Assistant Attorney General John C. Cruden Speaks at the Symposium “Rule of Law and the Environment: Rights, Resources and Governance” at the Woodrow Wilson International Center for Scholars
Washington, DC United States ~ Tuesday, January 19, 2016
Remarks as prepared for delivery
It’s a pleasure for me to take part in today’s symposium on the rule of law and the environment organized by the Rule of Law Collaborative of the University of South Carolina and the Woodrow Wilson Center. I want to thank the conference organizers for convening a symposium focused on this important topic and for bringing together representatives from federal agencies and other organizations that work on governance issues in the environmental sector to share ideas and learn from each other. The agenda is excellent and you have assembled an impressive array of speakers.
And I am pleased to address a subject I find of extraordinary importance, the application of rule of law principles to environmental concerns. While I have been in the environmental field much of my adult life, I want to talk to you today from a particular perspective: my role as the leader of the Environment and Natural Resources Division at the Department of Justice. Our role is representing the United States in federal courts, and sometimes state courts, in every one of the 93 judicial districts of the United States. And, as I will discuss, we have significant international responsibilities with respect to protection of the environment and natural resources. My plan today is to first tell you something about the Environment and Natural Resources Division and then take some specific examples of our work to illustrate the application of the rule of law to our litigation. Finally, I want to mention areas in which I believe the international arena is challenged and rule of law concerns need to be addressed and improved.
I have, in other places, debated with others the intersection of environmental law with other disciplines. Just a few months ago I was honored to give the annual Leventhal lecture where I spoke on the intersection of environmental law and administrative law, specifically addressing the Chevron doctrine as it exists today. Speaking to you allows me to address another important intersection: rule of law. Many of us have debated over the years the contours of the rule of law standards, and the United Nations has addressed that issue as have others. I believe there are, however, some universal principles that govern our adherence to rule of law principles. They are that everyone, governments included, must be accountable under the law, that the laws must be clear, transparent and applied fairly, that the process by which laws are enacted, administered and enforced must also be done fairly, with due process to all and in a timely fashion and that judges must be independent, representative and have adequate resources.
The World Justice Project, which grades countries on their adherence to the rule of law have developed nine factors. Three of those that they measure are particularly relevant to my presentation: the extent to which regulations are effectively implemented and enforced, whether citizens can resolve their grievances through the civil justice system and whether an effective criminal justice system exists.
First, let me give you a brief description of the Environment and Natural Resources Division and the work that we do.
The Environment and Natural Resources Division, or ENRD, is “the nation’s largest environmental law firm.” We have nearly 650 employees, including 450 attorneys. ENRD represents the U.S. government in all cases in United States federal courts relating to protection of the environment and natural resources, as well as cases relating to the rights of Native Americans.
Our docket of active cases includes over 6,500 cases and we have represented virtually every federal agency in connection with cases arising in all 50 states and the U.S. territories. Our responsibilities also involve international work. About half of our work is offensive, where we are the plaintiff and about half defensive. For instance, our offensive work includes our civil complaint against Volkswagen which we just filed, and our defensive work includes representing the Environmental Protection Agency’s (EPA) Clean Power Plan and their historic regulation of greenhouse gases from existing power plants, which is now before the D.C. Circuit.
I have identified certain priorities for my tenure as Assistant Attorney General. They are to: enforce the nation’s bedrock environmental laws that protect air, land and water for all Americans; vigorously represent the United States in federal trial and appellate courts, including by defending key agency rulemaking authority; protect the public fisc and defending the interests of the United States; advance environmental justice through all of the division’s work and promote and defend tribal sovereignty, treaty obligations and the rights of Native Americans; and provide effective stewardship of the nation’s public lands, natural resources and animals, including fighting for the survival of the world’s most protected and iconic terrestrial and marine species.
Rule of Law and Protection of the Environment
I would argue that at the heart of the rule of law is enforcement. A nation can have the best of laws, but unless they are adequately enforced they have no meaning. And, adequate enforcement means that all entities are subject to the law. There simply cannot be a situation where the illegal conduct is too large to address, or the company too big to enforce against.
We are probably most well-known for our work litigating against BP and other entities for the massive oil spill into the Gulf of Mexico in April 2010. After three different trials, multiple trips to the 5th Circuit Court of Appeals and the Supreme Court and countless hours of discovery and terabytes of document management, we were able to settle that case in a historic series of settlements, which the Attorney General announced last October as the largest settlement against a single defendant in the history of the Department of Justice. It is hard to imagine a better example of our dedication to the rule of law than that litigation and the outcome. As is true in so many cases, there were real victims with real injuries that deserved compensation. And, the ecosystem itself was a victim in need of our help.
In addition to the tragic loss of 11 lives, many more lives were impacted by this oil spill. This spill, which extended over more than 43,000 square miles, damaged and temporarily closed fisheries vital to the Gulf economy, oiled hundreds of miles of beaches, coastal wetlands and marshes and killed thousands of birds and other marine wildlife. Under the settlement, we obtained a $5.5 billion civil penalty with 80 percent of that amount going to restoration efforts, $8.1 billion in natural resource damages and $600 million for other claims.
Another example of the rule of law in action is our efforts to promote and encourage environmental justice. Like rule of law, sometimes environmental justice is only considered after the fact, rather than integrated into the planning events. Like the National Environmental Policy Act (NEPA), it is far more important to consider environmental justice before we take final action. Let me give you just one example.
In June 2015, the Department announced a Clean Air Act settlement with several utility companies which will reduce damaging pollution from the Four Corners Power Plant located on the Navajo Nation near Shiprock, New Mexico. The settlement requires an estimated $160 million in upgrades to the plant’s sulfur dioxide (SO2) and nitrogen oxide (NOx) pollution controls, and payment of a civil penalty of $1.5 million. SO2 and NOx have numerous adverse effects on human health, including severe respiratory and cardiovascular impacts. Importantly from an environmental justice perspective, the settlement also required the defendants to pay $6.7 million of mitigation funds for three types of projects that will benefit the Navajo people. One defendant will pay approximately $3.2 million on a project to replace or retrofit local residents’ inefficient, higher-polluting wood burning or coal-burning appliances with cleaner-burning, more energy-efficient heating systems. Defendants will also spend approximately $1.5 million for weatherization projects for local homes to reduce energy use. Finally, defendants will spend $2 million to establish a Health Care Project trust fund. The Health Care Project trust will pay for certain medical expenses for people living on the Navajo Nation, near the Four Corners Power Plant, who require respiratory health care. The funds may be used to pay for complete medical examinations, tests, review of current medications, prescriptions, oxygen tanks, and transportation to and from the hospital or doctors’ offices.
Rule of law considerations have, at their base, a need to deter future illegal activity and ensure a level playing field for those who do comply with the law. Prosecutors ensure a level playing field by taking away any profit made by the misconduct. To illustrate this, let me tell you about a criminal case we completed just a few weeks ago.
In the case, a New Jersey man was sentenced not only to 20 years in prison and three years supervised release, but also ordered to pay $56 million in restitution for his role in a scheme to defraud biodiesel buyers and U.S. taxpayers by fraudulently selling biodiesel incentives. To encourage the production of fuel from renewable sources, properly manufactured biodiesel is eligible for a dollar per gallon tax credit and a renewable identification number, or RIN, that can be used one time by petroleum refiners and importers to demonstrate compliance with federal renewable fuel obligations. The defendant and his New Jersey based companies purchased biodiesel at a discounted price from other companies who had already used the fuel to claim tax credits and RINs. Biodiesel with RINs still eligible for credit sells at higher market prices. The defendant would then supply the biodiesel his company purchased to his co-defendants who would claim to have made the fuel and then illegally re-certify the fuel and sell it at the higher market price for incentivized biodiesel. Through this scheme, the defendants sold more than 35 million gallons of fuel for sales of over $145 million dollars and realized gross profits of more than $55 million dollars at the expense of their customers and taxpayers. This scheme also negatively impacted the United States’ goal of fighting climate change and reducing foreign oil imports.
I also want to turn to international considerations. Based on agreements entered into by the international community in recent years, there seems to be universal agreement with the concept that advancement of the rule of law is essential to sustainable development and protection of the environment and the world’s natural resources. For example, this past September, the 193 Member States of the United Nations reached consensus on the outcome document of a new sustainable development agenda entitled, “Transforming Our World: The 2030 Agenda for Sustainable Development” which recognizes the importance of the rule of law at the national and international level to environmental protection and sustainable development.
However, while there seems to be an international consensus on the importance of rule of law in protecting the environment, it also seems that a number of trends are heading in the wrong direction. For example, if you consider some of our iconic wildlife species, we know that African elephants are being depleted at an alarming rate, with estimates that over 35,000 were killed in 2013 for their ivory. Wildlife traffickers make billions of dollars each year trading in ivory, rhino horn and other animal parts. And some of the world’s great forests are being illegally burned and depleted by illegal timber harvests.
So it’s vitally important that the agencies and nongovernmental organizations participating in this symposium work together to promote good environmental governance and the rule of law in order to reverse these negative trends and protect the world’s natural resources. Here is what the Environment and Natural Resources Division is doing to promote the rule of law internationally in order to protect the environment.
We vigorously enforce U.S. environmental and natural resources laws, particularly laws prohibiting transnational environmental crimes such as wildlife trafficking, trade in illegal timber, illegal fishing and pollution of our seas.
We also work to build the capacity of judges, prosecutors and law enforcement officials in other countries so that they can combat crimes such as wildlife trafficking and illegal logging in their own countries and serve as effective partners with us to fight transnational environmental crimes.
Wildlife Trafficking and Illegal Fishing
The Environment and Natural Resources Division has long been a leader in the fight against wildlife trafficking. For decades we have prosecuted people who illegally poach wildlife and traffic in protected wildlife and wildlife parts. President Obama’s Executive Order on Combating Wildlife Trafficking, issued on July 1, 2013, and the Presidential Memorandum on Establishing a Comprehensive Framework to Combat IUU Fishing and Seafood Fraud, issued on June 17, 2014, brought increased attention to the severity of the crisis we are facing. Not only is wildlife trafficking a multi-billion dollar illicit business that is decimating species such as elephants, rhinoceros, tigers and various marine species, it also threatens security, hinders sustainable economic development, finances armed groups, and undermines the rule of law.
The Executive Order on Wildlife Trafficking recognized the urgent need for concerted action and established a Presidential Task Force on Wildlife Trafficking to lead a coordinated, government-wide effort to stop poaching and other wildlife trafficking. I am a co-chair of the Administration’s task force, along with senior representatives from the Departments of State and the Interior; the task force includes 14 other U.S. Government agencies and offices. In February 2014, the White House issued the National Strategy for Combating Wildlife Trafficking which calls for increased federal coordination to address three key priorities: strengthening domestic and international law enforcement to curb the illegal flow of wildlife; reducing demand for illegally traded wildlife; and building global cooperation and public/private partnerships to support the fight against wildlife trafficking. The Presidential Memorandum on IUU Fishing recognized a similar and related need for action to combat trafficking in illegally harvested fish.
Combating wildlife trafficking is a top priority for the Department of Justice. Last year I led the U.S. delegation to the Kasane Conference on the Illegal Wildlife Trade in Botswana, attended by representatives from more than 30 nations. Participants in the Kasane Conference pledged to establish and strengthen partnerships among source, transit and destination countries to combat the illegal wildlife trade, strengthen national legislation as appropriate and ensure that law enforcement authorities, prosecutors and judges have the resources and capacity to investigate and prosecute financial crimes associated with wildlife crime.
The Department of Justice’s efforts on both wildlife trafficking and IUU fishing naturally focus on enforcement, since strong enforcement, both at home and abroad, is critical. A prominent example of the division’s robust prosecution of illegal wildlife trafficking cases is “Operation Crash,” an ongoing multi-agency effort to detect, deter and prosecute those engaged in the illegal killing of rhinoceros and the illegal trafficking in endangered rhinoceros horns. This initiative has resulted in more than 25 successful prosecutions thus far and we are continuing to unravel the sophisticated international criminal networks involved in these crimes. Defendants in these cases have been sentenced to significant terms of imprisonment and the forfeiture of millions of dollars in cash, gold bars, rhino horn and luxury vehicles and jewelry.
A recent case we announced last week was the sentence in our case prosecuting an Irish national who pleaded guilty to conspiring to violate the Lacey Act, our oldest wildlife statute, by illegally trafficking in black rhinoceros horns. He admitted to conspiring to travel within the United States to purchase rhinoceros horns and then resell them to private individuals or consigned them to auction houses.
All rhinoceros species are protected under the Convention on International Trade in Endangered Species of Wild Fauna and Flora because of their dwindling populations. Rhinoceros horns are highly prized in China and Vietnam due to the mistaken belief the horns have medicinal value, increasing the demand on the black market.
The defendant in this rhino horn case was sentenced last week in federal district court to 12 months in prison. His co-conspirator and co-defendant also pleaded guilty and was sentenced to 14 months in prison. This case is an example of U.S. federal investigators collaboratively working with our international partners, in this case law enforcement officials in Ireland and the United Kingdom, to bring these criminals to justice.
We are also working to end trafficking in timber and wood products resulting from illegal deforestation. In 2008, the United States amended the Lacey Act to prohibit trade in illegal plants and plant products, including timber, taken in violation of U.S. or foreign laws. We are now able to prosecute those who bring into the United States wood harvested in violation of foreign laws.
For example, in late October 2015 Lumber Liquidators, a large U.S. wood products retailer, pleaded guilty to violations of the Lacey Act and customs laws related to illegal importation of hardwood flooring, much of which was manufactured in China from timber that had been illegally logged in the Russian Far East. The temperate forests of the Russian Far East are home to the last remaining 450 Siberian tigers and 57 Amur leopards remaining in the wild. The primary contributors to these species’ risk of extinction are illegal logging and detrimental logging practices.
Under the plea agreement, Lumber Liquidators will pay over $13 million in criminal fines, community service and other payments, and forfeiture of goods. Some of that money is expected to support research and preservation of the Siberian tiger, Amur leopard, and their habitat.
Lumber Liquidators has also agreed to a five year term of probation and mandatory implementation of a government-approved environmental compliance plan that is rigorous, public and will help guide Lumber Liquidators and other companies in complying with the Lacey Act by purchasing only legally harvested wood. National Geographic has announced this case as one of the biggest wins against wildlife exploitation of 2015.
Capacity Building for our Law Enforcement Counterparts
Although I am quite proud of our enforcement record, I fully realize that our efforts are only part of the whole of rule of law considerations. To be effective, there must also be a trained and independent judiciary, experienced prosecutors and well understood and applied laws. In that regard, the Environment and Natural Resources Division is also committed to building the capacity of our enforcement counterparts and judges in other countries. For example, last October, with funding from the State Department and assistance from the U.S. Agency for International Development, ENRD attorneys implemented a regional workshop for prosecutors and magistrates from six southern African countries on combating wildlife trafficking. The course covered evidentiary and prosecutorial issues unique to wildlife trafficking cases, as well as sessions on money laundering, asset tracing, and corruption issues.
We will conduct a follow-on session in 2016 with these same participants that will allow us to continue working with our southern African counterparts as they put the training into effect. Also in 2016, our attorneys will deliver a similar wildlife trafficking workshop for judicial officers and prosecutors from west and central African countries.
In addition, we are preparing to implement a workshop in Cameroon for Congo Basin countries this year on investigating and prosecuting illegal logging cases. In the last several years, ENRD attorneys have delivered several well-received illegal logging training programs for investigators, prosecutors and judges in Brazil, Peru,and Honduras and for the various Wildlife Enforcement Networks, or WENs established in various regions.
In addition to collaborating with other U.S. agencies on our capacity building work, we increasingly partner with international organizations and foreign governments such as the UN Office on Drugs and Crime and the World Bank on supporting capacity building relating to wildlife trafficking. The Environment and Natural Resources Division also actively participates in INTERPOL’s environmental crimes working groups.
This conference will address many of the challenges that remain, challenges that must be addressed in order for us to have an international rule of law order. The United Nations’ goals are a good starting point for us to guide and measure effectiveness in achieving environmental goals such as clean air, drinkable water and land free from harmful pollution. The specter of corruption still exists, which undermines public confidence in the rule of law. As we witness the decline of iconic and endangered animal species, we know that even good laws do not take the place of timely and effective enforcement, which we should all advocate and support. Finally, accountability for everyone must be our goal, as is fairness, due process and a commitment to human liberties. In all this, we all can be challenged by the words of Margaret Mead: “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.”
The Environment and Natural Resources Division has for many years been committed to advancing the rule of law by vigorously enforcing U.S. environmental and natural resource statutes, including those relating to transnational environmental crimes such as wildlife trafficking and illegal logging. And increasingly, we are being called on to work to build the capacity of enforcement counterparts in other countries to fight these natural resource crimes in the countries where these resources are being harmed and depleted. I can assure you that we will continue our commitment to advancing the rule of law through this important work.