LAW

High marks -- mostly -- for Holder on environmental cases

As Attorney General Eric Holder prepares to leave the Obama administration after five years on the job, environmental attorneys are sizing up his record and generally applauding his efforts to protect public health and natural resources.

Holder's Department of Justice successfully defended U.S. EPA's first climate rules at the Supreme Court and produced major Clean Air Act victories in federal appeals courts. He has also secured record-setting settlements stemming from the 2010 Deepwater Horizon oil spill. Holder has also rededicated DOJ and other agencies to environmental justice.

But criminal environmental enforcement prosecutions have lagged, critics say, and how much action the department has taken to support Holder's lofty environmental justice rhetoric remains open to interpretation.

"The Department of Justice in general has fared pretty well during Holder's term," said Thomas Lorenzen, a former DOJ environmental attorney now at Dorsey & Whitney. "If we look at EPA's rulemakings, the majority of those were upheld either at federal circuit courts or the Supreme Court."

One of the longest-serving members of President Obama's Cabinet and considered a close confidant of the president's, Holder announced his resignation last September but said he would continue serving until his successor is confirmed. Obama's nominee -- Loretta Lynch, the U.S. attorney for the Eastern District of New York -- recently appeared before the Senate Judiciary Committee, but it's unclear when the Senate will act on her nomination.

Holder had some record-setting environmental accomplishments. On his watch, DOJ reached a $4 billion settlement with BP PLC following the Deepwater Horizon spill to resolve criminal charges facing the company for the deaths of 11 rig workers (Greenwire, Nov. 15, 2012). The department continues to press for the maximum Clean Water Act penalties against BP in ongoing litigation, and a federal district judge in New Orleans has found that the oil giant was "grossly negligent." BP is now facing up to $13.7 billion in fines in the final stage of the trial (Greenwire, Jan. 16).

Holder's DOJ also reached a $5.15 billion settlement with Kerr-McGee Corp. and its parent company, Anadarko Petroleum Corp., to resolve a legacy of nationwide environmental contamination. Of that, $4.4 billion will be funneled to hundreds of cleanups around the country -- such as a former chemical manufacturing site in Nevada contaminating Lake Mead and radioactive waste across the Navajo Nation in the West.

The department is on a winning streak in court for its defense of EPA's Clean Air Act regulations, including its climate change agenda. DOJ attorneys have won at least a dozen cases either before the Supreme Court or federal courts of appeals challenging EPA rules.

The Supreme Court, for example, backed EPA's program last April for air pollution that crosses state lines (Greenwire, April 29, 2014). Further, in what was considered largely a victory for the agency, the court denied reviewing most aspects of EPA's first round of climate change regulations after the U.S. Court of Appeals for the District of Columbia Circuit upheld them.

And in the part of the climate regime that was reviewed, the justices last June upheld EPA's ability to regulate 83 percent of the country's greenhouse gas emissions from stationary sources. EPA had sought to regulate 86 percent (Greenwire, June 23, 2014).

Jody Freeman, a Harvard law professor who wrote some of those early climate rules as White House counselor for energy and climate change from 2009 to 2010, said that ruling was critical to the Obama administration's global warming efforts.

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"This is a particularly important time," Freeman said. "For climate change, this is the beginning of the process. So if the department wasn't on its game defending these rules, they would run into serious problems implementing [the president's] climate agency.

"We're going to see more of it," she added, referring to litigation challenging Obama's Clean Power Plan and proposed greenhouse gas standards for new and existing power plants.

DOJ also successfully defended EPA's Mercury and Air Toxics Standards for power plants at the D.C. Circuit. That case is now before the Supreme Court and will be argued next month.

Robert Percival, a environmental law professor at the University of Maryland, said DOJ has been successful because there appears to be more coordination between agencies and the department to ensure regulations are legally bulletproof.

"The quality of the legal analysis has improved," he said.

Enforcement problems

But DOJ has frequently struggled to prosecute alleged environmental offenders.

Most notably, the Supreme Court in March 2012 unanimously ruled against EPA in Sackett v. EPA, a case stemming from a Clean Water Act enforcement action in Idaho. The court held that the Sacketts had a right to challenge in court EPA's order that they may not fill a supposed wetland on their property. The ruling called into question EPA's practice of issuing compliance orders to enforce its policies (Greenwire, March 21, 2012).

EPA also lost an 8th U.S. Circuit Court of Appeals case involving the agency's interpretation of wastewater treatment rules (E&ENews PM, March 27, 2013). And DOJ failed to secure a win in a case concerning EPA's ability to aggregate emitters of air pollution into one source under the Clean Air Act (Greenwire, May 30, 2014).

"Where the department has had less success is in the enforcement context," said Lorenzen, the former DOJ attorney. "Consistently across the circuits we've seen curtailment of EPA's ability to enforce things like the Clean Air Act."

Others have raised concerns about DOJ's prosecutorial discretion in pursuing enforcement cases. An in-depth review by The Crime Report last July concluded that EPA and DOJ largely decline to bring criminal charges against those violating environmental laws.

The publication identified more than 64,000 facilities in agency databases known to be running afoul of environmental rules. But in most years, EPA and DOJ have criminally investigated fewer than 1 percent of them.

It also found that the total number of criminal investigations launched by EPA and DOJ has consistently decreased since 2001.

EPA has repeatedly said tight budgets have forced it to focus on investigating the biggest offenders, but those statistics mean violators can typically avoid criminal prosecutions in favor of civil penalties, settlements or both.

DOJ has been quick to highlight many of those, including agreements with more than 50 municipalities across the country to upgrade water and sewage systems.

Environmental justice

Holder wins near-universal praise from environmentalists for rededicating DOJ -- and other agencies -- to environmental justice.

In September 2010, Holder led the administration in committing to the principles laid out 20 years earlier in an executive order signed by President Clinton.

The policy, which aims to protect low-income and minority populations from disproportionate impacts of environmental pollution, had largely gone dormant during George W. Bush's administration.

Holder was instrumental in bringing it back, tying it to the civil rights movement and Martin Luther King Jr.

"Despite all that's been achieved, research shows that low-income families and families of color are still more likely than other American families to find themselves living in communities with contaminated water and polluted soil," Holder said at an event marking the 20-year aniversary of the order last February. "Their neighborhoods are still more likely to be close to industrial waste sites and more vulnerable to the placement of landfills nearby."

DOJ highlights several settlements as a sign of its dedication to environmental justice, including those sewer and water system upgrades that historically affect low-income and minority communities the most. For example, Chattanooga, Tenn., in 2013 agreed to spend $250 million to eliminate overflows of untreated raw sewage that were found largely in at-risk neighborhoods.

Holder's emphasis on environmental justice is applauded even among critics.

Gerald Yamada worked in EPA's Office of General Counsel for 18 years, including when Clinton signed the order in 1994. He characterized Holder's record generally as "good" but added, "I don't think there is anything that really stands out and is exemplary or puts him down as one of the best [attorneys general] in the environmental area.

"With one exception," Yamada added, "and that's the environmental justice area."

Holder, Yamada said, has a "personal commitment" to the issue, and DOJ has done a lot of public outreach and training to raise awareness.

But Yamada, who now works as a consultant, added that DOJ has not initiated any prosecution specifically because of environmental justice reasons. To do so, the department would need to bring charges under Title VI of the 1964 Civil Rights Act, which prohibits any discrimination by those receiving federal assistance. That would include, Yamada said, facilities in disadvantaged neighborhoods that have received federal permits for, say, air emissions.

But DOJ has shied away from any such cases, he said, even where such a prosecution may fit.

"I am not aware of a single Civil Rights Act case that has been brought under the guise of environmental justice," he said.

Praise for environmental division chief

Still, Yamada, as well as other environmental attorneys, appeared optimistic about the direction of DOJ. In large part, that's because of John Cruden's recent confirmation to lead its environmental division.

Cruden, 68, worked in DOJ for 20 years, during which time he supervised litigation after the Exxon Valdez oil spill in 1989. He most recently served as president of the nonpartisan Environmental Law Institute.

Yamada knew Cruden when they both worked in the government. Cruden's appointment, Yamada said, may be one of the "high points" of Holder's tenure.

"That's an excellent selection," Yamada said. "John will bring a lot of leadership to the environmental division."

Holder highlighted the ongoing challenges facing the country in his remarks on environmental justice.

"All Americans can be proud of, and encouraged by, the progress that has been made in recent years," he said. "But there's no denying that a great deal of work remains before us."

Twitter: @GreenwireJeremy | Email: jjacobs@eenews.net

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