I’d like to thank ABA SEER for inviting me to your environmental law conference.
It’s a pleasure to be here, and in particular to appear with Tommy Beaudreau, who has had a phenomenal career as Deputy Secretary at the Department of the Interior.
For those I haven’t met before, my name is Todd Kim, and I have the great privilege to serve as the Assistant Attorney General of the Environment and Natural Resources Division at the Department of Justice.
Becoming the AAG for ENRD has been a homecoming for me. I originally joined the Division as an Honors Attorney, and I spent almost eight years in the Division’s Appellate Section. I’m very proud to be back at ENRD, and I’m eager to talk with you about our work and how it relates to your experiences representing private clients on environmental compliance issues or working on environmental initiatives in the public sector.
Today, I’ll briefly address ENRD practice in the Supreme Court, and then focus on environmental justice and climate change—priority issues for this ambitious Administration. But let me start with a short overview of ENRD.
As most of you know, ENRD is one of the litigating divisions at DOJ. We’re sometimes called the “world’s largest environmental law firm,” with over 600 employees, including more than 400 attorneys.
ENRD’s mission is to protect the health and welfare of the American people, preserve our breathtaking landscapes and precious natural resources, and ensure that all Americans are treated fairly under the law.
And our civil and criminal enforcement efforts have real nationwide impact. In fiscal year 2023, for instance, we obtained over $400 million in civil and criminal fines, penalties and costs recovered, and we secured federal injunctive relief valued at over $2.3 billion.
ENRD, of course, also has a substantial practice defending agency actions taken or challenged under environmental and natural resource laws, in addition to acquiring lands needed for federal projects, and litigating to secure and protect the rights and resources of federally recognized tribes.
Let’s turn now to substantive topics. Environment and natural resource matters appear on the Supreme Court’s docket with some frequency, and ENRD plays an important role in assisting the Solicitor General in handling these matters.
Today, I’d like to mention three cases—one current, two recent—that reflect how environmental law is at the cutting edge of administrative law.
First, the current case: Loper Bright Enterprises v. Raimondo, which involves the doctrine of judicial deference named after the famous case of Chevron v. NRDC.
This case directly concerns whether the D.C. Circuit erred in applying Chevron to hold that the National Marine Fisheries Service had authority to promulgate a particular rule under the Magnuson-Stevens Fishery Conservation and Management Act.
But the question on which the Supreme Court granted certiorari in May transcends this particular context. That question reads: “Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.”
As I’m sure you recognize, a decision in this case may have broad implications for administrative practice across the federal government. The brief of the United States, filed last month, argues that the Court should not overrule Chevron because it is a bedrock principle of administrative law that sets clear ground rules for all three branches of government, and principles of stare decisis weigh heavily in favor of adhering to Chevron. I commend the brief to you for reading.
Oral argument has not yet been set in the case. Stay tuned.
Next, let’s turn back to June of last year, and the Supreme Court’s decision in West Virginia v. EPA. The Court concluded that a particular Clean Air Act provision did not authorize the EPA to devise emission limitations for power plants based on the generation-shifting approach in the Clean Power Plan issued in 2015.
Of interest beyond the Clean Air Act, the Court articulated a major questions doctrine under which, absent a sufficiently clear statement from Congress, courts should not interpret a statute to authorize certain “novel” or “unprecedented” agency actions of “vast economic and political significance.”
The full implications of the ruling are still being debated. In the sixteen months following the decision, litigants have raised the major questions doctrine in a wide array of challenges to agency actions. This body of law will continue to develop. Again, stay tuned.
Finally, Sackett v. EPA, a decision from this past May. There, the Court held that an adjacent wetland is within the Clean Water Act’s protections as a “water of the United States” only if the wetland has a continuous-surface connection with a body of water that is itself a covered “water of the United States.” The Court interpreted this statutory phrase to include relatively permanent bodies of water connected to a traditional navigable water. The Court rejected the “significant nexus” standard established in 2006 under Justice Kennedy’s concurring opinion in Rapanos v. United States.
The United States is of course committed to following the law and implementing the Clean Water Act to deliver the essential protections that safeguard the nation’s waters from pollution and degradation. Let me highlight some actions that have already occurred since Sackett issued.
Last month, to conform to the decision, EPA and the Department of the Army published a rule amending the definition of “waters of the United States” in regulations that had issued in January. For example, the new rule removed the “significant nexus” standard from consideration when identifying tributaries and other waters as federally protected. Going forward, the agencies will also continue to interpret the regulations defining “waters of the United States” consistent with the Sackett decision through the wide range of tools available: approved jurisdictional determinations, guidance, agency forms and training materials, or future rulemaking as appropriate.
Litigation challenging the January rule also continues in various courts. In light of Sackett and the new rulemaking, ENRD teams have been working with the parties and making appropriate filings in cases in the Sixth Circuit, the District of North Dakota, and the Southern District of Texas.
I highlight each of these cases because they are important, and their full implications are as yet uncertain. Once more: stay tuned.
Now let me turn to two of the Administration’s key priorities: furthering environmental justice and combating the climate crisis.
All Americans should be able to breathe clean air, be protected from the worsening effects of climate change, and have access to safe drinking water. Yet across the nation, there are communities—all too often low-income communities, communities of color, and indigenous communities—that suffer disproportionately from environmental injustice.
Last fall, I was in Jackson, Mississippi. Unprecedented flooding had caused Jackson’s largest water treatment facility to fail. At least 150,000 residents were left without drinking water. My division, working with EPA, the City of Jackson, and the State of Mississippi, quickly negotiated an interim order, subsequently approved by a federal district court, that put in place an Interim Third-Party Manager, among other important steps to stabilize the public drinking water system.
Unfortunately, there are other problems facing the people of Jackson. The City has longstanding issues complying with a Clean Water Act consent decree; billions of gallons of untreated or partially treated wastewater have spilled into neighborhoods and the Pearl River. Just two weeks ago, we successfully moved the district court to approve another interim order that will ensure that some repairs are made to the sewer system in the near term to address these sewage overflows.
The kind of inequity and injustice that the people of Jackson have suffered goes against everything we stand for as a nation. But it persists. So, this Administration is taking action toward its ambitious environmental justice goals. ENRD’s role in that process is central.
Case in point: in May of last year, the Department of Justice established an Office of Environmental Justice and housed it within ENRD. Our new office acts to engage the entire Department in the collective pursuit of environmental justice, so that ENRD and the Department as a whole do our best to protect overburdened and underserved communities and to promote fair and equal treatment and meaningful involvement of all people in the decision-making that affects their lives. The Office of Environmental Justice has been very active—look, for instance, to how it has been training the environmental justice coordinators that every one of the 94 U.S. Attorney’s Offices have appointed.
Another demonstration of our commitment is the Department’s Comprehensive Environmental Justice Enforcement Strategy. This strategy establishes four principles that will guide the advancement of environmental justice through federal enforcement. These principles are that we will: prioritize cases that will reduce public health and environmental harms to overburdened and underserved communities; make strategic use of all available legal tools to address environmental justice concerns; ensure meaningful engagement with impacted communities; and promote transparency in our environmental justice enforcement. The strategy is on our website, as will be the annual report that we are releasing today; I hope you’ll take a look.
That report has much more, but here are some examples of the Department’s environmental justice work.
Earlier this year, the Department launched the Puerto Rico and U.S. Virgin Islands Environmental Crimes Task Force to investigate and prosecute violations of federal environmental law in that region. This task force will leverage resources from many federal agencies to aggressively prosecute environmental crimes and associated fraud, waste, and abuse. We’re working with the U.S. Attorney’s Office and more than fifteen federal agencies to consider a wide range of potential violations, ranging from oil or chemical spills to issues involving air quality or toxic waste.
Among many specific case examples I could highlight, ENRD has also recently filed Clean Water Act claims against the City of Baytown, Texas for hundreds of instances of untreated sewage discharge into waterways in and around the City. In that case we seek injunctive relief and penalties, with the goal of ensuring that the Baytown community has access to clean water.
I should emphasize, though, that the Department’s environmental justice efforts are not limited to ENRD’s cases. Several months ago, for instance, the Civil Rights Division secured a settlement in its environmental justice investigation into the City of Houston’s response to illegal dumping in Black and Latino Neighborhoods.
The Department’s environmental justice strategy also recognizes the need to prioritize enforcement that addresses the unique impacts that tribal communities may face, including impacts to treaty rights, water, land, or other resources needed to support tribal sovereignty and homelands. Over the past year, with the Department’s Office of Tribal Justice, ENRD has convened three summits with various federal agencies and tribal governments to discuss how the federal government and tribes can more effectively work together on these issues.
So here’s the takeaway for those who deal with compliance matters. Our enforcement decisions take into account the imperative to advance environmental justice. We are listening to concerns expressed in historically overburdened and underserved communities across the country and are actively seeking to address those concerns. We encourage industry clients to be sure they are listening to neighboring communities and meeting their obligations under federal environmental law. The failure to do so could result in federal enforcement.
This brings me to my last big topic—climate. In Executive Order 14,008, President Biden directed the United States Government to “combat the climate crisis with bold, progressive action that combines the full capacity of the Federal Government with efforts from every corner of our Nation…”
ENRD is doing its part, hand-in-hand with client agencies and our state, local, and tribal partners. For example, ENRD will partner with EPA on the new National Enforcement and Compliance Initiatives and Climate Enforcement and Compliance Strategy that Assistant Administrator Uhlmann mentioned yesterday.
Where available, we will use statutory authority directed at specific greenhouse gases. But existing law also enables us to enforce violations that indirectly result in excess greenhouse gases, and to seek remedies that will ensure future compliance, notwithstanding the growing threats of drought, extreme temperatures, wildfires and flooding.
So, what we consider ENRD “climate” cases has a fairly flexible definition, covering three broad categories of matters: first, affirmative litigation to mitigate greenhouse gas emissions; second, affirmative litigation to otherwise protect natural resources and the environment against climate-related threats; and third, climate-related defensive litigation. Let’s take a quick look at each of these areas.
First, in the most classic “climate case” typology, we bring affirmative enforcement actions that reduce, or promote absorption of, greenhouse gas emissions. Many types of sources generate pollution contributing to climate change, including petrochemical plants, cement kilns, fossil-fuel power plants, refrigerants and foam insulation, oil and gas production, refineries, landfills and mobile sources. ENRD’s docket includes many cases against such sources under the pollution control statutes administered by EPA, especially the Clean Air Act.
For example, this April, we announced settlements under which three natural gas processors agreed to pay over $9 million in penalties and to make improvements to prevent leaks and emissions at 25 natural gas processing plants and 91 compressor stations in 12 states and Indian Country. Once fully implemented, the agreements will reduce greenhouse gas emissions by more than 50,000 tons per year.
One growing field of enforcement involves HFCs, greenhouse gases hundreds to thousands of times more potent than carbon dioxide. In 2020, Congress enacted the bipartisan American Innovation and Manufacturing Act, providing EPA with new authority to phase down the production and consumption of HFCs.
To help ensure the integrity of the program and a rigorous and timely phasedown, ENRD participates in a multi-agency enforcement and prosecution initiative to prevent the illegal trade, production, use, and sale of HFCs, along with EPA and the Departments of Homeland Security, State, and Defense. We expect to see even more case referrals from our key client agencies as the initiative ramps up.
And we have affirmative case work enforcing laws that protect critical carbon “sinks” like wetlands and forests, which absorb greenhouse gases and slow climate change. We bring actions under the Clean Water Act to respond to illegal filling of wetlands without a required permit. We also work in the international arena to reduce deforestation worldwide, including through criminal prosecutions under the Lacey Act and other criminal statutes to counter trade in illegally harvested timber.
Indeed, ENRD has prioritized investigating and prosecuting timber trafficking offenses. The Division’s Environmental Crimes Section partners regularly with U.S. Attorneys’ offices to prosecute cross-boundary offenses. Our successful prosecutions to date have yielded the highest ever fine for timber trafficking, in a case against Lumber Liquidators; restitution to foreign countries like Peru for timber illegally sourced from their countries; and many lessons about how trafficking works, and how we can stop it.
The Division has also focused on developing relationships with foreign governments and strengthening their ability to detect and prosecute these offenses. Because these crimes cross boundaries, it is essential that U.S. and foreign enforcement personnel understand our mutual legal frameworks, how they complement each other, and how each country and its economy and natural resources affect the global supply chain.
This April, the Department formalized some of this work, announcing the formation of a Timber Working Group. It is an interagency collaboration created to target available resources across the federal government to identify and investigate complex timber trafficking cases domestically and transnationally; to develop new tools and techniques to investigate and prosecute timber trafficking cases; and to build the ability of partner governments worldwide to combat this devastating illegal trade.
That brings me to the second broad category of climate cases I mentioned: affirmative litigation to protect wildlife and natural resources. These cases may include claims on behalf of Indian tribes or federal agencies to secure water rights as well as reserved treaty, hunting, fishing and gathering rights on behalf of tribes. These are all resources under increasing threat from the effects of climate change—increasing temperatures, drought, and more.
And in the final broad category, ENRD’s docket contains an increasing number of cases defending greenhouse gas emissions regulations and controls; agency actions in support of the conversion to cleaner energy; and various policy and management decisions to protect sensitive resources.
For example, last month, after extensive briefing, ENRD participated in oral arguments defending two significant EPA actions under the Clean Air Act with climate implications. On September 14 and 15, the D.C. Circuit heard oral arguments in Texas v. EPA, a challenge to EPA’s 2021 regulations prescribing greenhouse gas emission standards for passenger cars and light trucks; and then Ohio v. EPA, a challenge to EPA’s waiver of Clean Air Act preemption to allow California to operate its pre-existing vehicle emissions program, including its zero-emission vehicle and greenhouse gas standards.
In closing, it is obviously an exciting and important time to be an environmental lawyer. I know I am excited to be at ENRD as we hope to undertake even more of this vital work in the years ahead.
Thank you very much.