With the news of Manhattan District Attorney Alvin Bragg’s historic indictment of Donald Trump on 34 felony counts of falsifying business records to cover up other crimes this April, the spotlight on the Justice Department has harshened. Bragg’s case, after all, covers conduct initially investigated by federal prosecutors during the Trump administration. And while it’s hardly surprising that Trump-appointed Attorney General Bill Barr intervened in the case—going so far as to force out the U.S. attorney leading the investigation—Attorney General Merrick Garland’s decision not to revisit the matter has been the cause of liberal consternation.
Garland may have his reasons for prioritizing a return to apolitical norms at the Justice Department, but this approach has arguably papered over and left intact the result of Trump’s unprecedented weaponization of the department for his personal gain. It is by Garland’s own doing that Bragg’s measured insistence that he is pursuing this case “to ensure that everyone stands equal before the law” stands in contrast to the Justice Department’s approach.
But leaving the fruits of Barr’s meddling uncontested here is hardly the only instance in which the Biden Justice Department has failed to root out Trump appointees’ influence on the department’s inner workings. While the public waits with bated breath to see proof of progress in the DOJ’s other ongoing criminal investigations into Trump, including for his role in the January 6 insurrection, there is still work to be done to de-Trumpify the DOJ’s own ranks and litigation positions.
Looking between these two high-stakes challenges for the Justice Department, there is one man—aside from Trump himself—whose pernicious influence stands out in both contexts: Jeffrey Bossert Clark. He’s currently under criminal investigation, his phone seized and his home searched. He’s credited with almost bringing about a constitutional crisis. The January 6 committee referred him to the Justice Department for conspiracy to defraud the United States, as he “stands out as a participant in the conspiracy” spearheaded by former President Donald Trump to overturn the results of the 2020 election.
But before all that, Clark was an environmental lawyer. And though his attempt to marshal the Justice Department to protect Trump’s rogue interests was thwarted, his fingerprints remain on a number of consequential environmental lawsuits. It’s easy to overlook Clark’s legacy as head of the DOJ’s environmental division under Trump, given that his capstone project was attempting to undermine American democracy. But it turns out that in his actual job, Clark was a dangerous ideologue as well.
Tracing Clark’s lingering impact on ongoing litigation makes clear that the legacy of Trump’s Justice Department still haunts our governance and that failing to treat his cronies like the menace they are is worsening outcomes across the country. In some cases, Attorney General Merrick Garland is still carrying forward with the arguments Clark helped shape. In others, the Justice Department and its client agencies are at a critical juncture of having to decide whether to break from past positions or maintain continuity with positions they adopted during the Trump administration.
This Supreme Court term will feature several cases in which the Justice Department has faced the dilemma of whether to advance the arguments made and overseen by Clark. Department of the Interior v. Navajo Nation, for instance, has been slowly wending its way through the court system for two decades. The Navajo Nation maintains that the federal government violated its obligations to the tribe when it failed to consider their water needs when allocating water rights to the Colorado River. Approximately 30 percent of the Navajo Nation does not have reliable access to drinking water. The average person on the Navajo reservation uses just seven gallons of water a day, while the average person in the U.S. uses 100 gallons a day. As assistant attorney general under Trump, Clark argued before the Ninth Circuit that the U.S. does not have a responsibility to consider the Navajo Nation’s needs. The Ninth Circuit disagreed.
In 2022, Biden’s Justice Department doubled down on Clark’s position and appealed to the Supreme Court to overturn the Ninth Circuit’s ruling. Solicitor General Elizabeth Prelogar has argued that the Navajo Nation can only sue to enforce trust responsibilities that the U.S. has expressly accepted. In oral arguments this March, Assistant to the Solicitor General Frederick Liu continued to argue that there is no judicially enforceable duty for the U.S. to assess the tribe’s water needs and develop a plan to meet them. The Navajo Nation’s attorney pointed out the fundamental asymmetry of the federal government, saying that “it doesn’t have to do anything to secure the water it promised, even though the United States also says it speaks for the Navajos as trustee of the Nation’s water rights.” The Supreme Court justices appeared divided during oral arguments, and the outcome is uncertain.
This case has massive ramifications for the future resilience of the Navajo Nation as the climate crisis escalates. The Colorado River, which provides drinking water to over 40 million people across seven states, including 30 federally recognized tribes, is deep in a decades-long drought caused by climate change and is the subject of ongoing legal battles for increasingly scarce water allocations.
Meanwhile, in National Pork Producers Council v. Ross, Solicitor General Prelogar chose once again to follow Clark’s footprints. In this case, the pork industry challenged a California law banning the sale of pork in the state from pigs confined in a “cruel manner.” The industry argues that the California law violates the dormant commerce clause, a doctrine which claims that the Constitution implicitly prohibits states from passing laws that excessively burden interstate commerce. In 2021, dozens of Democratic lawmakers joined California’s senators in urging the Justice Department to drop the position adopted under Trump. But in 2022, the Biden administration continued to side with the pork industry. The Supreme Court is expected to decide the case this term.
One of the most consequential opportunities for the Justice Department to chart a conclusively different course from the one established under Clark came recently in Suncor Energy v. Board of County Commissioners of Boulder County. The Supreme Court will decide whether to grant the oil company’s petition in a conference scheduled for April 21.
Over the past several years, dozens of states and cities have sued fossil fuel companies seeking compensation for climate damages. These cases have struggled to advance, since Big Oil claims the cases belong in federal court (where, thanks to AEP v. Connecticut, they could easily be dismissed). The municipalities argue that fossil fuel companies knowingly concealed and misrepresented the harms of their product, violating state laws and contributing to the climate destruction they now face. After years of jurisdiction shopping, the Supreme Court is weighing whether to hear the fossil fuel companies’ appeal in a suit brought by Boulder County, Colorado. The court also invited the federal government last autumn to offer its opinion in the case.
Under Clark’s leadership, the DOJ’s environmental division filed amicus briefs in several of these city, county, and state-led climate cases on the side of the fossil fuel companies. In 2020, Clark joined former Solicitor General Jeffrey Wall in supporting BP’s position against Baltimore before the Supreme Court. Scotus sent that case back to the Fourth Circuit for further review. Meanwhile, Clark’s division also went out of its way to intervene in Rhode Island v. Shell at the state superior court level, in New York v. BP before the Second Circuit, and in Oakland v. BP at the district court level.
Throwing the federal government’s weight around in all of these cases deviates from the division’s procedural norms for amicus filings. Clark and his allies saw a threat to the fossil fuel industry’s interests and took unprecedented steps to protect them.
Garland’s Justice Department had the opportunity to rearticulate America’s understanding of federal and state jurisdiction as it applies to these cases. Last month, it finally did so. Solicitor General Elizabeth Prelogar and Clark’s direct successor, Todd Kim, were among those who argued that the Supreme Court should deny the fossil fuel companies’ position. Naturally, the oil company did not appreciate this about-face, griping that the government “casually junked” its Trump-era stance. We will find out soon whether the Supreme Court will entertain further protestations from the fossil fuel petitioners.
The annual accomplishments reports that Clark prepared as head of the DOJ’s environmental division paint an alarming picture of the scope of the division’s anti-environmental work. In 2019, Clark wrote that the division under his leadership “successfully defended against challenges to over 2,000 Bureau of Land Management oil and gas leases covering 3 million acres of federal lands.” This remains relevant not only for the locked-in pollution that Clark’s division successfully protected but because the Biden administration continues to approve even more oil and gas leases than Trump did.
Clark’s division also vigorously defended pipeline infrastructure in 2018 and 2019, including the Keystone XL Pipeline, the Dakota Access Pipeline, and the Bayou Bridge Pipeline. The Dakota Access and Bayou Bridge pipelines share the same operator, Energy Transfer. At the same time that Clark’s division was defending both pipelines, Energy Transfer pipelines were leaking on average once every 11 days. Though the Biden administration canceled the Keystone XL pipeline extension, the original Keystone Pipeline, Dakota Access Pipeline, and Bayou Bridge Pipeline remain operational. Clark was personally involved in the Dakota Access Pipeline case, defending the Army Corps against the Standing Rock Sioux Tribe.
Just weeks after the January 6 Capitol attack and Biden’s inauguration, the D.C. Circuit ruled that since the Army Corps had not prepared an environmental impact statement before approving it, the Dakota Access Pipeline was illegally operating in violation of the National Environmental Policy Act. Nevertheless, the Biden administration chose to maintain Clark’s position in favor of the operation of the pipeline. Today, the case is ongoing as the administration works on preparing its court-ordered environmental impact statement, and the Dakota Access Pipeline continues to operate illegally. The Keystone Pipeline also continues to do damage, leaking over half a million gallons of crude oil into a Kansas creek in December 2022.
A decade before Clark attempted to seize control of the Justice Department in support of Trump’s plot to invalidate the 2020 election, he pontificated at the 2010 Federalist Society’s National Lawyer’s Convention about how Environmental Protection Agency greenhouse gas regulation was “reminiscent of kind of a Leninistic program from the 1920s to seize control of the commanding heights of the economy.” The audience laughed in agreement.
Clark’s thesis was that the EPA’s agenda was not about environmental protection but about “control.” He cited as evidence that the number of environmental enforcement cases the EPA had referred to the Justice Department had gone down under Obama. Indeed they had—but thanks to Clark, they would reach new lows under the Trump administration.
The dismal decline of enforcement cases brought against corporate polluters has so far continued under Biden. In 2022, the DOJ resolved the fewest civil judicial cases in 22 years and opened the second-lowest number of criminal investigations in 22 years, outdone only by a record low in Trump’s first year. These are the consequences of Congress failing to adequately fund environmental enforcement for decades. But of all the downward trends in environmental enforcement, the declining use of supplemental environmental projects, or SEPs, most clearly bears Clark’s stamp.
SEPs are environmental or public health projects included as part of an enforcement settlement with a polluter that aim to remediate harm in affected communities. They have historically been an imperfect tool, particularly at the state level, but one with significant potential to improve conditions for impacted communities beyond required mitigation if those communities are properly involved in the settlement process. After limiting the use of SEPs in 2019, Clark banned their use altogether in 2020. Though the Justice Department has now rescinded Clark’s memos and asserted its intention to return environmental enforcement to Obama-era levels, it still hasn’t recovered from Clark’s tenure.
While the average annual value of SEPs under Bush was $51 million, then $36.7 and $30.6 million for Obama’s two terms, and $21.8 million under Trump, the value of SEPs secured under Biden in 2021 was just $12.3 million, and in 2022, only $800,000. As the next two years of a divided Congress reduce the likelihood of additional funding being allocated to boost environmental enforcement, it will take vision and concerted effort to turn this trend around.
The DOJ’s environmental division used to be known simply as the Lands Division, and it still plays an active role in litigating land acquisition by the government. Under Trump, that meant building his border wall. Jeffrey Clark led the division in “secur[ing] wins for the Trump Administration’s southern border infrastructure,” even visiting the border himself with his ideologically aligned deputy, Jonathan Brightbill, in 2018. Clark bragged that in two of the largest land acquisition cases, the division “was able to acquire more than 200 acres for the Army at a cost of $350,000 below owner demands.” Clark was also involved in opposing a butterfly sanctuary in the Rio Grande Valley that contested the government’s unauthorized use of its land to build a border wall.
In 2021, the division, now under Biden appointee Todd Kim’s leadership, closed 21 ongoing eminent domain cases and returned land that was acquired in almost 40 cases. But the Biden administration is quietly continuing construction on several segments of Trump’s border wall. Instead of taking down incomplete sections of the wall, much of which was constructed poorly and hastily, the Biden administration seems to be going ahead with closing gaps in it, despite the gaps being valuable for wildlife crossings.
Bringing integrity to the Justice Department after it was weaponized for Trump’s personal ends is not merely a matter of restoring procedural norms or institutional independence. It also means taking the steps necessary to restore a practiced commitment to the public interest. That commitment will undoubtedly sow controversy at times, because the public interest has many powerful enemies. As long as the remnants of Clark’s malignant influence remain running in the background at the DOJ, he will remain a potent adversary of the public trust.
Besides resources to rebuild capacity, what the government’s environmental law practice needs most is vision. Without it, the boldest acts of sabotage from Clark and his former colleagues will be passively folded into institutional precedent as surely as staid but still harmful postures. This country, along with the rest of the world, is in an escalating ecological crisis of immeasurable severity. The public cannot afford the nation’s environmental law firm backing down from the good fight.
