Before Trying to Overthrow Democracy, Jeffrey Clark Let Polluters Walk Free

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If you had the opportunity to watch the fifth congressional hearing to investigate the January 6^th attacks on our capital, chances are you heard one name spoken repeatedly: Jeffrey Clark.

When I watched the hearing, the name rang a bell. This was the same Jeffrey Clark, who oversaw environmental enforcement during the Trump administration, an area of (lack of) oversight that alarmed UCS.

Testimony and evidence have continued to build a case that Jeffrey Clark — a mid-level political appointee at the Department of Justice (DOJ) during the Trump administration — came close to taking over the top position at the DOJ. He appeared ready to follow President Trump’s wishes to cast doubt on the 2020 election in an attempt to subvert the fundamental core of our democracy. This action would have pushed the country into a constitutional crisis.

Given these serious allegations, it is worth exploring more about Jeffrey Clark’s track record at the DOJ before this point.

The DOJ environmental wing is meant to go after criminal polluters

Before resigning on January 14, 2021, Clark was the head of two divisions within the DOJ, the Environment and Natural Resources Division, and the Civil Division. Clark’s role at the Civil Division was in an acting position and for only a few months, so Clark’s primary influence at the agency was running the DOJ’s Environment and Natural Resources Division.

From November 2018 to January 2021, Jeffrey Clark wielded enormous power over the environmental enforcement of our country. The division has approximately 550 lawyers who investigate issues like pollution, public lands, wildlife, and tribal sovereignty. This DOJ division steps in to prosecute crimes such as industries producing illegally high levels of air pollution, people harming or trafficking endangered species, people who throw raw sewage into rivers, oil companies drilling without the right safety equipment, and city governments that are not delivering clean drinking water, among other crimes.

The laws that this office enforces are some of the most important environmental laws in the country, including the Endangered Species Act, Clean Water Act, Clean Air Act, Safe Drinking Water Act, and Comprehensive Environmental Response, Compensation, and Liability Act (also called the Superfund law). The health and safety — and even the very lives — of communities and wildlife across the country depend upon the enforcement actions of this DOJ division.

In other words, the same person accused of trying to subvert democracy was previously responsible for much of our federal environmental enforcement.

The Environment and Natural Resources Division is also home to the DOJ’s Office of Environmental Justice. Strong environmental enforcement has always been one of the rallying cries of the environmental justice movement, as powerful groups may be more emboldened to undermine the health and safety of marginalized communities over richer or whiter communities. Therefore Clark’s actions had an especially outsized impact on underserved communities that face a litany of environmental justice concerns.

Rewind: remember what happened under President Trump

The prior administration was one of the most anti-environmental administrations in recent years. At the Union of Concerned Scientists, we recorded 77 attacks on science during the Trump administration that directly involved environmental issues, the vast majority of which (53) occurred during Clark’s tenure as the Assistant Attorney General of the Environment and Natural Resources Division.

Several of these cases directly involved lawyers from Clark’s division defending the Trump administration’s most egregious anti-science and anti-environmental actions, including the administration’s efforts to gut the National Environmental Policy Act (NEPA) and weaken the Mercury and Air Toxics Standards (MATS). While waiting for Congress to vote on his nomination, Clark directly argued on behalf of the Trump administration on a high-profile case at the US Court of Appeals, to scrap a rule formulated under the Obama administration that would have strengthened measures to ensure that hardrock mining companies would pay for the cleanup of the incredibly toxic pollution they wrought on nearby communities.

In a previous report, we investigated environmental enforcement at the Environmental Protection Agency’s (EPA) Criminal Investigation Division under the prior administration. For criminal environmental cases, this division of the EPA works directly with a subdivision in the DOJ’s Environment and Natural Resources Division, known as the Environmental Crimes Section. The EPA criminal investigators examine these cases, and it is the DOJ lawyers that prosecute these cases.

Our 2019 analysis showed an enormous decrease in criminal prosecutions of environmental crimes by EPA and DOJ personnel during the Trump administration as compared to the George W. Bush and Barack Obama administrations. Data from the third fiscal year of the Trump administration (October 1, 2018, to September 30, 2019) approximates to Clark’s first year on the job, as he was sworn in on November 1, 2018. What we can see is that Clark, like his predecessor Jeffrey H. Wood, who was the acting head of the division from 2017 to 2018, failed to properly enforce environmental laws.

In particular, Clark and Wood compromised the enforcement of two landmark environmental laws, the Clean Air Act and the Clean Water Act. These two laws are fundamental in keeping our air and water free from pollution, and therefore failing to enforce these laws can directly compromise the health and safety of communities and the environment.

Jeffrey Clark led a team that limited environmental enforcement

At times, Clark was willing to hobble the division’s ability to enforce environmental laws more than his predecessor. In 2017, then Attorney General Jeff Sessions, the head of DOJ, along with Wood, began to greatly limit a longstanding and important enforcement tool used by communities impacted by criminal levels of pollution from nearby facilities.

This enforcement measure, known as supplemental environmental projects, is one of the only enforcement measures available that affected community members can use during an EPA settlement case process that can help mitigate the damage caused by the polluter. It requires the polluting party to directly address the harm they caused in the local community when they violated the environmental law. In March 2020, Clark went beyond Wood and worked to stop the use of supplemental environmental projects in even more circumstances, leaving only one restricted avenue available for use for cases related to diesel emission reductions.

This means that Clark, except in one narrow situation, blocked an important way that communities could hold polluters directly accountable for their actions and press them to provide funding that can reduce that harm. In the past, supplemental environmental projects have been used to remove lead paint from public housing, install and operate air filtration systems in affected neighborhoods, and establish funds to reduce the runoff of pesticides from agricultural lands, among other things.

These actions run counter to decades of EPA policy and DOJ practice. But even in this circumstance, when Clark went a bit further than his predecessor, we can see Clark was acting very much in line with other Trump administration officials in the DOJ, including Jeff Sessions.

You don’t have to be a household name to do great harm

During his time as Assistant Attorney General of the Environment and Natural Resources Division, Clark was in charge of enforcing the laws that are at the bedrock of our public health and environmental protections — and he fell short in his charge. By managing a team that undermined enforcement, he had a substantial negative impact on the health and safety of the environment and of communities across the country, especially underserved communities.

Perhaps many of us have forgotten the day-in and day-out erosion of science and democracy that the prior administration carried out. But the example of Jeffrey Clark, an obscure political appointee, serves as a reminder — there are people willing and able to undermine the very purpose of our government agencies, subvert democracy, and endanger our health and safety for their own political benefit. And the main way to prevent the next Jeffrey Clark is for us to vote in leaders at local, state, and federal governments that advocate for equitable, democratic, and science-based decision making.

Originally published by Union of Concerned Scientists, The Equation.
By Anita Desikan