Biden’s Environmental Lawyers Tasked With Bulletproofing Agenda

Source: By Ellen M. Gilmer and Stephen Lee, Bloomberg Law • Posted: Thursday, December 3, 2020

As President-elect Joe Biden begins naming his picks for powerful Cabinet positions, many environmental lawyers are turning their attention to a slate of lower-profile but influential legal roles that will shape the new administration’s work on pollution, climate change, and natural resources.

Politically appointed lawyers at the Environmental Protection Agency, Interior Department, and Justice Department will play pivotal parts in the Biden administration, guiding policy choices, defending new regulations in court, and cracking down on violators.

“The top legal positions, like EPA general counsel, are often not the focus of Senate confirmation battles, but they carry significant responsibility in how to execute the policy agenda that is set by others in an administration,” said Hunton Andrews Kurth LLP’s Matthew Z. Leopold, who served as the EPA’s top lawyer under President Donald Trump.

Federal agencies’ top lawyers are part of every major decision an administration is making, Obama-era Interior solicitor Hilary Tompkins said. “They are trusted advisers to the leadership of their respective agencies, and they do have considerable authority.”

The rumor mill is churning over whom Biden will tap for plum jobs, including EPA general counsel and Justice Department environment chief. Environmental attorneys from law firms, academia, and nonprofits have their predictions—and suggestions—but the Biden team is tight-lipped for now. Previous administrations didn’t announce nominees for those roles until a few months after inauguration.

Here are the top environmental law spots for the Biden administration to fill:

Justice Department Environment Chief

Biden’s choice of assistant attorney general atop the Justice Department’s environmental division will play a critical role in carrying out the White House’s agenda in court. The Environment and Natural Resources Division represents the government on both offense and defense, hashing out environmental enforcement work and helping a slew of agencies fend off legal attacks.

“It’s one of the few people in the government who has obligations that cut across many agencies in a wide range of environmental matters,” said Lois Schiffer, who led ENRD during the Clinton administration.

Under Biden, the office is poised to revamp enforcement priorities and make quick courtroom maneuvers to prepare for anticipated policy reversals at the EPA, Interior, and other agencies. The division’s next leader will need both subject matter expertise and a talent for navigating conflicting perspectives, said Amanda Shafer Berman, an ENRD senior attorney until 2019.

“They have to be that firm hand willing to work hard and think out of the box to advance progressive policies, but at the same time to have the backbone to stand up and say, ‘You know what, this isn’t going to work,’” said Berman, now at Crowell & Moring LLP.

Obama-era Assistant Attorney General John Cruden, now at Beveridge & Diamond PC, recalled packing his first month’s schedule to meet with leaders throughout the Justice Department and other agencies to ensure they all had productive working relationships. He has some no-nonsense advice: “Not being a jerk is a really good thing for these kind of positions.”

The Biden administration will likely announce its assistant attorney general nominee early next year. Some tensions are already brewing over whether Biden should steer clear of lawyers with experience working for industry clients—a standard that would eliminate many top contenders from Big Law—and opt for someone from the advocacy community who could be perceived as more progressive.

“There are tremendous environmental lawyers throughout the environmental law bar who would be very well-qualified to lead ENRD,” said Baker Botts LLP’s Jeffrey H. Wood, former acting head of ENRD under Trump. “To me, it’s more about their temperament, their leadership style, and their understanding of the complexities of the environmental and administrative law regime.”

Harvard Law professor Richard J. Lazarus, a leading environmental law scholar who worked at the Justice Department earlier in his career, is overseeing transition work for ENRD.

EPA General Counsel

The EPA’s in-house law firm, the Office of General Counsel, will get new marching orders as the Biden team sets about undoing the rules and policies put in place under outgoing Administrator Andrew Wheeler.

Much of that work will involve providing legal opinions that help the agency prioritize which Trump-era rules it wants to rewrite and which pending cases it wants to freeze, said Justin Savage, a Justice Department environmental enforcement attorney from 2004 to 2013.

The general counsel will have to get creative, helping the agency sort out the legal positions it wants to take if it tries to use existing statutes in new ways, such as using untested parts of the Clean Air Act to regulate greenhouse gas emissions.

“That’s a classic OGC function—to evaluate a regulatory proposal and determine whether it falls within the agency’s statutory authority,” the Sidley Austin LLP lawyer said. “Oftentimes OGC won’t come in and say, ‘Well, this regulation or statutory interpretation is right or wrong.’ Often they’ll say, ‘Well, it’s ambiguous, and therefore it grants the agency the power to fill in the gaps and make policy decisions.’”

The next general counsel also will have to energize the EPA’s career staff, “whose morale is down and who are going to be looking for the kind of leadership and respectful interaction that I think the incoming administration will bring,” said Obama-era general counsel Avi Garbow, now at Patagonia.

The role of the agency’s top lawyer will depend heavily on the leadership style of whoever ascends to the EPA administrator’s job, said King & Spalding LLP partner Marcella Burke, deputy general counsel at the beginning of the Trump administration.

“If the administrator is a firebrand who will rally the base, but is less technically astute, then the role of general counsel may be more robust,” she said. “But if it’s someone more autonomous, with technical expertise and a clear agenda, then it might shift the role of OGC to be less of a leadership role. The GC could be someone who just gets things done.”

Interior Solicitor

The Interior Department’s top lawyer has a broad set of responsibilities, drafting wonky opinions on endangered species one day, analyzing legal matters for U.S. territories the next.

“That is the nature of the solicitor’s job,” said Holland & Hart LLP attorney Tom Sansonetti, who held the position under former President George H.W. Bush. “It’s very far-reaching because Interior’s portfolio is so wide.”

As the No. 3 official at the department, the solicitor plays a powerful role in the agency’s regulatory moves and legal positions—advising the Bureau of Land Management, Fish and Wildlife Service, and other Interior agencies on how to carry out their agendas without getting stymied in court.

That legal advice will be critical as the Biden administration considers aggressive steps, including a proposed halt on new oil and gas leasing on public lands, to address climate change and pursue other policy goals.

“The role is one that requires a lot of creative thinking and problem solving,” said University of Arizona law professor Justin Pidot, who was deputy solicitor under Obama.

The department’s top lawyer also writes influential documents called M-Opinions, which spell out legal interpretations that are binding on all of Interior’s bureaus. M-Opinions have featured prominently in recent litigation over the Dakota Access oil pipeline, the scope of the Migratory Bird Treaty Act, and tribal mineral rights.

The job is tricky, said Obama-era deputy Interior secretary David Hayes, now at New York University’s State Energy and Environmental Impact Center, because the solicitor has to balance the “sometimes conflicting regulatory and mission-driven responsibilities” of the various sub-agencies in big-picture decisionmaking.

“It’s weighing the different legal authorities and seeing if they can be harmonized and also assessing the legal risk,” said Tompkins, the Obama-era solicitor who’s now at Hogan Lovells LLP.

The job requires some finesse in working with multiple agencies, considering competing legal perspectives, and making choices without alienating Interior’s partners, staff, or the public, Sansonetti said.

“You’ve got to be a people person,” said Sansonetti, who went on to lead ENRD during the George W. Bush administration. “If you’re an old grouch or you’re just a pointy head that’s smarter than hell but you can’t express yourself, you’re not going to be good at the job.”

EPA Enforcement Chief

The EPA’s top enforcement lawyer will oversee dramatic policy shifts once Biden takes over, turning the Office of Enforcement and Compliance Assurance, or OECA, into a far more aggressive fighting force, former agency officials said.

“You will see an uptick in both state and federal enforcement,” said Burke, the former EPA lawyer in the Trump administration. “There will be a show of force by the federal government, absolutely. There will be clear, symbolic gestures and aggressive litigation filed to show that the Biden administration means business on enforcement.”

One likely area for tougher enforcement is greenhouse gas emissions, said Patrick Traylor, who was the No. 2 EPA enforcement official under Trump until last year. Those types of cases would match up with Biden’s pledge to reach net-zero emissions by 2050.

The incoming OECA crew also may push for tougher enforcement for less significant infractions—a shift from the Trump administration’s emphasis on letting violators quickly return to compliance over minor cases without triggering formal enforcement, said Traylor, now at Vinson & Elkins LLP.

Another priority will be to crack down on violations that harm environmental justice communities, said King & Spalding LLP lawyer Granta Nakayama, who headed the office in the George W. Bush era.

OECA could do that by making broader use of an EPA environmental justice mapping and screening tool to pinpoint communities for inspections and enforcement, said Alston & Bird LLP lawyer Kevin Minoli, who worked at the EPA from 2000 to 2018 and rose to the position of principal deputy general counsel.

Cynthia Giles, who serves on the Biden EPA transition team and was head of EPA enforcement during the Obama years, said whoever inherits her old job needs to get back to muscular enforcement to send a strong message to the public.

“Enforcement is our commitment to the rule of law made visible,” she said during a recent call arranged by the Climate Action Campaign.

The best way to do that job is to forget about trying to please everyone, said Environmental Integrity Project executive director Eric Schaeffer, an EPA enforcement official in the 1990s.

“The advice I’ve gotten,” he said, “is to pretend this is your last job in Washington.”