Assistant Attorney General Clark’s Clean Water Act Edict: A Solution to a Non-Existent Problem?

Posted on July 30, 2020 by Jeffrey Porter

During the dog days of summer in a general election year, Assistant Attorney General Jeffrey Bossert Clark, the nation's top environmental lawyer, has issued an eloquent, albeit curiously sourced, ten page edict to his subordinates at the Department of Justice decreeing that the Federal Government will not make the same Federal Clean Water Act claims as a State unless there is a good reason to do so.  See Civil Enforcement Discretion in Certain Clean Water Act Matters Involving Prior State Proceedings (July 27, 2020), https://www.eenews.net/assets/2020/07/27/document_gw_03.pdf.

Environmentalists will likely complain that this edict is intended to prevent Federal cases that might otherwise be brought.   But there’s no evidence that “overfiling,” which is when the Federal Government commences an enforcement action that is already the subject of a State enforcement action, has been common during the Trump Administration, or any other recent Administration.

More specifically, as AAG Clark knows, nearly one in four State Attorneys General are currently suing the Environmental Protection Agency over what they allege is an impermissibly narrow interpretation of the Federal Clean Water Act.  See State of California, et al. v. Andrew H. Wheeler as Administrator of the United States Environmental Protection Agency, et al. (May 1, 2000), https://ag.ny.gov/sites/default/files/wotus_complaint.pdf.   Regardless of what one thinks of the merits of the Attorneys General’s case, it seems irrefutable that the Federal Government has not been, and will not be, overaggressive about enforcing the Federal Clean Water Act during this Administration.

If AAG Clark really intends to effect a meaningful change in the Department of Justice’s behavior in the future, why did he recite and ratify so many traditional circumstances in which Federal enforcement on top of State enforcement is deemed appropriate, including when a State is sitting on its hands, when the State requests it, when important federal interests are implicated, when there is a "gap" in the relief sought by the State, or where there are otherwise "exceptional circumstances"?

And why, to support what seems to be a completely uncontroversial conclusion, did the Assistant Attorney General feel compelled to cite an opinion of the Supreme Court authored by the late Justice Antonin Scalia striking down a provision of the Brady Handgun Violence Prevention Act as well as equally irrelevant remarks on white collar crime prosecutions by former Deputy Attorney General Rod Rosenstein?

And why does Assistant Attorney General Clark not reference at all a year-old EPA edict by the Assistant Administrator for Enforcement and Compliance Assurance, which requires coordination between EPA and any State before EPA gets involved in a matter already the subject of State enforcement? See Enhancing Effective Partnerships Between EPA and the States in Civil Enforcement and Compliance Assurance Work (July 11, 2019), https://www.epa.gov/sites/production/files/2019-07/documents/memoenhancingeffectivepartnerships.pdf.

And, if all of this isn’t puzzling enough, why does Assistant Attorney General Clark begin his memorandum about when the Federal Government should bring claims already brought by a State by questioning one of the fundamental premises of federal environmental law proffered by one of his most respected predecessors over forty years ago?

Since the Assistant Attorney General’s memorandum seems to be a solution to a non-existent problem, one is left to wonder whether there is more to it than meets the eye.



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