DOJ:

'Complicated, controversial and pressing' climate issues loom for enviro division

The Department of Justice's Environment and Natural Resources Division will play a pivotal role in implementing a governmentwide effort to reduce greenhouse gas emissions, according to former DOJ officials and experts familiar with the division.

"The division's attorneys have extensive knowledge of federal environmental statutes, have worked with regulatory programs and enforcement approaches, and have been involved with U.S. attorneys and state governments in every state," according to a transition report for the Obama administration written by Georgetown University law professor Richard Lazarus and Lois Schiffer, former assistant attorney general for ENRD.

At present, none of the division's roughly 420 attorneys are assigned exclusively to climate-related litigation, DOJ spokesman Andrew Ames said. "As cases are referred to the department and ENRD, they are assigned to attorneys following the normal procedures used by the division."

While Ames declined to get into specifics, Roger Martella, an attorney at ENRD for more than seven years before moving to U.S. EPA in the George W. Bush administration, said most climate issues will be handled by the division's Environmental Defense Section, which defends EPA decisions in district court and on petitions for review; the Appellate Section, which defends decisions on appeal and advises the solicitor general's office on Supreme Court issues; and ENRD's policy section, which focuses on overreaching and cutting-edge environmental issues.

"Once climate change regulations take effect, I would anticipate that the environmental enforcement section and perhaps the environmental crimes section would be more actively engaged on climate change issues," said Martella, now a partner at Sidley Austin LLP. "For example, the greenhouse gas reporting rule could create obligations as early as Jan. 1, 2010, meaning that enforcement lawyers could be bringing the first federal climate-change enforcement cases in 2011 for failure to comply with the rule."

Some, including Lazarus and Schiffer, believe the division would benefit from creating a separate section or informal working group to focus exclusively on this sprawling issue.

"The legal issues that arise will be complicated, controversial and pressing, and a division-wide Climate Change Initiative would be an effective tool in this key area," Lazarus and Schiffer wrote. "To assure a comprehensive approach, the division should work closely with other components of the department and with its client agencies."

They also suggest that ENRD work in concert with the departments of Energy and Agriculture, in addition to EPA and other agencies, on climate change-related programs.

"If corn-based ethanol, or other sources of ethanol, are subsidized by USDA to encourage their development, litigation that arises from such programs will have a direct effect on the environment and could benefit from [ENRD's] expertise," they wrote.

Schiffer pointed to a large-scale initiative undertaken by the Clinton administration to address management of federal lands in the Pacific Northwest.

"When President Clinton developed the Northwest Forest Plan, it really affected a wide number of agencies, and there was a cross-agency informal working group called together by the Council on Environmental Quality," Schiffer said. "That was probably the last far-reaching issue before climate change."

Similarly to the Northwest working group, ENRD could set up regular meetings with point people at relevant agencies, Schiffer said.

"You could also have one person from each of the nine sections in the division form a intersection group, or the policy section could take the lead," Schiffer said. "It is up to the new head of the division to decide how to proceed."

Role reversal?

Rather than enforcing rules and regulations limiting greenhouse gas emissions, ENRD spent much of the last eight years defending federal agencies' inaction in lawsuits brought by various state and environmental groups. This could change under the Obama administration, according to Martella.

"It is likely that ENRD's role will transition over time, and perhaps in the near future, from defending suits by some states and nongovernmental organizations, claiming EPA and the administration is not doing enough, to defending suits by other states and industry groups, claiming EPA is acting outside the bounds of existing Clean Air Act authority," Martella said.

"We've already seen a transition occur on the California waiver decision after the Obama administration granted California its request to regulate greenhouse gases from cars, reversing the position of the Bush administration," Martella said. "DOJ also will assume more of a prosecutorial role once EPA regulations and climate change legislation go into effect, enforcing against GHG emitters who are not in compliance with the rules."

At the same time, claims that the government is not acting quickly enough on climate change are unlikely to go away, Martella said.

"For example, NGOs are continuing to challenge the Department of Interior's 4(d) rule for the polar bear, which affirmed that greenhouse gas emissions do not trigger adverse impacts to the polar bear, and industry has intervened to help ENRD defend those cases," he said.

Even if major climate legislation fizzles this year, environmental groups still have several avenues to pursue legal solutions to climate problems.

"Even if there isn't a new law, there are still going to be cases," Schiffer said. "They range from everything to people who are suing under the Endangered Species Act to the National Environmental Policy Act. The litigation cuts across a lot of work in the sections even now."

And if the House-passed climate and energy bill does become law, there are still likely to be climate cases brought based on ESA and NEPA, she said.

There will also be new legal challenges, and ENRD should be preparing for immediate litigation.

"The Justice Department not only has to work hand in hand with other agencies like EPA, but it has to be geared up and ready to hit the ground running when new rules and legislation become finalized," said Frank O'Donnell of Clean Air Watch.

In a July speech marking ENRD's 100th anniversary, EPA Administrator Lisa Jackson touched on the role the division could play in combating climate change:

"Congress is working through a landmark clean energy and climate bill as we speak -- one that stands to create millions of jobs, reduce our dependence on foreign oil and reduce the emissions that cause climate change," she said. "If that bill passes, then, inevitably, with a new set of laws comes a new set of lawsuits. I'm sure we'll all be busy working through whatever role EPA eventually plays in that process."

Confirmation hearing for ENRD nominee

The Senate Judiciary Committee plans to hold confirmation hearings on President Obama's pick to head ENRD next month, according to a DOJ official who spoke on background.

The nomination of Ignacia Moreno continues to generate controversy among those who object to her role as counsel of corporate environmental programs at General Electric Co.

"She has a very slim resume when it comes to working for the public," O'Donnell said. "Our fundamental criticism of her hasn't changed since she was first nominated. She's someone who's a lot better versed at working for the bad guys as we would depict them."

"And she's worked for some pretty serious bad guys -- if you look at GE and General Motors Corp.," he said, adding: "GE is king of the bad guys when it comes to Superfunds, and a large part of Justice's job is looking at Superfund cases."

Prior to joining GE in 2006, Moreno worked at the Washington law firm Spriggs & Hollingsworth, where she specialized in environmental and mass tort litigation. She also worked for DOJ during the Clinton administration, serving as special assistant and principal counsel to the assistant attorney general for ENRD. She began her career at Hogan & Hartson LLP, where she practiced with the firm's environmental and litigation groups.

Despite her private-sector work, she won the endorsement of Schiffer, who hired Moreno in 1994.

"She will be a strong and effective leader," Schiffer said. "She has a strong legal and litigation background, which is imperative to doing this job well."

Moreno received another vote of confidence from Gerald Torres, who served as deputy assistant attorney general for ENRD and as counsel to then-Attorney General Janet Reno.

"She was a relatively new attorney when we hired her, but I remember her being committed to environmental law and being very sharp," Torres said. "One of the things that impressed me was her capacity to look at a wide range of issues and get up to speed very quickly."

If confirmed, Moreno would lead a staff of more than 600 who carry an active file of about 6,000 cases. John Cruden has served as the acting assistant attorney general since January.

Want to read more stories like this?

E&E is the leading source for comprehensive, daily coverage of environmental and energy politics and policy.

Click here to start a free trial to E&E -- the best way to track policy and markets.