ENRD Chief Lays Out Enforcement Approach, Touts Recent NSR Successes
On June 8, 2017, Acting Assistant Attorney General Jeffrey H. Wood of the Environment and Natural Resources Division (ENRD) testified before the House Judiciary Committee Subcommittee on Regulatory Reform about ENRD's enforcement priorities and thoughts as part of an oversight hearing. Mr. Wood, who served previously on the staff of Senator, now Attorney General, Sessions, has practiced environmental law since 2003. Highlights of Mr. Wood's testimony included:
Each year, ENRD lawyers represent virtually every federal agency in courts across the United States. The Division has about 7,000 pending matters, with about 900 cases filed in 2016.
The Division successfully litigated nearly 800 cases in fiscal year 2016. In that year, we obtained over $3.0 billion worth of corrective measures through court orders and settlements, which will go a long way toward protecting the nation’s air, water, and other natural resources. In addition, in fiscal year 2016, we secured over $14 billion in civil and stipulated penalties, cost recoveries, natural resource damages, and other civil monetary relief, including over $66 million recovered for the Superfund. We concluded 36 criminal cases against 56 defendants, obtaining more than 54 years in confinement and more than $172 million in criminal fines, restitution, community service funds, and special assessments. Finally, by comparing claims made with the amounts ultimately imposed, we estimate that the handling of defensive and condemnation cases closed in fiscal year 2016 saved the United States more than $12 billion.
Environmental protection and conservation is an important priority for the Trump Administration. In his Feb. 28, 2017 speech to a Joint Session of Congress, the President stated: “My administration wants to work with members of both parties to . . . promote clean air and clean water . . . .” The White House website provides: “Protecting clean air and clean water, conserving our natural habitats, and preserving our natural reserves and resources will remain a high priority.” https://www.whitehouse.gov/america-first-energy
At the same time, this Administration is committed to course corrections in key areas within the purview of the Division. President Trump has directed new approaches to reduce the regulatory burdens in this country, particularly with regard to energy development, manufacturing, and infrastructure projects.
Four general objectives and goals for ENRD reflect the priorities of this Administration:
We will pursue our core mission of protecting clean air, clean water, and clean land for all Americans, through the vigorous enforcement of the laws enacted by Congress and through the vigorous defense of lawful regulations and actions of our client agencies, including EPA and the Department of the Interior.
We will strengthen our nation’s energy, water, and transportation infrastructure by supporting and defending the lawful actions of our client agencies, including the U.S. Army Corps of Engineers, the Department of Transportation, the State Department, and others responsible for critical infrastructure needs for America.
As we fulfill our legal duties, we will demonstrate a firm commitment to work cooperatively with the States and tribes to achieve shared environmental goals.
In a time of tight budgets, we will make sure to do our mission as efficiently and effectively as possible, keeping in mind that every tax dollar we are given must be justified and put to appropriate and good use for the American people.
As the Attorney General made clear in his remarks at the Ethics and Compliance Initiative Annual Conference at the end of April 2017, the Department of Justice “remains committed to enforcing all the laws.” That “create[s] an even playing field for law-abiding companies.” This Department also will “continue to emphasize the importance of holding individuals accountable for corporate misconduct.” And, finally, the Attorney General stressed the importance of “work[ing] closely with our law enforcement partners, both here and abroad, to bring . . . persons to justice.”
The Division has a proud tradition of strong criminal and civil enforcement, with—I’m pleased to say—a high rate of success. Turning first to our criminal docket, potential cases are referred to us from a wide range of client agencies and typically involve a diverse set of defendants, from large businesses like cruise line companies to smaller operations like an antique dealer involved in illegal trafficking of rhinoceros horns or a developer who improperly removed asbestos from a building being renovated. Our criminal cases often involve not just violations of environmental or natural resources laws; we also frequently charge obstruction, fraud, conspiracy, and making of false statements. We are committed to following the facts and law wherever they lead, and charging either individuals or businesses, or both, as justified by the circumstances. And “when we make charging decisions,” as the Attorney General also reminded us in April 2017, “we will continue to take into account whether companies have good compliance programs; whether they cooperate and self-disclose their wrongdoing; and whether they take suitable steps to remediate problems.” Today, I would like to highlight two types of criminal cases: renewable fuels fraud and vessel pollution.
In November 2016, the U.S. District Court for the Eastern District of Tennessee approved a settlement with Cemex, Inc., under which the company will invest approximately $10 million to reduce emissions of nitrogen oxide (NOx) and sulfur dioxide at five of its cement manufacturing plants in Alabama, Kentucky, Tennessee, and Texas to resolve alleged violations of the Clean Air Act. Cemex also will pay a $1.69 million civil penalty, conduct energy audits at the five plants, and spend $150,000 on energy efficiency projects to mitigate the effects of past excess emissions of NOx from its facilities. The Knox County, Tennessee, and Louisville, Kentucky, air pollution control authorities participated in the settlement.
In March 2017, the U.S. District Court for the Northern District of Indiana approved the agreement of the United States and the states of Indiana and Illinois and the Michigan Department of Environmental Quality, to settle Clean Air Act litigation brought against the U.S. Steel Corporation concerning three of its plants in Gary, Indiana; Ecorse, Michigan and Granite City, Illinois. Under the decree, U.S. Steel, a major global iron and steel manufacturer, will make improvements to furnaces and other facilities to reduce the emissions of hazardous pollutants, particulate matter, and other pollutants impacting communities around the plants; and agreed to maintain the effective operation of its pollution control equipment and to continue work practices for improved environmental compliance. The company also will pay a $2.2 million civil penalty, split between the United States and State co-plaintiffs, among other relief.