Cooperative Federalism in Action: ENRD and States

Courtesy of Assistant Attorney General John Cruden for the Environment and Natural Resources Division

The Environment and Natural Resources Division (ENRD) began 2016 by vigorously promoting cooperative federalism through work with our state partners to enforce our nation’s pollution laws and prosecute wildlife traffickers.  We also met with numerous state officials in the environmental enforcement arena to exchange views and share expertise in a variety of areas.

Recently I had the honor of being the first ENRD Assistant Attorney General invited to speak to the annual meeting of the Environmental Council of the States, the national association of state and territorial environmental agency leaders.  I joined colleagues from the U.S. Environmental Protection Agency (EPA), New Mexico and academia to discuss innovative ways to measure the success of environmental enforcement.  In addition, other key members of the division partnered with the National Association of Attorneys General to present webinars on topics of mutual interest, such as e-discovery and share expertise regarding federal bankruptcy law in the context of environmental cases.

A key example of our fruitful work with state leadership is the record-breaking settlement with BP in the Deepwater Horizon Oil Spill litigation.  On April 4, the U.S. District Court for the Eastern District of Louisiana entered the final consent decree in the litigation, thereby resolving civil claims of the United States and the five Gulf Coast states against BP.  The claims arose from the 2010 blowout of the Macondo well and the massive oil spill in the Gulf of Mexico.  Under the consent decree, BP will pay the U.S. and the five Gulf States more than $20 billion, including: First, a $5.5 billion civil penalty; second, more than $8.1 billion in natural resource damages; third, $600 million in further reimbursement of clean-up costs and some royalty payments; and finally, up to $6 billion in economic damage payments for the Gulf States or their local units of government.  This resolution is the largest settlement with a single entity in Department of Justice history; it includes the largest civil penalty ever awarded under the Clean Water Act, the largest ever natural resources damages settlement and massive economic damages payments to our state partners.

We have had many other significant state-federal enforcement actions this year and the following are highlights of cooperative federalism in action.

In the most recent federal-state coordinated enforcement efforts against oil spills in and around the Gulf of Mexico, ORB Exploration LLC (ORB) agreed to pay civil penalties and state response costs and to implement corrective measures to resolve alleged violations of  federal and state environmental laws stemming from three crude oil spills that occurred in 2013 and 2015 from two of ORB’s Louisiana facilities in the Atchafalaya River Basin, as well as violations of Spill Prevention, Control and Countermeasure regulations at its Frog Lake oil storage barge.  Under a proposed consent decree lodged on Earth Day in federal court, ORB will pay $615,000 in federal civil penalties for the spills and other environmental violations, pay $100,000 to the Louisiana Department of Environmental Quality for civil penalties and response costs and take measures to improve spill response preparedness and prevent future oil spills.

ENRD also recently partnered with Utah to negotiate an agreement with Salt Lake County to resolve alleged Clean Water Act violations associated with the county’s stormwater management program.  The agreement, if approved by the court after a public comment period, would require the county to take specific measures to reduce illegal stormwater and non-stormwater discharges to Jordan River Valley surface waters by thoroughly implementing the requirements of its municipal separate storm sewer system permit.  The county also will pay a civil penalty of $280,000 to be split evenly between the United States and the state.

In addition, ENRD joined with Tennessee to negotiate an agreement with OXY USA Inc. (OXY), a subsidiary of Occidental Petroleum Company, to clean up contaminated water and sediments in the Ocoee River and one of its watersheds at the Copper Basin Mining District in Polk County, Tennessee.  The settlement, once approved by the court, will require the company to spend an estimated $40 million to maintain and operate a water treatment system, prevent access by the public to contaminated water and monitor contamination in the Ocoee River.  OXY also will reimburse both EPA and Tennessee for costs incurred in overseeing the work required by the settlement.  This settlement, combined with work previously performed at the site, directs over $217 million toward cleaning up the contamination at this site.

ENRD and the state of West Virginia also took a joint enforcement action under federal and state law against Justice Companies Inc., to address unlawful discharges resulting from the construction of 20 dams in West Virginia trout streams.  In February, the court entered a consent decree and stipulated judgment to resolve the federal and state claims.  Under the consent decree and stipulated judgment, the defendants will remove the dams, restore the streams, provide compensatory mitigation, and pay a civil penalty of $345,000, to be shared evenly by the state and federal governments.

These cases exemplify cooperative federalism in environmental enforcement, a top priority for ENRD.  We place a high value on these partnerships with state and local governments as they are crucial to fulfilling ENRD’s mission on behalf of the American people.

ENRD is also continuing our cooperative relationship with states in criminal prosecutions this year.  To that end, prosecutors from ENRD’s Environmental Crimes Section have provided training to state partners by sharing their criminal enforcement experience, as well as discussing the division’s new Worker Safety Program.

These state connections allowed us to criminally prosecute eight individuals for wildlife trafficking in violation of the Lacey Act, which led to the conviction of five defendants on felony charges.  The cases arose from a covert investigation conducted by the U.S. Fish and Wildlife Service and the Missouri Department of Conservation and known as “Operation Roadhouse.”  This joint effort also enabled the state to issue citations to over a hundred individuals for violations of state law.

I look forward to continuing and enhancing ENRD’s partnerships with our state and local government counterparts to advance our shared goals on behalf of the American people.