Welcome

Biden Victory to Boost DOJ’s Environmental Agenda, Enforcement

Nov. 9, 2020, 4:22 PM

The Justice Department’s environment division is poised to ramp up pollution policing and sideline Trump-era policies when President-elect Joe Biden takes office in January—joining agencies across the executive branch in making a sharp turn to the left.

New political leaders in the Environment and Natural Resources Division (ENRD) will move swiftly to set more robust enforcement priorities and nix recent directives that constrain settlements, environmental lawyers told Bloomberg Law. Early plans from the Biden campaign also hint at an ambitious buildout of environmental and climate justice work.

“I’m cautiously optimistic we’ll see a real change at DOJ,” said University of Arizona law professor Justin Pidot, a former Justice Department attorney who also worked at the Interior Department during the Obama administration.

With some 600 attorneys and staff, the ENRD is charged with enforcing environmental laws and representing the government in litigation involving pollution, wildlife, public lands, tribes, and federal property.

The Trump administration’s critics say they’re eager for a refresh after the tenure of Assistant Attorney General Jeffrey Bossert Clark, who’s pushed aggressive conservative legal principles in environmental litigation since he took the helm at the division in late 2018.

“The Biden administration will have its work cut out for it to repair the morale and professional spirit of the Environment and Natural Resources Division,” said Sam Sankar, senior vice president of programs at Earthjustice.

The Biden camp hasn’t yet signaled who’s in the running to lead ENRD. Advocates are circulating recommendations, but a final decision isn’t likely until after the president-elect names an attorney general.

Enforcement Priorities

Some of ENRD’s swiftest changes will play out in the division’s enforcement work, where Biden officials can quickly pivot toward more aggressive policing of environmental violations.

“The most important thing is getting the message to the rank and file that enforcement is back,” said Eric Schaeffer, executive director of the Environmental Integrity Project. “It needs to be done fairly and thoughtfully, but it’s not something you feel you need to continually apologize for.”

Both the division and the Environmental Protection Agency have faced criticism for their approach to environmental enforcement under President Donald Trump. The agencies have focused on “compliance assistance,” which prioritizes education and outreach to companies instead of violation notices and penalties.

While recent data show some increases in civil penalties and criminal fines collected during the Trump administration, they also show declines in the number of civil enforcement cases, inspections, and criminal prosecutions.

“You’ll certainly see a reinvigoration of enforcement broadly,” Pidot said.

Biden’s Plans

Biden’s campaign has laid out ambitious plans for proactive environmental work within the Justice Department, committing to the creation of a new Environmental and Climate Justice Division.

The new office would “complement the work” of ENRD by increasing criminal prosecutions and other enforcement, supporting climate litigation against fossil fuel companies, addressing legacy pollution issues, and working closely with the EPA’s Office of Civil Rights, according to the plan released earlier this year.

The Trump administration’s enforcement work largely focused on mobile sources of pollution, cracking down on companies that try to evade auto emissions standards. The Biden administration will likely broaden its targets to address industrial polluters that affect vulnerable communities, said former ENRD attorney Thomas A. Lorenzen, now at Crowell & Moring LLP.

Company officials should also expect an aggressive pivot toward criminal enforcement for major violations of the Clean Water Act and other statutes, said Marcella Burke, who served at the EPA and Interior during the Trump administration and now represents energy companies as a partner at King & Spalding LLP.

“If there’s a major environmental incident like a Macondo, expect possible jail time penalties,” she said, referring to the 2010 Deepwater Horizon oil spill. “The criminal side of environmental enforcement could become much more serious.”

No one involved in the Gulf of Mexico disaster served time in prison. An Obama-era Justice Department investigation into the incident led to criminal charges against a few lower-level employees.

But the Biden administration will need to invest in more lawyers and staff to carry out the enforcement work, and the training timeline for new criminal investigators is particularly long, Sidley Austin LLP lawyer David Buente said. Plus, he said, both the Justice Department and the EPA will need more money in their budgets to support more aggressive enforcement.

The Trump administration requested $114.3 million for the division for fiscal 2021, a 4.4% increase from the fiscal 2020 enacted level.

‘Strike of the Key’

Biden officials will have an easier time scrapping Trump-era policies within ENRD, including recent restrictions on environmental settlements.

“Those don’t require rulemaking, so that could just be a strike of the key and they’re deleted,” said Buente, who was an enforcement official and trial attorney at Justice from 1979 to 1990.

Clark, the Trump-appointed division chief, issued a directive in March barring government lawyers from using settlement tools called supplemental environmental projects, or SEPs. That move was unpopular among industry, nonprofit, and government lawyers alike, said Holland & Hart LLP attorney Kelly Johnson, a George W. Bush-era ENRD official.

“I would expect a return to a more aggressive use of SEPs in settlements,” said Baker Botts LLP attorney Jeffrey Wood, who was acting head of ENRD for the first two years of the Trump administration. He argued, however, that a separate Trump-era prohibition on third-party payments in settlements could remain in place.

Other Trump-era policies from ENRD and throughout the Justice Department may also land on the chopping block, including a rule against federal overlap with state water pollution cases; a set of restrictions that affect Superfund cleanups; and a growing practice of second-guessing some environmental settlements.

“I can’t think of anything they’ve done,” Buente said of Trump officials’ policies, “that would be of great importance for the Biden administration that it would want to retain.”

Defense Work

Changes on the defensive side of the division’s work will sink in more slowly. The division has spent much of the past four years fending off challenges to the Trump administration’s efforts to roll back Obama-era rules at the EPA, the Interior Department, and other agencies.

Division attorneys will largely take their next cues from those agencies, maintaining their current legal positions in cases until new leaders at the EPA, Interior, and other agencies take action on contested Trump-era moves.

Justice Department lawyers occasionally decline to defend government actions they view as unlawful, “but historically DOJ tends to be resistant to too much monkeying around in existing litigation,” said Pidot, the Arizona professor.

Instead, agencies will start to announce plans to reconsider various Trump-era rules and deregulatory moves, and ENRD lawyers will ask federal courts reviewing those issues to put their cases on hold.

Once the agencies finalize reversals or replacements, new rounds of litigation will begin.

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

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Chuck McCutcheon at cmccutcheon@bloombergindustry.com

To read more articles log in. To learn more about a subscription click here.