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Where the Government’s Environmental Lawyers Stand

Where the Government’s Environmental Lawyers Stand

The Revolving Door Project is a ProspectPartner, analyzes the executive branch of power and the presidency. Follow them at therevolvingdoorproject.org.

Joe Biden PromisedAs president, he promised to hold polluters accountable. However, in 2021, there were fewer criminal cases against polluters that were referred to the Justice Department. even lowerThis is a marked improvement on the previous year. Officials from the DOJ are aiming to bring environmental crime enforcement into play. Restore Obama-era levelsThey should not be exceeded. This is a very modest goal. Enforcement of environmental crimes was higher under George W. BushObama and has Always been underfunded.

The government’s environmental litigators are far more capable than the ambition shown in this document. In Hilary Tompkins, wordsThe fate of the world is heavily dependent on the trajectory of environmental law. However, there is little evidence that the DOJ’s environmental lawyers are embracing the extremely high stakes of their work.

The Justice Departments Environment and Natural Resources Division, (ENRD), is located in which The most environmental lawsuits are filedThe position of the Justice Department is unique among all U.S. organizations. The Justice Department is not able to represent clients of private law firms. (President Reagans anti-environmentalist secretary of the interior Famously complainedHe said that he couldn’t fire his ENRD lawyer. His lawyer retorted that she wished she had the power to fire her client.

When the EPA and other agencies Actively sabotagedENRD lawyers tirelessly represented Trump’s environmental protections in court. The majority of the cases the division handles are dependent on federal agencies: The EPA, other agencies, identify and investigate violators and refer cases to ENRD for legal action.

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So ENRD is affected to a degree by the choices made by clients. It also enjoys prosecutorial discretionWhen deciding which enforcement case to pursue and how to pursue it. Two career ENRD attorneys stated that the division must be able to enforce the law. Use your independent judgmentdetermining what is best for the United States. Although this balance act is difficult, it allows the ENRD considerable room to maneuver and has big consequences for the direction environmental litigation.

Opportunities Past and Present

If a case is referred by the EPA, another agency, or the ENRD, the assigned attorney reviews it and decides whether or not to file it. If they decide not, the DOJ prosecutes it between 24 percent to 63 percent of casesThe case that the EPA referred between 1987-1999 is not likely to be redirected. ENRD attorneys can effectively end a case.

If they decide to pursue the case, the ENRD attorney prepares a Briefing packageAssessing the merits of the case, and proposing relief. The case presents a tremendous opportunity for the designated attorney to work with their colleagues to plan how to use it to make environmental crimes financially unprofitable or strengthen safeguards for communities, ecosystems, and other stakeholders.

Relief can come in many forms: monetary sanctions, supplemental environmental projects, or injunctive relief which prohibits corporate offenders from engaging in certain future actions. Corporate monitorshipsto ensure compliance with environmental laws. Individual executives responsible for environmental crimes can be subject to criminal prosecution. (If this sounds too harsh, think about the cases like A boss who knowingly exposes his employeeToxic cyanide gas, causing him permanent damage to his brain. Then he lies to cover it all up. Prosecutorial discretion could make the difference between enforcement being a minor inconvenience or a deterrent.

The failure of Congress to pass legislation is a major obstacle to enforcement that addresses the changing environmental issues of the 21st Century. Even in the 70s and 80s, when environmental lawmaking was at its peak, enforcement litigation could have driven its own changes.

Take, for example, the 1980 Superfund law. Its strict retroactive application of new liabilities standards is exemplary. Change was the driving force behind corporate changeTheir hazardous waste disposal practices. It all started because of the 1979 EPA DecidedAsk your regional offices to count hazardous waste sites in the country. They did so, and brought the number to the Hill to testify to its dangers.

James Moorman was the ENRD’s head at the time. He askedOne of the attorneys he worked alongside to determine how we can bring suit involving hazardous waste sites. They prepared a memorandum in order to do so, despite the fact that they were not allowed to. Inadequacy of relevant legal authority.

Barbara Blum was then deputy administrator at EPA. She called Moorman and told him she had heard of the memorandum. She wanted to see it. He told her that it wasn’t yet complete. Blum agreed and announced publicly in April 1979 that the EPA and Justice Department were going file.50 lawsuits In the next year, there were more hazardous waste sites. Moorman was shocked by this. But the division The occasion was celebrated with rosesMore than 50 lawsuits were filed in reliance on the 1976 Resource Conservation and Recovery Act’s imminent hazard provision. The 1980 Superfund law Clarified and expandedThe legal authority was granted to the agencies to pursue litigation they were already pursuing.

This is a good example of precedent that ENRD lawyers can use to help them even if they don’t have the right legal advice. Create There are many opportunities to achieve environmental goals for the public good. Even if there wasn’t, we live in times that require unprecedented efforts for a sustainable planet. Holly Doremus, Berkeley environmental law professor Frames itWe are facing the end history or, as some have called, the no analog world.

Vision: An urgent need

The ENRD was established in 2020. favorable outcomeIn 98.5 percent its criminal cases, 98.9% of its civil affirmative and 89.6% of its civil defensive cases. But what was the ENRD arguing in 2020, you ask? The ENRD is currently litigating cases under President Trump. These cases are based on positions it adopted under Jeffrey Clark’s destructive leadership, which was from 2018 to January 2021. (Clark is currently being investigated for criminal offences supporting Trumps effortsTo overturn the election.

It can be difficult to assess, especially from the outside, how broad the casework of divisions is. (It is not helpful that the ENRD Hasn’t been released(2020 or 2021 annual achievement reports. It is clear that the division slow-walkedTrump’s environmental enforcement, Trump pursued 70 percent fewer Clean Water Act case and 50 percent less Clean Air Act cases during his first two years. Other achievements Clark touts2019: We will be challenging over 2,000 federal oil-and-gas leases. We will vigorously defend the Dakota Access pipeline and Keystone XL pipelines. We will also be taking the legal lead in acquiring land to build Trump’s border wall.

Trump and Clark filed amicus (friend-of-the court) briefs for ENRD on behalf of fossil fuel companies. BPAnd pipeline developers such as the PennEast Pipeline Company. ENRD lawyers worked As a teamTo speak with lawyers from fossil fuel companies Block the Sierra ClubAccess to certain Fish and Wildlife Service/EPA records and defend Forest Services authority to drill a pipeline The Appalachian Trail is below. They tried to stop an advocacy organization concerned for the environment from being allowed. You can qualify as an interestThis would allow them to intervene during a lawsuit.

Every year, thousands of cases are rolled over from the previous years. Trump cases must be resolved by the ENRD, which must also resolve any other cases. Continued declineThe EPA will refer new cases to the Justice Department in 2021, making this even more worrying. The ENRD cannot advance new priorities without new cases.

Todd Kim, currently the ENRD’s head, Dec 2021For me, enforcement of the environmental law’s criminal provisions is a top priority. While the Trump administration has rushed to advance an agenda that will destroy the planet, Biden’s staff has shown no urgency in abandoning this blueprint, or even redrawing.

Out of all the cases ENRD lawyers have argued in recent decades, Juliana v. United States Their failure to see clearly is perhaps the best example of their visionlessness. A coalition of American teenagers sued government seven years ago. Arguments forThe government’s support of fossil fuel extraction and combustion was a violation of their constitutional rights to life and liberty. If the government had settled, the youth plaintiffs would have had the best chance, if not the only, to force the government to develop a plan to stop irreversible climate change. ENRD lawyers have been fighting for years to dismiss this lawsuit.

Trump is the President ENRD lawyers argued thatA judicially enforced fundamental right to a climate system capable sustaining human life was completely unsupported by history or tradition of this Nation. This argument’s subtext is fascinating. They argue that America was founded in a fundamental ignorance about the interconnectedness human and nonhuman lives. Therefore, we must not lose sight of that ignorance.

The Trump administration’s position was maintained when the Biden administration took over the lawsuit. In November, 48 lawmakers were elected and more than 165 organizations joined the ranks. You wrote to the Department of JusticeEncourage them to end their opposition. As of The most recent filingENRDs Todd Kim seeks dismissal of the cases, ignoring its enormous potential to set a precedent that protects Americans from future climate catastrophe.

The Ninth Circuit smashed the Juliana 2020 plaintiffs, Judge Statons extraordinary dissentI wrote that the government asserts that it has an unrestricted and absolute power to destroy the Nation. The government’s lawyers could also sound a similar alarm. They could support the JulianaPlaintiffs want to amend their complaint and go to trial. However, that would require courage which they have not yet shown.

The same hardheartedness can be seen at times in the governments approach to more typical cases brought by environmentalists seeking more stringent enforcement of long-standing environmental-protection laws. ENRD could include settlements with environmental groups to advance the nation’s interests. This would be difficult for fossil fuel industry to undermine legally. Although it might cost more to pursue a more ambitious legal agenda for peoples and planets, that is a small price to pay for the division. RecognizeIts performance targets for a sustainable planet.

William Brennan, an ex-Justice of the Supreme Court, once wrote that the law was not an end in and of itself. It does not provide ends. It is a means to do what we believe is right. It is essential that environmental litigators in this country allow their beliefs to permeate their work.

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