On January 14, 2021, outgoing Assistant Attorney General Jeffrey Bossert Clark released a memorandum outlining the Environment and Natural Resources Division’s (ENRD) enforcement principles and priorities for the “robust enforcement of our nation’s environmental laws.” AAG Clark emphasized eight (8) general principles which are at the forefront of ENRD’s consideration for civil and criminal enforcement and also summarized five (5) areas which had been a priority for the Trump Administration. Pursuant to the Trump Administration directives, ENRD was tasked with focusing on (1) clean water, clean air, and clean land; (2) maintaining the integrity of environmental programs; (3) fighting fraud and recovering taxpayer funds; (4) combating violent and organized crimes; and (5) protecting workers, competitiveness, and the infrastructure during the past administration.
AAG Clark was sworn into the role as head of the ENRD on November 1, 2018. Prior to that, he was in private practice at Kirkland & Ellis. He had also served in the ENRD during the George W. Bush Administration from 2001 – 2005. The memorandum is a summary of the approach taken by the Justice Department’s chief environmental enforcement arm during what was often characterized by observers as a pro-business and anti-environment Administration. Some of the more interesting guideposts from the memorandum include the following instructions to DOJ attorneys:
- ENRD enforcement actions should be premised solely on existing legislation of the statute and not the legislative history, agency guidance documents, and/or executive order policy announcements.
- ENRD attorneys should respect the corporate form and not simply group affiliated and/or related entities together. The ENRD “should give due respect to the policy judgment of lawmakers to create and maintain the corporate form.”
- Criminal enforcement should be rare and reserved for instances when there is a requisite and demonstrable criminal intent. The Department must avoid unnecessary “overcharging” of crimes.
- Settlements should impose remedies consistent with applicable statutory authority and the payment of any settlement funds to third parties is prohibited (citing Attorney General June 5, 2017 Memo). In addition, except where Congress has specifically provided otherwise, the use of Supplemental Environmental Projects (SEPs) is prohibited. SEPs were often provided as a settlement option to an alleged environmental violator to reduce overall monetary liability by agreeing to fund an environmental project.
It can be expected that as soon as a new Assistant Attorney General for the ENRD is appointed and sworn in, a new memorandum with revised policy goals and instructions reflecting the Biden Administration will be issued. Anticipated Attorney General Merrick Garland will certainly have a strong voice in directing the approach of the ENRD as well. One of the first changes that may be instituted is the reintroduction of the SEP program, a policy which had been very popular during the Obama administration (and had been used for decades before that by the Environmental Protection Agency and DOJ). There is at least one (1) lawsuit pending in the U.S. District Court for the District of Massachusetts seeking to reintroduce the program on the grounds that the Justice Department’s current interpretation and application of the law prohibiting the use of SEPs is a violation of the Administrative Procedures Act. Underscoring the Administration’s focus on the environment, during his first day in office, President Biden has already signed executive orders to re-enter the Paris Climate Agreement and to suspend work on the Keystone XL pipeline. It is expected that robust instructions to federal agencies to investigate and enforce Clean Air Act and Clean Water Act violation(s), among others, will also be a top priority of the Biden Administration.
A copy of the Memorandum can be found here.
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