Remarks by Principal Deputy Assistant Attorney General Jonathan D. Brightbill at the American Bar Association’s Environmental & Energy Litigation Federal Updates Virtual Regional CLE Program

Remarks as Prepared for Delivery

Good afternoon, everyone, and thank you to the ABA for inviting me to participate today.  I’m very happy to join you and speak about the Department of Justice’s Environment and Natural Resources Division, or “ENRD” as we call it, and its role in enforcing the nation’s federal environmental laws. 

My name is Jonathan Brightbill, and I currently serve as the Principal Deputy Assistant Attorney General of ENRD. I joined the Department in July 2017.  Our Assistant Attorney General, Jeffrey Bossert Clark, later took office in November 2018. Last month, President Trump appointed AAG Clark to serve as Acting Assistant Attorney General of the Department’s Civil Division. As the Principal Deputy, I, in turn, am now performing most duties of the AAG of ENRD.  This means that I supervise ENRD’s work day in and day out.

To give you a bit of background on me, though, I began my career in State government.  In the late 1990s, I worked on the policy staff of Secretary Jim Seif at the Pennsylvania Department of Environmental Protection. After that, I went to law school, then spent much of my career as a lawyer in private practice until coming to the Department of Justice.

It has been an incredible honor to work the last several years with AAG Clark, Attorney General Barr, and the rest of the Department’s leadership, as well as the talented career staff of ENRD lawyers, litigators, and support staff. And, as a person who loves the craft, it’s been a privilege to do so in role that still lets me be, for lack of a better term, a litigator.

I’ve personally appeared many times to represent the United States and its agencies in appellate and district courts from Pasadena to Boston. This included personally appearing to successfully defend EPA and the Army Corp’s Navigable Waters Protection Rule, which reformed the definition of “waters of the United States,” against a nationwide injunction. 

And, just last week, I argued almost two hours myself before the D.C. Circuit in defense of EPA’s decision to repeal the Clean Power Plan and replace it with the Affordable Clean Energy Rule, or the “ACE Rule,” in what was, in total, an approximately nine hour appellate argument.

BRIEF OVERVIEW OF ENRD ORGANIZATION, MISSION & PRIORITIES

ENRD is a special place to work, and it has an interesting history. Though our nation has had an Attorney General since the Washington Administration, it was not until 1870, during the presidency of Ulysses Grant, that Congress created the Department of Justice. So although our celebrations of this year have been a bit muffled by the COVID-19 pandemic, this is the 150th year of the Department of Justice.

ENRD was established in the first several decades thereafter, in 1909, at the beginning of the Taft Administration. Originally, it was called the “Public Lands Division.” Its focus was on “the Public Land Law,” that is, the acquisition and disposition of public lands.  It also focused on enforcing and protecting Indian rights. The original staff constituted only six attorneys and three stenographers.

ENRD’s responsibilities grew with the nation.  Eventually, the name was changed to the Environment and Natural Resources Division to better reflect the Division’s responsibilities. Today, ENRD has a staff of over 600 people.  More than 400 of those are lawyers who handle around 6,500 active cases.  ENRD has offices in Washington, D.C.; Denver; San Francisco; and Sacramento. 

Our primary, overarching responsibility is representing the United States in federal courts in cases relating to the protection of the environment and natural resources. But we also handle cases in many state courts.

ENRD is divided into ten sections. Those sections have varying roles and responsibilities, which, to name just a few, include land acquisition, defending federal environmental regulations, and representing the United States in our federal appellate courts in environmental cases.  Later on, we will discuss some of ENRD’s sections — the sections responsible for our enforcement cases — in more detail.

ENRD represents virtually every federal agency in cases arising in all 50 states, the District of Columbia, and in the United States territories.

But, we have a handful of client agencies — the U.S. Environmental Protection Agency, the Department of the Interior, and the Department of Defense — that we do most of our work for.

We will also discuss the types of cases we bring on behalf of those various agencies in more detail later on. As you can also see, we do both defensive and affirmative work.  Today, however, I will focus only on our enforcement efforts, including both civil and criminal enforcement cases. 

Enforcement Principles and types of enforcement cases

A few themes run through our enforcement actions. The first theme is, of course, our commitment to ensuring that America’s environmental laws — laws that are designed to protect our environment and the health of our citizens — are adhered to and complied with. We robustly enforce the nation’s pollution abatement and wildlife protection laws. 

Our enforcement cases break down into two broad categories, civil enforcement and criminal enforcement. Civil enforcement cases result in injunctive relief, civil penalties, and cost recovery. In the civil enforcement context, civil fines and penalties are generally pursued based on considerations of environmental harm, deterrence, and economic advantage by polluters. Cost recovery claims are often for the money that government agencies spend responding to spills or cleaning up contaminated sites.  

On the other hand, criminal enforcement may lead to prison terms for individuals or significant operating sanctions for corporations. Criminal enforcement cases can also result in the payment of criminal penalties, which may include fines, restitution, and forfeiture.

The second theme, is that we are also committed to ensuring that our citizens are treated justly and fairly across the country. Whether we are bringing a civil or criminal enforcement case, we seek to adhere to the fair and impartial rule of law.

Many of Washington’s public buildings are covered with inscriptions, including the Robert F. Kennedy Department of Justice Building, or “Main Justice,” as we call it for short. One is a quotation in the ante chamber between the Attorney General’s Office and conference room on the top floor, from Solicitor General Frederick Lehmann.  It says, “The United States wins its point whenever justice is done its citizens in the courts.” 

The deeper meaning reflected in those words is that we at the Department of Justice are not ordinary lawyers. All lawyers zealously represent their clients. But at the Department of Justice, we take an oath to preserve, protect, and defend the Constitution of the United States. We must be committed to due process, equal protection, and the objective rule of law.

So we do not go into our enforcement cases necessarily trying to just obtain the longest possible criminal sentence, or to extract the highest calculable penalty. We are not trying to win at all costs.  We are pursuing twin goals — first, to enforce our nation’s environmental laws and deter their violation, but, second, to ensure that our citizens are treated justly and fairly.

A final key of our enforcement program is that we are committed to working collaboratively with the States and our peers in the federal government. We work closely with States and often bring our cases jointly with States.

At ENRD, we also maintain strong working relationships with lead investigative agencies — in ENRD, we do not have our own investigative personnel — and the U.S. Attorney’s offices. Maintaining these collaborative relationships makes us more effective in our enforcement efforts.

CIVIL VERSUS CRIMINAL ENFORCMENT

We are often asked why we pursue some cases as civil enforcement cases, yet pursue other somewhat similar cases as criminal prosecutions.

Admittedly, it can be hard to discern in specific cases whether a case should fall on the “criminal side” or “civil side.” In fact, many federal environmental statutes authorize administrative, civil, and criminal enforcement. So, sometimes, we at DOJ, in conjunction with our client agencies, must exercise judgment and use our discretion when deciding whether to pursue criminal prosecutions or to leave a matter in the civil enforcement realm.

Though I obviously cannot comment about any ongoing criminal cases or investigations, I will say that we reserve criminal prosecution for what we deem to be the worst offenders.

In recent years, the Division’s philosophy has been to bring criminal enforcement actions where the underlying conduct would be criminal in any context, regardless of what the specific environmental statute discusses. These cases include situations where the defendants’ underlying conduct amounts to lying, cheating, and stealing, as well as those cases in which prior civil enforcement attempts have gone unheeded.

TYPES OF CASES

Generally speaking, whether they be civil or criminal, the bulk of the enforcement cases that ENRD brings can be separated into two large categories. 

The first category includes enforcement cases under federal laws aimed at curtailing pollution. These cases include actions under the Clean Air Act, the Clean Water Act, and the Safe Drinking Water Act, to name just a few. They encompass a wide variety of fact patterns, from matters aimed at stopping automotive manufacturers from cheating vehicular emissions tests, to the prosecution of cruise liners and other sea-going vessels that violate the International Convention for the Prevention of Pollution from Ships. 

The second large category of enforcement cases are aimed at protecting the nation’s natural resources.  These cases include efforts to prevent wildlife trafficking, stop animal cruelty, and prevent illegal timbering and mining. Of course, these categories — between pollution cases on the one hand and natural resources cases on the other — are not bright lines. 

ENRD PARTNERS

The primary federal agencies that ENRD works with in these enforcement cases are the Environmental Protection Agency, the Department of Agriculture, the U.S. Army Corps of Engineers, the U.S. Coast Guard, the Department of the Interior, and the National Oceanic Atmospheric Administration.

Several of ENRD’s sections carry out this enforcement work, but the sections that are primarily responsible for enforcement are the Environmental Enforcement Section, the Environmental Defense Section, the Environmental Crimes Section, and the Wildlife and Marine Resources Section.

Although EDS primarily defends the United States from suit, it does handle civil enforcement of wetlands fill cases. WMRS is responsible for civil enforcement and forfeiture related to federal animal welfare statutes. ECS brings criminal prosecutions under federal environmental laws.  It also prosecutes animal cruelty cases and wildlife traffickers through the Lacey Act, which makes interstate and international trafficking in wildlife a felony. And EES handles affirmative civil actions under the pollution abatement statutes.

RECENT ENFORCEMENT EFFORTS

Now that we’ve set the table, so to speak, and you have a better understanding of how ENRD works and the kinds of cases it pursues, I’d like to talk about our recent enforcement efforts.

But before turning to specific examples, I would like to share with you some statistics that provide perspective on just how committed this administration has been to environmental enforcement.

The fiscal year 2020 was another incredibly successful year for this administration’s enforcement efforts. In the fiscal year 2020 — and this is prior to the blockbuster Daimler Consent Decree just announced — ENRD obtained and achieved:

  • Over $1 billion in injunctive relief;
  • Over $61 million in cost recovery;
  • Over $122 million in civil penalties;
  • Convictions of 64 defendants in 39 criminal cases;
  • Of those 64 defendants, 57 individual defendants were sentenced to a total of 44 years’ confinement; and
  • More than $26 million in criminal penalties.

It’s difficult in the abstract to truly comprehend what those numbers mean. To put in context just how successful this administration has been in its enforcement cases, compare its work to the prior administration’s.

Critics often downplay the success and effectiveness of our environmental enforcement efforts. But in actuality, during the first four years of the Trump Administration, the United States — in its environmental enforcement cases brought on behalf of EPA — has secured more money in civil penalties, criminal fines, and criminal restitution through judicial settlements or orders than the Division recovered in the first four years of the Obama Administration. This is true even if you also exclude the 2017 Volkswagen Settlement, whose investigation and pursuit was begun during the Obama Administration.

So you know — when we pulled together these numbers, we chose to also exclude the Daimler Settlement because the consent decree in that matter was only recently lodged for public comment, so the United States has not collected those settlement figures yet.

Moreover, if you look instead at all civil enforcement cases that the Division has brought — in other words, not just cases brought on behalf of EPA but all cases brought by ENRD on behalf of all federal agencies — the United States has again recovered more money during the Trump Administration in civil penalties through judicial settlements or judgment than the United States recovered during the first four years of the Obama/Biden Administration. Again, this excludes the Volkswagen settlement and the Daimler settlement.

In total, during the first four years of this administration, the United States has recovered almost $233 million more in civil penalties for environmental enforcement cases than the United States recovered during the first four years of the Obama/Biden Administration.

These figures demonstrate this administration’s commitment is to enforcing the nation’s environmental laws and ensuring that the United States has the cleanest air, the cleanest water, and the cleanest land.

Representative Cases

With that context in mind, let’s talk about some recent examples of the types of enforcement work we do at ENRD.

Let’s begin by talking about our pollution cases. The United States vigorously enforces its laws aimed at keeping our air and water clean. 

Some of the most talked about set of these enforcement efforts in recent years has been the Division’s efforts to address motor vehicle emissions cheating.  These reflect our prioritization of enforcement against those who are not just out of compliance with our environmental laws, but knowingly evading them for profit.  

Air pollutants — like nitrogen oxides — emitted from the operations of motor vehicles are regulated under the Clean Air Act. These pollutants can have many adverse effects on human health, including severe respiratory and cardiovascular impacts, as well as premature death.  They also contribute to acid rain, smog, and haze.

The Division has been committed to identifying motor vehicle manufacturers and affiliated entities that scheme to cheat America’s emissions laws.  Our enforcement cases in this area have sent a clear message: the United States will enforce its pollution laws and protect the environment and public health.  Those who try to cheat the system and defraud or mislead the public will be caught. 

The most recent example of these efforts — and one of the most significant environmental enforcement actions of ENRD in the past several years — is our previously alluded to settlement with Daimler AG and its affiliated entity, Mercedes-Benz USA, LLC.  Today, I will refer to these entities collectively as “Daimler.”

On September 14th, DOJ’s Deputy Attorney General, Jeff Rosen, announced that ENRD lodged a proposed consent decree between the United States, the California Air Resources Board, and Daimler with the federal district court in the District of Columbia.

Our complaint alleges that Daimler violated parts of Section 203 of the Clean Air Act in connection with the sale of approximately 250,000 diesel passenger vehicles and utility vans. These vehicles contained certain undisclosed software systems that caused them to operate differently on federal emissions tests than in similar on-road conditions.

Under the proposed settlement, Daimler will recall and repair the emissions systems in Mercedes-Benz diesel vehicles sold in the United States between 2009 and 2016. It will pay $875,000,000 in civil penalties and roughly $70,300,000 in other penalties. This equates to about a $3,500 penalty for each vehicle that was sold in the United States.  That is the largest per-vehicle civil penalty judgment ever imposed for a mobile source emissions violation under the Clean Air Act. Taken together with various injunctive and equitable relief, the settlement is valued at about $1.5 billion.

Of course, as I described before, our enforcement efforts are not limited to mobile source emission cases. Though other cases may not get as much press as these cases announcing sizable penalties against big corporate polluters. I’d like to give you two more examples of our pollution enforcement cases, both of which come from the energy sector. 

The first case is a criminal matter, United States v. David Dunham, et al. In this case, the defendant, his co-defendant Ralph Tommaso, and the companies they operated defrauded the Renewable Fuel Standards program, which is referred to as the “RFS.”

Under the RFS, renewable fuel producers generate Renewable Identification Numbers, or “RINs,” every time they produce a certain amount of renewable fuel. In the RFS program, RINs act like a currency — obligated parties under the RFS can buy and sell RINs to satisfy their compliance obligations.

Mr. Dunham ran a multi-million dollar conspiracy to defraud individuals and the United States.  For about two years, Mr. Dunham and Mr. Tommaso operated companies that falsely claimed to have produced and sold renewable fuel for which they misappropriated $50 million in payments, subsidies, and other benefits.

They also claimed RIN credits for renewable fuels that they never actually produced.  By doing so, they defrauded the RFS program and stole tens of millions of dollars from the United States

A jury convicted Mr. Dunham in May 2019 on 54 counts, including conspiracy, false statements, wire fraud, tax fraud, and obstruction. In August, Dunham was sentenced in the Eastern District of Pennsylvania to 84 months’ incarceration, three years supervised release, and $10,207,000 in restitution.

In another interesting case, the United States reached a settlement with Plains All American Pipeline L.P. and Plains Pipeline L.P.  I’ll refer to those two entities collectively as “Plains.” Plains operates pipelines nationwide, including Line 901, which runs immediately north of Refugio State Beach, located near Santa Barbara, California.

In May 2015, Line 901 discharged approximately 2,934 barrels of crude oil. The discharge was caused by Plains’ failure to address external corrosion and to have an adequate pipeline integrity management program.

The damage from the spill was made worse by Plains’ failure to properly respond to the event. The spill polluted Refugio State Beach, the Pacific Ocean, and other shorelines and beaches. It caused beach and fishing closures and harmed birds, fish, marine mammals, and shoreline and subtidal habitats.

Like with the Daimler settlement I described before, the United States worked closely with the State of California to bring the Plains case. In March of this year, the parties announced a settlement.

Under the terms of the settlement, Plains will:

  • Implement injunctive relief to bring its operations into compliance with federal pipeline safety laws;
  • Pay $24 million in civil penalties;
  • Pay about $22 million in natural resource damages and $10 million for reimbursed natural resource damage assessment costs;
  • And pay about $4 million to reimburse the Coast Guard for its clean-up costs.

Excluding the value of the injunctive relief changes to Plains’ national operations, the settlement, including the reimbursed costs, is valued in excess of $60 million.

Before I move on from the topic of our pollution cases, I’d like to add that, besides bringing enforcement actions, ENRD also actively works with its various law enforcement counterparts at home and abroad to identify and weed out pollution.

By way of example, one member of ENRD, Joseph Poux, the Deputy Chief of our Environmental Crimes Section, was recently honored by the International Association of the Chiefs of Police for his work as chairman of the Pollution Crimes Working Group of the International Criminal Police Organization, commonly referred to as “INTERPOL.” That kind of proactive approach to addressing pollution issues before bringing enforcement actions helps us accomplish our goals of protecting human health and maintaining the quality of our environment.

Next, I’d like to speak about our efforts in combatting wildlife and timber trafficking. ENRD is committed to protecting wildlife and to combating wildlife trafficking through enforcement and collaboration with the States and tribes. Wildlife trafficking is estimated to produce annual revenues of $10 billion or more, which sadly makes it one of the most profitable types of transnational organized crime. It is right up there with drug trafficking and human trafficking.

To combat the growing trafficking crisis, ENRD brings numerous wildlife trafficking cases. One example is a 2019 case against smugglers who transported and concealed a “libation cup” that was carved from endangered rhinoceros horn from the United States to the United Kingdom.

In April 2012, Richard Sheridan — a citizen of the United Kingdom — and his co-defendant, Michael Hegarty, joined a Miami, Florida resident to attend an auction in North Carolina. At the auction, they bid $57,000 for the libation cup. They paid for it by wire transfer from a Miami bank to the North Carolina auction house.

The defendants then smuggled the cup to the United Kingdom, where they tried to sell it to a native of Hong Kong. Law enforcement officers in London intercepted the sale. Mr. Sheridan was extradited to the United States. 

The court sentenced him to 14 months’ incarceration, followed by three years’ supervised release in October 2019. Hegarty was later identified in Belgium from an INTERPOL red notice and was also arrested and extradited to the United States.

Like with pollution, ENRD does it best to proactively deal with animal and timber trafficking. In addition to enforcement cases, ENRD works to combat these violations by engaging in capacity building and building relationships with law enforcement counterparts abroad.

In 2019, for example, the Division led training programs for magistrates, prosecutors, and investigative officials in Myanmar, Gabon, Colombia, and Brazil to help combat illegal timber trafficking in Asia, Africa, and South America. Also in 2019, ENRD conducted workshops for prosecutors from Botswana, Thailand, and Hungary on combatting both illegal timbering and pollution crimes.

A last example of our enforcement matters I’d like to leave you with represents our ongoing efforts to address animal cruelty. ENRD continues to aggressively pursue those who engage in cruelty towards animals, including criminal actions against defendants who participate in the brutal practice of dogfighting, which is often linked to other forms of violent and organized criminal activity.

A recent example is ENRD’s efforts to bring to justice individuals who ran a Pensacola, Florida, dog fighting ring. Four defendants were convicted and sentenced for their role in a dog fighting conspiracy.

The evidence established that the defendants, among other things:

  • Arranged dog fights and trafficked fighting dogs across state lines;
  • Discussed concealing evidence that one of the defendants’ dogs had killed another dog;
  • And sold fighting dogs to others around the country.

One defendant even acted as a makeshift “veterinarian” despite having no veterinary license. The quote-unquote “treatment” this person gave the dogs included surgical procedures to remove the dogs’ ears. Sadly, two dogs that were treated went on to die from their fighting injuries.

But like with our efforts to combat pollution and wildlife trafficking, ENRD’s work to combat animal cruelty is not limited to enforcement cases. ENRD also works to provide trainings, capacity building initiatives, and the like to help law enforcement adequately prepare for addressing animal welfare issues.

This year — just a month ago, in fact — ENRD helped put on a national, virtual training on animal welfare for all U.S. Department of Agriculture Office of the Inspector General agents. The topics of the training included animal welfare statutes, the execution of search warrants, the post-seizure care of animals, undercover techniques, biohazards and zoonotics (that is, a pathogen that jumps from an animal host to a human), and animal fighting businesses.

SEP POLICIES

Earlier, I told you about our dual goals. We want to aggressively pursue those who violate our nation’s environmental laws, and also ensure the just and fair administration of the law.

In that vein, this administration has also been undertaking a number of important enforcement policy reforms. We recognize our oaths to the Constitution, and that we must faithfully execute the laws with full regard to due process, public transparency, and fundamental fairness.

Part of that is our recognition that the Congress sets the laws under which our actions are brought. In particular, we are conscious that DOJ should not use the awesome enforcement resources of the government to pressure defendants into agreeing to relief through settlements that the government could not otherwise obtain by pursuing cases to trial.

DOJ must respect the federal government’s separation of powers and recognize that it is Congress that appropriates monies from the Treasury. Over the past year, AAG Clark has issued memoranda addressing and ultimately barring the pursuit and use of Supplemental Environmental Projects (SEPs) in civil enforcement settlements.

You likely are familiar with the two types of relief the federal government can generally seek in an enforcement action — monetary and equitable. Monetary relief includes fines and penalties, natural resource damages, and cost recovery. Equitable relief includes prospective compliance measures, mitigation, and cleanup actions.

Environmental mitigation often takes the form of environmental projects to offset the harms to the environment specifically caused by prior emissions of polluters. The Department of Justice continues to pursue environmental mitigation of environmental harms.

So we sometimes get the question: what are SEPs?  And what has changed?  SEPs are supplemental environmental projects.  They are defined by an EPA policy as an environmentally beneficial project or activity agreed to by settlement that a violator is not otherwise legally required to perform.

So they are additional special projects that — unlike mitigation — are specifically not remedying the particular environmental harm caused by the violation. And because the violator is not otherwise legally required to perform such a project or activity, SEPs could only be obtained by settlements. They could not be obtained by actual prosecution and enforcement of the environmental laws to judgment.

And, most pernicious of all, SEPs were not simply provided out of the goodness of a defendant’s heart.  Defendants agreed to fund these SEPs in exchange for reductions in the civil and other monetary penalties that otherwise would have flowed to the Treasury.

So instead of paying fines that deter disregard of our environmental laws, violators were given discounts from those penalties. They were instead allowed to spend that money on projects that bought them goodwill in local communities — fines and penalties were traded for marketing. This also put unelected government enforcers and prosecutors in the position of effectively reallocating where federal tax dollars are spent.

Because SEPs are a way of circumventing Congressional appropriations processes, SEPs have undoubtedly been popular with both regulators and the regulated community.  But they also have been long controversial throughout their use.

Questions about SEPs and concerns about their use have ebbed and flowed since their inception. EPA has also now announced that it will no longer permit SEPs in future administrative settlements that are conducted by EPA alone.

We consider this an important policy reform for ensuring DOJ’s commitment to the Rule of Law and faithful adherence to the Constitution’s Separation of Powers. But this SEP reform policy will not impact our ability to have violators remedy the negative environmental consequences of their conduct.

First of all, most settlements of civil penalty cases did not include SEPs.  Second, ENRD will continue to seek equitable relief such as mitigation and other forms of projects and activities that directly remedy the environmental harms that resulted from a violation.

Congress may choose to authorize the executive branch to redirect monies otherwise payable to the treasury.  And in one specific provision and for one specific purpose Congress did. But beyond that ENRD will not.

CWA OVERFILING

The last topic I’d like to discuss with you today is another enforcement policy reform.

This reform was just issued in July 2020 in a policy memorandum, and it is aimed at stopping the practice of “over-filing” in the context of the Clean Water Act. The Clean Water Act has an expansive scope, but it also includes restrictions designed to prevent over-enforcement and double recovery. For example, the statute specifies that EPA can pursue enforcement actions under Clean Water Act § 309(d) or § 311(b), but not both.

In addition, the Department of Justice has other internal policies that are meant to prevent over-enforcement. The most obvious of these is the “Petite Policy,” which precludes successive criminal prosecutions except in a narrow set of cases where the appropriate Assistant Attorney General determines that doing so is necessary to vindicate a substantial federal interest.

There is good reason behind preventing over-enforcement, which is also referred to as “anti-piling on.” Piling on deprives the regulated community of the benefits of certainty and finality that is ordinarily available through full and final settlement. It is harder to get defendants to take responsibility for their misconduct if they don’t know where it will end.

The new policy that was issued in July addresses what the United States will do when there is already a state enforcement action for civil penalties pending with underlying facts that could also lead to a federal enforcement action under the Clean Water Act.

Congress was careful to preserve the States’ role as primary regulator of their own water. Congress had already expressly precluded federal civil penalty actions when a State has (1) started and is diligently prosecuting; or (2) has successfully pursued a state proceeding pursuant to a state law regime “comparable” to the federal administrative penalty regime.

But, oddly, nothing in the statute afforded similar preclusive effect to state civil judicial enforcement actions. Under the new policy, civil actions seeking penalties under the Clean Water Act will be strongly disfavored if a State has already initiated or concluded its own civil or administrative proceeding for penalties under an analogous state law arising from the same operative facts.

In fact, to bring a federal action in such situations, there will now need to be prior written approval from the Assistant Attorney General to proceed. And pre-approval will be granted only in a few limited circumstances, such as:

  • If the prior state enforcement action alone amounts to an unfair windfall for the would-be defendant;
  • If the State is not diligently prosecuting an initiated civil enforcement action;
  • Or, if the State has requested in writing, citing reasons for doing so, that the United States pursue a separate enforcement action AND that request, considering all circumstances, would not amount to unfair piling on.

Like the SEP policy, we believe that this new policy will help promote fairness in the application of our enforcement powers.

So, as you can see, the work of the Environment and Natural Resources Division is broad and complex.  This administration takes very seriously the enforcement of our nation’s environmental laws, and we are committed to aggressively pursuing violators while still adhering to the fair and impartial administration of law.

It has been my privilege to work on behalf of the United States and the American people in these matters. I want to thank you once again for inviting me here to share some aspects of our work with you. I am happy to use the remaining time to answer your questions.

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    The CARES Act authorized up to $46 billion for the Department of the Treasury (Treasury) to make loans to aviation and other eligible businesses affected by the COVID-19 pandemic. Of the 267 applications submitted to the loan program, 35 loans providing $21.9 billion in assistance were executed. Treasury officials do not expect to make any additional loans before Treasury's authority to make loans expires. Applications and Loans for CARES Act Loan Program for Aviation and Other Eligible Businesses, by Category in Statute Type of business Number of applications submitted Assistance sought/available (billions of dollars) Number of loans executed Assistance provided (billions of dollars) Passenger air carrier, repair station operator, and ticket agent 183 35 / 25 23 21.2 Cargo air carrier 10 0.8 / 4 1 0.002 National security business 74 2.6 / 17 11 0.7 Total 267 38.3 / 46 35 21.9 Source: GAO analysis of Department of the Treasury data | GAO-21-198 Note: Pub. L. No. 116-136, § 4003(b)(1)-(3). Participation in the loan program varied across business types due to timing of decisions and other factors, according to stakeholders. Treasury prioritized applications from the largest passenger air carriers and executed loans with seven of them for nearly $20.8 billion. For other applicants, including smaller passenger air carriers and ticket agents, the amount of time Treasury took to evaluate their applications and other challenges affected the number of loans executed, according to selected industry associations. Treasury's authority to make new loans under this program is set to expire in December 2020, and the loan program offers Congress and Treasury lessons for designing and implementing programs of this type in the future. For example: Multiple programs, or multiple paths within a program, may better accommodate businesses of varied types and sizes. It is difficult to implement a program quickly for a wide range of businesses. In addition, a loan program well suited to large, financially sophisticated applicants will not likely be well suited to smaller businesses. Setting and communicating clear program goals could better align lender and borrower expectations. Treasury viewed itself as a lender of last resort but did not state this view in published documents. This omission led to some applicants being surprised by parts of the process, such as when Treasury encouraged over a third of all applicants to apply to another loan program before continuing to pursue a loan from Treasury. Communicating clear timelines for action can also help align lender and borrower expectations. The lack of a published timeline resulted in frustration among some applicants when loans were not made more quickly. The COVID-19 pandemic has resulted in catastrophic loss of life and substantial damage to the global economy, including the aviation sector. U.S. passenger air carriers have lost almost $20 billion and over 47,000 jobs in 2020, with losses forecast to continue into 2021. In March 2020, Congress passed, and the President signed into law, the CARES Act, which provides over $2 trillion in emergency assistance and health care response for individuals, families, and businesses affected by the COVID-19 pandemic, including businesses in the aviation sector. The CARES Act contained a provision for GAO to review the loans provided under the Act. This report examines, among other things, eligible businesses' participation in the loan program and lessons learned from the program for Congress and Treasury. GAO reviewed Treasury documents and data on applications received and loans executed; interviewed Treasury officials on the design and implementation of the program; and interviewed eight industry associations that represent the range of businesses eligible for loans, eight passenger air carriers, and other selected applicants to gather their views on the program. GAO will continue to monitor and report on CARES Act assistance to the aviation industry. This oversight includes the loan program and another Treasury program—the Payroll Support Program—that provided assistance to certain aviation businesses to continue paying employee wages, salaries, and benefits. For more information, contact Heather Krause at (202) 512-2834 or krauseh@gao.gov.
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    The Department of Homeland Security (DHS) and each of its major components face the same key drivers of employee engagement—as measured by the Office of Personnel Management's Federal Employee Viewpoint Survey (OPM FEVS)—as the rest of the federal government (see table). Higher scores on the OPM FEVS indicate that an agency has the conditions that lead to higher employee engagement, a component of morale. Key Drivers of Employee Engagement across the Federal Government, the Department of Homeland Security (DHS), and within Each DHS Component Agency DHS has implemented department-wide employee engagement initiatives, including efforts to support DHS employees and their families. Additionally, DHS's major operational components, such as U.S. Customs and Border Protection and the Transportation Security Administration, among others, have developed annual action plans to improve employee engagement. However, DHS has not issued written guidance on action planning and components do not consistently include key elements in their plans, such as outcome-based performance measures. Establishing required action plan elements through written guidance and monitoring the components to ensure they use measures to assess the results of their actions to adjust, reprioritize, and identify new actions to improve employee engagement would better position DHS to make additional gains in this area. In addition, approval from the DHS Office of the Chief Human Capital Officer (OCHCO) and component leadership for these plans would help ensure department-wide commitment to improving employee engagement. DHS has faced challenges with low employee morale and engagement—an employee's sense of purpose and commitment—since it began operations in 2003. DHS has made some progress in this area, but data from the 2019 OPM FEVS show that DHS continues to rank lowest among similarly-sized federal agencies. GAO has reported that increasing employee engagement can lead to improved agency performance, and it is critical that DHS do so given the importance of its missions. GAO was asked to review DHS employee morale. This report addresses (1) drivers of employee engagement at DHS and (2) the extent that DHS has initiatives to improve employee engagement and ensures effective engagement action planning. To answer these objectives, GAO used regression analyses of 2019 OPM FEVS data to identify the key drivers of engagement at DHS. GAO also reviewed component employee engagement action plans and met with officials from DHS and component human capital offices as well as unions and employee groups. GAO is making three recommendations. DHS OCHCO should, in its anticipated written guidance, establish the elements required in employee engagement action plans and the approval process for these plans. OCHCO should also monitor components' action planning to ensure they review and assess the results of their actions to improve employee engagement. DHS concurred with GAO's recommendations. For more information, contact Chris Currie at (404) 679-1875 or CurrieC@gao.gov.
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