The top environmental official at the Justice Department wants his attorneys to avoid taking enforcement cases to court when possible and encourage companies to self-report their problems.
The approach is part of a memo on environmental enforcement priorities from Jeffery Wood, the acting assistant attorney general in charge of the department’s Environment and Natural Resources Division (ENRD).
Wood also also called for more focus on organized crime and on acts of sabotage against energy infrastructure.
“The prior administration had begun to do work in that area, but seeing it called out is a little bit new,” said Ron Tenpas, a partner with the firm Morgan Lewis who held Wood’s position at the end of the George W. Bush administration.
He said it was appropriate for the division to make its priorities clear and update them.
“It would be a crazy enforcement regime if you had the same set of priorities for 25 years,” Tenpas told Bloomberg Environment.
Tenpas said these types of environmental enforcement memos laying out a leader’s priorities are rare but not abnormal. He said they typically appear shortly after a change in administration.
One section of Wood’s memo notes that the Environmental Protection Agency resolves some compliance issues informally compliance assistance programs and self-audit and self-reporting policies.
“Informal policies for resolving compliance issues support [the division’s] enforcement interests,” Wood wrote. “Regulated entities have an incentive to participate in such programs to expeditiously resolve their compliance issues directly with the agency, thus avoiding a referral to ENRD in the first place.”
The memo encourages voluntary disclosures, but is not a retreat from traditional enforcement, Steven Solow, head of the white collar, investigations and compliance practice at Katten Muchin Rosenman LLP’s Washington office, said.
“In some ways, while trying to say, ‘We want you to come in, resolve things informally,’ it is not an abandonment by any means of the traditional hierarchy of enforcement, from administrative enforcement to civil judicial and ultimately criminal prosecution,” Solow, a former chief of the department’s Environmental Crimes Section, told Bloomberg Environment.
‘Around the Edges’
Though Tenpas said the 11-page memo contains a few items that differ from the priorities of the Obama administration, it mostly reflects a continuity from one administration to the next. He said that ultimately there’s broad consensus over the kinds of environmental enforcement that Wood’s division typically performs.
“If you have someone that’s taking highly contaminated materials and dumping it in a river in the dark of night, that’s not controversial,” he told Bloomberg Environment. “What administrations do is adjust things around the edges.”
Indeed, the Obama appointee who was Wood’s immediate successor in the job, John Cruden, also had praise for Wood’s memo.
It’s “well within the range of prior enforcement priorities, including the ones that I established when I was Assistant Attorney General,” Cruden, now a principal at the firm Beveridge & Diamond, told Bloomberg Environment in an email.
He also said he was pleased to see Wood is continuing to emphasize environmental cases that have a worker safety impact, a policy started in the Obama administration.
Justice spokeswoman Nicole Oxman said Wood would not be available for an interview with Bloomberg Environment in time for this story. But she said in an email that Wood’s “enforcement principles articulated are longstanding values of the Division.”
Wood has been leading the environment division in an acting capacity since the beginning of last year. Before joining DOJ, he was a partner at the firm Balch & Bingham LLP and a Republican staffer on the Senate Environment and Public Works Committee as well as environmental counsel for then-Sen. Jeff Sessions (R-Ala.), who is now attorney general, according to his LinkedIn profile and Justice biography.
The Trump administration nominated Jeffery Clark, a partner at the firm Kirkland & Ellis LLP, to the position. Clark’s nomination quickly cleared committee but has not yet come up on the Senate floor.
—With assistance from Renee Schoof.
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(Corrects spelling of Ron Tenpas in fourth paragraph)