The Department of Justice’s historic loss of experienced environmental lawyers since President Donald Trump’s return to office could hamper its defense of EPA’s deregulatory agenda.
Since the start of the second Trump term, DOJ’s Environment and Natural Resources Division has shed environmental lawyers, with some in areas like enforcement or environmental justice being reassigned or forced out. While Trump political officials haven’t targeted the division’s regulatory defense team, about half of the roughly 60 lawyers who worked in the Environmental Defense Section at the end of the Biden administration have left.
Those attorneys — many of whom have defended EPA rules for decades and across Republican and Democratic administrations — have taken that experience and knowledge of key statutes to new positions where they’ll be suing to stymie Trump’s anti-regulatory agenda.
The consequences of that brain drain could start to show this year, former government attorneys say, as EPA looks to finalize the regulatory proposals it shot out in record time last year and litigants challenge them.
“The math works against the administration on both sides of the equation,” said one former EPA career attorney, who spoke with POLITICO’s E&E News on the condition of anonymity to protect his current employer. “Because many of those lawyers have moved to environmental groups and public interest law firms that are now suing EPA over those actions.
“So you don’t just lose the talent,” the lawyer said. “They actually move on to the other side of the ‘v.’”
Nearly all the ENRD lawyers who defended EPA climate rules for power plants under the Obama and first Trump administrations, for example, have since left the division.
Many of those attorneys are now squaring off against ENRD in courtroom battles over the rules EPA has already finalized — most notably the agency’s repeal of the scientific underpinning for a wide range of federal climate regulations.
On the other side of the docket in litigation over the endangerment finding repeal are a couple of career attorneys like Sue Chen, one of the few remaining ENRD defense lawyers with experience on greenhouse gases, and more recent political arrivals Riley Walters and Robert Stander, who are running point on even the most granular details of the case.
It’s an unusual posture for the division’s political lawyers. While politicals may have argued or shaped the substance of high-profile cases in past administrations, the nitty-gritty negotiations over issues such as briefing deadlines are traditionally left to career attorneys with decades of experience navigating the technicalities of the Clean Air Act and the procedures in the Washington federal appeals court where many lawsuits over EPA rules are decided.
“There’s a reason why EDS historically has housed a group of high-caliber specialists separate from ENRD’s Appellate Section, which handles a broader range of subject matters,” said Todd Kim, who led ENRD under former President Joe Biden.
“EDS since the beginning of this administration has lost many spectacular lawyers who have built up special expertise, not just with the statute and the regulations, but also the technical issues that permeate the underlying, enormous administrative records and the history,” Kim said. “Understanding what EPA has done over the decades, and why, can be very important in defending EPA. If you don’t have that developed base of knowledge, it can be challenging to get up to speed.”
The department is moving to fill some of the positions it has lost. Last month, it asked Congress for a $25 million increase in funding for ENRD for fiscal 2027, and it is ramping up recruitment.
“ENRD has some of the best Clean Air Act lawyers in the country on staff,” said Adam Gustafson, principal deputy assistant attorney general of the division under the second Trump administration. “ENRD has allocated resources to prioritize defensive work, and we continue to hire well-qualified attorneys into our Environmental Defense Section and other sections.”
But while ENRD is hiring, there are signs that the division’s prestige among prospective applicants has diminished after veteran career staff were pushed out last year.
Even if the division is able to attract a lot of applicants, they will need time to get up to speed.
“You can’t plug in any lawyer, even any good lawyer, and expect them to get quickly up to the level of the specialists who have left,” Kim said.
‘Triage’ at ENRD
Any new resources and personnel would likely go to shore up the defense of EPA’s regulatory decisions, not to enforcement of environmental laws, which analyses show has dropped off substantially under Trump. And political appointees are likely to ensure that high-profile work — like the defense of EPA’s endangerment finding repeal or litigation to avoid enforcing rules like Biden-era soot rules — get the lawyers and money they need first.
“Priority cases involving major rules like the endangerment finding will undoubtedly have the necessary talent from within the division for a strong defensive effort,” said Jeffrey Wood, a former acting assistant attorney general for ENRD during Trump’s first term.
“In particular cases where a surge of talent may be needed, ENRD leadership can move resources from lower priorities, and in some situations, can enlist the help of experienced talent in the U.S. attorney’s offices,” he said. “I just don’t see any real concern that the most significant deregulatory cases would somehow lack strong advocacy by DOJ.”
But a former senior ENRD career attorney said the division would have to use “triage” to ensure a robust defense of EPA’s top priorities despite the staff departures. And that may mean settling lower-profile cases that might have gone to court if the division were at its full strength.
The lawyer offered the example of Superfund cleanup cases in which the federal government is a liable party as a likely opportunity to settle.
“Those generally aren’t the types of things that dominate political disputes or policy disputes, but they cost money, and they do need to be staffed,” said the attorney, who spoke on the condition of anonymity because of ongoing litigation. “And so I can imagine more difficulty keeping up with all those.”
In response to a question about whether ENRD will de-prioritize certain defensive matters due to a lack of staff, Gustafson said the division “is zealously representing the interests of the American people in every area of our practice.”
He highlighted ENRD’s focus on ending state efforts to tackle climate change that he said conflict with Trump’s energy emergency declaration. He also said most environmental enforcement cases end in settlement — regardless of whether the United States is a plaintiff or defendant.
“In every case, we strive to obtain the best result for the American people, consistent with the law,” Gustafson said. “That hasn’t changed.”
EPA officials during both Trump terms have also castigated Democratic administrations for reaching settlements with environmental groups that bind the agency to a set schedule to review regulations — a “sue-and-settle” strategy former EPA Administrator Scott Pruitt used to argue was corrupt and illegal. But the former EPA lawyer said the alternative was to devote staff and resources to defending EPA every time an outside group sues to hold the agency to the strict deadlines set forth in statutes like the Clean Air Act.
“That would seem to be even more of an extreme waste of their limited resources now,” the lawyer said, “It makes them have less capacity to do the rulemaking litigation that’s so important to the administration.”
The attorney also said DOJ’s loss of legal firepower could lead EPA to chart a more cautious course on deregulation than it otherwise would have. There have been a handful of regulatory reversals that came after challenges were filed. For example, in October EPA withdrew a stopgap compliance extension it had granted coke ovens after environmentalists sued.
The agency’s final repeal of Biden-era power plant standards also appears to be running behind schedule, for unknown reasons. EPA projected earlier this year that a final repeal would be issued in “early spring, but it hasn’t entered White House review yet. The repeal is expected to attract substantial legal challenges as soon as it’s published in the Federal Register.
Compensating for staff losses
Some experts said that ENRD could fill any deficits in legal firepower by drawing on talent from across the federal government, including lawyers from other DOJ divisions, the White House’s Office of General Counsel and EPA itself.
Wood, who is now a partner at Baker Botts, said that in defending EPA rules, “ENRD lawyers are working mostly from a set administrative record and legal arguments that have been largely formulated during the rulemaking process.”
Lawyers for industries that have a stake in various rulemakings can also file amicus or intervenor briefs that supplement the government’s case and lend it a “more pragmatic, boots-on-the-ground perspective of the regulated community,” said Wood.
Jeff Holmstead, an industry lawyer with Bracewell who served as EPA’s air chief under former President George W. Bush, said in a recent interview that he expects to file briefs in support of Trump administration policies that align with his clients’ interests.
While that isn’t new, he said, “those briefs may, may be a bit more important now, if DOJ and EPA don’t have the same kind of firepower that they’ve had in the past.”
In addition to states and environmentalists, a range of industry interests have signaled their intent to intervene on the endangerment finding and vehicles rules repeal. That includes trade associations, oil and gas companies, and trucking groups among others.
“They know that they’re not going to be getting the same quality work that has always come out of the Department of Justice to defend some of these EPA actions,” said the former EPA lawyer. “It increases the pressure on industry to hire firms to get involved.”
