Ep 116— DOJ’s Environment and Natural Resources Division, Past and Present

With all of those different angles and issues that ENRD handles, there must be some interesting dynamics that the division has to navigate.

Andy, you oversaw the appellate section, and I know that gave you a broad view of the division's work.

Can you touch on that?

There are some inherent tensions.

There is both enforcement and defensive work.

There is work done on behalf of Native communities and tribes in support of their treaty rights to acquire land and to trust.

And there is also a component of the division that defends against breach of trust claims brought by Native tribes and Native communities.

part of the role of the Department of Justice is to sort out those tensions, right? And it's not an easy thing to do.

And cases can involve environmental statutes, but also agencies with other mandates.

So there's frequently a national security component to some of the work.

There's often First Amendment issues associated with religious use and occupancy of public lands.

All of these things make the work incredibly complicated.

And there's also sort of the procedural and substantive requirements around this kind of work.

And sometimes there are even tensions between agencies, right? You might have one agency that perhaps is not 100% on board with what another agency has done, right?

Right.

And that's where I think it's sort of an awkward situation that before the Department of Justice files a case or decides to appeal, it wants to get the federal family together to make sure that there is a sort of certainty about what arguments should be made and what are the consequences of a particular position.

And the Department of Justice and ENRD in particular has often played a role in sorting out those positions.

So sort of related to that, I'm hoping, Andy, that you can help explain ENRD's role or sort of non-role in setting policy.

We know that agencies like EPA or Interior or NOAA or Department of Agriculture, they issue regulations, they implement policy through individual decisions.

What's ENRD's role in any of that or other ways that it can set or sway policy?

Yeah.

So the policy role is an important one.

First, I guess I just sort of start again going back to the multitude of agencies that the Department of Justice, I almost said we, even though it's been a long time, that the Department of Justice represents.

And some of those agencies have conflicting responsibilities and some administer statutes together.

For instance, The Endangered Species Act is administered both by the Fish and Wildlife Service for terrestrial species primarily and by NOAA for ocean-going species.