U.S. Department of Justice - Environment and Natural Resources Division •, Officeof the Assistant Attorney General Telephone (202) 514-2701 950 Pennsylvania Avenue, N.W. Facsimile (202) 514-0557 Washington, DC 20530-0001 TO: ENRD Section Chiefs andDeputy Section Chiefs FROM: Jeffrey Bossert Clarf!t:«stant Attorney General (ENRD) SUBJECT: EnforcementPrinciples and Priorities DATE: January 14, 2021 As the Environment and Natural Resources Division (ENRD) pursues its assigned missions, robust enforcementof our nation's environmental laws remains one of its highest priorities. This memorandum summarizes principles that guide the Division's civil and criminal enforcement work. It also describes a number of the Division's recent enforcement priorities. When engaged in criminal and civil enforcement, it is important that ENRD continue in always striving to enhance its fair and impartial application of the law. We must recognize our place in the constitutional structure, as delegates of the President's and the Attorney General's authority to faithfullyexecute the laws enacted by Congress. To that end, this memorandum collects and reflects recent policies and guidance within ENRD, from around the Department, and in orders from the President for the continued just implementation of these responsibilities and forensuring due process to the citizens of the United States who must have fair notice of the laws they are expected to obey. This memorandum is not a comprehensive recitation of all considerations that go into the exercise of our Division's enforcement discretion. This summary should nevertheless guide and supplement ENRD attorneys' work as they continue to enforce the nation's environmental laws. 1 You should apply these principles when exercising enforcement discretion. 1 This memorandum provides guidance to ENRD attorneys and is not intended to be, and may not be, relied upon to create any rights, substantive or procedural, enforceable at law by any party in any civil or criminal matter. This memorandum is administered by the Division as a matter of enforcement discretion, and its provisions are not intended to be applied by a court. - 1 - ENRD ENFORCEMENT PRINCIPLES Enforcement Principle #1 Promote Fairness, Adhere to the Impartial Rule of Law, and Ensure Due Process. Fairness must informall that we do. After all, the whole concept of our American [C]onstitution was to establish a Government that could serve the common good while checking government power [in orderJ to protect individual liberty. And that is the Constitution we are sworn to supportand defend. As you carry out your mis­ sion, I rely on you to lead wisely, hold those who injurethe public accountable, and zealously represent the United States in court, while at the same time maintaining unshakable confidence. in the rule oflaw and justice for all. That is your charge, and I know that you embrace it willingly, and well. - Former Attorney General Barr.2 As is implicit in the above charge of former Attorney General Barr, federallaws, including environmental laws, can only be effective if our nation adheres faithfully to the Constitution and 3 fundamental principles such as fairness, adherence to the rule of law, and due process. ENRD is fortunate to have exceptional attorneys and professional staff. They conduct their enforcement duties with integrity, diligence, and prudence, all of which are crucial to ensuring the rule of law. A. EnforcementActions Should Be Premised on Violations of Statutes and Reg­ ulations, and Not Legislative History, Agency Guidance Documents, or Retro­ active Application of Contemporary Duties of Care. The imperative to advance and maintain the objective application of the rule of law should always direct ENRD's work. Accordingly, when making enforcementdecisions, ENRD attorneys must continue to file only complaints and indictments that are well-founded in existing law and that seek relief authorized by such law. ENRD enforcement actions should not be premised on liability theories that lack foundation in existing law. This does not foreclose application of exist­ ing law and principles to new technology, techniques, or circumstances. Rather, it means that civil or criminal charges for violations of federal law must be based on the text of federal statutes and 2 Remarks of William P. Barr, Attorney General ofthe United States, U.S. Attorneys'Conference, Washington, D.C. (June 26, 2019). 3 The Division has long recognized the important connection between environmental enforcement and the rule oflaw. See John C. Cruden & Bruce S. Gelber, FederalCivil Environmental Enforce­ ment: Process, Actors, and Trends, ABA Natural Resources & Environment, Vol. 4, No. 4 at 18 (Spring 2004) ("Environmental enforcement and dedication to the rule of law are necessary to en­ sure the protection and improvement of human health and the environment."). - 2 - regulations, and not, for example,the legislative history (or dicta therein) or agency guidance doc­ uments.4 Interpretation to determine if existing laws or regulations preclude investigated conduct begins with the text. As appropriate, attorneys should then look to both the context and structural terms of a statute, and apply traditional canons of statutory interpretation.5 Enforcement actions should not be based on general statements of purpose or interpretations dependentupon legislative history, particularly to expand their scope. Much has been written about the deficiencies of legis­ lative history, including that it is not what all voting members of Congress necessarily considered or consented to before voting on the bill; indeed, some legislative history will reflectthe views of only one or a limited number oflawmakers when legislative colleagues were not, in fact,persuaded to modifystatutory text. See, e.g., Koons Buick Pontiac GMC Inc.v. Nigh, 543 U.S. 50, 72 (2004) (Scalia, J., dissenting) ("I have oftencriticized the Court's use oflegislative history because it lends itself to a kind of ventriloquism. The Congressional Record or committee reports are used to make words appear to come from Congress's mouth which were spoken or written by others (individual Members of Congress, congressional aides, or even enterprising lobbyists).") Nor should enforcement actions be premised on agency guidance documents. On October 9, 2019, the President issued an executive order announcing that "it is the policy of the executive branch, to the extent consistent with the applicable law, to require that agencies treat guidance documents as non-binding both in law and practice, except as incorporated into a contract." Exec. Order No. 13,891 of Oct. 9, 2019, 84 Fed. Reg. 55235, § 1 (Oct. 15, 2019). On that same day, the President issued another order announcing that "no person should be subjected to a civil adminis­ trative enforcementaction or adjudication absent prior public notice of both the enforcingagency's jurisdiction over particular conduct and the legal standards applicable to that conduct." Exec. Order No. 13,892 of Oct. 9, 2019, 84 Fed. Reg. 55,239, § 1 (Oct. 15, 2019). The order generally prohibits the use of guidance documents to impose new standards of conduct or to exercise jurisdiction over a new area. It required that agencies publish their legal interpretations to avoid unfairlysurprising regulated persons. See 84 Fed. Reg. at 55240-41, §§ 3-9. On May 19, 2020, the President issued Executive Order 13,924. This announced "the pol­ icy of the United States to combat the economic consequences of COVID-19 with the same vigor and resourcefulness with which the fight against COVID-19 itself has been waged." Exec. Order No. 13,924 of May 19, 2020, 85 Fed. Reg. 31,353; 31,353 § 1 (May 22, 2020). Executive Order 13,924 builds upon Executive Orders 13,891 and 13,892. It requires agencies to "affordbusinesses, especially small businesses, the confidencethey need to re-open, among other things, by recogniz­ ing the efforts of businesses to comply with often-complex regulations in complicated and swiftly changing circumstances; and by committing to fairness in administrative enforcement and adjudi­ cation." Id Executive Order 13,924 identifies several principles of fairness that agency enforce­ ment officials and adjudicators must follow. Those include that administrative enforcement must be prompt and fair, free of coercion and unfair surprise, and that "liability may be imposed only 4 See Justice Manual ("JM") 1-20.000 et seq. 5 See Reading Law: TheInterpretation of Legal Texts by the late Justice Scalia and Bryan Gamer. - 3 - forviolations ofstatutes or duly issued regulations, afternotice and an opportunity to respond." 85 Fed. Reg. at 31,355 § 6. On their face, thepolicies announced in these orders do not control civil or criminal actions or investigations by the Department ofJustice. See 84 Fed. Reg. 55238, § 7(d)(ii); 84 Fed. Reg. at 55242, § 1l(d)(ii); 85 Fed. Reg. at 31,354, § 2. However, the policies underlying the orders derive from fundamental notions of due process that should also guide the exercise of prosecutorial dis­ cretion in cases before ENRD. The Justice Manual (JM), too, prohibits Department components fromissuing guidance documents that effectivelybind the public without going through notice and comment rulemaking. JM 1-19.000; see also Perez v. Mortgage Bankers Ass 'n, 135 S. Ct. 1199, 1204 (2015) (interpretative rules and interpretations thereoflack the force and effect oflaw). 6 To avoid unfairly surprising the regulated community, civil and criminal litigating components "should