D.C.-based lawyer Jeffrey B. Clark has been nominated to serve as the assistant attorney general for the Department of Justice’s Environment and Natural Resources Division in the Trump administration, the White House said Tuesday.
Clark previously served in the division during the George W. Bush administration, but he has since become better known for defending BP and attacking the Environmental Protection Agency’s authority to regulate greenhouse gases.
After BP’s massive 2010 Deepwater Horizon rig blowout and subsequent oil spill, Clark successfully defended the company against “a multibillion-dollar appeal brought by 11 Louisiana parishes,” his law firm says. Clark was also lead counsel on BP’s appeal of the historic damages awarded in the Deepwater Horizon case, which was prosecuted by the same division of the Justice Department that Clark will run, if confirmed.
Cynthia Sarthou, a spokesperson for the Gulf Restoration Network, told ThinkProgress that she was “not surprised but very disheartened” by Clark’s nomination.
“We live in a region that is ground zero for the impacts of climate change — rising seas and intensifying storms. We need the federal government to act to reduce greenhouse gas emissions,” Sarthou said in an email. “Putting an attorney in charge of the environmental division of the justice department that denies that climate change exists, means that industry will be given carte blanche to produce greenhouse gases.”
Clark has repeatedly argued against the EPA’s authority to regulate greenhouse gases.
“He has a long history of opposing climate action for corporate and ideological clients,” David Doniger, who heads the climate and clean air program at the Natural Resources Defense Council, told InsideClimate News. “I would expect that history would require him to recuse himself from such cases as over the Clean Power Plan, where he filed an amicus brief against the rule.”
If confirmed, Clark will head litigation efforts for the federal government on all environmental issues, including defending the EPA. The role has significantly changed from what it was during the Obama administration. In 2015, the “most important” case at the DOJ’s environmental division was defending the Clean Power Plan, the Obama administration’s landmark regulation seeking to decrease carbon emissions from power plants. Now, under Trump, the Clean Power Plan has been delayed, while lawyers seek to determine how they can rescind it altogether. However, as Doniger noted, if the Clean Power Plan continues to be litigated as expected, Clark — like EPA head Scott Pruitt — may be required to recuse himself.
Moreover, the EPA is the target of a slew of legal actions at the moment, as Pruitt has moved to delay and rescind environmental regulations. As a result, Clark will likely be in the position of defending the EPA’s new focus on regulatory rollback.
The Justice Department’s commitment to environmental justice is likewise in jeopardy. While former Attorney General Eric Holder reportedly made environmental justice a priority, current Attorney General Jeff Sessions has not made the same commitments. Pruitt has similarly shrugged off that focus at the EPA. During his written testimony, Pruitt responded to a question about how he would define environmental justice by writing, “I am familiar with the concept of environmental justice.”
Pruitt went on to say that he believes “it is important that all Americans be treated equally under the law, including the environmental laws.”
That is all well and good, but the reality is that low-income, tribal, and minority communities are disproportionately impacted by environmental degradation and pollution. It will be up to the Department of Justice — and Clark — to make sure those laws actually do protect everyone.
On the one hand, Clark is an establishment Republican, who have traditionally been less anti-environmental than the current administration. He donated the individual maximum to presidential candidate Mitt Romney back in 2012. He also supported the Republican National Committee, and he served in the George W. Bush administration from 2001–2005 in the environmental division of the Justice Department. There is no record of campaign contributions to either the Trump campaign or the RNC during the last election cycle.
On the other hand, Clark is no friend to the environment, and it is unclear whether he supports any action to address climate change. In 2005, at the Justice Department, Clark argued against the state of Massachusetts, defending the EPA’s failure to act on greenhouse gas emissions. As a private citizen, he then publicly criticized the 2007 Supreme Court decision that forced the EPA to conduct the endangerment finding, a decision that became the basis for much of the EPA’s climate regulation.
In 2010, Clark previewed Trump’s argument for leaving the Paris climate agreement, suggesting that “foreign” scientists were influencing U.S. environmental policy.
“When did America risk coming to be ruled by foreign scientists and apparatchiks at the United Nations?” Clark wrote in a blog post after the EPA released its endangerment finding on greenhouse gases.
More recently, Clark has argued that administrative agencies, like the EPA, are acting well beyond their constitutional authority. “The agencies aren’t even acting like a junior varsity Congress,” Clark complained last year during a panel hosted by the Center for the Study of the Administrative State. “It’s more like they are a wayward football team. They are calling their own plays.”