Remarks as Prepared for Delivery
Thank you for that kind introduction. It is an honor to be speaking here today. This is actually my first time back to Joint Base Andrews since 1991. Back then, this was known to me as Andrews Air Force Base. My father served more than twenty years as an Air Force officer, and his final duty assignment was right here at Andrews, where he flew C-9s with the 89th Airlift Wing.
I am sure it is still the case, but when I was growing up, it was a really big deal to visit Andrews. I remember sitting in my family’s Dodge Aries sedan as we drove together on to the base grounds in the 1980s, with the guards saluting as our car crossed through the gates. We would dine on Sunday afternoons at the Officer’s Club and swim at the base pool. We would wander Andrews, shop at the Base Exchange, and play arcade games at the bowling alley. At times, we would walk the flight line and gawk at some of the world’s most incredible aircraft. I was even able to walk upstairs to the top of the Air Traffic Control Tower a time or two. Once, I remember looking into the hangar of Air Force One. A deep sense of amazement and pride would overwhelm me every time I stepped on this base. I have that feeling again, today. And looking back, I credit my father’s assignment here at Andrews, so close to our nation’s capital, as sparking my own interest in law and politics.
I know many of you in today’s audience remain active duty members of the Armed Forces, and many others have found your calling serving as civilians within the Department of Defense. On behalf of the Attorney General, who himself served in the Army Reserve for over a dozen years, please accept our sincerest and deepest appreciation for your service to our nation. To the lawyers in the audience, you have the unique opportunity to aid our national defense while also advancing the rule of law – a truly worthy life calling. At the Environment and Natural Resources Division, we are more than proud to join you in that mission.
And rest assured that all of the Services are well represented within our Division. In fact, at ENRD, there are nearly three dozen veterans as well as a number of reservists. One of those reservists, Lt. Col. Josh Van Eaton recently received one of the most prestigious awards for achievement in public service – the Samuel J. Heyman Service to America Medal – for his role as one of our lead attorneys for civil litigation in the Volkswagen case.
A couple of months ago, I appeared in federal district court on a case being handled by Jacqueline Brown, an attorney in our Natural Resources Section. Captain Brown serves in the Air National Guard. Under tough questioning by the judge, I was amazed to see how Jacqueline maintained her composure and discipline and responded with solid legal arguments advancing the interests of the United States. After that hearing, I learned that, soon, she will deploy overseas with her guard unit. Captain Brown’s trial team will miss her immensely and her role will be hard to fill while she is away.
Also, Major Tom Franzinger, an attorney in our Environmental Crimes Section, came to ENRD from the Air Force and is a JAG reservist attached to the 11th Wing Legal Office, Joint Base Andrews. Major Franzinger is currently on a 5-week tour as a clerk with the Air Force Court of Criminal Appeals. Jeff Beelaert, an attorney in our Appellate Section, was a Combat Engineering Officer in the Marine Corps for eight years, and served time in Iraq and other locations around the world.
In 1990-1991, during Operation Desert Shield and Desert Storm, ENRD attorney Ed Passarelli went from filing legal briefs to loading missiles and bombs. Ed retired a decade later from the Army Reserve as a Lieutenant Colonel, but continues to serve as a Deputy Chief in our Natural Resources Section.
For more than 20 years, ENRD has also benefitted immensely from a detail program with the Air Force, where each year a detailee from the Air Force works in our Environmental Defense Section. Currently, that post is held by Major Michael Schrama. William “Darrel” Johnson, who returned to the Air Force after serving as a detailee and as a trial attorney in the Environmental Defense Section, continues to serve on some of our cases through a special attorney appointment. And John Cashman is a detailee from the United States Coast Guard, who is serving with distinction in our Environmental Crimes Section.
These attorneys and many others at ENRD who have served and continue to serve represent the best of our Division and our nation. I should also add that the Attorney General has a particularly strong connection to the U.S. Navy, where his son-in-law is an officer. In 2013, then-Secretary of Navy Ray Mabus awarded then-Senator Jeff Sessions with the Navy’s Distinguished Public Service Medal, the highest award given to non-Navy individuals or non-career Navy employees. Under the leadership of Attorney General Sessions, we are as focused as ever on ensuring that all of you have the support you need from our Division to advance the Nation’s interests. The same is true for other components of DOJ as well.
In my remarks today, I want to emphasize how ENRD works closely with the Department of Defense to keep our nation safe, secure, and resilient. This work is central to our mission, and it includes land acquisition for the expansion of military bases, the defense of military programs aimed at ensuring our forces are as prepared as possible, and the responsible management of our natural resources impacted by DOD activities. I will also provide a general update on the work of our Division as well as focus on some of the new priorities and actions we are taking under the leadership of Attorney General Sessions.
Before I describe a few recent successes that we have achieved together with our DOD colleagues, let me emphasize that ENRD has long enjoyed a close partnership with DOD. For example, back in 1999, when he was still prosecuting cases in the Environmental Crimes Section, Associate Deputy Attorney General Andrew Goldsmith successfully prosecuted the Overholt case. This case involved illegal transportation of over 300,000 gallons of petroleum-impacted wastewater from decommissioned missile silos at DOD facilities in Kansas and Missouri, including Whiteman Air Force Base, and disposal of that wastewater into injection wells in Oklahoma. You’ll be pleased to know that Mr. Goldsmith is responsible for environmental matters in the Deputy Attorney General’s Office, and he continues to work closely with DOD on a variety of matters, including criminal discovery.
More recently, in a case in the Second Circuit Court of Appeals, ENRD successfully defended the Air Force’s decision to locate a squadron of F-35 fighters at Burlington International Airport in Vermont. In that case, Zbitnoff v. James, the plaintiffs alleged that the Air Force had violated the National Environmental Policy Act by failing to consider fully the noise pollution generated by the F-35s, which are louder than the F-16s they are replacing. The district court ruled that the Air Force had prepared an adequate Environmental Impact Statement before selecting the station as the base.
On appeal, the plaintiffs contended that the Air Force should have notified the public about its motivations for selecting the site, such as cost savings. The court of appeals rejected this approach, emphasizing that an Environmental Impact Statement need not discuss non-environmental impacts. The Second Circuit also rejected the plaintiffs’ preemption argument that the Air Force should have considered a state land-use law’s permitting requirements. On this issue, the court held that the “pervasive control vested” in the Environmental Protection Agency and the Federal Aviation Administration left no room for local controls.
The Division’s Land Acquisition Section also plays an important role in national security, especially with regard to military base land acquisition. In one recent case, we settled a time-sensitive matter on behalf of the Navy that will allow for construction of the Broadway Complex Redevelopment Project in San Diego. The project includes a new regional headquarters for the Navy that will not be borne by taxpayers; the funding instead will come from the commercial development of the rest of the site.
We are actively engaged in a number of other condemnation actions across the country and across the Department of Defense. Our Air Force work includes a case involving the condemnation of mining claims in support of the Air Force’s Nevada Test and Training Range. For the Marine Corps, we are acquiring landing fields in South Carolina and Alabama, and a multi-use bombing range in Georgia. We have also filed a number of cases in California to allow for the expansion of the Marine Corps Air Ground Combat Center located in Twentynine Palms, California. These acquisitions will allow the Marine Expeditionary Brigade training for three battalions using air and ground live fire. In late 2017, the Division reached a settlement in one of these cases. We also have a number of cases for the Army, including one related to training lands for Joint Readiness at Fort Polk in Louisiana.
Our Division also has continued to assist the Navy to ensure the uninterrupted use of Surveillance Towed Array Sensor System Low Frequency Active sonar, or SURTASS LFA sonar. SURTASS LFA is a critical asset to the Navy’s ability to carry out its national defense mission, including training, testing, and other operations. The Division assisted by coordinating with the Navy and the National Marine Fisheries Service on compliance with the Marine Mammal Protection Act, the Endangered Species Act, and the National Environmental Policy Act. Last fall, Attorney General Jeff Sessions presented the Assistant General Counsel for the Navy and the Deputy General Counsel for the National Marine Fisheries Service with an award for tireless efforts responding to litigation challenging the SURTASS LFA sonar. We were proud to work on this case with the Navy.
The Division also works with the Department of Defense in litigation involving contaminated sites, including World War Two-era sites. Many of these sites are now owned by other entities, and so it is not uncommon for parties to seek costs related to remediation. In these cases, we coordinate with the applicable Department of Defense component and determine whether, and to what extent we will seek to settle the claims or have them dismissed.
I want to mention one recent example of this type of case – the Ordot case in Guam – because it sheds light on how the Division handles issues that have implications for multiple federal agencies. This case centers on a dump called Ordot, which Guam has owned and operated since the 1950s. The dump was actually first used by Japanese forces during their military occupation of Guam in World War Two. At Guam’s request, the dump was added to the Superfund’s National Priorities List in 1983; but, after two decades, it still wasn’t remediated. In 2002, the United States, on behalf of the Environmental Protection Agency, sued Guam for discharging contaminated leachate from the dump in violation of the Clean Water Act. The lawsuit settled in 2004 when Guam agreed to close the dump in accordance with federal law.
Fast forward to 2017 when Guam filed a lawsuit against the United States, including the Department of the Navy, alleging that the United States is liable under the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA. Guam asserted the United States was liable for costs Guam had incurred in its clean-up of the Ordot Dump based on the United States’ alleged disposal of municipal and military waste related to use either before or after Guam took over control of the dump. In particular, Guam sought recovery for response costs from the United States under Section 107 of CERCLA, or in the alternative, contribution under Section 113 of CERCLA.
This case raised questions about whether Guam could only seek contribution under Section 113 and was precluded from seeking recovery of response costs under Section 107 because of the prior Clean Water Act consent decree. Guam primarily contends that a Clean Water Act settlement cannot trigger a CERCLA contribution right, but that argument is inconsistent with how the United States has interpreted the statute. The legal position we have taken – determined after consulting with all interested federal agencies – is that, under the facts of this case, Guam is limited to a Section 113 contribution claim because of the prior settlement, and that claim is barred by CERCLA’s statute of limitations. This approach, we believe, respects EPA’s role in brokering settlements to clean up sites while also protecting the interests of the United States when agencies, such as DOD, are sued by a settling party such as Guam.
Determining the government’s position on these issues required ENRD to consider implications for multiple federal agencies. This is a role that we have played in a number of contexts. In these circumstances, we focus on the law while also, where appropriate, striving to harmonize the views of all affected federal agencies. At the end of the day, we represent the United States, not any single agency within the federal government, and so it is DOJ’s responsibility to determine which position best adheres to the laws as written.
Military bases are not the only sites of potential contamination. Vessels can also lead to lawsuits. A case in point involved more than 4 dozen ships in the Suisun Bay area near Richmond, California. These ships were no longer in use and included Navy combatant and supply ships. A lawsuit claimed that the Maritime Administration, which had jurisdiction over the ships, was allowing contaminated materials, particularly paint that contained pesticides and copper, to fall into the ocean. Our Division worked with MarAd to establish a 7-year plan to recycle all of the ships in an environmentally-compliant manner. That process has been completed and set a pattern that could be followed in future cases.
In order to understand how this work fits into our mission, I will turn now to explain some of our other responsibilities. Much like this wide-ranging environmental law course, the work of the Environment and Natural Resources Division is expansive and diverse. Our affirmative and defensive litigation runs the gamut from civil and criminal enforcement to the defense of agency actions aimed at the wise use of America’s natural resources.
The enforcement of environmental laws is at the core of the Division’s mission. Our Division pursues civil and criminal enforcement cases to protect the environment and public health. We could discuss many such cases, but one recent example highlights this work. Last month, ENRD, EPA, and the Indiana Department of Environmental Management announced a settlement in a Clean Air Act case involving excess emissions of coke oven gases from a coke plant in East Chicago, Indiana. The consent decree will reduce emissions of sulfur dioxide by 1,895 tons and lead by 680 pounds. A civil penalty of $5 million will be split by the United States and the State of Indiana, and the coke oven operator will also spend $250,000 on lead abatement in schools, day-care centers, and other buildings.
We have also achieved a number of successful results in recent cases where we have worked closely with States and tribes. For example, we recently negotiated a settlement jointly with the Commonwealth of Pennsylvania that resolves alleged Clean Air Act violations by the operator of a coke (purified coal) plant in Monessen, Pennsylvania. The settlement requires the operator to install an estimated $2 million in air pollution controls to limit emissions and includes a civil penalty of $1.5 million that will be split between the United States and Pennsylvania.
We have also worked closely with many States in CERCLA cases. For example, the United States recently announced settlements that resolve claims for natural resources damages that will benefit the Great Lakes. These include an announcement by the United States and Wisconsin of settlements totaling $4.5 million to resolve claims for natural resource damages at a site encompassing 14 miles of river, a harbor in Lake Michigan, and an adjacent floodplain, and an $8.2 million settlement announced by the United States, Minnesota, and Wisconsin for natural resource damages in Duluth, Minnesota that will include projects that benefit the St. Louis River and nearby Lake Superior.
Enforcement of environmental laws helps to ensure that all Americans have clean air, clean water, and clean land; it also ensures the rule of law. As the Attorney General recently said: “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.” This means that when we initiate a civil or criminal action, we consider the Constitution, the statutes enacted by Congress, and the regulations promulgated by agencies, like the Environmental Protection Agency and the Army Corps of Engineers.
Let me take a few minutes to touch on two recent actions by the Attorney General with relevance to our enforcement work: first, his directive in June of 2017 concerning “third party payments” in settlement agreements; and second, his November 2017 directive concerning the use of “guidance documents.”
On June 5, 2017, the Attorney General issued a directive to all DOJ attorneys restricting settlement payments to third parties with no other involvement in the case. The June 5 memo prohibited payments in settlement agreements to “non-governmental, third-party organizations” in DOJ cases, with a narrow list of exceptions. But it contains an important exclusion recognizing that payments that “directly remed[y] the harm that is sought to be redressed, including, for example, harm to the environment” are permissible. The June 5 memo also does not apply to “payments expressly authorized by statute, including restitution and forfeiture.” Our Division has been implementing this new policy. For example, we recently modified a proposed consent decree with Harley Davidson to remove a third-party payment that was inconsistent with the June 5 memo.
We have had many questions from federal agencies, our own attorneys, and others about how to apply the June 5 memo. As a result, I issued a memorandum to ensure consistent application of the AG’s June 5 memo across our ENRD enforcement docket. Importantly, the ENRD memorandum does not depart from or modify the Attorney General’s memorandum – it is intended to apply the memo in the context of ENRD cases. The ENRD memorandum recognizes that “the June 5 memorandum permits the limited use of certain types of third-party payments in some environmental cases” but states that “such payments will not be routine in ENRD matters.” The ENRD memorandum also sets forth a range of restrictions and prohibitions, including an absolute prohibition on payments that do not remedy environmental harm. A key aspect of the Memo is that it sets out examples of how the limited exceptions might apply in specific kinds of cases. These could include preservation, creation, and/or restoration of wetlands in cases brought under Section 404 of the Clean Water Act by the Army Corps of Engineers.
Second, our leadership at DOJ has established new policies governing the use of so-called “guidance documents.” In November 2017, the Attorney General issued a memorandum prohibiting DOJ components from issuing guidance documents that have the effect of binding the public without undergoing notice-and-comment rulemaking. Let me pause here a moment and try to answer a basic question: what exactly is a guidance document, within the meaning of this policy? When we refer to a “guidance document,” we are referring to any agency statement of general applicability and future effect, whether styled as “guidance” or otherwise, that is designed to advise parties outside the federal Executive Branch about legal rights and obligations. We are not referring to adjudicatory actions that do not have the aim or effect of binding anyone beyond the parties involved, documents informing the public of agency enforcement priorities or factors considered in exercising prosecutorial discretion, or internal directives, memoranda, or training materials for agency personnel.
The Attorney General made it clear that guidance documents cannot be used as a substitute for rulemaking and may not be used to impose new requirements on entities outside the Executive Branch. His memo sets out a number of principles governing the use of these documents going forward. While ENRD has not historically issued guidance documents of its own, many federal agencies make frequent use of them. We would encourage all federal agencies to carefully consider how they use guidance documents to ensure that those efforts align with principles of fair notice and the rule of law.
Subsequently, on January 25, 2018, the Associate Attorney General further prohibited DOJ litigators, including ENRD, from using our affirmative law enforcement authorities to effectively convert agency guidance documents into binding rules. The Associate Attorney General also prohibited DOJ litigators from using a defendant’s non-compliance with a guidance document as a basis for proving violations of applicable law in an enforcement case.
Now, this does not mean that any use of a guidance document in an enforcement case is improper. For example, the Associate AG memo explains that “some guidance documents simply explain or paraphrase legal mandates from existing statutes or regulations, and the Department may use evidence that a party read such a guidance document to help prove that the party had the requisite knowledge of the mandate.” But the important point is that DOJ will not be using agency guidance documents to somehow suggest that mere noncompliance with the terms of a guidance document amounts to a violation of law. The principle of law is that a mere guidance document cannot create any additional legal obligations; that is reserved for proper lawmaking activities, whether statutory or rulemaking under the authority of a statute.
You might ask how this DOJ directive relates to the memorandum from December 2008 titled “Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. United States & Carabell v. United States,” which remains in use by the Corps of Engineers. I would note that this DOJ approach is actually very consistent with the terms of the 2008 post-Rapanos memorandum, which expressly acknowledges that it does “not substitute” for statutes and regulations, that it cannot “impose legally binding requirements on EPA, the Corps, or the regulated community,” and “[a]ny decisions regarding a particular water [must] be based on the applicable statutes, regulations, and case law.”
Another priority for our Division at this time is defending the regulatory, national security, and infrastructure agenda of the Trump Administration. In the regulatory sphere, the President issued several executive orders that are directly tied to the work of the Division, particularly in relation to domestic energy production and use. In response to these directives, federal agencies have undertaken a robust program of regulatory reform. In turn, our attorneys at ENRD have been working hard to defend the new administration’s prerogative to reconsider the costs and benefits of rules on the books.
In the regulatory context, we are emphasizing the importance of compliance with the Administrative Procedure Act. One crucial part of that effort is ensuring that agencies provide a complete administrative record when their decisions are challenged in court. In October 2017, I issued a memorandum to our attorneys and other agencies setting forth the Division’s current position on the contents of administrative records. The memo, which is consistent with the position taken by the Office of Solicitor General in briefs filed in federal appellate courts, makes clear that the United States’ position is 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.
It bears repeating: a solid record can make a substantial difference in a case. It can demonstrate to a court that the agency has met its legal obligations, including its duties to comply with environmental laws and regulations. I would encourage you to consult with DOJ attorneys as you face questions about the administrative records for your cases. And, consistent with the ENRD memo, I have asked agencies to consider reviewing their own guidance on administrative records.
Since many of you likely have involvement in environmental lawsuits filed against the Defense Department, let me touch briefly on a couple of issues related to the settlement of cases. The United States is not a typical litigant because, among other things, we negotiate with the taxpayers’ money. Our obligations to protect the public fisc are particularly strong where funds used to settle a case come out of the Judgment Fund, as opposed to the agencies’ appropriated budgets. The Judgment Fund, as you know, is a permanent, practically unlimited appropriation that allows the U.S. Treasury to pay money judgments against the United States. We at DOJ are committed to ensuring that we are very careful with the use of Judgment Fund dollars. Only lawful and appropriate payments can be certified for payment from the Judgement Fund. I know that each of you and your clients also take that obligation seriously.
Likewise, ENRD is taking proactive measures to prevent or minimize, wherever appropriate, the payment of attorneys’ fees that we believe are unjustified, unsupported, or otherwise excessive. I made this a point of special emphasis and have instructed our Deputy Assistant Attorneys General and the Chiefs of our litigation sections to closely scrutinize demands for attorneys’ fees to make certain that they are lawful, justified and reasonable. We have seen some recent successes on that front. For example, in September 2017, NRDC filed a request for more than $270,000 in attorneys’ fees and costs in a Ninth Circuit case against EPA. After scrutinizing the claim, ENRD challenged NRDC’s request on the basis that this particular environmental group does not actually qualify for any payments under the Equal Access to Justice Act because it is simply too large of an organization. As a result, NRDC correctly withdrew its request for fees in that case. In another recent case, Sierra Club sought approximately $85,000 in attorneys’ fees in a case where the group challenged EPA’s failure to meet a deadline. Perhaps ironically, ENRD challenged that request because the environmental group did not meet the statutory deadline for seeking fees. Facing the prospect of litigating its own failure to meet a deadline, Sierra Club wisely withdrew its fee demand.
Finally, when settling lawsuits against federal agencies, ENRD closely consults with the agency and seeks its concurrence that the terms of a settlement are appropriate and feasible to implement. At DOJ, we also have a renewed commitment to the 1986 Memorandum from Attorney General Ed Meese titled, “Department Policy Regarding Consent Decrees and Settlement Agreements.” Under the “Meese Memo,” we are restricted from entering a settlement on behalf of a federal agency that would somehow convert a discretionary authority of that agency into a mandatory duty for the agency. In other words, we can’t and won’t use settlement agreements to make new law.
In conclusion, ENRD is proud to work with all of you on issues relating to environmental and natural resources law that affect the mission of national defense.
It has been an honor for me, personally, to be here today and to return, if just briefly, to Joint Base Andrews for the first time in over 25 years. I look forward to answering your questions.