Thank you, Phillip [Goodwin], for the kind introduction, and to the Planning Committee for inviting me to speak today. I very much appreciate the opportunity to discuss the vital work of the Justice Department’s Environment and Natural Resources Division, a powerful force for good in our country, both with respect to the enforcement of our environmental laws, as well as the defense of good governance by our client agencies.
I joined the Department of Justice on January 20, 2017, the first day of the new Administration, and I currently serve as ENRD’s Acting Assistant Attorney General where I have the privilege of leading the Division and its dedicated team of 600 lawyers, paralegals and staff. I am also honored to be part of the team assembled by our Attorney General, Jeff Sessions. I had the opportunity to work for then-Senator Sessions from 2011 to 2014 as his counsel supporting his work as a senior member of the Senate Environment and Public Works Committee.
As you may know, Jeff Clark has been nominated to be our next AAG. We look forward to welcoming Jeff back to ENRD, where he served from 2001 to 2005 as a Deputy Assistant Attorney General. The Senate Judiciary Committee approved his nomination this week and we are hopeful that the full Senate will confirm him soon. In our front office, we are also joined by career deputies, Bruce Gelber and Jean Williams; new deputies, Eric Grant and Jonathan Brightbill; and counsel, Brandon Middleton and Corinne Snow. Corinne is a Texan herself. I think we have a great team focused on fulfilling the vital mission of our Division. And, looking across the various energy and environmental agencies, I am seeing quite a few Texans taking on key leadership roles. I also understand that our Division’s Assistant Chief of Enforcement, Tom Carroll, is here at the Superconference today. Tom supervises our enforcement folks who work with EPA Region 6; he and his team are doing great work.
Over more than a century, ENRD has protected the country’s air, land, and water; safeguarded the rights and resources of Indian tribes; and promoted responsible stewardship of America’s wildlife, natural resources, and public lands. And the Division’s record of legal excellence continues to the present day.
This afternoon, I’ll touch on some of our enforcement priorities, as well as the substantial docket of defensive litigation handled by the Division, and highlight a couple of recent cases here in Texas. I’d like to start by sharing some of the initial things I have been doing as a new member of ENRD.
Like many of you, I have spent most of my career outside the Justice Department, but was always impressed with the caliber of lawyers serving in the Environment Division. Over the last six months, I have been getting to know the ENRD sections from the inside – both the people and the work they do. This includes the Environmental Enforcement Section, which handles our civil enforcement cases; the Environmental Crimes Section; the Environmental Defense Section, which defends rules issued by EPA and other agencies, brings wetlands enforcement actions, and defends the United States against challenges to its cleanup and compliance actions at Superfund sites; the Natural Resources Section, which, among many other things, represents the United States in claims related to federal land and resource management; the Wildlife and Marine Resources Section, which litigates civil cases under federal wildlife laws like the Endangered Species Act; the Indian Resources Section, which represents the United States in its trust capacity for Indian Tribes and their members; the Land Acquisition Section, which is responsible for acquiring land for use by the federal government through condemnation proceedings; the Appellate Section, which handles appeals in all cases tried in lower courts by any of the sections within the Division; and finally, the Law and Policy Section, which advises on legal and policy questions that cross our Division’s sections. We are a busy division, with talented lawyers working throughout our nine sections.
I also have enjoyed meeting with, and learning from, several of our former Assistant Attorneys General. I have been able to visit with John Cruden, ENRD’s most recent AAG, several times since January. I’ve also met with other former Division leaders— your fellow Texan, Carol Dinkins; Ron Tenpas; Sam Hirsch; Ignacia Moreno; Roger Marzulla; Tom Sansonetti; and Kelly Johnson, just to name a few. We have proud traditions in ENRD, and I have benefitted from hearing from our past leaders.
Looking forward, I believe ENRD is key to the successful implementation of President Trump’s new directions for our nation, including his call for an “America First” energy policy; a major reduction in regulatory burdens, particularly for agriculture and manufacturing; and rebuilding our nation’s infrastructure; while, at the same time, protecting the environment. We also play a role in the Attorney General’s efforts to promote the rule of law and crime reduction.
As I recently informed Congress when called to testify on behalf of the Division, I have emphasized four primary goals to guide our work:
First, we will pursue ENRD’s core mission of protecting clean air, clean water, and clean land for all Americans through the vigorous enforcement of statutes and the defense of the lawful actions of our client agencies. Fundamentally, this is about respect for the Constitution and laws passed by Congress. As you know, ENRD is representing the United States in many cases involving agency actions now under reconsideration by the new Administration. Agencies have inherent authority to review past decisions and to revise, replace, or repeal a decision to the extent permitted by law and supported by a reasoned explanation. As Justice Rehnquist once wrote, “[a] change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency’s reappraisal of the costs and benefits of its programs and regulations.”
Second, a key goal is to effectively support and defend the infrastructure decisions of our client agencies. For example, ENRD is vigorously defending vital infrastructure projects today, including the Dakota Access and Keystone XL pipelines, as well as many highway, port, and other projects of importance to communities around the nation.
Third, we will work cooperatively with the states and Indian tribes to achieve shared environmental goals. Many of the laws entrusted to us give a primary role to the states and tribes, and we aim to keep that important principle at the forefront of our minds as we fulfill our mission. In this regard, I have greatly appreciated the positive outreach from a wide range of stakeholders, especially our state partners, during the first six months of my tenure at ENRD. State attorney general offices and state environmental officials have reached out or visited the ENRD front office to share their perspectives across a broad range of issues. The Environmental Council of the States, the Association of Air Pollution Control Agencies, and other state groups have afforded me an opportunity to visit with their members to hear about their concerns and priorities. On many occasions, when discussing a matter that is taking place within a particular state’s borders, I have asked our attorneys a straightforward question: What does the state have to say about it? This has also been true in many of the cases that we have going in Texas.
Fourth, we will accomplish our work as efficiently and effectively as possible, keeping in mind that every tax dollar we are given must be put to appropriate and good use for the American people.
With this overview in mind, I’d like to turn first to our civil and criminal enforcement work.
Let me say one thing again: enforcement remains a high priority. Our duty is to enforce the laws of the United States – including the lawful regulations of our client agencies – as written, not as we might wish that they were written. This means that an unlawful discharge of pollution is – guess what – still unlawful. We are seeing a healthy debate about the scope of federal jurisdiction under the Clean Water Act. We will support the work of our client agencies as they continue to navigate through the jurisdictional question. Violations of existing laws and regulations continue to be prosecuted. Where federal agencies have incurred costs, as in a removal or response action, we will vigorously pursue recovery for the taxpayers of this country. Where the law has been broken and environmental harm ensues, the Department of Justice is continuing to take action and to protect the environment and public health. We will pursue the law and the facts in each case, wherever they will take us.
Another thing we must keep in mind as we litigate our cases are the policies of the Department. One that has gotten some attention lately is the policy on settlement payments to third parties, which Attorney General Sessions issued on June 5th. That policy generally prohibits Department lawyers from “enter[ing] into agreements on behalf of the United States in settlement of federal claims or charges…that directs or provides for a payment or loan to any non-governmental person or entity that is not a party to the dispute.” We have begun to implement this important policy effective immediately. There are three limited exceptions, however, to this policy, and one in particular that is pertinent to ENRD’s work. “[T]he policy does not apply to an otherwise lawful payment or loan that…directly remedies the harm that is sought to be redressed, including…harm to the environment…” So, while the Attorney General’s memorandum establishes an important policy that affects ENRD settlement practices, it also preserves continued use of third-party payments in environmental cases under appropriate circumstances.
Although litigation is sometimes unavoidable, we also believe that a compliance-based approach can be a win-win for the environment, for the public, and for the American worker. At the state level in recent years, we have seen initiatives successfully promote a compliance assistance mindset. Perhaps there is more we can do at the federal level in that respect. As Attorney General Sessions has said, the Department “would much rather have people and companies obey the law and do the right thing, so we don’t have to see them in court.”
Let me highlight a couple of recent enforcement matters in Texas.
Recently, ENRD, jointly with the EPA and the Texas Commission on Environmental Quality, announced a settlement with Vopak, a Houston-area company. We alleged that Vopak failed to comply with Clean Air Act requirements to properly manage equipment, which resulted in excess emissions of acetone, benzene, styrene, and volatile organic compounds (VOCs) at an on-site wastewater treatment system. We also alleged that Vopak failed to operate flares and chemical storage tanks in accordance with good air pollution practices, as required by state and federal law.
We negotiated a settlement agreement jointly with the State of Texas that resolves the company’s alleged Clean Air Act violations at its Deer Park facility. Under the agreement, Vopak will install state-of-the-art air pollution controls at the facility’s wastewater treatment system, and will use infrared cameras to detect harmful air pollution from the facility’s chemical storage tanks that would otherwise be invisible to the naked eye. The company will also hire a third party auditor to improve how it manages waste and evaluate its compliance with the agreement.
When fully operational, these measures will significantly cut emissions of VOCs and hazardous air pollutants at Vopak’s bulk chemical storage terminal and wastewater treatment facility. This is particularly significant because Vopak’s Deer Park facility is in Harris County, Texas, an area that is classified as non-attainment for ozone. Finally, Vopak will pay a civil penalty of $2.5 million, split between the United States and Texas.
The proposed settlement underwent the normal 30-day public comment period and, after responding to comments, we filed an unopposed motion to enter the consent decree. On Monday, the court granted our order and entered the consent decree.
Also on Monday, we announced an important settlement with Harcros Chemicals resolving violations of the Clean Air Act at dozens of the company’s facilities. The requirements of that agreement will benefit the company’s facilities in Texas, too.
The Division also continues to aggressively prosecute criminal acts that pollute our oceans. Here in Texas, we recently resolved a criminal case against two shipping companies for violations of vessel pollution laws and obstruction of justice for covering up the illegal dumping of contaminated bilge water and garbage into the Gulf of Mexico, off the east coast of Texas. The companies pleaded guilty in federal court in Beaumont at the end of June.
After receiving a tip from a crew member, the Coast Guard’s Marine Safety Unit in Port Arthur conducted an investigation that identified these illegal actions. Under the plea agreement, the companies will be placed on a four-year term of probation that includes a comprehensive environmental compliance plan to ensure, among other things, that all of the company’s ships coming to the United States fully comply with all applicable marine environmental protection requirements established by national and international laws. The compliance plan will be implemented by an independent auditing company and supervised by a court-appointed monitor. The plea agreement also includes a $1.9 million dollar penalty and requires marine and coastal restoration efforts at three National Wildlife Refuges located on the Gulf of Mexico in East Texas, where the offending vessel transited and made port stops.
In another local example, we announced in June that we had charged four men for their involvement in the illegal trafficking of alligator snapping turtles, which are designated as threatened with statewide extinction under Texas state law. The case is being investigated jointly by the U.S. Fish and Wildlife Service, the Louisiana Department of Wildlife and Fisheries, and the Texas Parks and Wildlife Department.
Although most are aware of our role in federal environmental enforcement, approximately half of ENRD’s docket is defensive litigation, where we defend the federal government in challenges to regulations and also a variety of federal land and natural resource management decisions affecting more than a half-billion acres of public lands.
Following the 2016 election, a new approach is being taken to reduce the weight of regulatory burdens in this country. As part of this effort, the President has issued a number of Executive Orders aimed at improving the economy and eliminating red tape. For starters, the President has issued an Executive Order requiring every agency to establish a Regulatory Reform Task Force to evaluate all of its existing regulations and identify candidates for repeal or modification. I am a member of DOJ’s regulatory reform task force and we are undertaking a comprehensive review of broad policy and regulatory actions by our Division. As a result of these efforts, we hope to run a more effective and efficient Division that will provide greater taxpayer value.
Beyond this general directive, the President has issued Executive Orders specifically identifying certain rules for agencies to review. The Executive Order on Energy Independence, for example, declares that it is in the national interest to promote clean and safe development of our nation’s vast energy resources, while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation. Consistent with that policy, the President has directed the EPA to review the Clean Power Plan and, if appropriate, suspend, revise, or rescind these rules. The President has also instructed the Interior Department to review and, if appropriate, suspend, revise, or rescind various rules relating to oil and gas development. Just last week, Interior issued a proposed rule to rescind the BLM hydraulic fracturing rule. We are currently litigating issues related to the fracking rule in the Tenth Circuit.
Another Executive Order is focused on the “Waters of the U.S.” Rule. That order states that it is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution. Under that order the President directed the EPA and Corps of Engineers to review the Waters of the U.S. rule for consistency with this policy and, as lawful and appropriate, propose a new rule rescinding or revising the present rule. In doing so, these agencies are advised to consider interpreting the term “navigable waters,” under the Clean Water Act, in a manner consistent with the opinion of Justice Scalia in the Rapanos case. Last month, the agencies published a proposed rule to rescind the Clean Water Rule and recodify the preceding 1986 rules. A subsequent rulemaking is expected to come later.
As you know, we have a robust docket of cases challenging rules promulgated by the previous Administration. Issues raised by parties challenging these rules may become moot when an agency revises or repeals a rule, and while the review of the rule is underway, our aim is to avoid unnecessary litigation, support the integrity of the administrative process, and ensure due respect for the prerogative of the executive branch to reconsider the policy decisions of a prior Administration. We need to make sure that we are handling these cases in a way that conserves the resources of the courts, the agencies, and other litigants.
We consider a variety of procedural options when litigation over a current rule is pending, but the issuing agency has announced that they are reviewing the rule: One option is asking a court to remand the rule. The remand of a rule “allow[s] agencies to cure their own mistakes rather than wasting . . . resources reviewing a record that both sides acknowledge to be incorrect or incomplete.” This can involve either remand without vacatur, which allows the rule to remain in place pending reconsideration, or remand with vacatur, where the rule is set aside during reconsideration. Another option is to request a stay, or abeyance, of litigation pending agency reconsideration of the rule. A “stay” of the litigation allows the original case to stay on the court’s docket, whereas a remand typically ends the case. A stay of litigation retains plaintiffs’ rights to challenge the original rule in the event the agency’s final decision on reconsideration does not moot all of their claims. We also sometimes seek a continuance of the litigation, asking the court to postpone a pending action, for example a filing deadline or oral argument, while agency action is under review.
This was the situation we faced with the litigation involving the ozone NAAQS, where the D.C. Circuit granted our motion to cancel oral argument and stay the case. Our litigation is also affected when rules are eliminated by an act of Congress, signed by the President, under the Congressional Review Act. When that happens we need to ensure that any litigation related to the rule is appropriately concluded. This has happened a number of times already.
I’d also like to touch on a few recurring issues – “sue and settle”; nationwide injunctions; and standing for intervenors. Let me try to be very clear on the “sue and settle” question, since it comes up routinely: Our focus is on defending our client agencies, not going directly to a settlement. We are focused on the law and the best interests of the United States, not what is best for a particular interest group who might happen to bring a lawsuit. We certainly don’t collude with outside groups in litigation. As anyone who has litigated knows, there are times when settlement is the best resolution. When settling a case is appropriate, we are adhering to a 1986 policy by Attorney General Meese which restricts settlements that constrain the policy discretion of an agency or that provide for the expenditure of unappropriated funds.
We do see a frequently recurring context where Congress has set statutory deadlines for certain agency actions and Congress has, separately, authorized “any person” to file a lawsuit when the agency fails to meet those deadlines. Often in these contexts, the agency is left with few defenses, if any, and a frequent outcome is a settlement agreement or a consent decree between the agency and the plaintiff that resolves the lawsuit and establishes specific timeframes under which the agency agrees to take the procedural action. In many of these cases, the “successful” plaintiff is entitled by a separate statute to recover attorneys’ fees. Many have questioned the soundness of such a regime, especially given the sheer number of statutory deadlines. I can assure you that ENRD leadership is scrutinizing settlements closely for strict adherence to all Departmental settlement policies.
I also want to add a note about the Division’s position on requests for nationwide injunctive relief that we sometimes see in our defensive cases. In representing our client agencies and the interests of the United States, the Department strongly opposes requests for nationwide injunctions that would restrain federal agencies from implementing federal rules across the country. National injunctions improperly “freeze” the first final decision that resolves a difficult legal question in a manner that is adverse to the federal government. This can hinder the development of the law by depriving the Supreme Court or circuit courts of appeals of the opportunity to consider multiple decisions of lower courts addressing a difficult legal issue before conducting their own review. And, where a nationwide injunction of federal agency action is issued after other jurisdictions have upheld the same action, it may create confusion regarding the continued validity of the prior decisions. Of course, there are instances in law where appellate courts are given authority to rule on the validity of environmental rules. That’s a separate question. But, generally, nationwide injunctions by district courts are inconsistent with the idea that rulings regarding remedy should be made by judges located in the same geographical area where the people and entities that will be most directly impacted by the ruling are located.
Third, with regard to standing of intervenors, we have been “kicking the tires” to make sure that legal standards are satisfied. As many of you are aware, the courts of appeals are divided on the question whether a litigant must establish Article III standing before it can be granted intervention as of right. The Seventh, Eighth, and D.C. Circuits say yes, while the Second, Third, Fifth, Sixth, Ninth, Tenth, and Eleventh Circuits say no. In Town of Chester v. Laroe Estates, 137 S.Ct. 1645 (2017), the Supreme Court recently granted certiorari to resolve the circuit split, but, after a contentious oral argument, the Court unanimously decided the case on the narrow ground that a plaintiff-intervenor as of right—like an ordinary plaintiff—“at the least, must demonstrate Article III standing when it seeks additional relief beyond that which [another] plaintiff requests.” The Court characterized that holding as a corollary of its longstanding one-plaintiff rule, under which “[a]t least one plaintiff must have standing to seek each form of relief requested.” The Supreme Court remanded the matter to the court of appeals to decide whether the particular putative intervenor in that case sought different relief than the existing parties. Town of Chester explains that, “[a]lthough the context is different, the rule is the same” for all litigants—“there must be [one] litigant with standing, whether that litigant joins the lawsuit as a plaintiff, a coplaintiff, or an intervenor of right.” Following Town of Chester, we are continuing to argue that a putative intervenor that seeks to broaden the scope of litigation by presenting new or different claims or relief sought must establish Article III standing as a prerequisite to intervention.
These are just a few of the issues that I thought might be of some interest to this audience.
In closing, let me say again that I am honored to be given the opportunity to serve under Attorney General Sessions at the Department of Justice. And I am proud of our team at ENRD. Our Division is a powerful force for good in our country. We enforce the laws that are essential to public health, conservation, and a clean environment. We also defend the laws and regulations that keep America growing and moving. At ENRD, we have a busy docket, and I truly believe the work of our talented team makes a vital difference for Americans every day. In just the first six months of this year, our lawyers have:
Brought several major actions to enforce the Clean Air Act against energy companies and auto makers;
Won guilty pleas in cases involving major fraud against the United States;
Successfully defended important infrastructure projects;
Made progress in securing the southern border;
Brought those who abuse animals in violation of the Animal Welfare Act to justice; and,
Taken action to help protect safe drinking water.
These are just a few of the, perhaps, countless examples of the vital work that takes place at ENRD. Thank you again for inviting me here. It is really nice to be back in Texas.