The Nation's Environmental Law Firm, ENRD, Hits Reset Button

• Author: Ethan Shenkman
• Position: Partner in the environmental practice at Arnold & Porter
• Pages: 21-21

MAY/JUNE 2021 | 21

Reprinted by permission from The Environmental Forum®, May/June 2021.

Copyright © 2021, Environmental Law Institute®, Washington, D.C. www.eli.org.

Private Practice, Public Policy

Soon after President Biden took

oce, the Department of Jus-

tice’s Environment and Natural

Resources Division rescinded nine

enforcement policies issued by Trump

appointees as “inconsistent with long-

standing division policy and practice.”

Additionally, the policies “may im-

pede the full exercise of enforcement

discretion in the division’s cases.”

With the stroke of a pen, ENRD lift-

ed the prohibition on Supplemental

Environmental Projects in civil cases

and jettisoned a 2020 memorandum

limiting federal overlling in state en-

forcement actions.

e move signaled

a new chapter at

ENRD. Practitioners

anticipate renewed

activity in three main

areas: a funneling of

resources to civil and

criminal enforcement, particularly

under the Clean Air and Clean Water

acts; leveraging the division’s resources

to support the administration’s eorts

to combat climate change; and a refo-

cusing on underserved and dispropor-

tionately impacted communities.

For the division’s career attorneys,

the last four years have been a roller

coaster. Commentators point to data

indicating that enforcement activ-

ity slowed, while resources shifted to

other priorities. ENRD, for example,

reported collection of criminal and

civil nes declining from an average

of $1.7 billion per year (2015-16) to

an average of $560 million per year

(2018-19). And according to some

analysts, during Trump’s rst two

years, the country witnessed a signi-

cant decrease in federal criminal pros-

ecutions for air and water violations.

Meanwhile, ENRD’s defensive docket

ballooned from 466 cases in 2014 to

648 four years later. But despite this

busier case load, the division’s roster of

attorneys declined.

DOJ is now poised for a reset. For-

mer Judge Merrick Garland has taken

the helm as attorney general. As a wide-

ly respected jurist on the D.C. Circuit

— the second most important court

for environmental law — Garland has

more familiarity with environmental

statutes than any other AG.

Commentators have described

him as a centrist among Democratic

appointees, with a willingness to defer

to agency legal and scientic exper-

tise. Early in his career, for example,

he joined a dissent from the denial of

rehearing en banc by all the judges

on the D.C. Circuit in a case invali-

dating Clean Air Act

regulations under

the non-delegation

doctrine — his posi-

tion was later vindi-

cated by the Supreme

Court. He later au-

thored an opinion

upholding the constitutionality of the

Endangered Species Act, and joined

colleagues in upholding Obama-era

standards for mercury and air toxics

from utilities.

While the AG typically plays a fair-

ly limited role in environmental cases

on a day-to-day basis, he is critical for

refereeing interagency disputes and

managing interactions with the White

House. Moreover, Garland will share

responsibility for implementing the

Biden administration’s overarching

agenda on climate and environmental

justice. A key Biden executive order,

for example, requires the AG to con-

sider renaming ENRD the “Environ-

mental Justice and Natural Resources

Division”; to direct that division to

develop a comprehensive EJ enforce-

ment strategy; and to consider creat-

ing a new oce (but not necessarily

a new litigating division, as had origi-

nally been suggested) to coordinate EJ

eorts across all DOJ components, es-

pecially the Civil Rights Division and

U.S. attorneys oces.

In setting ENRD on a new course,

the next assistant attorney general for

the division will have a full plate. In

addition to bolstering ENRD’s sta

and overseeing a resurgence in en-

forcement activity, with initiatives ex-

pected in multiple sectors, the AAG

will be busy guiding agencies in re-

considering the prior administration’s

deregulatory measures, and proactive-

ly participating in the design of new

agency initiatives to enhance their

legal defensibility. e AAG will also

be asked to lead the division’s eorts

in vindicating the rights and resources

of Indian tribes, which has historically

been an important feature of the divi-

sion’s work.

None of this will come easy. A

federal judge, for example, recently

denied ENRD’s request to stay a case

challenging Trump’s overhaul of the

National Environmental Policy Act’s

implementing regulations. DOJ re-

quested to put the case on ice until

after the new administration’s key ap-

pointees, including the head of the

Council on Environmental Quality,

are Senate-conrmed. Environmen-

tal groups opposed the stay, and the

court agreed to hold ENRD’s feet to

the re. e administration may have

to make decisions on which aspects

of the NEPA regulations to modify

or rescind sooner than expected. e

uncertainty in the rules will only com-

plicate ENRD’s role in defending the

decisions of land management agen-

cies under NEPA, particularly as the

new administration makes a major

push on infrastructure.

he Nation’s Environmental Law

Firm, ENRD, Hits Reset Button

The assistant attorney

general will inherit a

range of institutional

and policy issues

Ethan Shenkman is a partner

in the environme ntal pract ice at

Arnold & Porte r. Email at ethan.

shenkman@arnoldporter.com.