Air Pollution:

Assistant Attorney General Sansonetti talks about New Source Review, ESA, and more ...

Will recent NSR settlements with utilities pressure others to cut agreements with the federal government? What effect will a pair of new rules from the Bush administration have on enforcement? In this OnPoint interview, Assistant Attorney General Tom Sansonetti -- the nation's chief environmental law enforcer -- discusses these issues as well as other top environmental law enforcement issues.

Transcript

Darren Samuelsohn: Hello and welcome to OnPoint. I'm Darren Samuelsohn. Joining us today in the E&ETV studios in Washington is Tom Sansonetti, the top environmental attorney at the Justice Department. Mr. Sansonetti thanks for being with us.

Tom Sansonetti: Glad to be here Darren.

Darren Samuelsohn: To start off, I'm kind of curious, the Justice Department's assistant attorney general for the Environment and Natural Resources Division is not a job that is maybe out in the public eye as much as the EPA administrator or the Energy Department secretary. Give us a sense, what are your day-to-day duties like?

Tom Sansonetti: Well one of the most enjoyable parts about the job, and I guess I'm about 3-and-a-half years into it at this point, is that no two days are like.

Darren Samuelsohn: OK.

Tom Sansonetti: That's one of the things I love about it. You get up in the morning, you're brushing your teeth, and you have no idea what's gonna happen by the end of the day. You think you do, but you don't. I guess the reason for that is, I'll use the analogy of a spoke and hub of a wheel.

Darren Samuelsohn: OK.

Tom Sansonetti: The Environment and National Resource Division is placed at the hub and we have eight of the sixteen Cabinet offices for us to do all of the litigation for, so eight spokes lead into that hub on a regular day-to-day basis. Consequently, we do all the litigation at the federal district court level and the circuit court of appeal level for, as I say, eight Cabinet officials. It's about 7,000 cases, for about 425 lawyers in seven cities.

Darren Samuelsohn: Seven thousand active cases?

Tom Sansonetti: Yes sir.

Darren Samuelsohn: OK.

Tom Sansonetti: You divide that by 425 lawyers and everybody is pretty darn busy. That's over about seven cities as I say, two thirds of the cases are west of the Mississippi River and we have about $115 million budget.

Darren Samuelsohn: Are you actually making decisions in terms of what cases to bring forward and what cases to drop? Do only the most high profile cases make it to your desk?

Tom Sansonetti: Only the most high profile cases make it to my desk. But the way that I have run the division is actually like a corporation. I have a board of directors, if you will, and those are all the leading career attorneys that are the head of a section. I have 10 sections. I divided by 425 lawyers up into subject matters. So we have three that deal almost exclusively with the Environmental Protection Agency, which supplies about 50 percent of our cases. We have those that take the sword, the environmental enforcement guys, that go out to clean up our air, water and land. We have our environmental defensive guys and gals, they've got the shields, that defend the United States when sued. And we also have about 35, 38 criminal prosecutors in our environmental crimes section so that when partnerships, individuals, corporations that just don't get it after you go out and warn them that they're in violation. They do it anyway. You know, carrot, carrot, stick is my philosophy and if they get to that third point they get to go see the people at the environmental crime section, so that's three of the 10. On the natural resources side, we have a natural resources section, which basically deals with about 70 statutes involving the surface of public lands, timbering, grazing, all that and what goes on underneath the ground, all the mining statues from leasing coal to oil and gas. We have an Indian resources section where we represent the 537 recognized tribes. Then we also have a land acquisition section, which was the original part of the division when it was formed in the 1800s.

Darren Samuelsohn: OK.

Tom Sansonetti: They went out and helped, in those days, the old homesteaders as they moved across the United States. Now today it's pretty much evolved into the one single group of attorneys, there's about 25 people in that section, they do the land acquisition under the imminent domain statutes, Fifth Amendment Takings if you will, all over the United States. Whether you need a new courthouse or you need a runway lengthened for the Air Force, they do all that. And then lastly we have a wildlife and marine resource section, which has the responsibility all over the United States for the enforcement of the Endangered Species Act. We have an appellate section, because there's a winner and a loser in every one of those cases.

Darren Samuelsohn: OK.

Tom Sansonetti: So you've got to take that up to the circuit courts and we have an executive office of about 60 people that do the litigation support, travel, management, budget, etc.

Darren Samuelsohn: I guess I want to jump right into probably one of the things you spent a heck of a lot of time working on and that is the Clean Air Act and the enforcement cases against the power plants across the country. The Clinton administration launched a heck of a lot of cases and you've been feeling, you've been fighting these I guess through the courts.

Tom Sansonetti: I have.

Darren Samuelsohn: The most recent settlement was a $1.1 billion agreement that you just announced with Ohio Edison --

Tom Sansonetti: Just this morning.

Darren Samuelsohn: It comes right after Illinois power and another one --

Tom Sansonetti: Another biggie.

Darren Samuelsohn: You said after the Illinois Power case that the EPA's new rules, the Clean Air Interstate Rule, which reduce NOX and SOX across the eastern part of United States, would press for more settlements, like maybe the one that we just saw today.

Tom Sansonetti: No doubt about it, you bet. The so-called CAIR Rule, you're exactly right. It's the Clean Air Interstate Rule. For me it's been a long time coming. I wish it was something we could've done a lot earlier, but a lot of folks were waiting to see what happened with the Clear Skies Initiative that the president proposed on the Hill, as you know, that got stalled out in a 9-9 vote in the Environment and Public Works Committee. That would be the best of all worlds. If we could get Clear Skies through because it would make it a lot easier for my enforcement lawyers to basically match up a set statutory bar of how much emissions you're allowed of sulfur dioxide and nitrogen oxide, by a date certain. If you're not down to that level, you're still up here, then all my lawyers have to prove is has the date arrived that you were assigned and are you above your assigned bar? If so, you go in, you lay down your cards, judges get a fine for us, we get a decree. Now, we're basically through the New Source Review Rules, fighting things out, mostly successfully, not always successfully.

Darren Samuelsohn: As in Duke.

Tom Sansonetti: As in the Duke Energy case, which is now of course, being appealed up to the 4th Circuit Court of Appeals, but we have had some successes. Now, the fact that the CAIR rule is now in place and it'll probably be litigated as well, but I have a good feeling that this one is going to be sustained. Then companies like Ohio Edison are going to come forward and say, look, our stockholders and shareholders need certainty as to what we're going to need to put into our capital accounts so that if we needed to buy scrubbers, if we need to shut down an old plant, if we want to change from high sulfur coal to low sulfur coal, which is what Illinois Power did by the way.

Darren Samuelsohn: Yeah.

Tom Sansonetti: Or do something else, switch to natural gas. Then they can choose their methodology and they can plan ahead for the next 10, 15, 20 years.

Darren Samuelsohn: Do you think the Ohio Edison case is one that you actually won in the liability phase of the trial --

Tom Sansonetti: Yes, we did.

Darren Samuelsohn: In 2003? Do you think Ohio Edison saw the writing on the wall that a penalty phase trial probably would have required a heck of a lot more than what the settlement --

Tom Sansonetti: No, because, see, I think that, my lawyers tell me that if we had gone through the remedy phase of the trial and, this was Judge Sargus --

Darren Samuelsohn: Right, in Ohio.

Tom Sansonetti: Had ruled for us on the remedy phase, we could not have done better than what we announced today. You know this one ended up 1.1 billion, that Illinois Power one was about $500 million or half a billion. It is unlikely that we would've gotten more than that. Plus, it was also announced today, that while that Ohio Edison case had been directed toward their so-called Sammis plant in eastern Ohio, which was their sootiest --

Darren Samuelsohn: Right.

Tom Sansonetti: Of all and that's what the case was about, part of the settlement today was an agreement that Ohio Edison and their parent company, First Energy, were going to also diminish the emissions of NOX and SOX at three other plants. Now I never could have gotten that out of Judge Sargus when I was just suing over the one plant, so in this particular instance, the agreement reached by settlement is better than what we could've gotten from a judgment from the court.

Darren Samuelsohn: One of the most controversial pieces that have come out of the Bush administration on a regulatory side are their changes to New Source Review. Basically, kind of bringing up a debate over what the percentage of routine maintenance --

Tom Sansonetti: Yes.

Darren Samuelsohn: It's a pretty technical debate but --

Tom Sansonetti: It is.

Darren Samuelsohn: Let's just boil it down, is that rule affecting your ability to prosecute cases in this?

Tom Sansonetti: Yes.

Darren Samuelsohn: Environmental groups say it is.

Tom Sansonetti: Um-hmm.

Darren Samuelsohn: The attorney general from Illinois chimed in in the Illinois Power case to ensure that it wouldn't.

Tom Sansonetti: Right, yeah.

Darren Samuelsohn: Have you seen the rule affect your ability to fight these cases?

Tom Sansonetti: The answer to the question is that to the degree that companies have, pre the CAIR rule, not seen a reason to settle because the definition of routine maintenance and each plant being its own instance, you know, the facts speak for themselves, can sit there and fight and say, hey, we only just replaced the light bulbs or the headlights on this car.

Darren Samuelsohn: Right.

Tom Sansonetti: We're saying no, you changed out the whole transmission and the engine. That's not routine maintenance. You deserve to give us the best available clean air technology and so that factual dispute is what led to all of the lengthy discovery. When did you change your pipes? How much did you pay for them? Were the emissions increased or decreased as a result? It just led to and leads to elongated litigation. These cases were filed in '99, by Clinton/Gore. I haven't dismissed a one, by the way. We reviewed them all, decided they were reasonable to pursue, the Attorney General Ashcroft agreed with that. So we haven't dropped a one. In fact, we are now up to 15 cases. My predecessor had filed eight, but with the number of folks we have, a little over two dozen that are devoted to these types of cases, you can only do so many at any one particular time. As I use the analogy of checking out library books.

Darren Samuelsohn: Right.

Tom Sansonetti: You're only allowed to check out 10 at a time and once you got that then you can go get a new book. We have been battling for six years to get to a great result today, but for six years to get to that result in Illinois Power and on Ohio Edison and then we've still got another five to fight plus we have the Duke Energy appeal to go.

Darren Samuelsohn: Um-hmm.

Tom Sansonetti: We, in this period of time, both Clinton/Gore, Bush/Cheney '99 to 2005, have had these nine wonderful successes, nine settlements, but we are still below 10 percent compliance --

Darren Samuelsohn: Of the entire utility.

Tom Sansonetti: Of the entire utility thing. And yet compare that, because we're talking about New Source Review and people tend to think it's just coal burning power plants, it's not. It concerns wood and pulp mills, ethanol producing facilities, refineries. You know our refinery percentage of compliance was at 17 percent when I took over at the end of 2001. We're about 53 percent there now. Ethanol, we were below 25 percent, we are now over 73 percent compliance and that we were able to accomplish in two or three years. But in this coal burning utility area we're still less than 10 percent after six years.

Darren Samuelsohn: Environmental groups say after a settlement like today that the Clean Air Act is working and this is a reason to bring more cases.

Tom Sansonetti: Oh, it is working, it is working.

Darren Samuelsohn: You just returned I guess --

Tom Sansonetti: But slow but sure.

Darren Samuelsohn: You just returned two library books I guess you could say using your analogy.

Tom Sansonetti: Exactly.

Darren Samuelsohn: Are you going to check out two more?

Tom Sansonetti: Probably will. We've got a number of investigations going on at EPA, they do the investigations. They send them all over to us. The actual attorneys that are working on those two cases are quickly being actually sent to work on the AEP case which is set for trial this summer and then we've got three in a row -- boom, boom, boom -- set up at the end of the year in eastern Kentucky. Then I think we've got --

Darren Samuelsohn: Cinergy and --

Tom Sansonetti: Cinergy is coming up early in '06. So that's what they will quickly go to and then we can look at additional ones after that. But, note that while it's working, it's a slow boat to China.

Darren Samuelsohn: So you think you're not going to file in the new cases until maybe after the summer is set and gone?

Tom Sansonetti: The reason that I can't give you a direct answer on that is because I personally am leaving.

Darren Samuelsohn: I know you are.

Tom Sansonetti: So I myself will not have the opportunity to do anything else. My last day is April the 8th and of course I would be foolish to hogtie my successor by saying, oh yeah, we're gonna do. I'm sure that he or she will do exactly what I have done, which is meet on a monthly basis with the assistant administrator for enforcement, I had J.P. Suarez initially, now I've got Tom Skinner.

Darren Samuelsohn: Right.

Tom Sansonetti: And we go over each one of those investigations as they complete them through. We look at them, decide whether we need to do additional research or background, send them back and then when things are ripe we go ahead and pop.

Darren Samuelsohn: OK, let's jump on ahead. You said you're leaving and you announced your resignation just a couple of weeks ago.

Tom Sansonetti: Right.

Darren Samuelsohn: Is it to pursue more outdoor recreational activities in Wyoming? What are you --

Tom Sansonetti: Tennis you mean? Of course.

Darren Samuelsohn: Tennis, skiing, what's in your plans now?

Tom Sansonetti: Well, heading back home. You know I started my law practice in Wyoming in 1976. Wife's from there, practices law also I might add, and actually going back home to Cheyenne. We'll be rejoining my old law firm where I was a partner, called Holland and Hart, and we'll probably be back practicing environment and natural resource law just as I have since the early '80s.

Darren Samuelsohn: What you're leaving behind is a Justice Department now with a new attorney general, Alberto Gonzales, the former White House counsel. We didn't hear a lot about his environmental record during his confirmation hearings. It was focused on the prison issues in Iraq. Can you give us a sense, I mean how different is he then attorney general, former Attorney General Ashcroft, on the environmental matters? What's Gonzales' philosophy?

Tom Sansonetti: It's too early to tell and I think that, you know, he's been there all of what three weeks? We've each had an opportunity to spend time with the attorney general. As you can imagine, those first meetings are explanatory. You know, what you do? How big is your budget? What kind of cases do you have? Almost like what you and I were talking about here the first three minutes of this interview. But the way, of course, the Department of Justice works is you've got the attorney general at the top of the pyramid, Deputy Attorney General Jim Comey tends to handle the criminal side of cases and matters including the FBI, Bureau of Prisons and the Drug Enforcement Agency and it's the associate attorney general, Robert McCallum that actually has day to day oversight over the five litigating divisions that are noncriminal in nature, i.e. the tax, anti-trusts, civil, civil rights and environment and natural resources. So at our level, basically the third level, we report up through the associate, who in turn visits with the attorney general on a daily basis. We file reports every week, of course, with the attorney general as to exactly what has happened during the course of the week and what we expect to happen for the coming week. So there's constant communication, but it's too early really to say how much time he'll have with all the other responsibilities he's got.

Darren Samuelsohn: Sure.

Tom Sansonetti: From antiterrorism on down the line, to spend it with the Environmental Division.

Darren Samuelsohn: I think Kelly Johnson takes your position --

Tom Sansonetti: Yes, um-hmm.

Darren Samuelsohn: If President Bush does not nominate somebody before you leave. Give us a sense, who is Kelly Johnson and is she a political figure --

Tom Sansonetti: She is, Kelly Johnson's my right hand lady and an absolutely key and important figure within the Environment and Natural Resource Division and frankly, the building as a whole because I described that hub and spoke system and I assure you with 7,000 cases and with my having to work with the EPA administrators, Gale Norton and Mike Johanns, the Pentagon is my third biggest client.

Darren Samuelsohn: Right.

Tom Sansonetti: There's just too much for any one person to do. So we divide up our duties. She oversees the natural resources sections, including the Endangered Species Act group and our budget. She has had a number of years, a half-dozen years, in private practice in the energy field, worked for Wyoming Senator Craig Thomas for a while and Senator Frank Murkowski from Alaska, when on up through the Senate Energy, deputy general counselship --

Darren Samuelsohn: OK.

Tom Sansonetti: And then worked with me on the transition. I was the team leader for Interior. The vice president asked me to head that up during the transition of 2000 and Kelly Johnson was one of my other four individuals on there. So she knows the area of energy, knows the Hill, has a real good feeling for all the clients because she's been following all the key cases in most of the departments and now of course after three and half years knows the entire division, knows the players, knows the sections chiefs, knows the strength and sometimes the weaknesses of individual attorneys. So she'd be a great replacement by the way.

Darren Samuelsohn: You've been at DOJ over the course of an interesting four years.

Tom Sansonetti: I have.

Darren Samuelsohn: Sept. 11 happened early on, I think you were confirmed right around the same time.

Tom Sansonetti: That's right.

Darren Samuelsohn: Justice Department's mission, obviously in a much larger sense, has changed.

Tom Sansonetti: Yes.

Darren Samuelsohn: Trickling down to the Environment Division. You are focusing on, I guess, hazardous transport.

Tom Sansonetti: Yes.

Darren Samuelsohn: Water security, nuclear security, power plant security, I mean, are we going to see some enforcement actions to try and pick things up along the way?

Tom Sansonetti: You bet. Right now, and there already have been of course as well. I mean we had the United States versus Emory Airways case that was announced last year where there were violations of taking hazardous materials across state lines. What basically happened, you hit it right on the head, it really changed things dramatically within the building, as I'm sure it did in almost every department. But at Justice, with our law enforcement criteria, it really affected us. In our instance, the six assistant attorney generals of the litigating divisions had to pick up each piece of the work. There is no assistant attorney general for Homeland Security. I predict you that by 2010 there will be, because there's that much to do.

Darren Samuelsohn: OK.

Tom Sansonetti: So, Attorney General Ashcroft then asked each of us to do a particular segment. With the formation of the Department of Homeland Security I picked up a piece of that work. We have been working with the Coast Guard. We do the work for the Customs agents. We work on Port security and you're right, the people who run nuclear reactors are lazy or inefficient or don't take care of their hazardous waste. We will be prosecuting those folks, civilly and then criminally if need be working with the watchdog agencies that have the day to day responsibility of looking at those plants, but we're also concerned about things like pipeline safety. We do that with the Department of Transportation. We have an initiative working with them so that if companies don't maintain their lines, make it easy for folks to come in and sabotage or damage the lines, then we're on them and say let's shore this up.

Darren Samuelsohn: Let's quickly switch to the Endangered Species Act, another issue that you've been working quite a bit with.

Tom Sansonetti: Yes.

Darren Samuelsohn: Is the Justice Department going to continue to argue that critical habitat is redundant when the courts are saying otherwise? Are we going to see much difference in terms of how the Justice Department is handling the ESA issues?

Tom Sansonetti: Short term, I'm going to say no I don't, because remember a lot of those cases have already gone up through the appellate level and, as you know, the appeals within the Department of Justice are the domain of the Office of the Solicitor General. So with my 425 folks who go argue the cases at the trial level and after that win or loss it's our appellate section that may argue the case before the Circuit Court of Appeals, but every brief has to be approved by the solicitor general and of course everything that goes to the Supreme Court. We are now on record and on paper as to our position on critical habitat. I might also say that happens to follow the policy of this administration as enunciated by Gale Norton, the secretary of the Interior, as to the redundancy and the inefficiency really of the critical habitat designations. Ultimately what this leads to is that the Department of Justice is working with others in the administration, particularly with the National Marine and Fisheries Service, which is a part of the Department of Commerce, on your saltwater endangered species and the Fish and Wildlife Service, part of the Department of the Interior, on your land based and freshwater endangered species to fix the Endangered Species Act. That can only ultimately be done by Congress because more and more of the Endangered Species Act today is actually being operated by neither of those two agencies. If you ask a citizen on the street, well, who runs the Endangered Species Act? Well, Fish and Wildlife Service I guess. No, it's run by the third branch of government. It's the judges that are running the Endangered Species Act right now. It is pretty much inoperable, particularly on listing. It's out of control and Congress needs to revisit the Endangered Species Act and amend it.

Darren Samuelsohn: And that's something that will obviously have to happen once you have left Justice Department.

Tom Sansonetti: Probably so.

Darren Samuelsohn: Mr. Sansonetti it was great to have you here.

Tom Sansonetti: Oh, my pleasure.

Darren Samuelsohn: Thank you so much.

Tom Sansonetti: Thanks Darren.

Darren Samuelsohn: Yeah, thank you very much for being here. This is Darren Samuelsohn from OnPoint. We'll see you again soon.

[End of Audio]

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