Environmental law and the Constitution

Last week, I had the honor of attending the swearing-in of Jeff Clark as Assistant Attorney General for the Environment and Natural Resources Division (ENRD) of the Justice Department. Jeff was sworn in by Judge Danny Boggs for whom he clerked. Matthew Whitaker and Ron Rosenstein both spoke, as did Jeff Wood who was in charge of the ENRD for 21 months while Jeff waited for the Senate to confirm him.

In his remarks, Jeff thanked Judge Boggs, Whitaker, Rosenstein, and Wood, as well as his family. He also thanked President Trump for nominating him and former Attorney General Sessions (along with Rosenstein and former Associate Attorney General Rachel Brand) for recommending his nomination.

In his substantive remarks, Jeff spoke eloquently of the close relationship between environmental law and the Constitution. I thought his remarks would be of interest to Power Line readers. Jeff graciously permitted me to reproduce them here:

One of my favorite Bible verses is this part of Isaiah chapter 1, verse 18: “Come now, and let us reason together, saith the Lord.” Here in the Department of Justice — and at ENRD especially — we deal with complex statutes and regulations as well as with intricate legal doctrines. Truly, we are engaged together in a process of coming together to reason. And that is our enterprise with the courts as well.

Serving here in ENRD is a true homecoming for me. When I was last here from 2001 to 2005 during the George W. Bush administration, I had the privilege of working with many incredible lawyers who had a deep knowledge of, and passion for, environmental law. Many of those fine lawyers are still with the Division, and I see some of them here.

As I begin my tenure as Assistant Attorney General, I am deeply humbled when I reflect on what ENRD represents. ENRD is a remarkable, historic institution, founded over 100 years ago. But what makes ENRD such a great place is the people who work here—dedicated public servants who are committed to pursuing justice.

If you look at the wall behind me here, you will see many awards that ENRD has won for being one of the best places to work in the entire Executive Branch. That is no accident. Every day, ENRD’s lawyers skillfully represent the United States in cases presenting the most cutting-edge environmental law issues. Under my leadership, I hope to encourage our lawyers to thrive and to continue to respond to the high calling of public service, especially in an age of tightened budgets.

Let me end by noting the close connection between environmental law and the Constitution. Environmental law is not for the faint of heart. Justice Scalia had a non-PC version of that sentiment that he used to use with his administrative law students, which I won’t repeat today but which many of you know I’m sure. And much of the major turning points in administrative law, if not its core, is case law that emerged from the superb advocacy of this Division and its partners in the Solicitor General’s Office.

Environmental law is a deep and complex field that challenges even the brightest legal minds. A lawyer can easily get lost in perhaps the most complex statute and web of regulations in existence: The Clean Air Act, just to name one body of the law we superintend.

Congress has enacted scores of environmental and natural resource statutes. Throw on top of that the output of the third, least dangerous branch of government — the Judiciary — and one can easily become overwhelmed by the byzantine nature and opacity to the uninitiated of environmental law. (We are joined today by Neomi Rao, who hopefully will soon join the ranks of Article III Judges.) Luckily, (or unluckily for me, as lots of lawyers out in the world prefer simpler legal regimes), I am among the initiated and the ENRD lawyers in this room are, even more so, a cloistered priesthood with expertise that cannot be rivaled anywhere in the legal world.

But like the thicket of forests and undergrowth that comforted the fictional version of Thomas More in the play A Man for All Seasons, that is why I take comfort in returning to this Division. Environmental law always leads us back to the bedrock principles enshrined in our Constitution—core principles like federalism, the separation of powers, and due process, to name a few. Sometimes this is because Congress or our client agencies hew closely to these constitutional principles. But unfortunately, sometimes this is because they are pushing the envelope of those legal constraints and the courts are called on to exercise the constitutional check that the Framers intended them to be.

These constitutional principles have guided our Nation for almost a quarter of a millennium, and they should serve as a guidepost for everything we do in here in ENRD. Under my leadership, our attorneys will zealously uphold constitutional principles in our cases. These principles are also consistent with the President’s policies and the need to avoid excess so that the people of America can enjoy clean water, clean air, safe beaches, and national parks ALONG WITH being able to participate actively in a prosperous national economy that will let them enjoy those things. More regulation isn’t always the best answer and when one looks to the legacies of communist countries and to the low air quality in countries like China, America strikes the best balance. Aristotle would be proud.

In some corners, the Trump Administration has been wrongly accused of being soft on environmental enforcement. Here at ENRD, we have decided to let our actions prove our critics wrong. Just as in prior Administrations, we will continue to vigorously enforce federal environmental laws and regulations, both through civil and, where warranted, criminal cases.

In the oath of office that I took today, I swore to “support and defend the Constitution of the United States” and “bear true faith and allegiance to the same.” That oath has real meaning to me, and it is a solemn obligation that I will take seriously every day that I lead this Division.
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I thank all of you for joining me today. I hope you can stay a while to enjoy the refreshments and catch up with colleagues and shared friends. I will do the same. But then I will endeavor to get back to the Division’s business of engaging in the process summed up as “come let us reason together!”

(Emphasis added)

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