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Friday, October 19, 2018

Acting Assistant Attorney General Jeffrey H. Wood Delivers Keynote Speech at the 26th Fall Conference of the American Bar Association’s Environment, Energy, and Resources Section

San Diego, California

Remarks as Prepared for Delivery

Thank you for that kind introduction and thank you to the ABA Section of Environment, Energy, and Resources (SEER) for the honor of joining you this morning as a keynote speaker. Let me also recognize this year’s conference chair, Juge Gregg, who has done a remarkable job coordinating SEER’s 26th Annual Fall Conference.

Throughout my sixteen years of law practice, I have benefitted from many of this Section’s conferences and the excellent journals and publications produced by your members. A copy of the Spring 2004 edition of the Natural Resources & Environment Magazine, entitled “Enforcement and Compliance,” sits on my coffee table at Main Justice. I always appreciated that this Section provides both senior experienced attorneys as well as recent law graduates an opportunity to put their ideas and legal analyses out there for consideration among the nation’s environmental lawyers. My article – about state enforcement barring environmental citizen suits – is on pages 57 to 61 of the Spring 2004 edition. I had just graduated law school one year earlier, and I co-wrote the article with a cherished former colleague, Tripp Head, since lost to cancer, who was active in this Section and taught me a great deal about writing and lawyering.

If you glance through this edition, you will also see articles from others in this respected Section, including former Assistant Attorney General John Cruden and Deputy AAG Bruce Gelber, who co-authored an article on pages 10 to 18 about federal environmental enforcement, not to mention the article on pages 27 to 31 co-authored by Karen Mignone, Chair-Elect of the Section. Year after year, ABA SEER makes valuable contributions to the practice of environmental law across our nation. Thank you to all who contribute to make the Section so successful in its mission.

Introduction to ENRD

Since January 20, 2017, I have been honored to serve as the Acting Assistant Attorney General for the Justice Department’s Environment and Natural Resources Division. About to celebrate its 110th birthday next year, our historic division is a powerful force for good in our country. It is our Division’s responsibility to enforce the nation’s environmental laws and to defend good governance by federal agencies engaged in management of natural resources, environmental protection, and land acquisition. We also have a vital role in Indian Country as well. With almost 600 attorneys, paralegals, and staff, and with a docket of more than 6,000 cases and matters, ENRD is engaged every day, all across the country, in pursuit of our important mission under law.

We have continued to look forward to the arrival of Jeff Clark as our next Assistant Attorney General. After a longer wait than was deserved, we were very pleased to see the Senate confirm Jeff last week. He is an exceptional lawyer and will do a great job as the leader of our Division. He served previously as a Deputy AAG during the tenure of AAG Tom Sansonetti, an outstanding leader of our historic Division in his own right. We currently anticipate Jeff Clark’s tenure to officially begin on November 1, 2018, at which point I will shed the “Acting” AAG title and continue serving in the Division as the Principal Deputy Assistant Attorney General.   

In our front office, we are fortunate to be joined by our current team of Deputy AAGs: Bruce Gelber; Jean Williams; Eric Grant; and Jonathan Brightbill. Justin Heminger, an excellent attorney from our Environmental Defense Section, currently serves as Chief of Staff. We have a strong front office team focused on fulfilling the critical mission of ENRD. Jeff Clark’s arrival will undoubtedly make our team even stronger.

Our Division has been busy over the last 21 months. This morning, I want to share with you some insights into what we have been doing, and how we are approaching our civil and criminal enforcement matters and our defense of agency actions, including key priorities of this Administration. I’ll conclude with some remarks about our Supreme Court practice, including the mandamus petition we filed just yesterday in the Juliana litigation, described by some news reports as the “kids’ climate case,” but perhaps more appropriately should be called the “Jim Hansen case.”

ENRD and the Rule of Law

Under the leadership of Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein, one overriding principle has governed our work: the impartial rule of law. This principle is reflected in virtually every speech they deliver, and it undergirds every decision they make. Recently, Attorney General Sessions framed the principle this way: “No greater good can be done for the overall health and well-being of our Republic, than preserving and strengthening the impartial rule of law.” He also framed it this way: “The rule of law is more than an outcome. It is a formal process that creates an opportunity for a jury or a court to produce a just outcome—and a just outcome may not be the politically popular one.”

Last week, I was honored to join the Attorney General in London where he delivered a major international speech about our nation’s efforts to combat the illegal trade in protected wildlife. He expressed our country’s longstanding view that the poaching and trafficking of protected wildlife is a “threat to good governance, a threat to the rule of law, and a challenge to our stewardship responsibilities for this good earth.” Again, he emphasized, “It is the rule of law that forms the foundation for liberty, safety, and prosperity.” Absent good institutions and the rule of law, which we are beyond blessed to have inherited in this great nation, we are utterly helpless in the fight to ensure clean air, clean water, clean land, and the conservation of natural resources. 

Likewise, Deputy Attorney General Rosenstein recently reinforced that point when he was the keynote speaker at our Division’s annual awards ceremony in September, where we recognized the exceptional work of attorneys and support staff from across the Division as well as our agency partners. DAG Rosenstein reminded us that, in his words:

Government lawyers are obligated to advocate for the truth. Only we are accountable for investigating and disclosing evidence of innocence. Only we are accountable for refraining from advocating arguments that we know to be wrong. That is because our duty is to the truth and not a particular outcome in any case. That is what the rule of law is all about.      

Enforcement and the Rule of Law

At ENRD, this fundamental principle of the impartial rule of law is a touchstone for our own work. Earlier this year, I issued a directive to our civil and criminal enforcement lawyers identifying central principles – the impartial rule of law, first among them – that should govern our environmental enforcement activities. We also sought to highlight other principles like cooperative federalism, exercising pragmatic decision-making, and protecting taxpayers and the public fisc, and we identified our current enforcement priorities. This directive, which the Attorney General reviewed and approved, is available for review on our website.

When the new Administration took office, there were probably some who mistakenly believed that we would be soft on enforcement. Twenty-one months later, I suspect that there are fewer who have that belief. Since January of 2017, our Division has recovered more than $1 billion in injunctive relief under Superfund to require cleanups of contaminated sites across the nation; obtained record-setting civil penalties in cases involving illegal dredging of protected streams and wetlands; and sought a record-sized civil fine for oil spills at land-based oil production facilities. These are just a few examples of our enforcement successes.

In fact, in the twelve month period from January 20, 2017 to January 20, 2018, my first year as Acting AAG, we secured $1.57 billion in civil penalties – our second best year over the past twenty years. Some may point out that much of that penalty comes from the Clean Air Act defeat device case against Volkswagen, which we concluded in 2017. But when you take out that penalty, ENRD still recovered $121 million in civil penalties, which by itself is higher than the civil penalties that we recovered over the same period in twelve of the last twenty years.

One trend that we have observed in our enforcement work is that we are initiating fewer cases per year than we used to file. But that is not a recent change – it is a long-term trend that you can see playing out over the past two decades. Many factors have contributed to this. For example, in many of our recent cases, we address violations of federal law at multiple facilities in the same settlement. Thus, in August of this year, we settled with a glass manufacturing company to resolve Clean Air Act violations at all six of the company’s facilities located in six different states. Rule of law does not mean weak enforcement – it means vigorous but even-handed enforcement that is consistent with a sound interpretation of applicable statutes and regulations.

Since I became Acting AAG, our Division also has pursued a broad range of criminal cases. Our prosecutors have convicted more than 30 defendants for wildlife trafficking crimes, with another 25 charged during that period. This is on top of significant numbers of additional defendants who have been charged and convicted in wildlife crimes cases brought by U.S. Attorney Offices across our country.

Earlier this year, our Division’s prosecutors obtained a significant prison sentence for a New York defendant found guilty of smuggling parts taken from endangered African lions and tigers. In another case this year, a California resident was sentenced to more than two years in federal prison for smuggling horns taken from endangered African black rhinos. And as part of a multi-year operation that included this case, at least 50 other defendants have been arrested, charged, convicted, and sentenced in recent years for smuggling ivory taken from African or Asian elephants, rhino horns, and other protected species. Last week, while in London with the Attorney General, I met with our counterparts at Interpol, and many countries to discuss ways to even more effectively pursue this international conservation imperative. Next week, the Attorney General is convening a forum to continue the discussion. We will be joined by leading experts from across the federal government who will be looking at ways to more effectively pursue criminal enforcement of our wildlife trafficking laws. 

Just this week, our environmental prosecutors obtained guilty verdicts against four defendants in New Jersey charged with felony dog fighting. And we have been supporting the Administration’s efforts to combat the illegal growth of marijuana on our nation’s public lands, which is having devastating effects on water resources and protected species in the Western United States, especially right here in California.

Throughout our civil and criminal enforcement program, we have prioritized our work in cases involving fraud against the United States, as well as rooting out and bringing enforcement actions against those who would undermine the integrity of environmental programs and the public’s trust in them.

In just the last two months alone, our Division has announced several successes in fighting fraud. Let me quickly mention several of those. 

We announced a major Clean Air Act civil settlement that requires the defendant – an energy company – to retire 36 million renewable fuel credits (valued at $10 million) and to pay a $25 million civil penalty. 

We obtained a 63-month prison sentence for an Ohio man and $26 million in restitution for his role in a conspiracy that generated millions of dollars in fraudulent renewable fuel credits.

We reached a major settlement with an auto parts company over aftermarket defeat devices in vehicles.

And we obtained a guilty plea involving a seafood company selling millions of dollars of foreign crab meat falsely labeled as blue crab and as “product of USA.”

I am proud of the hard work of our ENRD enforcement attorneys – both civil and criminal – in these cases and many others across our full docket. These successes are also shared with our agency partners. On that point, let me say this: I have known and worked with Acting Administrator Andrew Wheeler and Susan Bodine, the Assistant Administrator for EPA’s enforcement office (OECA) for many years, before our time in this Administration, and I know they understand and appreciate the rule of law and the importance of enforcing our nation’s environmental laws. It is an honor to work alongside them in our shared mission of environmental enforcement.

Defending Good Governance

Even as we vigorously enforce the law consistent with sound principles of federal enforcement, our Division is also defending lawful actions by the agencies we serve. This includes the strong defense of federal permits that authorize the construction and operation of energy infrastructure projects like the Dakota Access Pipeline, which was held up in the prior administration but is now fully operational. We are in active and ongoing litigation related to many pipelines as well as other infrastructure projects around the nation. These infrastructure cases are a priority for the Division. Likewise, the Division has made it a priority to defend the rightful prerogative of a new administration to review and reconsider the costs, benefits, soundness, and legality of the prior administration’s policies and regulations.

In our defensive work, I have the privilege of working alongside great lawyers like Daniel Jorjani at the Interior Department, Stephen Vaden at the Agriculture Department, George Fibbe at the Energy Department, Paul Ney and Harry Kelso at the Defense Department, and EPA’s General Counsel Matt Leopold. Matt happens to also be a former ENRD attorney and is a longtime friend who I know is as committed as anyone to the Constitution, the rule of law, and our mission under law to protect human health and the environment. I was glad to see him on the program for this conference as well, with our Deputy AAG, Jon Brightbill.

As has been discussed at many of the sessions at this conference, the Trump Administration is undertaking an ambitious agenda of regulatory reform, which many credit with helping to fuel the economic growth and job creation that our nation is currently enjoying. ENRD is supporting this regulatory reform work by advising our client agencies on high-priority rulemakings and ensuring the effective defense of regulatory actions in court. Anyone who has litigated on behalf of the federal government knows that you win some and you lose some. While we strive to win, we seek to do so consistent with doing justice. In our regulatory rollback and reform work, our aim at ENRD is to avoid unnecessary litigation, support the integrity of the administrative process, and conserve the resources of the courts, the agencies, and other litigants, while also defending the rightful prerogative of the Administration to set its own policy agenda.

Of course, the vast majority of our defensive cases are Administrative Procedure Act (APA) cases. As such, the administrative record forms the factual backbone of these cases. Often, our ability to successfully defend an agency action depends on the record used by the agency to make its decision. We work every day to ensure that the agencies provide a complete and appropriate administrative record when their decisions are challenged in court. We also want those records to contain all the necessary record documents – no more and no less. This means that documents that are not properly part of the record should be excluded from the record. For instance, just because a document is subject to disclosure under a FOIA request related to a certain agency action does not mean the same document is necessarily considered part of the administrative record. This is especially true for deliberative documents. The FOIA analysis is different than the determination of whether a particular document is properly part of the administrative record, and FOIA might yield documents that were never even seen by the agency’s decisionmaker.

To assist our client agencies in that task, I issued a memorandum last year setting forth the Division’s current position on the contents of administrative records. That memorandum, which reverses a position announced by ENRD in January 1999, is consistent with the position taken by the Office of the Solicitor General in briefs filed in federal appellate courts. The memo makes clear that agency “deliberative documents” are not properly part of the record, and therefore, generally should not be produced as part of the administrative record filed with the court, nor listed in a privilege log. This position is based on the determination that documents reflecting internal deliberations are immaterial to the purpose of record review litigation under the APA, and including them would chill free and frank agency discussion and decision-making. This is an issue that continually arises in our APA cases.

Another issue that arises often in our defensive work is the propriety of nationwide injunctions. Attorney General Sessions recently issued a memorandum on this topic. His view, and the position of the United States, is very clear: the trend of federal courts issuing nationwide injunctions should be challenged. There has been a recent increase in the number of judges who have been willing to issue injunctions or orders that block the entire federal government from enforcing a law or policy throughout the country. Attorney General Sessions was unequivocal about such actions, stating in a recent memo that “[t]hese abuses of judicial power are contrary to law.” He explained that “[t]he Constitution does not grant to a single district judge the power to veto executive branch actions with respect to parties not before the court. Nor does it provide the judiciary with authority to conduct oversight of or review policy of the executive branch.”

This has been the longstanding position of the Executive Branch under previous Administrations from both political parties. The litigation guidelines issued by Attorney General Sessions will help ENRD attorneys present strong and consistent arguments in court against the issuance of nationwide injunctions. You can expect our attorneys to be making these arguments in your cases, should the issue come up. This is true even in cases where we might have a policy preference for a particular court to enjoin a rule. Again, this is based in the impartial rule of law. 

ENRD in the Supreme Court

Turning next to our ENRD practice at the Supreme Court, if you attended yesterday’s Supreme Court review panel, you heard there are seven environmental, natural resource, and Indian law cases before the Supreme Court this term. Not surprisingly, ENRD, working with the Office of the Solicitor General, is involved in all of them. This includes cases about designation of critical habitat, Fifth Amendment claims against local municipalities in federal court, Indian treaty rights, uranium mining, and National Park Service lands in Alaska.

Through the years, the United States has a strong record on environmental and natural resource cases before the Supreme Court, particularly in cases where we ask the Court for review. Interestingly, looking back over the last decade, the United States has filed cert petitions in just eighteen ENRD cases, and of those eighteen petitions, the Supreme Court granted cert in nine cases – half of them.

Of course, as this term demonstrates, ENRD’s docket of Supreme Court cases usually originates from cases in which our opponents have sought Supreme Court review or the Court has asked the United States for its views on whether a particular petition in a non-government case should be granted. In fact, of the seven merits-stage cases in which ENRD is involved so far this term, all of the petitions were filed by other parties. And of those seven cases, we filed amicus briefs at the petition stage in four of them – one “uninvited” amicus brief in which we supported the State of Oklahoma’s cert petition in Carpenter v. Murphy (involving the territorial boundaries of the Creek Nation), and three amicus briefs filed at the request of the Supreme Court in which we also supported cert: Washington Dept. of Licensing v. Cougar Den, Inc. (involving state taxation on off-Indian reservation commercial activities); Virginia Uranium, Inc. v. Warren (involving federal preemption of state laws regulating uranium mining); and Herrera v. Wyoming (involving an 1868 federal treaty and the application of hunting regulations to members of an Indian tribe). You will note that most of these cases relate to Indian country issues, which remains a topic of particular interest for the Supreme Court.

Finally, just yesterday, the United States filed a mandamus petition in the Supreme Court in the Juliana litigation. The history of the case may be familiar to many of you, but let me take a moment to recount the timeline and the issues.

In 2015, the Juliana plaintiffs – 21 minors, an environmental advocacy organization, and a guardian purporting to represent “future generations” – sued the United States, the President, eight Executive Branch agencies, and other federal defendants for depriving them of an asserted right to “a climate system capable of sustaining human life” under the Due Process Clause of the Fifth Amendment and related legal theories. As relief, these plaintiffs asked the district court to order the federal government to “move to swiftly phase out CO2 emissions, as well as take such other action as necessary to ensure that atmospheric CO2 is no more concentrated than 350 ppm by 2100, including to develop a national plan to restore Earth’s energy balance, and implement that national plan so as to stabilize the climate system.” As the district court judge herself framed it, “really the endgame is setting up a survival plan unless one of the other branches of government act – unless they act.” The federal district court in Oregon has set a 50-day trial to begin on October 29, just ten days from now. 

On behalf of the United States, ENRD moved to dismiss the case long ago, and more recently we moved for judgment on the pleadings. We showed that the plaintiffs lack standing; that the purported constitutional right that they assert simply does not exist; that the public trust doctrine, which exists only as a matter of state law, is totally inapplicable here; and that the plaintiffs have not identified specific governmental actions that could be subject to challenge under the APA. Because we firmly believe there is no legal basis for this case to be heard in federal court, we also moved to stay the trial until the district court ruled on those dispositive motions.

In fact, no fewer than three courts have recently ruled that claims of this nature are not justiciable. In July of this year, in City of New York v. BP, a federal district court in New York rejected claims against energy companies on trespass and nuisance theories alleging that their sale and promotion of fossil fuels contributed to global warming. The court explained that “[t]o litigate such an action for injuries from foreign greenhouse gas emissions in federal court would severely infringe upon the foreign-policy decisions that are squarely within the purview of the political branches of the U.S. government.” The court also recognized that “global warming and solutions thereto must be addressed by the two other branches of government,” and they “are not for the judiciary to ameliorate.”

Similarly, in June of this year, Judge Alsup in the Northern District of California dismissed public nuisance climate change claims brought by the cities of Oakland and San Francisco against oil companies, on the basis that those claims are barred by the separation of powers. In that case, ENRD filed an amicus brief explaining the United States’ position that courts should refrain from fashioning new judicial remedies to address climate change issues – a position with which the district court agreed.  

And in August of this year, in a case styled Aji P. v. Washington, a Washington state court rejected climate change claims by twelve young Washington residents, including one of the named plaintiffs in the Juliana lawsuit. Similar to the plaintiffs in the Oregon lawsuit, the plaintiffs here asked the Washington court to order the State to develop “an enforceable state climate recovery plan” and retain jurisdiction to “approve, monitor and enforce compliance” with that plan. The court correctly dismissed the case, finding that the “relief requested by Plaintiffs would require the Court to usurp the roles of the legislative and executive branches of our state government” in violation of the separation of powers. 

The Washington court also addressed a second issue relevant to the Oregon case: whether the Constitution provides a fundamental right to a healthy climate. In the Washington case, the plaintiffs asserted a constitutional right nearly identical to the one that the plaintiffs request the Oregon court to recognize: a right to “stable climate system that sustains human life and liberty.” But the Washington court declined to recognize such a right, stating: “A stable and healthy climate, like world peace and economic prosperity, is a shared aspiration – the goal of a people, rather than the right of a person. These types of aims are the objectives of a polity, to be pursued through the political branches of government. They are not individual rights that can be enforced by a court of law.”    

In the Oregon case, however, the court has consistently ignored or rejected these basic principles of separation of powers and has invoked, instead, a purported “failure of the legal system to protect humanity from the collapse of finite natural resources by the uncontrolled pursuit of short-term profits,” and stated that the “third branch can, and should, take another long and careful look at the barriers to litigation created by modern doctrines of subject-matter jurisdiction and deference to the legislative and administrative branches.”  

In our view, the Oregon lawsuit is an unconstitutional attempt to use a single court to control the entire nation’s energy and climate policy. It is a matter of separation of powers and preserving the opportunity in our system of government for those policies to be decided by the elected branches, not the courts.   

The Attorney General, in a speech earlier this week about judicial encroachment into the policymaking sphere, put it this way:

[The courts] should decide legal questions based on the law and the facts – not their policy preferences. It is of no moment whether a judge likes or dislikes a policy matter. Sometimes judges adopt the view that they can order some policy outcome since the politically accountable branches failed to act. Their failure to act is a policy decision, not a gap for the judiciary to fill. When Congress rejects a proposed policy, a decision has been made – just as surely as when they pass a bill into law. Courts have no right to impose the rejected choice.

Thus, federal district court judges are not empowered to fashion immigration policy, combat climate change, solve the opioid crisis, or run police departments. The Legislative and Executive branches – of federal and state government – are the constitutionally authorized branches to do these things, and if these branches haven’t done so to the satisfaction of an unaccountable judge, it’s not because they need judicial expertise or advice.

The Justice Department is continuing our efforts to see that the Oregon case is dismissed, as is clearly warranted by law. Our mandamus petition, filed yesterday in the Supreme Court, makes a strong and persuasive case for dismissal. We will see how the Court decides the issue. In the meantime, trial preparation continues.

Beyond the legal defects, the fallacies of the plaintiffs’ policy approaches are significant, as well. They are ignoring the clear fact that the United States is the global leader in environmental protection. Indeed, the United States leads the world in greenhouse gas reductions, and the United States is the global leader in the development of new energy technologies that are helping to reduce emissions. And importantly, the plaintiffs in Oregon are ignoring the fact that clean and responsible production and use of fossil fuels remains vital to the health and well-being of the American people, as the Article I and Article II branches of our government, across Administrations, have continued to recognize through their legislative enactments and policies. At bottom, our defense in the Juliana case is built on the rule of law and the Constitution. It is, in a very real sense, about defending democracy.

Conclusion

As you can tell, ENRD is a busy place. Since I joined the Division on January 20, 2017, it has felt more like a sprint than a marathon. But I am proud of what we have achieved over these 21 months, and I am confident that many more successes lie ahead for the Division under the leadership of AAG Jeff Clark.

So, let me conclude, again, by thanking Juge Gregg and the other organizers of this important conference. It is an honor for me to address you this morning. Thank you.

Topic(s): 
Environment
Updated October 23, 2018