Crisis at DOJ’s Environment & Natural Resources Division
Guest contributors Sommer Engels, Andrew Mergen, and Justin Pidot write that dismantling ENRD will be disastrous for future administrations, the American people, and even for the Trump Administration.
The Environment and Natural Resources Division (ENRD) of the Department of Justice faces its most profound crisis since it was established in 1909. In a little over a week, the Trump administration has (1) reassigned four career managers (leading nearly half of ENRD’s sections) to the newly formed Office of Sanctuary Cities Enforcement; (2) placed career attorneys working in ENRD’s Office of Environmental Justice on administrative leave; (3) suspended the nearly 75-year-old Honors Program for entry level attorneys; and (4) if rumors are to believed, made plans to eliminate the entire Law and Policy Section, discharging career attorneys and support staff as part of a “reduction in force.” More rumors swirl that other closures and terminations may follow.
The messages for ENRD’s career lawyers are clear. Depth of experience, independent judgment, and keen legal skills are no longer valued. Dedication to upholding the Constitution and the Rule of Law is irrelevant. Nonpartisanship is disloyalty. ENRD is expendable.
Given the crises facing other components of DOJ and departments across the federal government, the consequences of this crisis have largely been crowded out of the news cycle. As proud ENRD alumni with more than 40 years of service among us, we share our observations on what will be lost and what is at risk if the administration stays on its current course.
The new administration’s actions are an unprecedented departure from prior practice.
Until now, ENRD has experienced little political turbulence during transitions from one president to the next. After all, most of ENRD’s work is defensive and does not fall into neat ideological boxes.
ENRD attorneys defend a vast array of agency actions including the approval of mining projects, LNG export terminals, and oil pipelines; renewable energy development efforts; wildlife conservation plans; programs to facilitate military readiness; and the promulgation—and rollback—of regulations. They also participate in multi-year litigation over the allocation of water that is critical to economies across the country.
ENRD itself has no policy agenda. ENRD defended EPA when the Obama administration issued the Clean Power Plan. And it defended EPA again when the first Trump administration replaced the Clean Power Plan with its own.
To be sure, ENRD’s work sometimes runs counter to the policy preferences of the administration in power. In the Obama and Biden administrations, ENRD routinely defended oil and gas leasing and development decisions. And in the first Trump administration, ENRD defended the constitutionality of the Endangered Species Act. After all, ENRD’s mandate is only to defend the decisions made by its agency clients—clients implementing statutes enacted by Congress that sometimes leave little room for policy preferences.
No matter the agency action at issue, ENRD attorneys advise and zealously defend their clients without regard to politics or personal policy preferences. We know because we were there. Two of us (Andrew and Sommer) spent years defending the work of administrations led by Democrats and Republicans alike, including, most recently, Presidents Trump and Biden.
ENRD attorneys also sometimes tell hard truths to political leadership within and outside of DOJ, informing them when a planned action is likely to lose in court. After serving as a line attorney in ENRD, one of us (Justin) served as a political appointee in the Obama and Biden administrations and received such advice from time to time. It is often not what political leaders want to hear. But considering the honest advice of legal experts, motivated by neither fear nor favor, is critical to improving decisions and avoiding, minimizing, or anticipating pitfalls.
Gutting ENRD will have serious consequences for the second Trump administration, future administrations, and the American people.
If the dismantling of ENRD proceeds, the new Trump administration will find itself with a substantially diminished reservoir of expert counsel. Those attorneys who remain also could be reluctant to provide candid analyses for fear of being labeled disloyal.
The first Trump administration benefited from the skill and expertise of ENRD lawyers, who assessed likely success in the courts, ably defended administration decisions, and provided clear-eyed advice on how best to proceed after defeats. The second Trump administration will not be so fortunate unless it corrects course. Filling ENRD’s ranks with new lawyers loyal to President Trump’s policy agenda or distributing ENRD’s work to other divisions will not make up for the losses. The workload will be unbearable. ENRD attorneys already work long hours. Significant portions of President Trump’s agenda fall within the heartland of ENRD’s work, and lawsuits are sure to follow. And without seasoned enforcement attorneys, who will make good on the administration’s recent promise to make sure “the railways actually pick up the tab” for the consequences of the disaster in East Palestine?
Dismissing and demoralizing ENRD’s career attorneys will also cost the administration their judgment, wisdom, and institutional knowledge developed over years of service. These attorneys, like their counterparts across DOJ, are also trained to proceed with the understanding that lawyers for the federal government represent both their current client and the government as an institution. Operating in that fashion has led DOJ lawyers to enjoy unmatched credibility with the courts; losing that credibility will compromise the defense of the new administration’s actions.
The private sector and the legal profession will also lose.
ENRD has a history of cultivating excellent attorneys, some of whom move on to advising and representing all manner of clients as lawyers in law firms, as in-house counsel for companies, and as staff in public service organizations. Some enter academia, and others become state and federal judges. This pipeline of environmental attorneys will end if ENRD loses its reputation and commitment to careful and objective legal work.
The human toll of the new administration’s efforts cannot be overstated.
ENRD is no more than the people who comprise it. Hiring at ENRD reflects the understanding that informed decision-making benefits from a range of experiences. Thus, ENRD’s career attorneys come from diverse personal, professional, and educational backgrounds. Some join from prestigious law schools, others join from other state and private law schools across the country. Some attorneys have completed Supreme Court clerkships. Some have multiple degrees. Others have military experience. All are committed to advancing a fundamental democratic principle: that elected leaders should be able to advance their objectives within the bounds of the Rule of Law.
These civil servants—attorneys and support staff numbering close to 600—forgo higher pay and personal prestige, driven by a belief in the power of the federal government to serve the American people. The grief and uncertainty besetting them today is an unspeakable return for their dedicated service.
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The new administration’s Office of Personnel Management stated last week that “the way to greater American prosperity is encouraging people to move from lower productivity jobs in the public sector to higher productivity jobs in the private sector.” These words denigrate the work and commitment of civil servants within and outside of ENRD. They are uninformed, they are reckless, and they are cruel. As President Ronald Reagan observed in 1983 on the centennial of the signing of the Pendleton Civil Service Reform Act, the civil service system “play[s] an essential role in ensuring the stability of the world’s largest and most successful democracy.” Reagan was right. In the end, the Trump administration’s assault on ENRD and the civil service writ large threatens us all.
Sommer H. Engels is a Clinical Instructor in the Emmett Environmental Law & Policy Clinic at Harvard Law School. She previously served as a lawyer in ENRD’s Appellate Section.
Andrew C. Mergen is the faculty director of the Emmett Environmental Law & Policy Clinic at Harvard Law School. He previously served as a lawyer in and retired as Chief of ENRD’s Appellate Section. Ms. Engels & Mr. Mergen write in their individual capacities.
Justin Pidot holds the Ashby Lohse Chair in Water & Natural Resources and is co-director of the environmental law program at the University of Arizona James E. Rogers College of Law. He previously served as general counsel at the White House Council on Environmental Quality, Deputy Solicitor for Land Resources at the U.S. Department of the Interior, and a lawyer in ENRD’s Appellate Section.
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