Thank you for that kind introduction. I am pleased to be here as I begin my first visit to China in any capacity.
I very much appreciate the opportunity to discuss U.S. environmental law enforcement, generally, and how the important work of the Environment Division fits into that larger framework.
Robust enforcement of our nation’s environmental and wildlife protection laws is a high priority and a vital feature of the Division’s mission. In pursuing our enforcement mission, we strive to adhere to the fair and impartial rule of law, enhance federalism, exercise pragmatic decision-making, coordinate and collaborate with lead agencies and U.S. Attorneys, and protect the public fisc.
Before I get into the specifics of our work, however, I’d like to provide an overview of environmental law in the United States as a reference point.
The United States’ political system is not entirely centralized. In fact, our system of government, in many ways, structurally encourages participation by many independent actors – by states, by a range of business interests, by individuals and private interest groups of all types.
Because of our country’s political structure, Congress often seeks to exercise its powers by encouraging States to implement national programs. This allows the federal government to set national minimum standards that the states implement and exceed where they wish. This arrangement is commonly referred to as “cooperative federalism.” I also support classic federalism pursuant to which certain spheres of authority are left exclusively to the States. Indeed “left to the States” is not an accurate term, since the States are governments with general sovereign powers, whereas the federal government is confined to enumerated powers.
Cooperative federalism ensures a greater balance of authority between the US federal and state governments. The federal government often provides states with incentives to participate in particular federal programs.
Cooperative federalism is a feature of many U.S. environmental laws. The Clean Air Act is a good example. The federal government sets national ambient air quality standards. States determine how to meet those standards. This process involves each state creating a “State Implementation Plan” that limits emissions from industry within their own State and explains how any given State will enforce any emission limitations.
The federal government can enforce limits set through this process, as can the state. Additionally, the Clean Air Act contains a citizen suit enforcement provision. This creates yet another level of enforcement, one that serves to both supplement and check state and federal authority.
The Environment and Natural Resources Division actively promotes joint state-federal environmental enforcement, which underlies the whole nature of federalism in general and in its cooperative form, a concept central to the structure of our federal environmental laws. By teaming up with state partners in both enforcement and defensive cases, we combine sovereigns, reduce costs and obtain more comprehensive results.
Now I will turn to environmental law enforcement in the U.S. and where the Environment Division fits into that structure.
Environmental enforcement in the U.S. is often described from a quantitative perspective as a huge pyramid of actors and actions.
At the base of the pyramid are environmental enforcement cases brought by state and local government officials, as well as citizens and tribes. Of these, state agencies bring the largest number each year.
States have their own court systems. Though it’s unusual for the federal government to participate in state court, it does happen sometimes. This sometimes involves situations where the U.S. has waived its sovereign immunity.
Their enforcement actions range from cases seeking simple citations imposing a small monetary fine, to orders directing a company to comply with the law, to civil or criminal judicial enforcement actions in state or federal court.
The next level of the pyramid includes administrative actions brought by EPA to enforce U.S. environmental laws.
But U.S. environmental statutes generally place limits on the extent of penalties or other relief that EPA and other agencies may seek in administrative enforcement actions. This is because (a) agencies exercise only delegated judicial powers that we call “quasi-judicial” powers and (b) agencies do not provide the full measure of due process protections available in our so-called Article III Courts.
And so, for more serious violations of environmental laws in which a higher penalty is required or more extensive steps are needed to bring a defendant into compliance with the law or to respond to environmental harms resulting from a violation, EPA will refer the matter to the Justice Department for enforcement action in federal court.
ENRD also receives referrals from other federal agencies for violations of environmental laws under their agency’s jurisdiction. For example, the U.S. Coast Guard sends us referrals for oil pollution cases.
The Division can bring either civil cases or criminal cases. Taking those two types of cases in turn, I call it the next level simply because civil enforcement is generally less coercive though even that is not always true. Civil injunctions can be more coercive than civil cases. Civil cases comprise the next level of the pyramid.
Nearly all modern federal environmental laws in the U.S. have civil enforcement provisions that allow the Justice Department to seek injunctive relief, civil penalties, recovery of government response costs, enforcement of administrative orders, and other relief.
Finally, in the most serious cases involving violations of environmental laws, we pursue criminal enforcement actions, often times on top of civil enforcement, not in lieu of criminal enforcement. Although this is the smallest group of cases (i.e., top of the pyramid), they can often provide the most deterrent value because they can result in large monetary fines, imprisonment, and ongoing monitoring of operations to ensure that the defendant complies with the law in the future.
The Division has been in existence for nearly 110 years and is built upon a history of service, integrity, and adherence to the rule of law.
We began as a very small Division created to handle all cases concerning “enforcement of the Public Land Law,” including Indian rights cases. Initial staff consisted of 9 people — 6 attorneys and 3 stenographers — to carry out those responsibilities.
Many of these issues arose from an effort to balance competing interests related to westward expansion (e.g., preservation of natural spaces, resource disputes on public and tribal lands, balancing private and public property rights, and other such issues).
Our numbers grew over the course of the 20th Century to reflect our growing responsibilities under emerging environmental and natural resources laws in the U.S.
Our litigation responsibilities at present are broad and include:
Enforcing the nation’s civil and criminal pollution-control laws,
Defending environmental challenges to federal agency programs and activities,
Representing the United States in matters concerning the stewardship of the nation’s natural resources and public lands,
Acquiring real property,
Bringing and defending cases under the wildlife protection statutes, and
Litigating cases concerning the resources and rights of Indian tribes and their members.
Fiscal year 2018 – extending from October 1, 2017, through September 30, 2018 – was a successful year for the Division’s enforcement program. ENRD obtained over $3.2 billion in injunctive relief, over $100 million in costs and over $54 million in civil penalties. I personally negotiated the final stages of a more than one-half billion dollar case for auto-emissions cheating against Fiat Chrysler late last year. ENRD also achieved criminal convictions of 47 defendants in 31 cases. We secured criminal penalties totaling $48 million, and confinement totaling 65 years for 70 individuals.
I think it is fair to say that, in this Administration, we are seeing a reinvigoration of the ideals that are part of the fabric of the United States: individual liberty, respect for private property rights, prioritizing enforcement against cheating and malum in se (evil in itself) actions, not just penalizing technical violations, valuing the role of state and local governments, advancing the ability of people to be self-reliant and economically productive, and wisely using our abundant natural resources.
Much of our litigation directly supports the policy priorities of the Administration, as implemented by federal agencies.
For example, we support the Administration’s efforts to secure our Nation’s borders, and are assisting our client agencies in implementing the President’s January 2017 Executive Order directing the Secretary of Homeland Security to “immediately plan, design and construct” a “physical wall” or “barrier” along the border between Mexico and the United States.
The Division is aiding in the acquisition of land for the wall, fencing, towers, roads, infrastructure, and agent housing (along with developing associated title and appraisal work), as well as addressing legal challenges under a host of environmental, procedural, and inverse takings statutes. The Division is supporting the acquisition of land for the project by ensuring that proper survey work and title review is completed, as well as by ensuring negotiations and consultations are conducted with landowners prior to acquisition through condemnation. This is because the Fifth Amendment to our Constitution protects all people against unlawful takings of private property without due process of law.
ENRD is also providing expert appraisal review services in connection with land acquisitions to ensure uniformity in the valuation of the land. This ensures uniform results to satisfy the mandate of the U.S. Constitution for just compensation in the form of market value fair to both the landowners and the citizens who must pay for this land.
This Administration is also committed to course corrections in key areas within the purview of our Division. The President has directed new approaches to reduce regulatory burdens, especially for agriculture, energy development, infrastructure projects, and manufacturing; and to promote development of America’s energy resources, while also protecting the environment.
The Division is—and will continue to be—key to successful implementation of these new directions for the U.S. The Division’s efforts have included managing a number of existing cases challenging agency regulations now under review in this Administration.
ENRD’s work supports our nation’s investment in infrastructure development and energy security. Rebuilding the nation’s infrastructure is a critical part of the President’s agenda to promote job creation and grow the U.S. economy.
ENRD also continues to assist client agencies as they advance the goals of the President’s March 2017 Executive Order “Promoting Energy Independence and Economic Growth.”
Our Division vigorously defends the President’s energy agenda in the courts, which includes defending the Administration’s approvals for energy projects, from coast-to-coast. This includes representing the United States in lawsuits challenging coal mining projects, oil and gas development on public lands, offshore energy production, and many other vital energy decisions by the Administration.
In our work, we aim to avoid unnecessary litigation, support the integrity of the administrative process, and conserve the resources of the courts, the agencies, and other litigants. In doing so, we preserve the rightful prerogative of the new Administration to review the costs and benefits of regulations and to chart a new direction where appropriate.
Now that I have given you a flavor of the thousands of cases ENRD handles each year, I want to focus on our work in the enforcement arena.
ENRD is involved in many ways in wildlife protection in the U.S. and abroad. One area of increased attention and litigation for the Division has been the wide ranging efforts to stem wildlife trafficking.
With estimated annual revenues of $10 billion or more, wildlife trafficking is one of the most profitable types of transnational organized crime, behind only drugs, counterfeiting and human trafficking. In the past decade, wildlife trafficking has escalated into an international crisis.
ENRD implements a robust program of international activities that advances the goals of President Trump’s Executive Order on Enforcing Federal Law with Respect to Transnational Criminal Organizations and Preventing International Trafficking (Feb. 9, 2017).
Our prosecutors bring cases involving wildlife trafficking, and other transnational environmental crimes, in order to thwart criminal organizations and persons engaged in illicit activities that present a danger to public safety and national security. Illegal trade at the scale seen in wildlife trafficking threatens security, hinders sustainable economic development and undermines the rule of law.
In addition to prosecuting these cases, Division attorneys provide critical training for law enforcement partners in other countries to help them work more effectively with us in investigating and prosecuting transnational environmental crimes. Attorneys from the Division also participate in negotiation and implementation of trade agreements and international environmental agreements, to ensure they promote effective environmental enforcement.
Division attorneys also provide leadership in international law enforcement organizations. For example, we work with groups such as the International Criminal Police Organization (INTERPOL) that promote international efforts to combat transnational criminal organizations. ENRD also represents the Department on the Presidential Task Force on Wildlife Trafficking, which the Department co-chairs along with the Departments of State and the Interior.
Over the past year we continued to work closely with the other federal agencies on the Task Force to implement the requirements of the Eliminate, Neutralize, and Disrupt (or END) Wildlife Trafficking Act and develop new reports to Congress that analyze global challenges to combatting wildlife trafficking and provide a new, country-specific focus to our ongoing efforts. We also supported the Office of the Attorney General to prepare the Attorney General at the time to lead the United States delegation and deliver the statement of the United States at the October 2018 London Conference on the Illegal Wildlife Trade. Later that month, we took the lead role in presenting the Attorney General’s Forum on Combating Poaching and Wildlife Trafficking, which assembled governmental and non-governmental leaders to assess the challenges and potential responses to this form of transnational crime.
Through the Division’s capacity-building efforts, our attorneys work to help law enforcement partners, particularly in countries where illegal poaching of wildlife and deforestation occur, to strengthen their evidence-gathering abilities and improve their judicial and prosecutorial effectiveness. These training programs also foster positive relationships with prosecutorial counterparts, thereby increasing the Division’s ability to prosecute under U.S. criminal laws such as the Lacey Act and Endangered Species Act.
In fiscal year 2018 [October 1, 2017, through September 30, 2018], Division attorneys provided training on combatting wildlife trafficking and associated financial crimes for prosecutors, magistrates, and judges – often at the request of the State Department, other federal agencies or the United Nations Office on Drugs and Crime – in countries across the globe, including Africa, Asia and Latin America. This included prosecutor training in Malaysia that coincided with participation in the Association of Southeast Asian Nations (ASEAN) Wildlife Conference. We also supported the Justice Department’s placement in Laos of an ENRD prosecutor as a Resident Legal Advisor focused on wildlife trafficking in the Southeast Asia region.
In addition to our wildlife trafficking work, prosecutors from the Division now lead annual pollution enforcement workshops at the State Department’s International Law Enforcement Academies (ILEAs) in Thailand, Hungary, El Salvador and Botswana. Division attorneys also provided training for vessel pollution prosecutions in Singapore and South Africa.
Of course, as important as this work is, it comprises only a very small part of our environmental enforcement work. Our primary focus, as you might imagine, is on domestic enforcement of U.S. environmental laws, so I will turn to that now.
The Division plays a critical role enforcing federal environmental laws, both criminally and civilly. These include the Clean Air Act (CAA), the Clean Water Act (CWA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund Law), to name just a few. The main federal agencies the Division represents in these areas are the Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers (Corps), and the U.S. Coast Guard (USCG).
The Division’s attorneys help to keep our nation’s waters clean by enforcing the CWA, which is the primary federal statute protecting the quality of the nation’s water, and regulates pollution from both industrial and municipal facilities. Together with the Oil Pollution Act, the CWA also prohibits oil spills.
The Division also requires responsible parties to clean up hazardous waste and to reimburse the government for cleanups already conducted by the United States by filing federal lawsuits under CERCLA, or the Superfund Law.
The CERCLA program operates on the principle that the cost of cleaning up a site should fall not on taxpayers, but on those responsible for the contamination. Our CERCLA litigation primarily deals with contamination left behind by past operations.
But sometimes an agency of the federal government, such as the Defense Department or the Energy Department, is one of the entities responsible for some portion of the contamination at a site. ENRD lawyers seek to limit the liability of the U.S. in such cases to only that portion of the contamination caused by the federal government, and to protect the taxpayers from unwarranted expenditures, by ensuring that other contributors pay their fair share. In that situation, Division attorneys must work together to defend the interests of the United States as a whole.
ENRD enforces the Clean Air Act, which is the primary federal statute protecting the quality of the nation’s air. The pollutants regulated under the CAA have numerous adverse effects on human health, including severe respiratory and cardiovascular impacts and premature death, and are significant contributors to acid rain, smog, and haze.
Now I would like to illustrate several of the topics I have touched upon with a recent example of a significant CAA enforcement case in which we partnered with a state to secure both penalties and injunctive relief.
On January 10, 2019, the United States and the State of California announced a settlement with Fiat Chrysler resolving alleged violations of the CAA and California law.
The United States’ case against the automaker — In Re: Chrysler-Dodge-Jeep Ecodiesel Marketing, Sales Practices, and Products Liability Litigation (N.D. Cal.) — began in May 2017, when the Division filed a civil complaint alleging that the company had used “defeat devices” to cheat on emissions tests.
A defeat device is something — here software — that reduces the effectiveness of the emission control system during normal on-road driving conditions. Defeat devices detect when a vehicle is being tested for compliance with emissions standards and fully activate the vehicle’s emissions controls. During normal driving conditions, however, defeat-device software renders certain emission control systems completely or partially inoperative, greatly increasing the vehicle’s emissions.
The United States’ complaint alleged that Fiat Chrysler equipped over 100,000 3.0-liter “EcoDiesel” Ram 1500 and Jeep Grand Cherokee vehicles in model years 2014 through 2016 with illegal defeat devices. EPA discovered the defeat devices during enhanced vehicle testing at the National Vehicle and Fuel Emissions Laboratory.
If the settlement agreement is approved by the court, Fiat Chrysler will implement a recall program to repair noncompliant diesel vehicles. To offset the air pollution emitted by the non-compliant vehicles, the settlement requires Fiat Chrysler to work with one or more vendors of aftermarket catalytic converters and improve the efficiency of 200,000 converters sold in the 47 States that do not already require the use of the California-mandated high-efficiency gasoline-vehicle catalysts.
The mitigation program under the joint U.S. and California settlement is expected to fully mitigate nitrogen oxide (NOx) emissions caused by Fiat Chrysler’s violations outside of California. The recall and mitigation project required by the joint U.S. and California settlement is estimated to cost approximately $185 million. (The State of California has a separate settlement with Fiat Chrysler with a separate mitigation program that will fully address excess NOx from affected vehicles in California. That mitigation project is expected to cost $19 million.) To resolve the alleged violations of the CAA, Fiat Chrysler will pay a penalty of $305 million. All told, as I had noted before, the total value of federal relief exceeds $500 million.
As you can see, the work of ENRD has grown in ways that no one would have imagined in 1909 when the Attorney General first established the Division. I have offered you but a few examples of the breadth of ENRD’s work.
Thank you again for inviting me to speak with you tonight. I welcome your questions.
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Author: May 20, 2019