You’ve Probably Never Heard of This DOJ Division, but It’s Key to Rebuilding Our Environmental Policy
President-elect Biden is rapidly naming his Cabinet team. The people chosen to lead the federal government’s biggest agencies, like the Department of Interior and the Environmental Protection Agency (EPA), will have a major influence on environmental policy. While agency heads are important both politically and practically, hundreds of critical government positions also need to be filled at the sub-agency level over the coming months. One that we at Earthjustice will be paying special attention to is the Assistant Attorney General for the Environment and Natural Resources Division at the Department of Justice — in lawyer-speak, the AAG for ENRD at DOJ.
Why? Because ENRD is the only organization in this country that files more environmental lawsuits than Earthjustice.
Unlike some of its sister divisions at DOJ, like Civil Rights and Criminal, ENRD is not widely known even to legal enthusiasts. But anyone who cares about how our government prosecutes, defends, and administers our environmental laws should be paying attention to this division — and to the person nominated to run it. ENRD’s roughly 550 lawyers represent the government in cases involving everything from pollution to public lands, and from wildlife to tribal sovereignty.
ENRD lawyers prosecute cases that enforce important environmental laws like the Endangered Species Act, Clean Water Act, Clean Air Act, Safe Drinking Water Act, and Superfund law. This certainly includes criminal cases against shady midnight chemical dumpers and wildlife traffickers. But more often it involves civil enforcement cases against defendants like utilities that aren’t investing in up-to-date emissions controls, oil companies drilling without the right safety equipment, or city governments that aren’t delivering clean drinking water. Take a glance at some of ENRD’s recent press releases to get a sense of the scope of its affirmative work — including a recent lawsuit against the Tiger King.
ENRD’s lawyers also go to court to defend government actions that get challenged by Earthjustice and its allies. This includes actions like the Trump administration’s efforts to gut the National Environmental Policy Act, weaken the Mercury and Air Toxics Standards, permit the Dakota Access Pipeline, and nearly two hundred other actions (yes, we have a list). To the extent that we have yet to feel the worst of the Trump administration’s threatened actions on the environment, it’s because ENRD spent a lot of the last four years losing these kinds of cases in court — thanks to the Trump administration’s disdain for law and science. Will ENRD’s defensive role matter when a more environmentally-friendly administration is in charge? Absolutely! ENRD attorneys will have to defend new rules against legal challenges from industry, and Earthjustice will also be fighting in court to hold the Biden administration accountable to its campaign promises.
Relatedly, ENRD plays a significant role when it comes to replacing bad agency rules — rules made without adequate consideration for the science, the environmental impacts, or the communities affected — with good ones. As much as we might want them to, ENRD’s lawyers can’t just waltz into court once Biden is inaugurated and announce they’ve decided they are going to stop defending the rulemakings finalized under Trump — just like the government couldn’t simply walk away from Obama-era rules when Trump took office. ENRD lawyers will have to persuade judges that the new administration’s course changes are based on science and sound policy, not raw politics. Decisions about how and when the government will dance this minuet of persuasion will have a big impact on what rules get rolled back and when. And who calls the tune? The new ENRD AAG.
The AAG will also be critical to the Biden administration’s efforts to address environmental justice and climate change. To be effective, the next AAG of the division will need to know how to get good cases — the kind of cases that make good law — referred to ENRD by the relevant agency. They will need to know how to effectively manage investigations. Most of all, they will need to know how to win cases and create positive precedent through court rulings.
President-elect Biden put an important marker down when he named former senator and Secretary of State John Kerry the Special Presidential Envoy for Climate and former EPA administrator Gina McCarthy to lead the new White House Office of Climate Policy. He has also said that the U.S. will rejoin the Paris Climate Accords, and he has continued to promise that combating climate change will be a central goal of his administration. President-elect Biden is continuing to name nominees for key positions, such as Deb Haaland for Secretary of the Interior, and Michael Regan for Administrator of the EPA. Soon he will name the U.S. Attorney General. And then, Earthjustice will be watching carefully to see who he picks for the AAG of ENRD. We look forward to working with that person, in and out of court.