|5-9.100||Area of Responsibility|
|5-9.120||Categories of Litigation|
|5-9.121||Cases Challenging the Constitutionality of a Statute in Which the United States is Not a Party, Determination Regarding United States' Intervention|
|5-9.300||Coordination with the Law and Policy Section Regarding Cases and Other Matters|
|5-9.321||Prior Authorization Needed to Initiate Action|
|5-9.500||General Procedures in District Court Litigation|
5-9.001 - Establishment
The Law and Policy Section was created on March 16, 1979, by Environment and Natural Resources Division Directive No. 4-79.
5-9.100 - Area of Responsibility
The Law and Policy Section advises and assists the Assistant Attorney General on legal and policy questions, particularly those that affect multiple sections in the Division. Working with the Department’s Office of Legislative Affairs, it coordinates the Division’s response to proposed legislation, prepares the Division’s response to legislative proposals and congressional requests, and drafts legislative proposals in connection with the Division’s work. The Section helps to coordinate the Division’s amicus practice and handles trial court amicus briefs; discharges the Department’s responsibilities with respect to citizen enforcement actions under the Clean Water Act, 33 U.S.C. § 1365, and Clean Air Act, 42 U.S.C. § 7604, including reviewing proposed consent judgments in such actions; addresses certain cross-cutting or novel legal issues; and undertakes other special litigation projects to address new or non-routine problems. The Section also handles questions relating to legislative jurisdiction over particular lands; coordinates the Division’s involvement in international legal matters; represents the Division on interagency task forces and workgroups; responds to congressional and citizen correspondence and FOIA requests; serves as the Division’s ethics officer and counselor; and functions as a liaison with state and local governments.
5-9.120 - Categories of Litigation
The Law and Policy Section is not limited to a specific area of statutory responsibility. Rather, the Section supervises and conducts litigation arising under authorities of the Environment and Natural Resources Division, as assigned by the Assistant Attorney General. The Section is specifically assigned the handling of amicus curiae matters in federal, state, or tribal trial courts relating to statutes and laws within the scope of the responsibility of the Division and cases challenging the constitutionality of a statute within the Division’s purview, where the United States is not a party (see JM 5-9.121). In addition, the Section is responsible for administering and/or conducting congressionally-mandated studies and reports.
5-9.121 - Cases Challenging the Constitutionality of a Statute in Which the United States is Not a Party, Determination Regarding United States’ Intervention
When the Department of Justice receives a notification of a challenge to the constitutionality of a statute pursuant to 28 U.S.C. § 2403(a), Fed. R. Civ. P. 5.1, involving a challenge to the constitutionality of a statute that is within the scope of the authorities of the Environment and Natural Resources Division, that notification should be forwarded to the Law and Policy Section. The Chief of the Law and Policy Section will assign an attorney to review the notification and coordinate the process of determining whether the United States will intervene to defend the constitutionality of the statute. See also 28 C.F.R. § 0.21 (providing that the Solicitor General determines whether intervention is appropriate).
5-9.200 - Organization
The Section is administered by a Chief and Assistant Chiefs. The work of the Section is assigned among staff attorneys according to experience and workload.
5-9.300 – Coordination with the Law and Policy Section Regarding Cases and Other Matters
The following cases or matters must be forwarded to the Chief of the Law and Policy Section by telephone (202-514-1442) or e-mail: (1) requests for the United States to participate as an amicus curiae in trial court cases in which the subject matter is within the scope of the authorities of the Division; and (2) challenges to the constitutionality of a statute pursuant to 28 U.S.C. § 2403(a), Fed. R. Civ. P. 5.1, involving a challenge to the constitutionality of a statute that is within the scope of the authorities of the Environment and Natural Resources Division, where the United States is not already a party.
The Law and Policy Section is available to consult or coordinate on other matters within the authority of the Division, including cross-cutting litigation matters, litigation or other matters raising international issues, policies, rulemakings, legislative inquiries, or other matters in the Section’s area of responsibility.
5-9.321 - Prior Authorization Needed to Initiate Action
No case under the supervision of the Law and Policy Section may be initiated by a United States Attorney without the prior authorization of the Assistant Attorney General, in accordance with JM 5-1.000 and 5-2.000. Prior approval is not required for United States Attorneys to initiate cases under the general delegation of authority in Part I of the ENRD Directive No. 2016-04 (or any future delegation directive), unless the Assistant Attorney General affirmatively revokes such authority over a case, as provided for in the directive.
5-9.500 - General Procedures in District Court Litigation
The general instructions set forth in JM 5-5.100, with respect to handling of litigation apply in every respect to the litigation of the Law and Policy Section.
[updated April 2018]