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DOJ’s Rapid Rollback of Trump Policies Marks Environmental Reset

Feb. 5, 2021, 5:35 PM

The Justice Department’s swift elimination of Trump-era environmental policies sets a fresh tone for the agency under the Biden administration.

“That’s a clear signal that there is a new sheriff in town,” Williams Mullen attorney Carrick C. Brooke-Davidson said after the Environment and Natural Resources Division’s top lawyer withdrew a slate of memos issued by Trump appointees.

The withdrawal, first reported Thursday by Bloomberg Law, scraps restrictions on certain types of mitigation measures and popular settlement tools called supplemental environmental projects, or SEPs. Jean E. Williams, a career official currently leading ENRD, said the Trump-era policies were “inconsistent with longstanding Division policy and practice.”

The move drew quick praise from environmental advocates, industry lawyers, and former Justice Department lawyers across the political spectrum—many of whom viewed an array of Trump memos as counterproductive to resolving cases and righting environmental wrongs.

“It is great news for our country, for our environment, and for the rule of law that good sense is back at the environment division of the Department of Justice,” said Lois Schiffer, who led the division during the Clinton administration. “This is an important step to restoring good morale as well as good practices of the environment division.”

Sweeping Move

Numerous nixed policies came from Trump-appointed Assistant Attorney General Jeffrey Bossert Clark, who sought aggressive constraints on environmental enforcement during his tenure and had a strained relationship with ENRD’s career staff.

“The fact that it was done so quickly is illustrative of the fact that those memos were a solution in search of a problem,” said Holland & Hart LLP attorney Kelly Johnson, a political official during the George W. Bush administration.

But it’s unusual to see such a sweeping move from a career official, said Vinson & Elkins LLP attorney Corinne Snow, a Justice lawyer during the Trump administration. President Joe Biden hasn’t yet nominated a new assistant attorney general for ENRD or installed any political deputies.

“Instruction from someone higher in the administration must have been involved in this because the career leadership at ENRD is just not the type to rescind policy memos unilaterally regardless of how they feel about the policies,” she said.

Environmental Integrity Project executive director Eric Schaeffer, an EPA enforcement official in the 1990s, saw the quick action as a positive sign.

“That’s what we wanted, not to waste time in a lot of kabuki ritual on overturning things that they jammed through in the last minute,” he said. Clark issued several of the now-withdrawn memos during his last days at the agency.

Environmental Justice

Georgetown Law’s Sara Colangelo, a Justice Department enforcement lawyer from 2007 to 2015, said the policy reset allows ENRD and the Environmental Protection Agency to focus on carrying out Biden’s order to prioritize environmental justice.

“This move immediately provides ENRD and EPA more options to comply with President Biden’s order on developing an environmental justice enforcement strategy,” she said, adding that mitigation measures and SEPs that were placed off limits by the Trump administration are important tools for addressing pollution in overburdened communities.

Thursday’s memo cites Biden’s first-day executive order requiring agencies to review regulations and agency actions that conflict with the White House’s commitment to addressing climate change and environmental injustice.

“These cases take often a long time, so you’ve got people who are being hurt by pollution waiting and waiting and waiting,” Schaeffer said. “When you finally get there, to be able to give something back to the community is really important.”

The White House has also directed the Justice Department to consider creating an environmental justice office.

SEPs Revival

Industry lawyers and environmentalists alike praised DOJ’s revival of SEPs—environmentally beneficial projects companies volunteer to do as part of many settlements for alleged violations. Clark, the Trump appointee, banned SEPs last year after determining they illegally funneled money away from the U.S. government.

“They had been a very popular enforcement resolution tool for 30 years now,” said Schiff Hardin lawyer Francis X. Lyons, a former EPA official and Justice attorney. “There was a great deal of disappointment when the prior administration withdrew their applicability.”

Brooke-Davidson, a career lawyer at Justice from 1985 to 1997, said having SEPs back in play helps his clients resolve cases.

“Whenever you’re trying to negotiate any kind of settlement, it’s always helpful to have as many moving parts as you can,” he said.

Clark’s SEPs ban was viewed as a likely target for reversal under the Biden administration, along with a series of last-minute memos he issued before resigning last month.

Democracy Forward, the Conservation Law Foundation, and the Surfrider Foundation—which challenged Clark’s SEPs ban in court—celebrated Thursday’s news.

“We’re proud of our fight to ensure the DOJ and EPA follow the law and reverse the unlawful Trump-era policy,” the groups said in a joint statement. “And we applaud the Biden administration for swiftly moving to do just that.”

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloomberglaw.com

To contact the editor responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com

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