Table Of Content.
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 regula-
tions, and defense ofchallenges to Government environmental pro-
grams and activities. To carry out these responsibilities, the Divi-
sion employs 728 people who are organized into nine litigating sec-
tions 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 sub-
ject areas for which the Division is responsible, describe how the
Division is working cooperatively with client agencies, U.S. attor-
neys' 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 ex-
perience 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 envi-
ronment 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 is-
sues 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 con-
demnation 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. attor-
neys' offices, States and localities, and affected parties and groups.
I'm pleased to say that we're succeeding in this approach. With cli-
ent 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 responsibil-
ities. 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. attor-
neys' 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 coordi-
nating 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-
