History of the Law and Policy Section
During the first 54 years of the Division’s existence, the “Legislation and General Section” had responsibility for coordinating legislative matters. That section was eliminated in 1963 and its responsibilities transferred to the General Litigation Section and the Administrative Section. In 1979, Assistant Attorney General (AAG) James Moorman created the Policy, Legislation and Special Litigation Section (PLSL) to advise and assist the Office of the AAG on environmental legal and policy questions, particularly those that affect multiple sections within the Division. In addition, PLSL was tasked with:
(1) Coordinating cross-cutting issues and Division initiatives;
(2) managing the Division's legislative docket and assisting in drafting legislation;
(3) special litigation projects;
(4) supporting the Department of Justice on environmental justice matters, assisting the federal Interagency Working Group on Environmental Justice, and facilitating Division-wide initiatives on legal issues affecting minority and low-income communities that are disproportionately affected by environmental burdens; and
(5) coordinating the Division’s involvement on many issues affecting Indian tribes.
In 2005, AAG Thomas Sansonnetti changed the name of the Section to the Law and Policy Section (LPS). Although the work and name of the Section has evolved since its inception, these core responsibilities remain.
Legislative Work and Congressional Work
One of LPS’s key areas of responsibility on behalf of the Division is its legislative and congressional work. In coordination with the Department’s Office of Legislative Affairs, LPS prepares the Division’s responses to legislative proposals and congressional requests, prepares Division witnesses for appearances before congressional committees, and drafts legislative proposals related to the Division’s work, such as legislation to implement litigation settlements. In support of that work, the Section tracks hearings and proposed legislation on issues of interest to the Division being considered by key U.S. Congressional Committees and Subcommittees. Attached is a chart of Key Senate and House Committees and Leadership.
113th U.S. Congress Key Committee and Subcommittee Leadership
Examples of legislative proposals in which LPS has played an active role include the following:
CERCLA or Superfund – In the wake of the Love Canal disaster of the 1970’s-- the infamous hazardous waste disposal site in upstate New York that contaminated a residential area--in December 1980, Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act. (“CERCLA” or “Superfund”). The Section worked extensively with EPA and Congress to craft this comprehensive environmental cleanup statute that has become a key component of the Division’s work. CERCLA provides broad federal authority to respond directly to releases of hazardous substances that may endanger public health or environment, and imposes liability that is retroactive, strict, and joint and several on persons responsible for releases of hazardous substances. The Section also worked with EPA to draft amendments to the Superfund law in 1986. These amendments, known as the Superfund Amendments and Reauthorization Act (SARA), made several changes to the Superfund program, including increasing the size of the trust fund, creating new enforcement authorities and settlement tools, and providing for studies and the use of new technologies. Pub. L. 99-499, 100 Stat. 1613 (1986). Additionally, LPS helped write the Brownfields Revitalization and Environmental Restoration Act of 2001, which provides liability relief to prospective purchasers of contaminated property and persons who undertake cleanups of brownfield properties, and provides funding to state and local brownfield programs for redevelopment. Small Business Liability Relief and Brownfields Revitalization Act, Pub. L. 107-118, 115 Stat. 2356 (2002). Division lawyers were presented a John Marshall Attorney General Award in 2002 for their work on this legislation.
Lacey Act Amendments – More recently, the Section worked with the Division’s Environmental Crimes Section, as well as other agencies and Congress, to amend one of the nation’s oldest natural resources statutes, the Lacey Act, to outlaw the importation of plants harvested illegally in the country of origin, including illegally-harvested timber and products made from such timber. Food, Conservation, and Energy Act of 2008, Pub. L. 110-234, § 8204, 122 Stat. 923 (2008). Division lawyers were presented a John Marshall Attorney General Award in 2008 for their work on this legislation.
Stormwater Legislation – Since 2009, the Section has worked with the Division’s Environmental Defense Section and other Department components on stormwater legislation, S. 3481, Pub. L. No. 111-378, which amends the CWA to require federal agencies to pay reasonable municipal stormwater assessments. Municipal stormwater assessments seek to recover the costs that utilities incur in collecting, treating, and controlling discharges of stormwater under the CWA and its implementing regulations. Mindful of the President’s directive that federal facilities should lead by example in protecting water resources through stormwater management, the Division provided technical assistance to the Hill, along with EPA, to ensure that the bill accomplished its intended purpose and reflected relevant case law.
Oil Pollution Act and Outer Continental Shelf Lands Act – Section attorneys provided extensive support in the immediate aftermath of the Deepwater Horizon explosion and massive spill, leading an interagency group of lawyers to address emerging legal questions associated with the response. LPS was deeply involved in the development of proposed legislation to enhance the Oil Pollution Act and Outer Continental Shelf Lands Act and other federal statues to address future oil spills from deepwater petroleum exploration and production and ensure that responsible parties are held fully accountable for spills. LPS also consulted with the Department of the Interior on new regulations it developed to ensure that adequate plans are in place to prevent and mitigate the adverse environmental impacts from such events and to improve the administration of federal mineral and energy resources. LPS continues to bring its expertise to bear by participating in the ongoing multi-district litigation associated with the oil spill.
Pipeline Safety Improvement Act of 2002 – In December 2002, the President signed into law the Pipeline Safety Improvement Act of 2002; LPS worked extensively to obtain significant improvements to pipeline enforcement under the Act. Among the changes made, the legislation, for the first time, authorized the Department of Justice, at the request of the Department of Transportation (DOT), to take direct judicial enforcement action, including seeking civil penalties, for pipeline violations under the Act; previously civil penalties could only be imposed by DOT through administrative action. The legislation also substantially increased civil penalty amounts and authorized criminal action for damaging or destroying an intrastate gas or hazardous liquid pipeline facility if the pipeline affects interstate or foreign commerce.
Indian Water Rights – The Division has continued to successfully protect the interests of Indian tribes in complex water rights settlements and adjudications. In 2009, the Division worked with the Shoshone-Paiute Tribes, which straddle the border of Idaho and Nevada, and third parties to resolve the Tribes’ water rights claims in Nevada. Congress approved this agreement through enactment of the Shoshone-Paiute Tribes of Duck Valley Water Rights Settlement Act. Omnibus Public Land Management Act of 2009, Pub L. 111-11, § 10801, 123 Stat. 991, 1405 (2009). In 2010, LPS attorneys contributed to five landmark Indian water rights settlements which, when fully implemented, will resolve complex and contentious Indian water rights issues in three western states. These settlements include the Taos Pueblo Indian Water Rights Settlement, Claims Resolution Act of 2010, Pub. L. 111-291, § 501, 124 Stat. 3064, 3122 (2010); the Aamodt Litigation Settlement Act, Claims Resolution Act of 2010, Pub. L. 111-291, § 501, 124 Stat. 3064, 3122 (2010); the Navajo-San Juan River Basin Settlement in New Mexico, Omnibus Public Land Management Act of 2009, Pub L. 111-11, § 10601, 123 Stat. 991, 1379 (2009); the Crow Tribe Water Right Settlement in Montana, Claims Resolution Act of 2010, Pub. L. 111-291, § 401, 124 Stat. 3064, 3097 (2010); and the White Mountain Apache Tribe in Arizona, Claims Resolution Act of 2010, Pub. L. 111-291, § 301, 124 Stat. 3064, 3073 (2010).
San Joaquin River Restoration Settlement Act – In 2008, after eighteen years of contentious litigation, NRS attorneys helped negotiate a settlement that delineates a monumental intergovernmental project by the State of California and the Bureau of Reclamation to restore flows in 153 miles of the San Joaquin River, California’s second longest river, below the Friant Dam east of Fresno. The Section, along with the Department of the Interior, assisted in crafting legislation to implement the settlement agreement, which was enacted into law in March 2009 as part of the Omnibus Public Land Management Act of 2009, Pub L. 111-11, § 10001, 123 Stat. 991, 1349 (2009).
Klamath River Basin – Over the past three decades, the Klamath River Basin has been the subject of intense litigation over natural resources, including water rights adjudications for both tribal and federal lands, important issues under the Endangered Species Act, and the operation of the Bureau of Reclamation’s (BOR) Klamath Project. Attorneys from LPS and other ENRD sections worked closely with the Department of the Interior and other federal agencies to draft and negotiate a global settlement regarding the fish, water, and hydropower resources of the Klamath River Basin in Oregon and California. These efforts led to two far-reaching agreements--the Klamath Basin Restoration Agreement (KBRA) and the Klamath Hydropower Settlement Agreement (KHSA)--that were signed on February 18, 2010. The KBRA seeks to reduce the potential for future conflicts by, for example, addressing the relative proportions of water available to various stakeholders, improving fish habitat, and purchasing and retiring farmland in the basin. The KHSA provides a framework for the stakeholders to collaborate on environmental and economic studies assessing the potential for removal of four PacifiCorp dams. Legislative ratification will be necessary for this to become effective and LPS attorneys continue to work on this effort. The overall effect of these agreements will be to reduce water use in the basin and to increase populations of threatened and endangered fish species.
Attorneys in LPS also litigate cases in which the United States appears as amicus curiae, as well as other special litigation projects. Amicus curiae briefs are filed by LPS when the United States has a strong interest in the subject matter of the action and can add relevant information that is not dealt with by the parties. For example:
- Section attorneys helped draft briefs to the Supreme Court on behalf of the United States as amicus curiae in Friends of the Earth v. Laidlaw, 528 U.S. 167 (2000), a case involving standing to sue and mootness in Clean Water Act citizen suit cases. In Laidlaw, the Court held, consistent with arguments advanced in the United States’ amicus brief, that a defendant's compliance with its Clean Water Act permit after the commencement of litigation does not moot claims for civil penalties brought under the Act’s citizen suit provision.
- Section attorneys also assisted in drafting the United States’ amicus brief for South Florida Water Management District v. Miccosukee Tribe of Indians, 543 U.S. 805 (2004), which involved a challenge under the Clean Water Act to certain projects undertaken as part of the restoration of the Everglades. At issue in Miccosukee was whether the Clean Water Act’s definition of “discharge of a pollutant,” for which a Clean Water Act permit is required, includes point sources that do not themselves generate pollutants. The Court held that the definition of a “point source” itself makes clear that the point source need not be the source of the original pollutant, just a conveyance of the pollutant to the navigable waters. In addition, the Court, in determining whether a CWA permit is required for polluted water pumped from a drainage ditch into the Everglades, remanded the case for a determination of whether the water bodies are “meaningfully distinct” from each other.
- LPS helped draft the amicus briefs to the Supreme Court filed by the United States in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), a case involving the Takings Clause and State restrictions on development in coastal wetlands, and Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002), a case involving the Takings Clause and a temporary development moratorium in the vicinity of Lake Tahoe.
- LPS, in coordination with other sections within the Division, has filed briefs in a number of cases addressing the scope of EPA’s authority under the Superfund law (CERCLA), and the extent and nature of private authority to pursue cleanups and cleanup costs under that law. The Section assisted in preparing the United States’ brief in Aviall v. Cooper Industries, 543 U.S. 157 (2004), a Supreme Court case involving the scope of contribution available under CERCLA, and in ensuing litigation in courts of appeals and federal district courts nationwide relating to the scope and application of CERCLA’s contribution remedies.
- Section attorneys helped prepare briefs in district and appellate courts in Medeiros v. Vincent, 431 F.3d 25 (1st Cir 2005), in which the First Circuit upheld a provision of the Magnuson Stevens fisheries laws against constitutional challenge.
- LPS assisted in litigating cases involving the Takings Clause of the Fifth Amendment in El-Shifa Pharmaceutical Industries Co. v. United States, 55 Fed. Cl. 751 (Fed. Cl. 2003), a request for compensation associated with a United States cruise missile strike that destroyed a private pharmaceutical plant.
- Section attorneys assisted in preparing briefs in Means v. Navajo Nation, 432 F.3d 924 (9th Cir. 2005), and Morris v. Tanner, 160 F. App’x. 600 (9th Cir. 2005), which involved Equal Protection and Due Process challenges to a statute reinstating tribal court jurisdiction over members of other tribes.
- LPS attorneys submitted an amicus brief in Environmental Conservation Organization v. Dallas, 529 F.3d 519 (5th Cir. 2008), which involved the res judicata effect of a Clean Water Act consent decree on parallel citizen litigation. LPS’ brief successfully argued that a citizen suit could not continue after the federal consent decree resolved all claims in the case, thereby protecting United States’ settlement authority.
- The Section also handled the United States’ involvement in Conservation Law Foundation v. Hannaford Bros., 139 F. App’x 338 (2d Cir. 2005), a private citizen suit that implicated the interpretation of the Clean Water Act and EPA’s stormwater rules regarding permits for stormwater run-off from parking lots, drainage swales, and gutters. The Section successfully defended EPA’s interpretation of the stormwater program under CWA section 402(p). The Second Circuit agreed with the decision of the federal district court for Vermont which accepted the United States’ position that permits were not needed for the activities at issue because they fell into the category of Phase II stormwater sources which EPA had not yet determined how, if at all, to regulate.
International Environmental Legal Work
LPS continues to spearhead the Division’s involvement in international environmental legal matters. The Division’s international activities are undertaken to support successful prosecution of U.S. environmental or natural resource crimes that involve foreign evidence and assistance, that rely on underlying foreign statutes, or that support international treaties. We also partner with the Department of State and other federal agencies to help build international capacity in support of better enforcement in other countries (most often through prosecutor and judicial training) which in turn builds relationships that will enhance our ability to combat transnational environmental and natural resource crimes that extend beyond our borders, such as trafficking in endangered animals and plants or illegally shipping hazardous wastes. We also work with the Department of State and other agencies to provide environmental enforcement-focused input in international treaty negotiations and in U.S. policy development and implementation on international issues, and help to encourage the rule of law abroad.
In addition to the work of the Environmental Crimes Section, LPS attorneys have handled or assisted in numerous cases over the years. Examples include:
- Greenpeace v. Stone, (D. Haw. 1990). Section attorneys teamed with attorneys from the Natural Resources Section and the Army to defend a National Environmental Policy Act (NEPA) challenge to the Army’s efforts to transport old nerve gas buried in Germany to Johnston Atoll for destruction.
- NRDC v. U.S. Dept of the Navy (C.D. Cal.1993). LPS assisted in this case that involved testing a Navy weapons system on the USS John Paul Jones. The plaintiffs sought to enjoin a regulation issued by the National Marine Fisheries Service, alleging violations of NEPA and the Marine Mammal Protection Act.
- Earth Island Institute v. Evans, (C.D. Cal. 2004). LPS attorneys worked with attorneys from the Wildlife and Marine Resources Section in defending studies and decision making by the National Oceanic and Atmospheric Administration regarding the effect of tuna fishing practices in the eastern tropical Pacific Ocean on dolphin populations.
- LPS also supports the Department of State’s handling of arbitral cases arising under NAFTA and other international agreements providing for arbitration of investment disputes. For example, LPS assisted the State Department in preparing the successful United States brief in the Glamis Gold litigation, in which Glamis Gold Ltd., a Canadian corporation, argued that requirements that applied under California law to a proposed gold mine located near a sacred Indian site constituted an expropriation under international law.
LPS also participates in international policy matters. In recent years, LPS:
- Has been an active participant in the interagency group led by the U.S. Trade Representative (USTR) overseeing implementation by Peru of its obligations under the Environment Chapter of the United States-Peru Trade Promotion Agreement;
- Led the Department’s review of legislation amending the Lacey Act to outlaw the importation of plants illegally harvested overseas and brought into the United States, including illegally-harvested timber and products made from such timber;
- Participated in and coordinated speaking engagements by Division management and attorneys in China, Belgium, Switzerland, Indonesia, Vietnam, Malaysia, and the United Kingdom to disseminate information on the Lacey Act;
- Represented Division interests by ensuring that environmental enforcement and other Division priorities are considered in international treaty and trade agreement negotiations and in the development and implementation of U.S. international policies;
- Obtained funding from the State Department and the U.S. Agency for International Development enabling Division attorneys to provide capacity building assistance to judges, prosecutors, and environmental investigators in other countries;
- Participated in the U.S. delegation to meetings of the United Nations Framework Convention on Climate Change.
- Additionally, LPS attorneys have worked with the Office of the U.S. Trade Representative (USTR) in developing the environmental side agreement to the North American Free Trade Agreement (NAFTA) and the environment chapters of subsequent international trade and investment agreements.
Capacity Building Assistance
The Division’s international work also involves international environmental capacity-building. Such training typically focuses on building the host country’s capacity to enforce its environmental laws, and is often directed toward judges and prosecutors. LPS attorneys have worked with attorneys, judges, and leaders of judicial training institutes in other countries, as well as U.S. federal judges and EPA administrative judges and attorneys, to provide training to civil and criminal judges around the world in unique aspects of handling environmental cases. For example, under the Central America-Dominican Republic-United States Environmental Cooperation Agreement, LPS attorneys helped train judges in the Central American countries of El Salvador, Costa Rica, and Guatemala on handling environmental enforcement cases. LPS attorneys are implementing a similar training program for judges in Chile on adjudicating environmental enforcement cases under the United States-Chile Environmental Cooperation Agreement. In recent years, Section attorneys as well as other ENRD attorneys have participated in and spoken at conferences and workshops, provided training, and met with law enforcement counterparts in Chile, China, Costa Rica, El Salvador, Germany, Guatemala, Indonesia, Israel, Mexico, Micronesia, and Peru.
Other Areas of LPS Involvement
LPS handles numerous other important and often cross-cutting activities. These include:
- Ethics – LPS contains the Division’s ethics advisors, who advise and train attorneys and staff throughout the Division on ethics, standards-of-conduct, and professional responsibility issues.
- FOIA, Privacy, and Open Government – – LPS coordinates the Division’s response to Freedom of Information Act (FOIA) and Privacy Act requests.
- Citizen Litigation – LPS monitors citizen litigation, provides comments on proposed citizen consent decrees, and proposes amicus participation in citizen suits where appropriate.
- Alternative Dispute Resolution (ADR) – LPS advises Division attorneys on the use of mediation, and assists in developing mediation agreements and hiring mediators.
- E-Discovery – LPS co-chairs the Division’s E-Discovery Workgroup and has provided major assistance in the Department’s review of e-discovery practices.
- Environmental Justice – LPS also supports the Department of Justice on environmental justice matters, and assists the federal Interagency Working Group on Environmental Justice. The Section facilitates Division-wide initiatives on legal issues affecting minority and low-income communities that are disproportionately affected by environmental burdens.
- Tribal Issues – LPS also coordinates the Division’s involvement on many issues affecting Indian tribes.