Principal Deputy Assistant Attorney General Kate Konschnik Delivers Remarks at the American Bar Association’s Federal Environmental & Energy Litigation Updates Regional CLE Program

Remarks as Prepared

Thank you for that kind introduction. Good afternoon, everyone. It is a pleasure to be with you today to discuss the work of the Environment and Natural Resources Division (ENRD) of the United States Department of Justice.

I began my legal career with the division, in the Environmental Enforcement Section. I am honored to be, once again, a part of team ENRD, serving alongside so many talented and dedicated public servants.                                                      

My remarks today will focus on the division’s enforcement docket and, in particular, our Environmental Justice and climate change work. Before turning to those topics, I will say just a few words about the broader mission of ENRD.

From its early roots more than 100 years ago as a public lands office with a staff of nine, the Environment and Natural Resources Division is now considered the largest environmental law firm in the country.

ENRD’s mission is to protect the health and welfare of the American people, manage our precious natural resources, and conserve the breathtaking landscapes our Nation is so famous for. We do this through civil and criminal enforcement of the country’s environmental and natural resource laws, defense of agency actions taken under those same laws, acquisition of lands needed for federal projects, and litigation to secure and protect the rights and resources of federally recognized Indian tribes. Our docket is a busy one — thousands of active cases roughly split between affirmative and defensive matters, and involving more than 150 statutes and multiple federal agencies.

You are likely most familiar with our work for the Environmental Protection Agency and the Department of the Interior. You may not know that the Division’s Environmental Crimes Section, with U.S. Attorneys’ Offices, protects worker safety under provisions of the Occupational Safety and Health Act; the Mine Safety and Health Act; and the Migrant and Seasonal Agricultural Worker Protection Act. Or that we work with the U.S. Department of Agriculture to ensure the humane treatment of captive, farmed, and companion animals — with a successful string of prosecutions from dogfighting rings to the Tiger King. The division also pursues Lacey Act violations, working with the State Department and U.S. Customs to shut down illegal timber and wildlife trafficking. Earlier this month, our mission grew once again when we welcomed the department’s new Office of Environmental Justice into the division, to ensure that all Americans are treated fairly in the enforcement of our environmental and public safety laws.

Across this large and diverse portfolio, Attorney General Garland and Assistant Attorney General Kim are committed to vigorous enforcement and defense of the rule of law.

I encourage you to read ENRD’s FY 2021 Accomplishments Report, which was part of the materials for today’s session, to learn more about our work.

Today, I will spend the bulk of my time discussing our enforcement docket. Robust enforcement is necessary to detect, deter, and disrupt violations, which in our line of work protects public health and the environment and creates a level playing field for businesses that follow the law. Criminal prosecutions, too, are an indispensable and powerful deterrent to illegal behavior. Renewed enforcement of the criminal provisions of environmental laws is particularly important to Assistant Attorney General Kim.

Last fiscal year, ENRD obtained $1.5 billion in fines, penalties and recovered costs, and secured injunctive relief valued at more than $5 billion. Those billions translate into pollution controls that make our air safer to breathe, water system upgrades that prevent raw sewage from entering waterways and city streets, and remediated brownfields that once redeveloped, can revitalize a community. These enforcement efforts represent a terrific investment in public health; over the past ten years, for each dollar appropriated to support ENRD’s mission, more than $215 was returned to the Treasury.

Within our enforcement work, two key priorities have emerged in the Biden Administration:  environmental justice and climate change.

First, let’s discuss environmental justice. Pollution, contamination and environmental crime can happen anywhere. However, study upon study documents that communities of color, low-income communities and tribal communities often bear the heaviest burdens.

President Biden has made clear that securing environmental justice is a top Administration priority. In Executive Order 14,008, he directed the Attorney General to “ensure comprehensive attention [is given] to environmental justice throughout the Department of Justice . . . .” Since 1994, with the issuance of Executive Order 12,898, the Justice Department and the agencies that we represent have considered environmental justice in the prosecution of violations of federal environmental, health and safety laws. But in response to this Administration’s call, fewer than three weeks ago the Attorney General: 1) established an Office of Environmental Justice (OEJ) within ENRD and 2) announced the launch of a comprehensive environmental justice enforcement strategy.

The OEJ is intended to:  1) facilitate greater outreach to overburdened and underserved communities; 2) coordinate Environmental Justice activities among Department of Justice components and United States Attorneys’ Offices; 3) offer litigation support and training opportunities to Justice Department personnel working on matters implicating environmental justice; and 4) participate in inter-agency environmental justice efforts.

The office will convene a new Environmental Justice Enforcement Steering Committee, chaired by the Assistant Attorneys General for ENRD and Civil Rights and staffed by senior personnel from across the department. Together, OEJ and the steering committee will support implementation of the new environmental justice enforcement strategy.

The strategy lays out four core principles. Enforcement at the Justice Department should:

1) Prioritize cases reducing public health and environmental burdens in overburdened and underserved communities. We will work with and benefit from our federal, state, local and Tribal partners in this work. For instance, as you heard from Larry earlier, EPA has issued environmental justice enforcement guidance to boost inspections and offsite compliance monitoring in overburdened communities. Once we take on the cases that grow out of these investigations, department attorneys will pursue remedies that are timely and effective, to alleviate acute as well as chronic environmental harms.

2) Use all available tools to address environmental justice concerns. Sometimes, this work will require bringing claims under multiple statutes, including statutes enforced by the Civil Rights and Civil Divisions of the Justice Department.  

3) Meaningfully engage with impacted communities. In recent cases, ENRD and EPA staff have visited sites, hosted listening sessions, prepared fact sheets in multiple languages, walked door-to-door in impacted neighborhoods and provided advance opportunity for comment on proposed settlements. Going forward, every U.S. Attorney’s Office will designate an Environmental Justice Coordinator to enhance engagement in all 94 districts nationwide.

4) Under the strategy, we pledge to be transparent about our environmental justice efforts, as well as our results.

In doing the work to advance environmental justice, we hope to build on early successes:

• In September 2021, ENRD and Louisiana settled violations of multiple federal and state environmental statutes against a synthetic rubber plant in Sulfur, Louisiana. In addition to paying a civil penalty of more than $3 million, and taking action to cut excess pollution from the facility, Firestone Polymers funded upgraded air monitoring systems for neighboring communities under pressure from multiple polluting sources.
• In another matter, the U.S. Attorney’s Office for the Southern District of New York reached a large settlement in 2018 requiring the New York City Housing Authority to vastly improve living conditions for its 400,000 residents. The case was based on claims of false statements and claims under the U.S. Housing Act habitability regulations as well as lead-based paint regulations promulgated by HUD and EPA under other statutes.

I am truly energized by the opportunities this work offers. Advancing Environmental Justice may well cause us to rethink how we enforce the law. Environmental Justice demands that we break down silos between investigating agencies, between components of the Justice Department and between statutes. No one law or agency can deliver healthy, safe communities. Therefore, the division is looking to partner with other parts of the Justice Department to bring coordinated actions that reflect the experience of living, working, and going to school in an overburdened community. Environmental Justice also challenges litigators to get out of the courtroom, shed acronyms, and speak plainly to “real people” about the work that we do. This is hard, but it presents a significant opportunity to make government more visible, in a positive way, in people’s lives.

Alongside these environmental justice announcements, the Attorney General also restored the use of Supplemental Environmental Projects or “SEPs.” SEPs are environmentally beneficial projects that are strongly connected to the alleged violations and are not otherwise required by law. A defendant voluntarily agrees to undertake a project in settlement of a civil enforcement action, in addition to paying a penalty and taking the necessary actions to come back into compliance. The Attorney General rescinded a December 2020 rule that prohibited any third-party payment, including in-kind payments such as SEPs, to non-governmental entities in our settlements. At the same time, Attorney General Garland issued guidance to ensure third-party payments and projects are an appropriate use of the department’s broad discretion in settling actions brought by the United States.

SEPs can offset the pollution caused by the violation in the community where the harms occurred, prevent future violations by the defendant, or provide health monitoring and care for residents suffering from illnesses or afflictions related to the underlying violations. SEPs can therefore be a powerful tool in addressing the harms apparent in overburdened and underserved communities. But they might be deployed in any community if the circumstances warrant. Moreover, in appropriate cases, SEPs can mitigate greenhouse gas emissions.

Which brings us to my second topic, climate change. Executive Order 14,008 also directs the United States government to “combat the climate crisis with bold, progressive action that combines the full capacity of the federal government with efforts from every corner of our nation . . . .”

The latest U.N. climate assessment states that “[w]ithout urgent, effective and equitable mitigation actions, climate change increasingly threatens the health and livelihoods of people around the globe, ecosystem health and biodiversity.” The report recognizes how important it is to use the full range of mitigation and adaptation measures to address this existential crisis.

The division is doing its part, again hand-in-hand with client agencies and our state, local and Tribal partners. Where available, we will make use of statutory authority directed at specific greenhouse gases. But, in addition, existing law enables us to enforce violations that indirectly result in excess greenhouse gasses, and to seek remedies that will ensure future compliance, notwithstanding the growing threats of drought, extreme temperatures, wildfires and flooding.

Many ENRD “climate” cases, therefore, deliver as least as much in reductions of conventional pollution as they do in climate benefits. Some of our casework is not focused on climate at all, yet must contend with the effects of climate change — for instance, our water allocation or tribal resource cases.

Keeping this broad and flexible definition of “climate cases” in mind, I will describe three categories of matters: 1) affirmative litigation to reduce or absorb greenhouse gas emissions; 2) affirmative litigation to protect natural resources and the environment; and 3) climate-related defensive litigation.

Within our affirmative litigation docket relevant to mitigation of greenhouse gases, we see cases that reduce greenhouse gases, cases that ensure integrity in clean energy programs, and cases that protect and enhance carbon sinks.

In the most classic “climate case” typology, we bring affirmative enforcement actions that reduce greenhouse gas emissions. Many types of sources generate pollution contributing to climate change, including petrochemical plants, cement kilns, fossil power plants, refrigerants and foam insulation, oil and gas production, refineries, landfills and mobile sources. ENRD’s docket includes many cases against such sources under the pollution control statutes administered by EPA, especially the Clean Air Act (CAA).

For instance, over the last decade, the United States has targeted illegal flaring at chemical plants. In some cases, valuable gases that could have been used as fuel or product were wastefully sent to flares. In others, flares were only partially combusting the gas or, worse, were unlit, allowing gas to vent to the atmosphere. On behalf of EPA, the division has reached seven judicial settlements covering at least 20 plants and achieving an annual reduction of about one million tons of greenhouse gas pollution. For instance, in March, the Chevron Phillips Company agreed to reduce emissions from flares at three petrochemical facilities in Texas, and to pay a $3.4 million civil penalty.

Curbing this pollution is a win for climate; it is also protective of downwind communities subjected to excess volatile organic compounds (VOCs) and other hazardous air pollutants. VOCs help to form ground-level ozone, pollution that is linked to short-term respiratory problems, and, with repeated exposure, chronic respiratory illness and permanent lung damage.

As another example, most of you know about the remarkable success of the Montreal Protocol and Title VI of the CAA, in halting the thinning of the stratospheric ozone layer. Some of the same ozone-depleting chemicals targeted under the protocol also contribute to global warming. The refrigerant R-12 contains chlorofluorocarbons (CFCs) with over 10,000 times the global warming potential of carbon dioxide. Last month, the United States reached a settlement to resolve Title VI violations at 40 scrap metal recycling facilities across the United States. The settlement requires implementation of an EPA-approved Refrigerant Recovery Management Program, and destruction of R-12 recovered from scrapped appliances and automobiles. This was the second such settlement just this year, covering 50 recycling facilities in all; previous CFC settlements have led to better management of refrigerants in major grocery chains such as Safeway and Trader Joe’s.

Meanwhile, a new environmental enforcement initiative is growing out of bipartisan legislation targeting hydrofluorocarbons, or “HFCs,” which were developed as an ozone-friendly replacement for CFCs. Unfortunately, these chemicals are likewise incredibly powerful greenhouse gases. Since last fall, ENRD has been participating in a multi-agency enforcement initiative, led by EPA and Customs and Border Patrol, to prevent the illegal trade, production, use, and sale of HFCs. Stay tuned for more regulatory and enforcement action on this front, which molecule for molecule is the most impactful work we could do to curb climate change.

That’s just the first bucket of our affirmative work to mitigate greenhouse gases. The second, our market integrity work, recognizes that to address climate change, reduction of greenhouse gases and uptake of “alternative” energy must be REAL.

Here, for instance, the division has brought a number of civil and criminal cases to combat fraud in the Renewable Fuel Standard program of the CAA. The program requires refiners and importers to replace or reduce a certain quantity of petroleum-based transportation fuel, heating oil, or jet fuel with renewable fuel. Renewable Identification Numbers, or “RINs,” are credits used for compliance. Criminals fraudulently manufacture RINs and sell them, which, if allowed to occur unfettered, would undermine the renewable fuels market. Our RIN fraud criminal cases have generated more than 2,600 months of jail time, fines exceeding $3.2 million, and restitution totaling more than $365 million.

Third, the division enforces laws that protect critical “sinks” like wetlands and forests, which absorb greenhouse gases and slow climate change. In addition, wetlands store rising floodwaters and maintain surface water flow during dry periods, thereby also blunting the effects of climate change. We bring actions under the Clean Water Act (CWA) to respond to illegal filling of wetlands without a required permit. In a recent example, the United States imposed a $1.9 million civil penalty as well as restoration and mitigation requirements on a natural gas developer, to resolve violations at 76 separate sites in the Marcellus Shale formation in Pennsylvania.

International deforestation, meanwhile, threatens the world’s great forest sinks — which today absorb one-third of all carbon dioxide emitted by the burning of fossil fuels. The United States is one of the largest importers of timber and timber products. By stopping the illegal flow of timber imports, the division ensures the rule of law and slows cash flows for international crime syndicates; this same work also protects carbon sinks and supports legal, sustainable forest crops around the world. ENRD recently prosecuted a timber trafficking case, in which plywood wholesalers in Florida used shell companies and fraud techniques to avoid high tariffs on timber imports from China.

As part of this work, ENRD provides technical assistance to enhance enforcement capacity in producing countries, with active programming in Africa, Asia, and Latin America. The division also provides technical expertise on international timber standards in trade agreements and guidance such as the Plan to Conserve Global Forests, which the United States announced at the United Nations Climate Conference (COP26) in Glasgow last November. Division staff also hold leadership positions within INTERPOL’s Forestry Crime Working Group.

Leaving our mitigation practice, I would like to turn now to a different but equally important type of affirmative climate litigation — our work to protect wildlife and natural resources. Often in these types of cases, ENRD works alongside and on behalf of federal agencies other than EPA — such as Interior, the U.S. Department of Commerce and the U.S. Army Corps of Engineers.

The division also litigates on behalf of Indian tribes, to protect reserved water rights and treaty hunting, fishing, and gathering rights. These resources are particularly vulnerable to increasing temperatures and drought. Last fall, ENRD concluded a virtual trial addressing future water rights claims on behalf of the Hopi Tribe in the Little Colorado River Water Rights Adjudication; the Navajo phase begins this year.

The division plays a critical role in securing water rights for other federal agencies for important public purposes. While not classic “climate” cases, these adjudications have become only more fierce as climate takes its toll on water levels and flow patterns.

Sometimes, ENRD is called upon to protect wildlife against clean energy deployed in part to address climate change. Last month, ESI Energy pled guilty to three counts of violating the Migratory Bird Treaty Act in the deaths of golden eagles struck by wind turbine blades in Wyoming and New Mexico. The company was sentenced under the plea agreement to a fine of nearly $2 million, restitution of more than $6.2 million, and five years of probation. The company also must implement an Eagle Management Plan, and apply for permits allowing future take of any birds at each of the offending 50 facilities.

That gives you an overview of the division’s affirmative climate change work. In addition, as I mentioned earlier, the division defends agency regulations, decisions and policies in federal court. We expect the defensive climate docket to grow. This work includes defense of greenhouse gas emissions regulations and controls, defense of agency actions in support of the conversion to cleaner energy, and defense of policy and management decisions to protect sensitive resources.

Following the Supreme Court case Massachusetts v. EPA and EPA’s 2009 endangerment finding, the division has defended rules reducing greenhouse gas emissions from certain mobile and stationary sources. The new EPA standards for light-duty passenger cars and trucks is a good illustration of the work of our stellar defensive attorneys.

Transportation is currently the single largest source of greenhouse gas emissions in the United States. Light-duty passenger cars and truck contribute about 17% of total U.S. greenhouse gas emissions. More stringent emissions standards for light-duty vehicles are critical to combating the climate crisis.

Three Administrations have set greenhouse gas standards for light-duty passenger cars and trucks for successive model years.

Of course, administrative agencies can — and do — reconsider and revise their prior decisions. In 2020, the last Administration relaxed joint CAA greenhouse gas and Corporate Average Fuel Economy standards for light-duty vehicles in a rulemaking known as the SAFE II Rule.

On one of his first days in office, President Biden directed reconsideration, in turn, of various environmental and natural resource rules, including SAFE II. EPA subsequently withdrew the rule and replaced its standards with more stringent standards for MY 2023-2026 light-duty vehicles, culminating in an industry compliance value of 55 miles per gallon in MY 2026. EPA projects that the final rule will result in 3.1 billion tons of avoided carbon dioxide emissions through 2050 and reduce annual gasoline consumption in the United States by 15 percent in 2050. That’s a win for climate and relief from higher prices at the pumps.

In February 2022, the D.C. Circuit consolidated multiple petitions from fifteen states, petroleum refiners and other entities challenging the new light-duty rule. Last month, the court granted intervention on behalf of EPA to environmental organizations, 22 states, several cities, and a trade association representing almost all automobile manufacturers. Texas v. EPA is shaping up to be your typical behemoth Environmental Defense Section case. The court will consider whether EPA reasonably implemented its CAA authority and the record before it, in setting standards designed to achieve significant greenhouse gas reductions while encouraging the use of clean technologies that are available today, including zero-emission technology. We expect the court to issue a briefing schedule shortly.

The division also defends challenges to the rules and actions of other client agencies with important climate-change implications. This includes litigation in support of the transition to cleaner energy.

Section 207 of Executive Order 14,008 directs Interior to identify steps, consistent with applicable law, to double renewable energy production from offshore wind by 2030. The division also handles litigation relating to the permitting and siting of renewable energy infrastructure. ENRD is currently defending multiple district court and circuit court lawsuits challenging the approval of construction and operation of Vineyard Wind, the country’s first utility-scale offshore wind project, located 12 nautical miles offshore of Martha’s Vineyard and Nantucket, Massachusetts. Plaintiffs argue that the project will violate statutes including the Outer Continental Shelf Lands Act, the CWA and the Marine Mammal Protection Act. None of the cases has progressed to summary judgment briefing yet, but might by this summer.

Section 208 of the same order directs Interior to pause oil and natural gas lease sales on public lands or in offshore waters to the extent consistent with applicable law, and to review existing leasing and permitting practices related to fossil fuel development on public lands. ENRD is handling multiple challenges to section 208 and actions taken pursuant to it, in Wyoming, North Dakota and Louisiana. On June 15, 2021, the U.S. District Court for the Western District of Louisiana issued a nationwide preliminary injunction against implementing the pause. The United States has appealed to the Fifth Circuit, where oral argument was held on May 10, 2022.

The division is also handling multiple challenges to the Federal Aviation Administration’s NextGen and metroplex air traffic system. The agency expects the system to result in considerable efficiency and climate benefits from reducing aircraft emissions. Petitioners challenge the adequacy of analyses on a number of grounds, including a new one for me — a procedural due process claim based on a purported Constitutional Right to Sleep. Oral argument is set for June 6, 2022.

Finally, climate change has become a regular feature of our NEPA and Endangered Species Act (ESA) litigation. The Council on Environmental Quality just completed the first phase of its reevaluation of NEPA regulations issued in 2020 (generally to restore provisions that were in effect for decades, including how to account for direct, indirect and cumulative effects of stressors such as climate change). ENRD expects facial challenges to this rule as well as to its subsequent application to individual agency decisions.

Looking ahead, the division hopes to undertake even more of this vital work. As has been widely reported in the environmental press, the President has requested additional resources to support ENRD’s climate change and environmental justice work, as part of the FY 2023 budget submitted to Congress in March. If appropriated, we will put them to good use.

In one final comment, I’ll flag an emerging trend — the need to fashion climate adaptive measures in court-ordered relief or voluntary settlements. In particular, infrastructure built as injunctive relief will need rely on forward-looking projections of weather events and natural disasters rather than historical data. Defendants themselves are revisiting prior obligations in the face of climate change. For example, in April 2022, a court approved a consent decree modification originally suggested by the defendant. The Jersey City Municipal Utilities Authority wanted higher minimum design thresholds for pump stations required under the decree, to accommodate increased flooding due to climate change.

That concludes my snapshot of the work of the division. I have truly enjoyed having the opportunity to be with you today. We have a little time for a few questions.