Brittany M. Pemberton and Daniel J. Pope
November 6, 2018
Over the past two years, officials within President Trump’s administration have invoked the rule of law regarding the administration’s enforcement goals on issues ranging from marijuana production to immigration. Late last month, we saw a glimpse into how the Department of Justice’s Environment and Natural Resources Division (ENRD), at the time led by Acting Assistant Attorney General (AAG) Jeffrey H. Wood, views application of the rule of law to environmental and natural resource litigation and enforcement. The Acting AAG presented the keynote speech at the American Bar Association’s Section of Environment, Energy, and Resources (SEER) Conference. He reflected on his time as AAG with ENRD. (His full remarks are available here.) Acting AAG Wood’s remarks built upon the March 2018 guidance entitled “Enforcement Principles and Priorities.” Bracewell’s Environmental Strategies Group developed a blog series on the guidance, accessible here.
In his remarks at the SEER Conference, Wood emphasized that the impartial rule of law is as much a method of decision-making as it is an outcome. For ENRD, this includes everything from increasing prosecution of wildlife trafficking crimes to defending controversial — but still lawful — projects such as federally permitted pipelines. ENRD continues to defend such projects around the country, consistent with the March 2018 guidance, prioritizing enforcement cases that protect American infrastructure. And, although ENRD and other federal agencies have continued to bring tough enforcement actions against regulated entities for a variety of violations, Wood explained that they should strive for predictability and a fair and neutral reading of environmental laws and regulations. Instead of using enforcement to dictate a preferred policy, Acting AAG Wood asserted that ENRD’s new approach will be to drive straight down the middle: Civil enforcement actions should never be used to convert guidance documents into binding rules, which would violate due process by evading notice and comment requirements. Many regulated entities welcomed this perspective based on their strong preference for a more stable and discernible background of legislation, regulation, and enforcement against which they can plan, invest, permit and comply.