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. ENVIRONMENT AND NATURAL RESOURCES DIVISION OF THE DEPARTMENT OF JUSTICE Y 4, J 89/1:104/29 Environnent and Hatural Resources D. . HEAEING BEFORETHE SUBCOMMITTEE ON THE CONSTITUTION OFTHE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED FOURTH CONGRESS FIRST SESSION MAY 10, 1995 Serial No. 29 s#e?WDFWTorooci§- APR 1 8 1996 Printed for the use ofthe Committee on the Judiciary U.S. GOVERNMENTPRINTING OFFICE WASHINGTON : 1996 ForsalebytheU.S.GovernmentPrintingOffice SuperintendentofDocuments,CongressionalSalesOffice.Washington,DC 20402 ISBN 0-16-052314-1 . ENVIRONMENT AND NATURAL RESOURCES DIVISION OF THE DEPARTMENT OF JUSTICE Y 4. J 89/1:104/29 Environnent and Natural Resources D.. HEAEING BEFORETHE SUBCOMMITTEE ON THE CONSTITUTION OFTHE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED FOURTH CONGRESS FIRST SESSION MAY 10, 1995 Serial No. 29 ^"^'' OEPasiTORV APR 1 8 1996 Printed for the use ofthe Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE WASHINGTON : 1996 ForsalebytheU.S.GovernmentPrintingOffice SuperintendentofDocuments,CongressionalSalesOffice,Washington,DC 20402 ISBN 0-16-052314-1 COMMITTEE ON THE JUDICIARY HENRYJ. HYDE, Illinois, Chairman CARLOSJ. MOORHEAD,California JOHNCONYERS,Jr.,Michigan F.JAMESSENSENBRENNER,Jr., PATRICIASCHROEDER, Colorado Wisconsin BARNEYFRANK, Massachusetts BILLMcCOLLUM, Florida CHARLESE. SCHUMER,NewYork GEORGE W. GEKAS,Pennsylvania HOWARD L. BERMAN, CaUfornia HOWARDCOBLE,NorthCarolina RICKBOUCHER,Virginia LAMARSMITH,Texas JOHNBRYANT,Texas STEVENSCHIFF,NewMexico JACKREED, RhodeIsland ELTONGALLEGLY,Cahfornia JERROLDNADLER,NewYork CHARLEST. CANADY,Florida ROBERTC. SCOTT,Virginia BOB INGLIS,South CaroUna MELVINL.WATT, NorthCaroUna BOB GOODLATTE,Virginia XAVIERBECERRA, California STEPHENE. BUYER, Indiana JOSEE. SERRANO, NewYork MARTINR. HOKE,Ohio ZOE LOFGREN, Cahfornia SONNY BONO,CaUfornia SHEILAJACKSONLEE,Texas FREDHEINEMAN,NorthCarohna EDBRYANT,Tennessee STEVE CHABOT,Ohio MICHAELPATRICKFLANAGAN, IlUnois BOBBARR,Georgia AlanF. Coffey,Jr.,GeneralCounsel/StaffDirector Julian Epstein,MinorityStaffDirector Subcommittee on the Constitution CHARLEST. CANADY,Florida,Chairman HENRYJ.HYDE, Illinois BARNEYFRANK, Massachusetts BOB INGLIS, South CaroUna MELVINL.WATT, NorthCaroUna MICHAELPATRICKFLANAGAN, IlUnois JOSE E. SERRANO, NewYork F.JAMESSENSENBRENNER,Jr., JOHNCONYERS,Jr., Michigan Wisconsin PATRICIASCHROEDER, Colorado MARTINR. HOKE,Ohio LAMARSMITH,Texas BOB GOODLATTE,Virginia Kathryna. Hazeem,ChiefCounsel William L. McGrath,Counsel Keri D. Harrison,AssistantCounsel John H. Ladd,AssistantCounsel RobertRaben,MinorityCounsel (II) CONTENTS Hearing Date Page May10, 1995 1 Opening Statement Canady, Hon. Charles T., a Representative in Congress from the State of Florida,andchairman,SubcommitteeontheConstitution 1 Witness Schiffer, Lois J., Assistant Attorney General, Environment and Natural Re- sourcesDivision,DepartmentofJustice 2 Letters, Statements, Etc., Submitted forthe Hearing Schiffer, Lois J., Assistant Attorney General, Environment and Natural Re- sourcesDivision,DepartmentofJustice: InformationconcerningtheLopezcase 159 InformationconcerningtheTerraFarmscase 140 Preparedstatement 6 SubmissionstoChairmanCanady'sadditionalquestions 164 SubmissionstoCongresswomanSchroeder'squestions 20 Appendix Materialsubmittedforthehearing 295 (III) ENVIRONMENT AND NATURAL RESOURCES DIVISION OF THE DEPARTMENT OF JUSTICE WEDNESDAY, MAY 10, 1995 House of Representatives, Subcommittee onthe Constitution, Committee ontheJudiciary, Washington, DC. The subcommittee met, pursuanttonotice, at 10:07 a.m., in room 2237, Rayburn House Office Building, Hon. Charles T. Canady (chairman ofthe subcommittee) presiding. Present: Representatives Charles T. Canady, Henry J. Hyde, Mi- chael Patrick Flanagan, F. James Sensenbrenner, Jr., Bob Goodlatte, Patricia Schroeder, Jose E. Serrano, John Conyers, Jr., and BarneyFrank. Also present: Kathrjm A. Hazeem, chief counsel; Keri D. Har- rison, assistant counsel; Jacquelene McKee, paralegal; Jennifer Welch, staffassistant; andRobertRaben, minoritycounsel. OPENINGSTATEMENTOFCHAIRMANCANADY Mr. Canady. The subcommittee will come to order. I'm pleased to hold this oversight hearing on the Environment and Natural Resources Division ofthe Department ofJustice. The Environment and Natural Resources Division was created in 1909 as the Public Lands Division. Forthe first 50 years ofits existence, the Division focused primarily on Federal land, water, and Indian disputes. The Division's responsibilities have continued to expand and now litigation concerning wildlife protection, the cleanup of hazardous waste sites, the acquisition ofprivate property for Fed- eral use, civil and criminal enforcement of environmental regulations, and defense ofchallenges to Government environmental programs and activities. To carry out these responsibilities, the Divi- sion employs 728 people who are organized into nine litigating sections and an executive office. This is a new area ofoversight responsibility for the Subcommit- tee on the Constitution, and the staffofthe Department ofJustice has been very helpful to the subcommittee. I want to thank both the Environment and Natural Resources Division and the Office of LegislativeAffairs for providingus with agreat deal ofinformation in atimelyfashion. Weverymuch appreciatethe cooperation. Mr. Frank. Mr. Frank. I have no statement. Mr. Hyde. I have no statement, Mr. Chairman. Mr. Flanagan. I have no statement. Mrs. Schroeder. I have no statement, either. (1) Mr. Canady. Oh, I'm sorry. Mrs. SCHROEDER. That's OK. Mr. Canady. Well, we have one witness with us today, and I'm very pleased that you're here. Lois Schiffer is testifying before us this morning. Ms. Schiffer is the Assistant Attorney General in charge ofthe Environment and Natural Resources Division at the Department ofJustice. Before she was appointed Assistant Attor- ney General, Ms. Schiffer had prior experience both in the private practice of environmental law and at the Department of Justice. Most recently she was in private practice at the law firm ofMispon & Wald in Washington, DC. And from 1978 to 1984, she served as Special Litigation Counsel and Chiefofthe General Litigation Sec- tion ofthe Environment and Natural Resources Division ofthe De- partmentofJustice. Ms. Schiffer, we welcomeyou before the subcommittee. I lookfor- ward to hearing your testimony. And, without objection, the en- tirety of your prepared statement will be placed in the record. Thankyou. STATEMENT OF LOIS J. SCHIFFER, ASSISTANT ATTORNEY GENERAL, ENVIRONMENT AND NATURAL RESOURCES DIVI- SION,DEPARTMENTOFJUSTICE Ms—. Schiffer. Thank you, Mr. Chairman. I'm pleased to be here and members of the subcommittee, I'm pleased to be here. And I'd like to say at the outset that I appreciate your remarks about the Division's cooperation. I would like to say that we've en- joyed particularly good cooperation with Keri Harrison, your staffperson. You have agood staffperson in her. Mr. Canady. Thankyou. Ms. Schiffer. And I hope we can continue to have such a good workingrelationship. Since this my first meeting with the subcommittee, I would like to make a short opening statement and I'd like to outline the subject areas for which the Division is responsible, describe how the Division is working cooperatively with client agencies, U.S. attorneys' offices. States, and other affected groups, and describe a few ofour recent successes that exemplify that cooperation. At the outset, I want to stress two points. The first is that the Division is the lawyer in court for other Federal agencies. In each case, we have had a request from another Federal agency to bring an action on its behalf or to defend it in a suit against it. While our client is, in fact, the United States, in each case we have one ormore client agencies withwhichwe workclosely. The second point is that the Division is comprised of talented, hardworking, dedicated professionals, lawyers, paralegals, and sup- port staff. Their work is ofhigh quality, and they are public serv- ants in the best tradition. It is important to realize that they are our colleagues, our neighbors, ourfriends. I know from personal experience that they are people committed to theirjobs and to their country. I'm honored to workwiththem. What are the cases that we handle? We represent other agencies in a broad range ofcases arising under approximately 100 statutes. Much ofthe Division's work falls into five categories. It's really im- possible to describe all ofit. I'll focus on the big pieces ofit: poUu- tion, cases relate to public lands and natural resources, wildlife, condemnation cases, and cases related to native Americans. As to pollution cases, the Division handles cases that arise under laws passed by Congress to protect the public health and the environment from pollution, but aimed to assure for all Americans clean water, clean air, clean land. We bring civil cases referred to us by EPA, the Corps of Engineers, and other agencies. In cases under the Superfund Act, we have succeeded with EPA in having 75 percent ofcleanups conducted directlybythe responsible parties at the site and not by EPA. Everyone agrees, especially the compa- nies, thatthis is cheaperand more efficient. Criminal pollution cases for serious violations ofthese pollution laws are brought on referral from EPA, the FBI, the Coast Guard, and other agencies. We work especially closely with U.S. attorneys' offices on these criminal cases. Our defensive cases under the pollution statutes arise when an agenc^s regulations are challenged in court or when an agency such as the Department of Defense or the Department of Energy fails to meet, may fail to meet the pollution protection standards that apply equally to Federal facilities. The affirmative litigation under pollution statutes is handled primarily by two sections, the Environmental Enforcement Section and the Environmental Crimes Section. Our defensive work on pollution is handled by the Environmental Defense Section. The second category is public lands and natural resources cases. We represent agencies responsible for managing public lands and natural resources, including the Forest Service and the Depart- ment of the Interior. In most of these cases we defend challenges to the agency's decisions on a variety of land issues, including oil and gas, mining, grazing, water, use ofnational parks, and imple- mentation ofthe National Environmental Policy Act. This work is done primarilybythe general litigation section. A third category of cases is wildlife and marine resources. We primarily represent the Interior Department and NOAA, which is the National Oceanic Atmospheric Administration. Our affirmative cases include enforcement actions to protect bald eagles under the Bald Eagle Protection Act or to stop illegal smuggling of parrots and other birds which pose a health risk to the American poultry industry. Our defensive cases including defending the Forest Service in challenges brought under the Endangered Species Act and on issues involving fisheries management and the coastal zone. The Wildlife and Marine Resources Section primarily handles these cases. A fourth category ofcases is condemnation cases. When Federal agencies seek to acquire land for purposes authorized by Congress, they first attempt to negotiate a voluntary purchase. Ifthat cannot be achieved, they referthe matterto the Division and we file a condemnation action to obtain the property through payment of fair market value. The Division's Land Acquisition Section primarily handles these cases. Fifth, the Division handles cases related to native Americans. Af- firmatively, our Indian Resources Section represents the Interior Department and other agencies that carry out the United States' trust responsibility to tribes by protecting land and waters and treaty rights involvinghunting and fishing. Defensively, our General Litigation Section handles challenges to agency actions that affect native Americans. We also have a section that handles appeals, one that works on legislation and other mat- ters, and an Administrative Section. Now my approach ofcorporation: I've stressed the importance of the Division working cooperatively with client agencies, U.S. attorneys' offices, States and localities, and affected parties and groups. I'm pleased to say that we're succeeding in this approach. With client agencies, we emphasize consultation throughout the litigation process. Further, Division attorneys encourage client agencies to consult with us early in the development of issues that are likely to be the subject of litigation. This is just good lawyering. In this consultation, we advise client agencies on ways to avoid litigation when possible, tojustifytheir decisions, and to harmonize the posi- tions oftwo or more agencies within the legal framework ofappli- cable statutes and litigation. With the U.S. attorneys' offices, our partnership with the 94 U.S. attorneys' offices throughout the country is vital. We cooperate with U.S. attorneys in a variety ofways from consultation to pro- viding expertise, to workingjointly on cases. In order to encourage assistant U.S. attorneys to work on our cases, we have conducted several training programs in the civil and criminal areas the Divi- sion works in. Also, for environmental crimes, we have issued a new blue sheet modifying the U.S. Attorneys Manual to foster a more cooperative relationship between our crime section and U.S. attorneys. We've received excellent feedback from the U.S. attorneys and client agencies on this revised blue sheet. U.S. attorneys now more freely call on us to providebackup expertise, to develop case strategy, and to workon trials free ofturffights. With the States, the environmental laws include programs where the Federal Government and States share enforcement responsibilities. In addition, we have cases in which States are coparties of opposing parties. To facilitate effective working relationships with States and local governments, I've appointed a counsel for State and local government affairs who works with States and organiza- tions representing States. In addition, with EPA, we've established aworkinggroup ofState and Federal enforcement officials to share common concerns and promote the most effective use ofresources. The Environmental Crime Section has worked with U.S. attorneys' office to establish law enforcement coordinating committees which involve Federal, State, and local law enforcement in pooling and sharing information and resources. We've also created with the U.S. attorneys, something called natural resource protection coordinating committees to do similar actions in the natural resources area. Finally, with affected parties and interest groups, we've made ourselves available to affected parties and groups for discussion about Division cases, and we are promoting the use of alternative dispute resolution for handlingcases. Lastyearwe selected a group ofcases for ADR treatment and have developed a plan to educate attorneys about and promote the use ofalternative dispute resolu-