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Nearly one-half of the Division's lawyers bring cases against those who violate the nation's civil and criminal pollution-control laws. Others defend environmental challenges to government programs and activities and represent the United States in matters concerning the stewardship of the nation's natural resources and public lands. The Division is also responsible for the acquisition of real property by eminent domain for the federal government, and brings and defends cases under the wildlife protection laws. In addition, the Division litigates cases concerning Indian rights and claims. Many of the cases handled by the Division are precedent-setting and challenge and hone the skills of the Division's dedicated corps of lawyers. Some of these cases are discussed in the Division's report on recent accomplishments.
Prevention and Clean Up of Pollution One of the Division's primary responsibilities is to enforce federal civil and criminal environmental laws such as:
- the Clean Air Act to reduce air pollution
- the Clean Water Act to reduce water pollution and protect wetlands
- the Resource Conservation and Recovery Act to ensure that hazardous wastes are properly stored, transported, and disposed
- the Comprehensive Environmental Response, Compensation and Liability Act (or "Superfund"), which requires those who are responsible for hazardous waste sites to pay for their clean up
- the Safe Drinking Water Act and the Lead Hazard Reduction Act, which directly protect the health of Americans
The main federal agencies that the Division represents in this area are the United States Environmental Protection Agency and the United States Army Corps of Engineers. The Division Sections that carry out this work are the Environmental Crimes Section, the Environmental Enforcement Section, and the Environmental Defense Section.
Challenges to Federal Programs and Activities. The Division's cases frequently involve allegations that a federal program or action violates Constitutional provisions or environmental statutes. Examples include regulatory takings cases, in which the plaintiff claims he or she has been deprived of property without just compensation by a federal program or activity, or suits alleging that a federal agency has failed to comply with the National Environmental Policy Act (NEPA) by, for instance, failing to issue an environmental impact statement. Both takings and NEPA cases can affect vital federal programs such as the Nation's defense capabilities (including military preparedness exercises, weapons programs, and military research), the NASA space program, recombinant DNA research, and beneficial recreational opportunities such as the rails-to-trails program. These cases also involve challenges to regulations promulgated to implement the Nation's anti-pollution statutes, such as the Clean Air Act and the Clean Water Act, or activities at federal facilities that are claimed to violate such statutes. The Natural Resources Section and the Environmental Defense Section share responsibility for handling these cases. The Division's main clients in this area include the Department of Defense and the United States Environmental Protection Agency.
Stewardship of Public Lands and Natural Resources. A substantial portion of the Division's work includes litigation under a plethora of statutes related to the management of public lands and associated natural and cultural resources. All varieties of public lands are affected by the Division's litigation docket, ranging from entire ecosystems, such as the Nation's most significant sub-tropical wetlands (the Everglades) and the Nation's largest rain forest (the Tongass), to individual rangelands or wildlife refuges. Examples also include original actions before the Supreme Court to address interstate boundary and water allocation issues, suits over management decisions affecting economic, recreational and religious uses of the National Parks and National Forests, and actions to recover royalties and revenues from exploitation of natural resources. The Division represents all the land management agencies of the United States including, for instance, the Forest Service, the Park Service, the Bureau of Land Management, the Army Corps of Engineers, the Fish and Wildlife Service, the Department of Transportation, and the Department of Defense. The Natural Resouces Section is primarily responsible for these cases.
Property Acquisition for Federal Needs. Another significant portion of the Division's caseload consists of non-discretionary eminent domain litigation. This important work, undertaken with Congressional direction or authority, involves the acquisition of land for important national projects such as National Parks, the construction of federal buildings including courthouses, and for national security related purposes. The Division's Land Acquisition Section is responsible for this litigation.
Wildlife Protection The Division's Wildlife and Marine Resources Section is responsible for civil cases arising under the fish and wildlife conservation laws, including violations of the Endangered Species Act, which protects endangered and threatened animals and plants, and the Marine Mammal Protection Act, which protects animals such as whales, seals and dolphins. The Environmental Crimes Section also brings criminal prosecutions under these laws against, for example, people who are found smuggling wildlife and plants into the United States. There is a major worldwide black market for some endangered species or products made from them. The main federal agencies that the Division represents in this area are the Fish and Wildlife Service and the National Marine Fisheries Service.
Indian Rights and Claims The Division's Indian Resources Section also litigates on behalf of federal agencies when they are protecting the rights and resources of federally recognized Indian tribes and their members. This includes both defending against challenges to statutes and agency action designed to protect tribal interests and bringing suits on behalf of federal agencies to protect tribal rights and natural resources. The rights and resources typically at issue include water rights, the ability to acquire reservation land, hunting and fishing rights, and other natural resources. The Division's Natural Resources Section also defends claims asserted by Indian tribes against the United States on grounds that the United States has failed to live up to its obligations to the tribes. The main federal agency that the Division represents in connection with this work is the Bureau of Indian Affairs.
Other Matters The Division also handles the initial appeals of all cases litigated by Division attorneys in the trial courts, and work closely with the Office of the Solicitor General on Division cases that reach the Supreme Court. These cases are handled by the Appellate Section. In addition, the Division is responsible for, among other things, supporting the work of the Assistant Attorney General in the development of policy concerning the enforcement of the nation's environmental laws, reviewing and commenting on legislation that would effect the work of the Division, reviewing litigation filed under the various citizen suit provisions in the environmental laws, and evaluating and responding to requests that the United States participate as an amicus in various matters. Most of this work is handled by the Law and Policy Section.
SECTIONS
ENVIRONMENTAL CRIMES SECTION
The Environmental Crimes Section is responsible for prosecuting individuals and corporations that have violated laws designed to protect the environment. It is at the forefront in changing corporate and public awareness to recognize that environmental violations are serious infractions that transgress basic interests and values. The Section works closely with criminal investigators for the Environmental Protection Agency (EPA), the Federal Bureau of Investigation (FBI), and the Fish and Wildlife Service (FWS) in dealing with violations of such statutes as the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act (RCRA), and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, more commonly known as Superfund), the Lacey Act, and the Endangered Species, among other statutes.
ENVIRONMENTAL ENFORCEMENT SECTION
The Environmental Enforcement Section is one of the largest litigating sections in the Department and includes nearly one-half of the Division's lawyers. The Section is responsible for bringing civil judicial actions under most federal laws enacted to protect public health and the environment from the adverse effects of pollution, such as the Clean Air Act, Clean Water Act, Safe Drinking Water Act, Oil Pollution Act, RCRA and the Superfund law (CERCLA). The breadth of the Section's practice is extensive and challenging. It includes cases of national scope, such as cases against multiple members of an identified industry, to obtain broad compliance with the environmental laws. Through its enforcement of the Superfund law, the Section seeks to compel responsible parties either to clean up hazardous waste sites or to reimburse the United States for the cost of cleanup, thereby ensuring that they, and not the public, bear the burden of paying for cleanup. The Superfund law is also a basis of the Section's actions to recover damages for injury to natural resources that are under the trusteeship of federal agencies.
ENVIRONMENTAL DEFENSE SECTION
The Environmental Defense Section represents the United States in complex civil litigation arising under a broad range of environmental statutes. EDS is the only section in the Environment Division that routinely handles cases in both federal circuit and district courts. EDS defends rules issued by EPA and other agencies under the pollution control laws, brings enforcement actions against those who destroy wetlands in violation of the Clean Water Act, and defends the United States against challenges to its cleanup and compliance actions at Superfund sites, federally-owned facilities and private sites.
Examples of the Section's work include: defending EPA's regulations governing permitting of discharges from factory farms, its ambitious “Clean Air Interstate Rule” aimed at attaining air quality standards for ozone and fine particulate matter in the eastern half of the country, the Agency’s efforts to revamp the Clean Air Act new source review program, and its safety standards for the Yucca Mountain nuclear waste repository in Nevada; defending challenges to the United States' implementation of international treaties involving the elimination of chemical weapons; and prosecuting civil enforcement actions under the Clean Water Act that have protected hundreds of thousands of wetland acres and recovered millions of dollars in penalties.
NATURAL RESOURCES SECTION
The Natural Resources Section, which is comprised of more than 65 lawyers working in five teams, manages litigation under a diverse and extensive group of more than eighty statutes and treaties out of Washington, D.C. and three field offices. The Section's docket includes cases in virtually every U.S. district court of the Nation, its territories and possessions, the U.S. Court of Federal Claims, and in state courts. The subject matters include federal land, resource and ecosystem management decisions challenged under a wide variety of federal environmental statutes and involving lands as large as the Forest Service's 191 million acre inventory to tracts as small as individual wildlife refuges; vital national security programs involving military preparedness, nuclear materials management, and weapons system research; billions of dollars in constitutional claims of Fifth Amendment takings covering a broad spectrum of federal regulatory and physical activities; Indian gaming and the United States' trust responsibility toward Tribes; a panoply of cultural resource matters including cases related to historic buildings, repatriation of ancient human remains or salvage of shipwrecks (even the R.M.S. Titanic); preserving federal water rights and prosecuting water rights adjudications; and ensuring proper mineral royalty payments to the Treasury). The Section's clients have included virtually every major Federal executive branch agency. Attorneys coming to the Section will have the opportunity to develop their own challenging and varied case load.
WILDLIFE AND MARINE RESOURCES SECTION
The Wildlife and Marine Resources Section litigates civil cases under federal wildlife laws and laws concerning the protection of marine fish and mammals. Civil litigation, particularly under the Endangered Species Act and the Migratory Bird Treaty Act, often pits the needs of protected species against pressures for development by both the Federal Government and private enterprise.
INDIAN RESOURCES SECTION
The Indian Resources Section represents the United States in its trust capacity for Indian tribes and their members. These suits include establishing water rights, establishing and protecting hunting and fishing rights, collecting damages for trespass on Indian lands, and establishing reservation boundaries and rights to land. The Indian Resources Section also devotes approximately half of its efforts toward defending federal statutes, programs, and decisions intended to benefit Indians and Tribes. The litigation is of vital interest to the Indians and helps to fulfill an important responsibility of the federal government.
LAND ACQUISITION SECTION
The Land Acquisition Section is responsible for acquiring land through condemnation proceedings, for use by the Federal Government for purposes ranging from establishing public parks to creating missile sites. The Land Acquisition Section is also responsible for reviewing and approving title to lands acquired by direct purchase for the same purposes. The legal and factual issues involved are often complex and can include the power of the United States to condemn under specific acts of Congress, ascertainment of the market value of property, applicability of zoning regulations, and problems related to subdivisions, capitalization of income, and the admissibility of evidence.
LAW AND POLICY SECTION
The Law and Policy Section staff advises and assists the Assistant Attorney General on environmental legal and policy questions, particularly those that affect multiple sections in the Division. Working with the Office of Legislative Affairs, it coordinates the Division's response to legislative proposals and Congressional requests, prepares for appearances of Division witnesses before Congressional committees, and drafts legislative proposals in connection with the Division's work, for example, the implementation of litigation settlements. Other duties include responding to congressional and other correspondence, and FOIA requests as well as a myriad of citizens' requests, and serving as the Division's ethics officer and counselor, alternative dispute resolution counselor, and liaison with state and local governments. Attorneys in the Section also litigate amicus cases, undertake other special litigation projects, and coordinate the Division's involvement in international legal matters.
APPELLATE SECTION
The Appellate Section's work involves cases arising under the more than 200 statutes for which the Division has litigation responsibility. Section attorneys brief and argue appeals in all thirteen federal circuit courts of appeals around the country, as well as in state courts of appeals and supreme courts. The Section handles appeals in all cases tried in the lower courts by any of the sections within the Division; it also oversees or handles directly appeals in cases within the Division's jurisdiction that were tried in the lower courts by U.S. Attorney Offices. The Section's responsibility also includes petitions for review filed directly in the courts of appeals in environmental or natural resource cases involving the Department of Energy, the Federal Aviation Administration, the Federal Energy Regulatory Commission, the Nuclear Regulatory Commission, and the Surface Transportation Board. The Section works closely with Justice's Office of the Solicitor General, making recommendations whether to appeal adverse district court decisions or to seek Supreme Court review of adverse appellate decisions. The Section writes draft briefs for the Solicitor General in Division cases before the Supreme Court.
EXECUTIVE OFFICE
The Executive Office provides management and administrative support to the Environment and Natural Resources Division, including financial management, human resources, automation, security, and litigation support. The Executive Office takes full advantage of cutting-edge technology to provide sophisticated automation facilities for its employees, including legal research, word processing, Internet access, electronic mail, litigation support, case management and timekeeping systems, to help the Division's attorneys continue to achieve exceptional litigation results for the United States.
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