paying $7,500. We will continue to work with our state and local partners to ensure protection of important natural resources.
DEFENSE OF FEDERAL AGENCY PROGRAMS AND DECISIONS
Defending federal programs and agency decisionmaking is another key priority for the Division in 2011.
Defense: Greenhouse Gas Regulations
With the exception of the Gulf oil spill, climate change has probably received more public attention during the last year than any other environmental issue. I would like to tell you about the Division’s important defensive work in this area.
The Division is vigorously defending against petitions for review filed in the D.C. Circuit and elsewhere challenging EPA’s endangerment finding and related regulations addressing emissions of greenhouse gases that contribute to global climate change. As you may know, key EPA greenhouse gas regulations went into effect on January 2, 2011.
EPA’s regulatory actions are of critical importance to the Nation and defending against these challenges will remain one of our highest priorities in 2011.
Defense: Natural Resources
Another core mission for the Environment Division is defense of agency decisions relating to natural resources, including planning and resource management decisions for national forests, national parks, and other public lands, and for wildlife. We advise our client agencies, including the Forest Service, National Park Service, Bureau of Land Management, and Fish and Wildlife Service, on major rulemakings and planning efforts, such as the development of the Forest Service’s new forest planning regulations, and defend those initiatives and other land management decisions against challenges from industry and environmental groups.
We face new litigation challenges involving the siting and development of alternative energy sources, such as solar and wind power facilities. We also defend agency decisions and actions involving endangered and threatened species, such as the Department of the Interior’s decision to list the polar bear as a threatened species because of the effects of global warming, as well as the National Oceanic and Atmospheric Administration’s decisions on other species also impacted by warming oceans and related changes in our environment. Our endangered species litigation includes challenges to the operation of major federal water systems in the West, such as the Central Valley Project and the Federal Columbia River Power System. These issues are, if anything, becoming more important and more complex because of global warming and will remain a focus area this year.
Defense: National Security
Increasingly, the Division is responsible for defending agency actions that support the national security of the United States. We defend against challenges to critical training programs that ensure military preparedness. We also promote safe disposal of high-level nuclear waste and obsolete chemical weapons. And we acquire strategic lands needed to fulfill the United States’ military and homeland security mission.