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Environment & Energy Report

Top Official Steps Down From DOJ’s Environment, Civil Divisions

Jan. 14, 2021, 4:53 PM

A top Justice Department political official is stepping down from his posts atop the agency’s environment and civil divisions.

Assistant Attorney General Jeffrey Bossert Clark announced his resignation, effective noon Thursday, in a letter obtained by Bloomberg Law. Clark had led the Environment and Natural Resources Division, or ENRD, since late 2018 and served as acting head of the Civil Division since September.

“I am deeply thankful both to you for giving me the professional opportunity of a lifetime to guide and direct the roughly 1,400 lawyers comprising those two litigation Divisions, and to the Senate for their vote of confirmation in October 2018,” he said in the Jan. 12 letter to President Donald Trump.

“I wish you well in your own return to private life,” he told the president. “And I hope you will join me in praying for the Nation’s best welfare in trying times.”

Clark issued two eleventh-hour policy memos in his last days at work: one setting constraints on certain mitigation relief in enforcement cases, and another that doubles down on his earlier elimination of a popular settlement tool.

Temporary Leadership

Jonathan Brightbill is now acting assistant attorney general for ENRD. As Clark’s deputy, he’s been leading ENRD since Clark began overseeing the Civil Division last year. Brightbill, a political official, will serve in the role for less than a week, with his time in the agency set to expire when President-elect Joe Biden is sworn in Jan. 20.

“It’s been an incredible honor to have served at the Department of Justice and as a senior leader in the environment division for the last three-and-a-half years,” Brightbill told Bloomberg Law. “It’s been the highlight of my professional career.”

The incoming Biden administration hasn’t yet announced a pick to lead ENRD, and the transition team didn’t respond to questions about who will oversee the division before a nominee is confirmed. Deputy Assistant Attorney General Jean E. Williams is the top-ranking career official within ENRD.

Victories, Criticism

ENRD’s more than 500 lawyers and staff represent the U.S. in environmental litigation, defending agency actions and enforcing environmental statutes. The division also handles tribal law issues and eminent domain, including land seizures for the U.S.-Mexico border wall.

Clark developed a reputation during his two-year tenure for pushing aggressive conservative legal principles that were sometimes criticized by environmental and industry advocates alike. He barred the use of a popular settlement tool, unsuccessfully challenged a California climate program, and applied increased scrutiny to environmental settlements.

In his final week, Clark issued two policy memos addressing mitigation and settlement devices known as supplemental environmental projects. Clark barred the use of SEPs in a 2020 memo. This week’s follow-up memo aims to reinforce the decision by pointing to a new Justice Department regulation that broadens and formalizes an existing prohibition on third-party payments in settlements.

Some lawyers have questioned the propriety of Clark issuing policy memos just before the Biden administration takes office. Beveridge & Diamond PC attorney John Cruden, a former ENRD chief, said Wednesday it was “amazing” that the assistant attorney general was issuing policy memos a few days before a change in administration.

Clark counted among his top achievements his defense of the Trump administration’s update to National Environmental Policy Act rules. The White House Council on Environmental Quality’s new regulation—the first significant NEPA regulatory update in 40 years—aims to speed up federal environmental reviews and narrow their scope.

Clark successfully fended off two preliminary efforts by environmental groups to block the regulation’s implementation. The courtroom appearances in the NEPA litigation were standard for Clark, a former Kirkland & Ellis LLP attorney who argued numerous cases during his time as assistant attorney general.

Clark and Brightbill haven’t announced their next professional moves.

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; Rebecca Baker at rbaker@bloombergindustry.com

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