Environment May Not Be Top Priority for Sessions: Attorneys

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By Renee Schoof

Jeff Sessions has voted regularly against environmental-protection legislation as a longtime senator, a record that makes attorneys and advocates wonder how he will enforce environmental laws if he’s confirmed this week as attorney general.

The Alabama Republican has voted along with the views of the League of Conservation Voters only 7 percent of the time since he entered the Senate in 1997. Recently, for example, he voted in 2015 to kill a rule setting greenhouse gas standards for new and modified power plants (vetoed by President Barack Obama) and in 2012 against a rule that would limit coal-fired power plants’ hazardous air pollutant emissions.

Environmental attorneys, advocates and former justice department environmental prosecutors interviewed by Bloomberg BNA said that while it’s hard to predict environmental enforcement under the Trump administration, some possible changes ahead include fewer criminal and civil cases, a redirection of some of the work of the Justice Department’s Environment and Natural Resources Division, and less attention to environmental justice.

Sessions would help make decisions about the extent to which the federal government defends regulations like the Clean Power Plan, which would put the first limits on carbon emissions from existing power plants and is being challenged in court. The attorney general also helps set the department’s enforcement priorities.

Environmental Priorities

“Since he never earned a strong record in supporting environmental legislation as a U.S. senator, that is probably an accurate sign that this will not be one of his top law enforcement priorities,” said Peter C. Anderson, partner at Beveridge & Diamond PC in Washington, D.C., who helps lead the firm’s White Collar and Environmental Crimes Practice Group.

Anderson, a former federal prosecutor in the Justice Department’s Environmental Crimes Section, said regardless of who is in charge of the Justice Department and the Environmental Protection Agency, when there are big cases like the 2010 BP Gulf oil spill or the Volkswagen AG emissions cheating scandal, “there will always be an aggressive enforcement response, including criminal prosecution. “

“However, in a pro-business administration there may be less of a willingness to push the envelope and bring criminal cases where civil violations are viewed as adequate,” Anderson said. In addition, the department may be less likely to bring as many civil cases, or might reduce the penalties in the cases it does pursue.

Laws Enforced

David Uhlmann, a professor and director of the Environmental Law and Policy Program at the University of Michigan, predicted Sessions’ opposition to environmental protection will continue, but nonetheless he will enforce existing laws.

“During his career, Sen. Sessions has been a reliable opponent of nearly every effort to protect Americans from harmful pollution, dangerous working conditions, and unsafe consumer products,” Uhlmann said. “We should assume that Sen. Sessions is going to be just as hostile to environmental, worker safety, and consumer protections as attorney general as he has been as a United States senator, particularly since the president of the United States appears to be equally if not more hostile to those essential protections.”

But Uhlmann, who worked for 17 years at the Justice Department, seven of them as chief of the environmental crimes section, told Bloomberg BNA he did not expect any lag on enforcement due to lack of commitment by his former colleagues.

“At a minimum, I would expect Sen. Sessions to support the attorneys in the environment division, who do fabulous work for the people of the United States, because he understands the importance of upholding the rule of law and providing a level playing field for companies that meet their legal obligations,” he said.

Uhlmann said his main concern on enforcement was that criminal investigators at the EPA and other agencies would not get the resources they need from a Republican Congress and Trump.

Sessions, at his confirmation hearing Jan. 10 before the Senate Judiciary Committee, said he would stand up to Trump if he disagreed with him on a legal matter. He also said that once a law is passed, “I will do my dead level best to ensure it’s properly and fairly enforced.”

Limited Government

“There’s nothing in Sen. Sessions’ record that suggests he would go easy on true malefactors,” said Scott Segal, head of the policy group at Bracewell LLP in Washington, D.C. “But on the other side, I think he shares along with [Oklahoma Attorney General Scott Pruitt, Trump’s EPA nominee] and other appointees in this administration a belief that the proper interpretation of a statute is one that supports an effective but limited government.”

Segal said the questions Sessions has asked of Justice Department nominees before the Judiciary Committee in the past is that he expects them to “follow the rule of law and a modest approach to governance.”

Environmental groups generally prefer a more expansive definition of government authority, Segal said.

Environmental justice advocates, in particular, argue that low-income communities need more government help. Such cases address the environmental risks posed to low-income communities and/or communities of color.

Lisa Garcia, vice president of Healthy Communities Litigation at Earthjustice and a former adviser to former EPA administrators Gina McCarthy and Lisa Jackson, said she was concerned that the Justice Department in the Trump administration would pay less attention to the civil rights aspects of environmental enforcement.

The EPA’s civil rights office is charged with preventing racial discrimination in environmental decisions. It is supervised by the civil rights division at the Justice Department.

Garcia also said she was concerned that the Environment and Natural Resources Division would be pared down, or that its attorneys would be told to stop investigating environmental complaints or to start defending executive orders or elimination of environmental regulations instead.

“That could be really threatening to people’s health if it’s about something that’s impacting them,” she said.

Sessions, ENRD Chief Will Set Direction

Sessions also can be expected to have a say in Trump’s choice for the next next assistant attorney general of the Environment and Natural Resources Division.

“He has not been a friend of the environment, and he’s not a wallflower. He’s likely to have an impact,” said David Goldston, director of public affairs at the Natural Resources Defense Council.

Sessions’ former environment and energy counsel Jeffrey Wood was appointed acting assistant attorney general of the Environment and Natural Resources Division on Jan. 20. Wood declined a request for comment.

Anderson at Beveridge & Diamond said he wouldn’t be surprised if Wood is nominated for the position. Wood does not have experience at the Justice Department as a federal prosecutor. He has lobbied for Southern Co. and its Alabama Power Co. subsidiary.

To contact the reporter on this story: Renee Schoof in Washington, D.C., at rschoof@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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