Justice News

Principal Deputy Assistant Attorney General Jonathan Brightbill Delivers Remarks at the Fall Business Meeting of the Association of Air Pollution Control Agencies
Raleigh, NC
United States
~
Tuesday, August 27, 2019

Remarks as prepared for delivery

Thank you, Nancy, for that kind introduction. And thank you to the Association [of Air Pollution Control Agencies], Nancy Vehr, and your 2019 President, for having me. Congratulations to Marc Cone. Thank you to Jason [Sloan] and all of those who worked so hard to coordinate this event. 

I’m very happy to join you today, though a bit tired. I was actually in Seattle yesterday afternoon, your time, to argue a case for EPA in the Ninth Circuit, so I flew across the country last night to be here with you. 

I am the Principal Deputy to Jeffrey Bossert Clark, our Assistant Attorney General (AAG), who took office last November after he was confirmed by the Senate. He wishes he could have been here himself, but he had a conflict he could not resolve.

I have been with the Department of Justice for just over two years now and, other than a clerkship with a federal judge after law school, this is my first experience in the federal government. 

I, like you, served in state government, at the Pennsylvania Department of Environmental Protection, where I worked on the Secretary’s policy staff on air pollution, waste and land remediation, and radiation issues.

It is, however, a great privilege to work with Jeff and the rest of the Department’s leadership, as well as the talented career staff of the Environment and Natural Resources Division (ENRD). We have an extremely talented and dedicated group of lawyers who are dedicated to their work, and often put in long hours.

My responsibilities include supervising ENRD’s environmental defense section.  This section that defends EPA rulemakings in federal court.  I also supervise our policy shop, which coordinates our assessment of legal risks on regulatory matters across the administration as well as other special litigation, and our land acquisition section. 

As the principal deputy, I also supervise certain significant enforcement and other matters.

Today, I want to tell you about the work of DOJ’s Environment Division and the work we do to help you protect the environment. In particular, I want to tell you about cases where we have partnered with or defending regulatory actions to enable the work of states.

ENRD was established within the Justice Department in 1909 as the “Public Lands Division” with a total staff of nine ⸻ six attorneys and three stenographers ⸻ and handled cases concerning the disposition of public lands and Indian rights.  Now the Division has over 600 employees, including about 450 attorneys handling about 6,500 active cases and matters. 

ENRD represents the United States in all cases in federal court relating to protection of the environment and natural resources (including fish and wildlife).We are delegated responsibility for statutes like the Clean Air Act, the Clean Water Act, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), the National Environmental Policy Act, and numerous conservation and natural resource laws.

What is unique about ENRD is our docket is split roughly evenly between affirmative civil and criminal enforcement and defensive work.  ENRD has the distinction of handling both civil and criminal cases, as well as handling cases in district court and the courts of appeal, as well as in state courts.  ENRD’s AAG will even, from time to time, argue an important environmental case in the Supreme Court for the government.

Much of our litigation directly supports the policies of the administration, as implemented by federal agencies.  Our priorities as a division include: vigorously enforcing pollution abatement and wildlife protection laws, particularly in cases of fraud or abuse; promoting energy independence and economic growth by defending the reduction of regulatory burdens and supporting infrastructure development; strengthening national security and border protection by acquiring real property for our military and DHS; promoting federalism; and protecting the public fisc.

As you might imagine, the primary area in which we collaborate with states is in litigation. We work with states on every type of Clean Air Act litigation we have — affirmative and defensive, civil and criminal. But, our division also has a senior lawyer who is designated as our Counselor for State and Local Matters.  Her name is Andrea Berlowe and she works in the division’s Law and Policy Section. 

Ms. Berlowe develops and maintains contacts with a variety of other state and local organizations, such as the Environmental Council of the States (ECOS) and the National Association of Attorneys General (NAAG).  Together they create and implement training programs and coordinate on a variety of matters of mutual interest.

For example, Ms. Berlowe has worked with NAAG to present periodic webinars on litigation-related and environmental topics.  The most recent webinar focused on the work of the Regional Environmental Enforcement Associations, in which many of your agencies participate.

She also advises ENRD on state and local matters, and connects state and local colleagues, such as yourselves, with a variety of federal resources with expertise on a wide variety of topics. So, with all this as a backdrop, I will now turn to the primary focus of the Division — litigation.

I want to start with our enforcement work. AAG Clark and the rest of ENRD’s leadership team are committed to continuing the division’s robust program of civil and criminal enforcement of the nation’s pollution and wildlife laws. Our program reflects the key priorities of our client agencies.

They are designed to protect the health and well-being of the American people, with the focus on the President’s call for the cleanest air, the cleanest water, and the cleanest land.

As I noted earlier, one interesting thing about ENRD is that we handle both civil and criminal enforcement of the nation’s environmental laws.  Two different groups of lawyers handle civil and criminal cases for ENRD, but they must coordinate because sometimes facts can give rise to both civil and criminal claims.

The Volkswagen defeat device case is perhaps among the most recognizable examples of ENRD cases that produced separate civil and criminal claims, though there are many others.

Something else that is also somewhat unique about our enforcement work — ENRD does not employ inspectors or investigators. Instead, we rely on referrals from other agencies, such as the EPA or states. Once we get a referral, our legal teams independently evaluate whether to bring claims, what types of claims to bring, and against whom.

But, this process means that we work closely with our agency colleagues — including EPA’s state counterparts, on many occasions — in developing and litigating our cases.

Therefore, states play a critically important role in our civil enforcement docket.  They are working in partnership with EPA to develop cases before ENRD even gets a referral or serve as a co-party with the United States in court. 

In fact, it is our practice to review every civil enforcement matter before we go to court, or reach out to the defendants, to determine whether the case might lend itself to including the state in which the facility is located as a co-plaintiff.

When we do bring cases jointly with our state colleagues, we may work with a single state, or with multiple states, depending on the circumstances.  Recent Clean Air Act cases provide an example of each.

Here are some recent examples of our collaboration with some of you, our state partners, in our enforcement work. Our attorneys worked closely with the state of Mississippi — I think we have some folks from Mississippi here, wherethey took enforcement action against Chevron alleging violations of section 112(r) of the act.

This requires covered facilities to implement a systematic risk management program to prevent accidental releases of dangerous substances, and to meet a general duty of care in designing and maintaining safe facilities. This was the first case in which the United States and a state have jointly brought suit to enforce these provisions.

EPA’s initial investigation was spurred by an August 6, 2012, fire involving high-temperature hydrocarbons released in the crude unit at Chevron’s Richmond, California, refinery.  That fire prompted a shelter-in-place order by Contra Costa County officials, endangered 19 employees, and caused 15,000 local residents to seek medical attention. 

During EPA’s investigation, Chevron experienced accidental releases of regulated chemicals at two of its other refineries, including a 2013 explosion and fire in Pascagoula, Mississippi. That caused the death of employee, and a 2013 rupture in El Segundo, California, that caused a loss of power and flaring at the refinery. Collaborating with our partners in Mississippi, we reached a national settlement that requires safety improvements at all of its petroleum refineries across the United States.

As part of the settlement, Chevron will spend approximately $150 million to replace vulnerable pipes, institute operating parameters and alarms for safer operation, improve corrosion inspections and training, centralize safety authority within the corporation, conduct a pilot study of safety controls for fired heaters, and make other safety improvements at all its domestic refineries.  Chevron also will pay a $2.95 million civil penalty.

In addition to the Clean Air Act claims, the settlement resolved claims under CERCLA and the Emergency Planning and Community Right-to-Know Act (EPCRA) regarding delayed reporting of an August 2012 hydrogen sulfide release from one of the refineries.

The overall value of this settlement exceeds $160 million, which makes it one of the largest settlements in the history of the enforcement of the Risk Management Plan Rule under section 112(r). The settlement strengthens emergency prevention and response systems at Chevron’s U.S. refineries, which will help to protect their workers and the communities in which they live from dangerous chemical accidents. 

After the required public comment period on the proposed settlement, we finalized it, and the court in the Northern District of California entered it in March of this year.

In another case finalized recently, we worked with Oklahoma, West Virginia, and Pennsylvania in an enforcement action against MPLX and 11 of its subsidiaries.

The case alleged violations of federal and state clean air laws governing the control of emissions from equipment leaks, pressure relief devices, storage tanks, truck and railcar loading, combustion devices, and process heaters. We ultimately reached a settlement that will strengthen air pollution controls at 20 natural gas processing plants located in Pennsylvania, Ohio, West Virginia, Kentucky, Texas and Oklahoma.

Under the terms of the settlement, MPLX is expected to spend approximately $2.78 million to install and operate new technologies, as well as improve and expand existing control techniques that minimize volatile organic compound (VOC) emissions at its natural gas processing plants.

Certain provisions of the consent decree also include measures to ensure MPLX’s compliance with NOx emission limits applicable to process heaters at its facilities.

This agreement will eliminate harmful air pollutants and create cleaner air for communities in six states. By improving air pollution control at 20 of their gas processing facilities, MPLX will reduce VOC emissions by more than 1,500 tons per year. After the required public comment period, we finalized it, and the court (Northern District of Ohio) entered it in January of this year.

Although the nature of federal criminal laws means we have fewer opportunities to collaborate with states than in the civil context, we do work with states in our criminal enforcement matters.  But our prosecutors recently worked closely with their counterparts in Ohio to pursue a serious asbestos case. 

U.S. v. Riazzi involved a felony charge stemming from the illegal removal of asbestos-containing roofing material from a building located in downtown Dayton. The case began as a local matter handled by a local air pollution agency. But as the defendant continued to lie and mislead, it was elevated to the Ohio Attorney General’s office, and eventually to the Justice Department.

Because only misdemeanor charges were available to the state prosecutors, they were happy to allow the case to proceed in federal court in order to exact a more appropriate punishment. But importantly, after DOJ got involved, the local and state investigators remained engaged, and our prosecutor was able to leverage these resources to ensure a successful prosecution.

Our prosecutors worked with investigators from the Ohio Attorney General’s Office, along with regulators from Ohio EPA and the Regional Air Pollution Control Agency (RAPCA) — a multi-county agency based in central Ohio — to investigate and prosecute the case, which culminated in a guilty plea earlier this summer.

Riazzi, who is the sole owner and operator of his company, purchased the building from the city of Dayton for $10. Later, after being told by his contractor that the roof contained asbestos and would cost approximately $20,000 to remove, Riazzi hired two men to remove the roof over a weekend for $5,000 — without warning them about the asbestos.

Riazzi admitted that he knew, or should have known, that the roof contained asbestos. He also admitted that he did not have the roof inspected for asbestos prior to its removal, as the law requires. As part of his plea, Riazzi also acknowledged that he had personally used a leaf blower to blow roofing debris from the outside of the building into the median of an adjacent street and had dumped a load of roofing material in some bushes opposite the building. He likewise admitted to making several false statements to RAPCA during its investigation.

Mr. Riazzi purposefully cut corners and endangered the health of those performing the roof removal. To make matters worse, he then lied to and misled investigators when asked about his wrongdoing.

As AAG Clark made clear when he announced the plea arrangement, we are committed to prosecuting all who deliberately harm the environment and risk public health in order to save money. 

And this case was a good example of leveraging federal and state resources to hold accountable someone who jeopardized both the safety of his workers and the quality of the air in Dayton.

ENRD also defends the United States when parties allege that its regulations or management decisions violate environmental laws.  Our Environmental Defense Section (EDS) handles these cases and is one of the sections I directly supervise.

I want to share some recent examples with you that touch primarily on two areas in which the states have significant interests. One, our defense of cases that permit state solutions to local air quality problems that are targeted in citizen suits in which the plaintiffs try to force EPA to impose a federal solution on the states. And, two — EPA rulemakings implementing the Clean Air Act.

The citizen suit examples I want to share with you involve implementation plans for regional haze and infrastructure. We have had a number of cases over the last few years involving Federal Implementation Plans (FIPs) for regional haze that were issued in response to court-ordered deadlines in citizen suits.

In three of those cases — Arkansas, Wyoming, and Utah — I think we’ve got friends from all three of these state here — where are you? The lawsuits spurred more lawsuits.  But ENRD was proud to help EPA work settlements or administrative processes that would replace the FIPs governing these states with approvable SIPs. 

For example, litigation of Arkansas, et al. v. EPA (8th Circuit) DOJ went to the court and successfully convinced the court to put the case on hold while the state and EPA worked through a multi-phased process. This led to an administrative replacement of the FIP though three SIP revisions that the state submitted to EPA. 

EPA approved Arkansas’s Phase I SIP revision in 2018.  EPA and Arkansas are also working on Phase II and Phase III SIP revisions that, if approved, would complete action to replace the FIP.

EPA has worked with other states to reach similar administrative pathways to resolution in Wyoming v. EPA and Utah v. EPA, two cases in the Tenth Circuit Court of Appeals.  In both of those cases, we obtained court stays of the litigation while EPA and the states work to devise approvable SIP revisions.

We are also defending EPA’s decision to approve Louisiana’s SIP revision for regional haze in Sierra Club v. EPA (5th Circuit).  That case began when EPA disapproved an earlier SIP and Louisiana challenged that decision.

Rather than continue that dispute, we put the case on hold to allow EPA to partner with Louisiana to prepare an approvable SIP revision. EPA ultimately approved the revised SIP. Environmental groups, along with a few industry groups, challenged that decision in the Sierra Club case.  So our attorneys went back to the Fifth Circuit.  We await a ruling.

Infrastructure SIPs are another area of CAA litigation in which we have worked closely with our state counterparts. For example, in Montana Environmental Info. Ctr. v. Thomas (9th Circuit), we defended EPA’s approval of Montana’s infrastructure SIP against an environmental group’s challenges. 

I actually have specific memories of a couple of long nights working on those briefs. In that case, petitioners sought to require EPA to look beyond whether the SIP complied with the requirements of the CAA, to policing the state’s supposed implementation of the SIP through the infrastructure review process. 

We successfully argued that EPA’s approval of the SIP is limited to the four corners of the SIP, and defeated that petition for review.

We currently have a large volume of rulemaking litigation underway, or about to commence, as many of you likely have read.  In June, EPA announced its new Affordable Clean Energy (ACE) Rule.  It is now off to the D.C. Circuit for my lawyers and me to defend.  This rule is a good example of two important concepts.

The first, an example of a major initiative that will empower state agencies. The second, how ENRD defends a change in administrative position. As with other examples I will turn to shortly, this second concept cuts across much of our defensive work.

I understand that you heard earlier in the program about the technical aspects of this new rule, so I will focus primarily on the litigation. As you know, under the previous administration, EPA passed a regulation entitled the “Clean Power Plan,” which established emission guidelines for states to follow in developing plans to limit carbon dioxide emissions from certain existing power plants.

A number of states and other entities — led, once again, by some of your colleagues here, from West Virginia — immediately challenged the Clean Power Plan in the D.C. Circuit. Pending publication and the effective date of EPA’s new rulemaking, the Clean Power Plan itself is on hold by virtue of a previously unprecedented stay order issued by the Supreme Court pending the resolution of the D.C. Circuit litigation. 

Interesting historical note — not only was this unprecedented, but a week later the late-Justice Scalia passed.  Without his vote, no stay. Newly-elected President Trump, however, ordered a review of this policy. 

In March 2017, the President issued his Executive Order on “Promoting Energy Independence and Economic Growth” (E.O. 13783).  This directed the EPA Administrator to review the Clean Power Plan and to conduct any appropriate rulemaking to repeal or revise the rule if appropriate.

While EPA was considering these options, ENRD successfully sought a stay of the D.C. Circuit litigation. After two years of deliberation, on July 8, 2019, the Administrator signed the final ACE Rule.  It consists of three distinct actions.

One, repeal of the Clean Power Plan. Two, finalization of new emission guidelines for the development, submittal and implementation of state plans to reduce carbon dioxide emissions from certain existing power plants (the ACE Rule). And three, updates to the general regulations governing development of future emission guidelines and state plans under section 111(d) of the CAA.

As anticipated, challenges to the new rule began to be filed (in the case by the American Lung Association) on the same day that it was published in the Federal Register.          At least two more petitions have been filed – the second by a group of states and cities (State of New York v. EPA).  Nobody from New York in here, right? 

A third by a variety of environmental groups (Appalachian Mountain Club v. U.S. EPA).  In all likelihood, multiple trade associations and power companies will intervene. Some may even challenge the new rule, claiming the CAA provides for no GHG regulation at all.

So I cannot discuss the specifics of these ongoing cases, including any likely arguments, I can note the major policy changes embodied in the ACE Rule empower states.

For example, the Clean Power Plan created an interstate emissions trading programs that effectively would have resulted in certain states and its consumers subsidizing the power generation of other states.  In contrast, the ACE Rule gives states the flexibility to consider source-specific factors in establishing standards of performance for their own plants, and that the plants in their states can actually meet.

CPP required reliance on credits generated by — and therefore subsidies paid by consumers in one state — to out-of-state utilities and plants in other states. This is because, in the Clean Power Plan, EPA asserted it had the expertise to effectively regulate the optimal mix of energy production across the states, including whether necessary additional infrastructure could be developed and permitted within the timeframes EPA predicted and without any reliability impacts.

This was a decision of enormous political and economic significance, and one that this administration believes properly left to the states.

Of course, defending the ACE Rule is not the only high profile air case ENRD is handling; we also have pending a host of other cases addressing the issue of climate change in one form or another. 

One that has been much in the news lately is Juliana v. United States, which began in the District of Oregon, initially filed against the previous administration, and is now on appeal to the Ninth Circuit.  This case is often referred to as the “Kids Climate Case.”

From the rights of slave-holding states to overcome Congressional law relating to Fugitive Slaves in the 1850s, to the substantive Due Process Rights of the 1920s, to more recent rights such as those relating to abortion and marriage, rights created by the courts rather than the express language of the constitution have always been surrounded by controversy. 

And the plaintiffs here seek to have the courts create a new one. Plaintiffs assert a right to a “climate system capable of sustaining human life” under the Due Process Clause of the Fifth Amendment to the Constitution, and related legal theories. This case is important, because it could have wide ranging implications for the work that EPA and states do under the Clean Air Act and many other environmental statutes. 

Plaintiffs in this case were children when the case began, but also include an environmental advocacy group and a guardian purporting to represent future generations.  They have sued the United States, the President, eight Executive Branch agencies, and other federal defendants, alleging that the U.S. government has recklessly permitted carbon dioxide emissions from fossil fuels to cause catastrophic climate change. 

As relief, they seek a judgment from the district court judge in Oregon declaring that fossil fuel combustion has endangered a stable global climate. They admit that their goal is that this single district court judge should set herself up as a special master of sorts to oversee the preparation of — and by court injunctions, force — implementation of a national remedial climate change plan.

Their precedent for this nationwide takeover for the federal government and the United States economy as a whole is that district courts have sometimes had to oversee prison reform or school district integrations. 

This would supersede acts of Congress, federalism and local decision-making by states, and squelch the democratic process and many public participation and accountability processes of both our federal and state governments. To be clear, this case is not an attack on or commentary on the Trump Administration.  Again, it was filed during the Obama administration.

This case and the intrusions it proposes by district courts into federal and state processes is an affront to our Constitution. Before the Trump Administration came in, the last administration had had asked the District Court to dismiss the case.  The court rejected that request shortly before the President took office.

After the change in administration, between March 2017 and June 2019, we continued arguing that this case does not belong in the courts for a variety of reasons, and have even been up to the Supreme Court already. The case has definitely presented its share of drama

The most recent intervention by the Supreme Court in October 2018 temporarily stayed the district court proceedings just days before a 50-day trial was set to begin. For those of you who may be unfamiliar with environmental litigation, a 50-day trial is nearly unheard of, except in the most highly complex cases.

Right now, the Ninth Circuit Court of Appeals is reviewing a district court order denying our request for summary judgment. AAG Clark argued the case before the Ninth Circuit in June, so now we must wait for that court to rule before we will know what the next steps will be. 

Another ENRD Case with Important Ramifications for States? While a Clean Water Act case, the case I argued yesterday in the Ninth Circuit (Columbia Riverkeepers, et al., v. Wheeler), is another example of ENRD defending principles of federalism and deference to states to be able to address their own environmental priorities where Congress provided for that in a statute.

The case concerns the so-called “constructive submission” theory.  This is a judge-made doctrine that allows citizens to use the federal courts to try and rearrange and dictate the individual priority-setting decisions of state agencies like those represented here. We would like to put that genie back in its bottle – or at least keep the genie in the lamp to which it is now, as a practical matter, contained.

If we are successful, it will allow the federal government to continue empower states to set their own CWA priorities. Affirmance will inevitably result in plaintiffs interfering with those priorities through “mandatory duty” cases instigated by individual plaintiffs backed by judges who are not politically accountable.

These are the types of suits that resulted in the regional haze FIPs I referenced earlier, and which may not accord appropriate deference to state and local interests and expertise.   

The states of Oregon, Washington, and Idaho have robust CWA total maximum daily load (TMDL) processes.  In fact, they have each issued thousands of TMDLs, and are developing many more. Here, however, technical and other challenges faced by EPA and the relevant states mean the states, EPA, and other stakeholders have not yet reached consensus on the solution to these challenges.  A district court erroneously ordered EPA to promulgate a TMDL—contrary to the congressional grant of deference in the statute.

This effectively cut the states from much of the process. As I argued to the Ninth Circuit yesterday, no federal appellate court in the country has ever applied this theory to require EPA to interfere in the priorities of states once they have established a statewide TMDL program and begun submitting those standards. And the language of Congress’s statute does not permit it. Once again, we look forward to seeing what the Ninth Circuit decides.

Now I would like to highlight other policy initiatives that this Administration of DOJ and ENRD have instituted.  Like the administrative position changes I described in the context of the ACE Rule, these things cut across our work. The first is guidance.

In our American legal system, we are fortunate to have a clear hierarchy of sources of law that we look to when interpreting federal statutes.  Certainty and predictability of the law leads to trust.  Trust leads to investment.  And investment leads to prosperity. 

The Constitution is at the top of the hierarchy for the rule of law in this country.  It is followed by the statute enacted by Congress, and then the regulations and other legally binding agency actions adopted by the Executive Branch. The federal courts are called upon to interpret and apply these sources of law in cases or controversies between parties. 

You will notice that I did not mention administrative guidance in the hierarchy. Although agency guidance does have its place in our legal system, we must be careful, particularly in the enforcement context.

We must be diligent to ensure that nonbinding agency guidance does not substitute for, modify, or expand the limits established by law through the selective use of prosecutorial or enforcement discretion.   

This is why, in 2017, the former Attorney General issued a memorandum prohibiting use of guidance documents as a substitute for clearly stated regulations after notice and comment rulemaking.  The memorandum explains that “the department must abide by constitutional principles and follow the rules imposed by Congress and the President.”  It also references “the fundamental requirement that agencies regulate only within the authority delegated to them by Congress.”

These are not just words ⸻ our attorneys will put these principles into action in our cases. Under Jeffrey Clark’s leadership, our attorneys will zealously uphold constitutional principles in our work.

Last week, AAG Clark also released another policy memo. This clarifies for the public how ENRD will apply another important policy initiative of the Justice Department — the November 2018 Attorney General Memorandum Regarding State and Local Consent Decrees. 

The Department of Justice often enters into out-of-court settlements with public and private entities to resolve allegations that the particular entity violated the law.  But, in some areas, the Department has entered into a consent decree, which is a binding court judgment — one that has the force of law — that puts a federal court and the Department of Justice, in charge of managing the day-to-day operations of the entity.

It is argued that the Department has sometimes utilized the massive power and resources of the federal government — and the leverage that creates to defendant states, companies, and individuals with the cost of lawyers, and the risk of potentially catastrophic results if they attempt to defend themselves at a trial — to force them to enter into consent decree containing voluminous requirements.

Sometimes, these requirements are for relief that Congress has not expressly authorized and which a Judge would never be able to impose if the United States litigated to judgment after a trial or even tried to promulgate a regulation to require.  Many of these consent decrees — which then create legal and regulatory obligations not authorized by Congress — can live on for years, even in perpetuity. 

These consent decrees can pertain to a wide array of state and local programs, including, of course, environmental protection. And under these consent decrees, a federal court will have supervision of budget and policy judgments that ordinarily would be given by the electorate to the local government. 

The duration of a consent decree can last many years, sometimes decades, which means that the consent decree’s regulations can live on despite changed circumstances, advancements in technology, elections, and the electorate’s interests. Giving a federal judge or a court-ordered monitor — in conjunction with federal prosecutors and enforcers — this kind of authority to oversee state or local government with little oversight from Congress but serious local consequences raises serious federalism questions.

So last November, then-Attorney General Sessions issued new direction to the department’s civil litigation components. He focused on reforming the process by which we enter into consent decrees with state or local government agencies, so as to mitigate any actual or perceived concerns. 

To be sure, there are arguments on both sides of these issues, and in some contexts the department is going to consider a consent decree to be the right thing to do. In some cases, maybe it’s the only way to ensure compliance with the terms of a settlement. 

But the Department’s leadership is taking a closer look at consent decrees to make sure that we are doing the right thing and that our consent decrees have certain guardrails in place when we use them. The November 2018 Policy requires additional scrutiny and high-level approval when using a consent decree to resolve disputes with state and local entities. 

Among other things, the policy encourages limits on duration, the use of sunset provisions and a mechanism for termination if the defendant comes into compliance early, and a cost-benefit justification.  Critically, the policy also prohibits the use of a consent decree to achieve a policy goal or relief that — although perhaps well intended — could not be obtained through litigation.

As part of ENRD’s implementation of that policy, AAG Clark just issued additional direction in a memorandum to our attorneys. This memorandum concerns the potential use of Supplemental Environmental Projects (SEPs) in any settlement or consent decree with a state or local government entity.

The ENRD policy memo analyzes the application of the 2018 DOJ Policy to the use of Supplement Environmental Projects, or SEPs, in settlements with state and local governments.

In essence, it concludes that ENRD’s paramount duty is to comply with the statutes of Congress and orders of the Attorney General, including the instructions that consent decrees with state and local governments generally should not seek relief that a court cannot order in the litigation the consent decree seeks to resolve.  

The memo therefore makes clear that SEPs — which, by definition, encompass actions beyond those required by federal, state, or local laws — generally will not be approved as part of a settlement or consent decree negotiated with state or local government entities. State and local consent decrees — including SEPs — have implications for state and local government democratic accountability.

They allow the federal Executive Branch to commit state and local taxpayers to funding projects that are not otherwise required by state or local laws and which its constituents may not support. Indeed, one of the primary aims of the 2018 AG policy was to ensure that local officials can be held accountable by their constituents for using local taxpayer funds on such projects. 

If state or local officials want certain projects undertaken in their communities which are not required by the federal laws that ENRD enforces — they can, of course, choose to do them without DOJ. 

ENRD will generally not use its settlements and consent decrees as a means for defendants to acquiesce in doing projects that may benefit certain special interests. Finally, SEPs run the risk of sidestepping Congress’s power of the purse. This is because SEPs direct money that — by statute — must be paid to the U.S. Treasury if there were a court judgment toward activities for which Congress has not appropriated funds.

To the extent Congress wishes to delegate its authority in this regard, the delegation must be clear and unequivocal.

That said, AAG Clark also realizes that attorneys in ENRD expended significant effort in negotiating SEPs prior to issuance of the AG’s Policy in November.  The AG’s policy also contains a process for seeking exceptions.  At bottom, the ENRD Policy embodies two fundamental points. First, declining to negotiate for SEPs without express statutory authority to redirect money from the Treasury merely leaves intact Congress’s prerogatives to decide how to spend money in the public fisc. Second, if Congress wants to delegate to the Executive Branch the power to negotiate and settle for SEPs, it may do so, so long as it states its intent clearly and provides the necessary standards to guide the Executive Branch’s exercise of delegated congressional power.  It did so in one statute.

Both the DOJ Policy and the ENRD Policy are available to the public on the DOJ website.

 As you can see, the work of the Environment and Natural Resources Division has grown in ways that no one would have imagined in 1909, when the Attorney General first established the division. And while we are able to do a lot from Washington, D.C. to help protect our environment and the air we breathe, we recognize we cannot do it alone. We humbly acknowledge that Washington’s ideas and priorities aren’t the only right, or even best, ideas all the time.

In some instances, Congress does express calls for national solutions. These may be needed to maintain fairness across the country, and to prevent economic rent-seeking and favoritism. But, where Congress calls for federalism, we highly values our partnerships with all of you, and your colleagues throughout the states.

We really couldn’t do it without you. Thank you for inviting me here to share some aspects of our work with you. Please do not hesitate to contact us directly, either through our Counselor for State and Local Matters Andrea Berlowe, or through AAPCA Executive Director Jason Sloan.

I am happy to use the remaining time to answer your questions.  Thank you.

Topic(s): 
Environment
Updated August 29, 2019