DOJ’s Environment Chief Intensifies Focus on Tribal Communities

The Department of Justice is redoubling its efforts to protect tribal communities from violations of environmental law, according to a top agency official.

The endeavor brings together DOJ’s environmental section, its Indian Resources Section, and its Office of Tribal Justice to reach out to tribal communities and learn what’s affecting them, including a series of recent tribal summits in states like New Mexico, Washington, and Minnesota, said Todd Kim, head of the Environment and Natural Resources Division (ENRD), in an interview.

Among the most pressing issues being discussed are climate change, which Kim said “can really have a dramatic effect on tribal communities, which can sometimes be uniquely vulnerable.” Other priorities include drought, wildfire, the loss of key cultural species, land loss, and the sustainability of tribal homelands, Kim told Bloomberg Law.

Another part of the effort focuses on murdered and missing Indigenous people, which the Justice Department recently said in a statement can coincide with an uptick in legal and illegal resource extraction on or near reservations.

Last year, DOJ issued a new policy statement on tribal consultation to improve the coordination between itself and tribes. The department also recently launched a new Office of Environmental Justice, which Kim said is providing regular training “to try to effect durable change” within the department.

“We understand that process is good, but outcomes are also pretty important,” Kim said. “So we’re looking to make sure that, in enforcement actions, communities are being properly supported, which means talking with our client agencies and other partners in the law enforcement space about which are the issues and the cases that most deserve our attention at particular moments.”

At a recent speech before the American Bar Association, Kim said companies should be “sure they are listening to neighboring communities and meeting their obligations” under federal law, and that “the failure to do so could result in federal enforcement.”

Recent Settlements

The Biden administration has notched some recent wins on behalf of tribal communities.

The Justice Department and Interior Department reached a settlement in August to provide the Hualapai Tribe with water to sustain its permanent homeland on the south rim of the Grand Canyon in Arizona, protect its groundwater from interference by neighboring users, and make available $315 million for the tribe to develop water-related infrastructure.

DOJ and the Environmental Protection Agency also reached a settlement in July with fertilizer manufacturer J.R. Simplot Co. to improve hazardous waste management and cut emissions around the Fort Hall Indian Reservation in Idaho.

Many tribes say a sharper focus on environmental justice in their communities is badly needed after generations of neglect. Matthew Campbell, deputy director of the Native American Rights Fund, said tribal lands have long been sacrificed for uranium, gold, and lithium extraction.

Moreover, “DOJ has a mixed record on bringing actions to protect tribal nations and their lands,” Campbell said.

“I’m glad they’re focusing on it. It’s certainly long overdue,” he said. “I’m hopeful, but not holding my breath.”

Some take an even tougher stance, saying even a sharp uptick in prosecutions and enforcement ultimately won’t be enough to make up for longstanding injustices the US government has inflicted upon tribes and their lands.

“The bigger problem is structural,” said Dina Gilio-Whitaker, a lecturer in American Indian Studies at California State University, San Marcos. “The system of federal Indian law is really the problem here. It stems from land theft and displacement. We can be hopeful, but there’s so much more that needs to be done.”

Chevron Deference

Kim declined to comment on whether the outcome of a case before the Supreme Court challenging agency authority, known as Chevron deference, could spur his team to more aggressively bring cases using the regulations already on the books. Kim said that, “as a general rule, we will make use of the tools we have available to us to achieve the priorities we’re trying to achieve.”

Cary Coglianese, an administrative law professor at the University of Pennsylvania, predicted that even if the court completely overturns Chevron, the Justice Department “might be less willing to take risks in cases of statutory ambiguity when it comes to prosecutions for environmental crimes, but they will still no doubt pursue a lot of bread and butter cases where the statues and regulations are clear.”

He also predicted that the government will still prevail in “many, if not most, enforcement actions” because DOJ will remain a powerful litigant in court.

In the meantime, David Uhlmann, head of the EPA’s Office of Enforcement and Compliance Assurance, recently said in an interview that he plans to refer more cases to DOJ.

Kim also said the tenure of his predecessor, Jeffrey Clark—the Trump-era ENRD head who has since been indicted for his alleged role in trying to overturn the 2020 election—hasn’t harmed the prestige of the division or the morale of its career staff in any significant way.

“I don’t see a morale problem,” he said. “I see people who are dedicated to their jobs.”