On The Front Lines: An Interview With Jeffrey Bossert Clark.

On December 11th, 2019, I sat down with Jeffrey Bossert Clark, the United States Assistant Attorney General for the Environment and Natural Resources Division, in his office at the Department of Justice, for a wide-ranging interview.

[caption id="attachment_181534" align="alignright" width="280"] US Assistant Attorney General Jeffrey Bossert Clark.[/caption]

Clark’s division is deeply involved in the legal work behind the construction of the border wall. His division handles all of the eminent domain cases involved in acquiring the necessary land on the border. Clark’s division is also on the front lines representing the Trump Administration in many of the environmental challenges against the administration. In a very prominent case, Juliana v. United States, Clark appeared himself, personally, to argue the case in front of the Ninth Circuit Court of Appeals—something that senior DOJ appointees in Clark’s position rarely do.

In Juliana, a group of environmental plaintiffs were pushing a remarkably aggressive constitutional theory: that there was a constitutional right to be free of climate emissions, and that the federal government was obligated, by the Constitution, to put in place a plan to end them.

Notably, this interview—which touches upon the Juliana case— was conducted before the decision in Juliana was issued on January 17th of this year. The Ninth Circuit agreed with AAG Clark, holding that the plaintiffs lacked standing to sue the government.

Enjoy!

INTRODUCTION TO THE DEPARTMENT

Will Chamberlain: Let's just start out with an introduction for our readers. What is your role, why is the work you do so essential, how many attorneys are under your management, etc.?

Jeffrey Bossert Clark: Sure. So, there are more than 400 attorneys that report to me here at Main Justice in what's called the Environment and Natural Resources Division. It's one of the seven litigating divisions of the department. And, as the name implies, there is an environmental side and there's a natural resources side. The main client agency on the environmental side is EPA. So, they administer a host of statutes, as you know, right from the Clean Air Act, the Clean Water Act to CERCLA, RCRA, and the Safe Drinking Water Act. There are a host of them.

And so, if the clients are going to appear in court, seeking civil or criminal penalties, then we handle those cases. The U.S. Attorney's office also handles some cases, sometimes with us jointly. There's a whole process in the Justice Manual for how we divvy up cases between field U.S. attorneys and Main Justice.

And then on the natural resources side, it's a wider array of agencies, the Interior Department, the Commerce Department, which has NOAA, the Department of Agriculture, which is where the Forest Service is, the Defense Department—they're...they're often sued. Those regimes involve matters involving the national parks, the national forests, you know, drilling rights offshore under the Outer Continental Shelf Lands Act, or mining on public lands—a vast array of things that go to the nation's federally owned lands and water resources.

THE BORDER WALL – AND EMINENT DOMAIN CASES

And, you know, we have other roles as well. But those are the main two buckets. And one of the other important things we're doing, especially in this Administration, is we have the power of eminent domain. So, we're working on the border wall condemnation actions to acquire land when the route of the wall goes through private property.

Will Chamberlain: You know, I saw a news article just recently about that. It was on NBC News, something about the 14th of November that there were court filings being prepared to start taking lands. I assume that's right in your wheelhouse.

"When there are challenges mounted to the emergency declaration by the President or to the powers to acquire land or to what source of funding the money is coming from, and issues about whether it's even authorized to be used — all those kinds of issues — the first line of defense on those cases is the Civil Division."

Jeffrey Bossert Clark: Yes. We have just filed one of those cases and there are plans for two more. And then, a whole array of them will start coming through. The District they get filed in depends on where the landowner is. This influences what U.S. Attorney's office we would be working with. So, for instance, for the Rio Grande Valley sector, which is where a lot of this activity is or will soon take place, it's in the Southern District of Texas. So, we will work through the Assistant U.S. Attorneys down there and our lawyers will also appear in court there as needed.

Will Chamberlain: So something else from this article that I found interesting, you said that you’re either using or going to use the Declaration of Takings Act.

Jeffrey Bossert Clark: Yes.

Will Chamberlain: And that, this was only supposed to be used in emergencies or in rare circumstances.

Jeffrey Bossert Clark: No, that's not accurate. There are two paths. The Declaration of Takings Act lets us proceed faster. But that's not to say that you need a full-on emergency in order to use that statute. Under the way that statute works, when the money is deposited into a fund, which is the estimate of what just compensation would be under the Fifth Amendment, we can take immediate title to the land, but the possession to the land the judge actually controls. The judge can have whatever procedures and hearings he wants before he decides to actually give the US possession. If the landowner is contesting the amount of the compensation that's been deposited, ultimately that will get adjudicated either by the judge, a jury, or a land commission. So that's the way that process works.

Will Chamberlain: I assume that the transfer of title is important just because it means that the landowner can't sell the land, and you get control of it for the time being, it frees it from being transferred.

Jeffrey Bossert Clark: Yeah, it has certain legal impacts.

Will Chamberlain: Right.

Jeffrey Bossert Clark: It is very important to emphasize that possession doesn't happen until the court agrees. The land records in many parts of the country, especially in Texas and in the Rio Grande area, are not great. People didn't necessarily probate the land properly; they didn't record every change to their deeds. Acquiring the title to it helps to get cleaner legal title for the United States once the proceedings are complete.

Will Chamberlain: So that's the area where you guys are primarily involved, right? The eminent domain/taking side.

Jeffrey Bossert Clark: That's correct. When there are challenges mounted to the emergency declaration by the President or to the powers to acquire land or to what source of funding the money is coming from, and issues about whether it's even authorized to be used — all those kinds of issues — the first line of defense on those cases is the Civil Division. But oftentimes the challenges are kind of an amalgam of things that fall into my purview and things that fall into the AAG for the Civil Division's purview.

As an example, sometimes there are environmental challenges about these kinds of decisions. In many cases, there are waivers of the environmental laws. Oftentimes, if someone's seeking, say, a preliminary injunction on their merit claims, that fall into the Civil Division's bailiwick. But the harms that plaintiffs would state for purposes of trying to get an injunction would fall into our bailiwick. So, a number of these cases actually have been jointly argued by one of my deputies, Eric Grant—he's the appellate law Deputy AAG, but he'll appear in trial courts for purposes of highly important challenges. Similarly on the Civil Division side, James Burnham, who's Deputy in the Federal Programs Branch of the Civil Division, argues important border wall cases. So James and Eric sit at counsel table together and they'll switch up when relevant parts of the cases are being discussed by the judge.

[caption id="attachment_181537" align="aligncenter" width="1920"] Eminent domain.[/caption]

THE NATIONAL EMERGENCY DECLARATION, AND THE LIBERTARIAN OBJECTION TO EMINENT DOMAIN

Will Chamberlain: Interesting. I've been thinking a lot about the problem of standing for plaintiffs, trying to challenge the national emergency declaration. It strikes me that an obvious challenge is based on the zone of interests and the failure to state a claim, namely, that if you're a landowner on the southern border challenging an eminent domain action, it's not clear that you have personally been injured by a reallocation of funding at the Department of Defense. And yet there might be an attempt to challenge that in an eminent domain lawsuit.

"We have to ensure that people get just compensation. We also have to make sure that the taxpayer isn't paying more than the fair market value for the land. The whole judicial process is in charge of the ultimate decision making on that. But we're advocates, taking a position of what we think is fair to the fisc."

Jeffrey Bossert Clark: Right. So, we've been very vigorous in mounting all of our standing defenses, whether they're constitutional or prudential, and pressing any other justiciability defenses we have.

Obviously, the primary interest of someone whose land has been designated to be taken as part of the project is to receive the just compensation. And we will ensure that they get that. There was an article published in The Washington Post—they were doing a story about people who weren't happy that their land was being taken. I provided a quotation to them where I said, look, we have to balance fairness to two sides. We have to ensure that people get just compensation. We also have to make sure that the taxpayer isn't paying more than the fair market value for the land. The whole judicial process is in charge of the ultimate decision making on that. But we're advocates, taking a position of what we think is fair to the fisc.

Will Chamberlain: One other question on this—I occasionally get complaints from more libertarian-leaning conservatives that the use of eminent domain is fundamentally un-libertarian or un-conservative. My point would be in this context that there is no more obvious public use than the construction of a border wall. How do you feel about that, and the use of eminent domain in this context?

Jeffrey Bossert Clark: I would agree with that. Look, if there are those who think that there should be changes to that governmental power made, that they should seek either a new statute about that or an amendment to the Constitution. But it's a fundamental attribute of sovereignty for the federal government to be able to exercise the power of eminent domain. It's been established for centuries at this point—not just centuries of U.S. practice, but centuries of Anglo-Saxon earlier practice before that.

I think a process in which the power of eminent domain is invoked—pursuant to federal statutes passed by Congress—clearly ensures due process protections for landowners. They get notice—we negotiate with them to see if we can avoid litigation. And then, of course, they have the constitutional guarantee of just compensation—the whole point of the Fifth Amendment right. It more than implicitly recognizes that since you're providing compensation, if you do so, you can exercise this power of eminent domain, so it has to be a power that constitutionally exists. I don't think that the existence of that power is contrary to limited government principles.

[caption id="attachment_181533" align="aligncenter" width="1920"] Climate change protesters.[/caption]

THE JULIANA CASE

Will Chamberlain: I want to transition to the Juliana case, which I've been reading about. I thought it was absolutely fascinating. So, you argued this case in the Ninth Circuit.

Jeffrey Bossert Clark: I did.

"The idea that somehow a group of children is being singled out to bear burdens or to be harmed in the same way that occurs in the prison cases would raise constitutional issues, seems like a weak claim."

Will Chamberlain: What led you to make that decision and not just hand it off to one of your Deputies?

Jeffrey Bossert Clark: Well, this is a question that the press seems to be interested in, in that, historically, it doesn't seem like a lot of Assistant Attorney Generals have argued their own cases. But for me, it was something I decided I was going to do before I came in. I argued cases when I was here before as a Deputy Assistant Attorney General. I think that it's very important to actually be involved in legal work and not just to be a manager. I think that that not only does it keep my skills sharp, but it helps in terms of the credibility of leadership.

Will Chamberlain: Right.

Jeffrey Bossert Clark: I'm leading 400+ smart lawyers. So, if you can do what they actually do, it's helpful to understand the challenges that they face, and it's obviously also helpful on the management side. And the other thing you know about these jobs is that they are tremendous opportunities. I think they're part of discharging your public responsibilities, but they're not permanent positions. Eventually, I will be returning to a world where I have to sing for my supper and practice law and not just be in a management mode. I also think that it sends a key signal if a case is important enough for the Assistant Attorney General to appear to argue.

Will Chamberlain: Speaking of importance, I think it's worth going through the case for our readers. Could you walk us through the plaintiff's theory of the Juliana case? I mean, they propounded I think is pretty insane—sorry—aggressive theory of a constitutional right to be free of climate emissions. What is your take on the Plaintiff's case?

Jeffrey Bossert Clark: Right. So, they have several theories. Their first theory is that there is a constitutional right to a stable climate system and that the “carbon economy”—so-called—that the Executive Branch and the Legislative Branch have perpetuated over time violates that constitutional right, which obviously has heretofore never been recognized. So, they realize they're calling for a Constitutional right of first impression.

Then they have a substantive due process theory, that the federal government, by not taking steps to avoid the harm that climate change, allegedly causes to the group of plaintiffs. Next, they argue that by not addressing climate change, the federal government is showing depraved indifference to the children’s plight.

Will Chamberlain: Right.

Jeffrey Bossert Clark: And, you know, for that, they point to things like prison cases where, you know, someone might be deprived of food or medical treatment or mental health services.

Will Chamberlain: It seems like an extreme comparison.

Jeffrey Bossert Clark: As I pointed out at oral argument, if someone's not confined, then there's obviously no duty to provide for them. And in this situation, we're talking about emissions that mix roughly equally in the global atmosphere. And so, the members of Congress, the members of the Executive Branch—they're equally exposed to the ostensible impacts of climate change. The idea that somehow a group of children is being singled out to bear burdens or to be harmed in the same way that occurs in the prison cases would raise constitutional issues, seems like a weak claim.

Will Chamberlain: Right.

Jeffrey Bossert Clark: Then, their third theory is based on the public trust doctrine that exists in several States. They're arguing that a federal public trust doctrine should be created: there are air resources held in common in the wilds and other sort of aspects of nature that are being impinged upon by climate change. And that the Executive Branch and the Legislative Branch are interfering with that, damaging the resources.

The legal authority that they cite for this claim are often philosophical arguments. So, they make arguments from Locke that there should essentially be an ability to escape the regulated sphere by going to the wilds, but that's being eliminated by the actions of the federal government to support the “carbon economy.” That's a strange set of theories, too. The public trust doctrine has never been recognized as an aspect of federal law as opposed to state law. Indeed, there's a D.C. Circuit case that rejected an attempt to create a public trust doctrine federally.

Will Chamberlain: And then in terms of relief, if I read the motions right, they're asking for declaratory relief, saying that this right to be free of carbon emissions exists. And then some sort of injunctive relief to force the federal government to take action against climate change?

Jeffrey Bossert Clark: Yes. So that involves what I'll call their "plan" theory. I led with that the oral argument and was obviously one of our principal points in the briefing that this lawsuit would dramatically violate the separation of powers. To which I paraphrase their answer is: "No, it doesn't violate the separation of powers because we're not going to have a single judge in the district of Oregon decide exactly what needs to be done to eliminate the climate change that creates the harm for the plaintiffs. Instead, the political branches will present a ’plan’ for how to decarbonize the economy to avoid those harms."

Now, to be sure, that's not as aggressive as having a single judge impose rules on the entire national economy based on their own sua sponte sense of what those rules should be. Under the Plaintiffs’ theory, there would be Executive Branch input into a judicial process. But obviously, if you're going to propose that a plan be put before a judge, the judge is going to look at whether to agree to the plan or not. So, compared to that really wild, broad theory, it may be less of a separation of powers problem, but there's still a huge separation of powers problem.

Will Chamberlain: Yeah, it strikes me that I wouldn't want to be one of those law clerks tasked with solving the puzzle of how to decarbonize the economy. That would be challenging.

Jeffrey Bossert Clark: In that regard, I pointed the Court to the fact that there are a lot of federal statutes in this area and that plaintiffs are often not following the procedures that actually direct review in the first instance to a Court of Appeals. Take a Clean Air Act rulemaking of nationwide significance, which obviously would involve a lot of the first steps that would go into preparing a plan like this. Any challenge to rulemaking like that from EPA goes only to the D.C. Circuit, where three appellate judges would sit to hear the case.

So, a process by which plaintiffs can just say that this is a constitutional issue, and appear in any District Court in the country, and the judge can start reviewing the actions of the EPA to decarbonize or not decarbonize the economy—that's totally at odds with any such system of judicial review. That's an end run around the law that Congress created. And there's no due process problem with the relevant judicial review provision Congress adopted; it’s just a channelizing provision—one that plaintiffs would just tear up and ignore.

Will Chamberlain: Just like every federal Administrative Procedure Act (APA) claim.

Jeffrey Bossert Clark: Exactly. We argue that the Plaintiffs’ case is fundamentally at odds with the APA.

Will Chamberlain: There's also a standing issue. It seems like the harm of climate change is felt equally by everyone in the country

Jeffrey Bossert Clark: We advanced a generalized grievance defense to the lawsuit as well.

Will Chamberlain: Also, your point about the ability of a single District Court judge to make law in this respect connects to the broader problem of nationwide injunctions.

Jeffrey Bossert Clark: Yes. So instead of having EPA decide to issue regulations or the Interior Department decide to issue regulations about mining or about hydrocarbon extraction industries, all that would just be set aside, and the political branches would be coming on bended knee to a single judge in one part of the country. That's even though there are voters behind the President who ultimately appoints, with Senate advice and consent, the other key members of the Executive Branch—and where Congress, whose members the people vote for, writes all the statutes. All that gets set off to the side. And the judges are going to apply a new, never-before-recognized constitutional right using the powers of equity to craft whatever enforcing injunction that they would like.

Will Chamberlain: It seems pretty aggressive. I thought one of the other interesting things was the procedural history of this case where the District Judge in Oregon denied the motion to dismiss from the government and denied the motion for an interlocutory appeal.

Jeffrey Bossert Clark: Right.

Will Chamberlain: So you went straight to the Ninth Circuit, and moved for mandamus.

Jeffrey Bossert Clark: Yes.

Will Chamberlain: And then you didn't win the writ of mandamus motion but eventually got orders from both the Supreme Court and the Ninth Circuit that were chiding the District Court.

Jeffrey Bossert Clark: So we had to go up to the Ninth Circuit and the Supreme Court several times. In the last round, first the Chief Justice placed an administrative stay order on the trial date that the District Judge had issued and referred the matter to the full Court. And then the full Supreme Court dissolved that stay, but issued an order effectively indicating that several elements of the interlocutory certification statute were met. And then things went all the way back to the District Court. The District Court then certified the ruling for interlocutory appeal, and then a different Ninth Circuit panel than the merits panel looked at the certification and, by two-to-one vote, they accepted it. Thus, there was a dissenting Judge who did not accept a certified appeal even after the Supreme Court had remanded.

[caption id="attachment_181540" align="aligncenter" width="1920"] Attorney General William Barr.[/caption]

AG BARR’S SPEECHES AND OTHER LITIGATION TOPICS

Will Chamberlain: Interesting. Switching topics - I thought one of the most fascinating speeches of the year was the speech that Attorney General Barr gave to the Federalist Society, where he talked about how there's this growing attack on the Executive Branch's function. And that on the one hand, you have Congress not legislating and using oversight almost as harassment.

Jeffrey Bossert Clark: I agree with the points he made in his speech. The other speech I would commend to you is the one that he gave to the Notre Dame Law School.

Will Chamberlain: That was more about the place of religion in...

Jeffrey Bossert Clark: It was more about culture-war-type issues, true. Still, I think it was an excellent speech.

Will Chamberlain: Indeed, I think the other interesting thing is, you know, his claim about how the Judiciary really is just trying to pick up the baton and be able to throttle Executive Branch action almost across the board, if there's a single judge that says no.

Jeffrey Bossert Clark: Well, I do think that there needs to be an appropriate reining in by the judiciary of the power to issue nationwide injunctions. We think that litigation should focus on the parties before the court in terms of the relief that's ordered, and in terms analyzing standing.

Will Chamberlain: Right.

Jeffrey Bossert Clark: Also, it turns into a giant circumvention device as to the actual group litigation mechanisms that Congress has recognized. So, class actions, and mass actions, which have kind of become a thing after the CAFA (Class Action Fairness Act) statute. Those are the actual devices that have a whole bunch of law attached to them and often very important due process limitations, which can impact how the rules and their requirements are read. All that goes out the window if one can issue a nationwide injunction.

Will Chamberlain: So when you say group litigation, I immediately start thinking of class actions and cy pres, because that's my background from when I practiced law. There's a memorandum that you wrote that was eliminating or barring the use of special environmental programs. Tell us about that.

Jeffrey Bossert Clark: Supplemental Environmental Projects. SEPs.

Will Chamberlain: SEPs. I got the letters right.

Jeffrey Bossert Clark: Right. I would urge you to look at the memo with an eye to this syllogism. SEPs are defined by EPA as that form of relief which courts are not empowered to order.

Will Chamberlain: Right.

Jeffrey Bossert Clark: Next, Attorney General Sessions in November of last year issued a memo in which he indicated that in consent decrees with state and local governments, unless an exception should be made, we should not seek any form of relief in a consent decree that a court would not have the power to order.

Will Chamberlain: Got it.

Jeffrey Bossert Clark: So the subject of my memo was then to say, based on the Attorney General's memo, which is binding on me internally in terms of how I exercise my discretionary authority, that we would not be seeking SEPs in state and local government consent decrees unless there was an exception approved by the Deputy Attorney General or the Associate Attorney General. There were some practical transition issues in there about how, you know, some SEPS which had been fully negotiated before the Session Memo was issued, might be grandfathered in.

Will Chamberlain: OK. How long has this been in place?

Jeffrey Bossert Clark: For roughly three and a half months.

Will Chamberlain: OK. So probably not enough time to actually see how that effects settlement negotiations. What do you anticipate to be the effect of this on negotiations. Will the Department be seeking monetary relief more often?

Jeffrey Bossert Clark: I think that sometimes there are even confusions between injunctive relief/mitigation on the one hand and SEPs on the other. Going back to the Clinton administration, that's where SEPs took off. And then they were also used a lot in the last Administration. And there became a free-standing enthusiasm for SEPs. And so sometimes I will see proposed SEPs that actually look to me like proper injunctive relief. So there's some confusion there.

But for the most part, the point of the Miscellaneous Receipts Act, Anti-Deficiency Act, and other statutes by Congress and the interpretations of those statutes is that we shouldn't be trading civil penalties for some other form of relief. It basically casts the Executive Branch in the form of becoming a mini-appropriator. You look at an individually designed project. And all you need, basically, is the consent of the defendant, one relevant official in the Executive Branch and, the court in a consent decree—which obviously judges look at, but which they often look at with an eye to facilitating a settlement.

Will Chamberlain: Right.

Jeffrey Bossert Clark: And, taking a step back and looking at it, if you let this go on, you’ve create a mini-spending program that is going to take money that otherwise would go into the fisc where Congress would decide how to appropriate it.

Will Chamberlain: Right.

Jeffrey Bossert Clark: So I'd seen recently a blog entry or two where there were some people making the argument: "Why does Clark want to shut these things off? It will just mean that overpriced light bulbs will be purchased by the Pentagon. Money would be wasted." My response to that is this: Congress under our constitutional system — they decide how money is spent. And if they delegate that power—and they have, actually, in one instance related to diesel emissions; they've delegated the power to do SEPs—so if they delegate that power, then in appropriate cases, we'll use it.

But if they haven't delegated that power, then I think what I'm tasked with under the environmental statutes is to get the civil penalties, weighing the factors in the statute that Congress directed. And then that will go into the federal treasury if a court agrees and then Congress will decide how to spend any monies collected.

Will Chamberlain: It seems really similar to the problem of cy pres in class actions.

Jeffrey Bossert Clark: It is somewhat similar to cy pres.

Will Chamberlain: Yeah. The attempt to have fun, do a little policymaking, and avoid sending the money where it's actually supposed to go.

Jeffrey Bossert Clark: The public choice economic dysfunctionalities are similar in cy pres and this. Except that in cy pres you don't have constitutional issues about the division of governmental powers.

Will Chamberlain: This is a separation of powers problem.

Jeffrey Bossert Clark: It's a separation of powers problem and a statutory problem. Congress knows how and when it wants to allow SEPs. And they certainly haven't done it in all kinds of cases.

Will Chamberlain: Right. It's interesting how in each of the major cases where you're involved, border wall, the Juliana case—there's a separation of powers problem. Either it's about making sure the Executive Branch can do what it's authorized to do by law, or, conversely, stopping the Executive Branch from doing what it's not authorized to do. So, you know, the Executive Branch doesn't get to go out and be a mini-appropriator, building parks with defendant money.

Jeffrey Bossert Clark: Right, building parks, deciding to direct money to particular groups. There's also an AG Sessions memo that bans third party payments. So SEPS look a lot like in-kind third-party payments.

Will Chamberlain: Third party payments are where you don't pay the Federal Government.

Jeffrey Bossert Clark: Right, pay some outside entity to undertake some activity. Or just pay them and let them decide what activity they want to undertake with the money.

Will Chamberlain: Good gig if you can get it. Any other cases that you think are noteworthy?

Jeffrey Bossert Clark: We won a case just yesterday that I argued. In that case, there was a refinery explosion and fire in Torrance, California, at an Exxon refinery. And as a result of the explosion, the catalyzing unit—a 40-ton chunk of it—was blown into the air and flew one hundred feet and it landed five feet from a set of hydrofluoric acid tanks containing thousands of gallons of hydrofluoric acid. Likely, had the 40-ton chunk of debris hit those acid tanks, that would have caused a volatile cloud of hydrofluoric acid to go up in the residential neighborhood next to the refinery.

Will Chamberlain: Wow.

Jeffrey Bossert Clark: The Chemical Safety Board (CSB) investigated and they issued a subpoena to Exxon and they refused essentially to provide information about the modified hydrofluoric acid tanks. And the District Court judge actually refused to enforce the subpoena. So, we took our own appeal, topside appeal to the Ninth Circuit. And yesterday, the Ninth Circuit panel unanimously agreed to reverse the District Court and allow the CSB to get the information that they've subpoenaed, including information such as what exactly is modified hydrofluoric acid. You say you've modified it. Where did you get it from? How much? On the day of the incident, what was contained, exactly, in these tanks? Very basic kinds of information.

Will Chamberlain: Right.

Jeffrey Bossert Clark: So I'm proud of that, and I also think that it helps to show that the Trump Administration is interested in enforcing the environmental laws. The Juliana case represents an invasion of the separation of powers, and it has to be strongly resisted for that reason. But by the same token, we're vigorously enforcing the environmental laws. And the CSB has the right to get that information.

Jeffrey Bossert Clark: Also, I've had my own emissions cheating case to pursue in this Administration, the Fiat Chrysler case. They were writing computer code that would detect when the vehicles were being tested and then make sure that the emissions were under the emissions limits. But then on the highway, they recognized that the emissions test was not running, and then their vehicles would emit more. We got about a half billion dollars of relief in various forms, including fines and injunctive relief from them to discipline that conduct.

Will Chamberlain: That makes sense. There's a lot of environmental law on the books that deals with bad actors, especially when people are cheating these tests to have higher-emitting cars on the road.

Jeffrey Bossert Clark: Exactly.

Will Chamberlain: I'm curious - was the purpose of you arguing the subpoena case, the Exxon case, to show the Department of Justice takes this seriously, almost like a statement of intent?

Jeffrey Bossert Clark: Well, I think it's certainly true that the CSB was entirely right there. And so that's why I took it on. As a practical matter, I also have to balance practical variables, and look at when something fits my schedule. On the other hand, I don't think that I would pick up a case that was less important just because it worked with my schedule. But I think this was a very serious legal error that needed to be corrected. And it was clearly a serious matter to Exxon. As I understand it, the head of a major law firm’s white-collar practice was the one who appeared to argue against me. This was not a small case to Exxon.

Will Chamberlain: Got it.

Jeffrey Bossert Clark: Also—not too long after that case there was a refinery explosion in the Great Lakes region. Similarly, that case also involved potential impacts on modifying hydrofluoric acid tanks. This was not only happening at one Exon refinery.

Will Chamberlain: That sounds terrifying, actually.

Jeffrey Bossert Clark: Well, there was a prior incident at the Exxon refinery where, if I'm remembering details correctly, there was a small release of acid and the acid cloud from that persisted for five hours. So, if a 40-ton debris chunk had hit thousands of gallons, that would have been a much larger incident. And, you know, I don't know that we can say how long an acid cloud event like that would have lasted.

Will Chamberlain: One question I forgot to ask. Your Deputy, Lawrence Van Dyke, was just confirmed to the Ninth Circuit. Any thoughts on that?

Jeffrey Bossert Clark: Well, we're going to miss Lawrence. He's been an excellent addition to my team here in the front office. He's was in charge of the Natural Resources Section. Any trial court action that involved natural resource issues would go through Lawrence. Not for the EPA side of cases, but cases for the Interior Department and cases for NOAA, cases for the Department of Transportation. So, for example, he worked on the Keystone Pipeline case.

Will Chamberlain: Right.

Jeffrey Bossert Clark: He's done a tremendous job. And as you know, he's the former Solicitor General for two States—Montana and Nevada. At his confirmation hearing, he even had Ted Cruz say [paraphrasing], “Look, I thought I had a very good record in terms of my state Solicitor General experience, but you've got me beat!” Indeed, beyond being Solicitor General of two States, Lawrence worked in the third—he worked in the Texas office where Cruz had been the SG. I think Lawrence got a lot of credibility from his past government experience. And there really hasn't been someone, you know, nominated to the Court of Appeals, I think, with so extensive an official background in appellate litigation. And yet the ABA gave him a rating which was just inexplicable, given his experience.

Will Chamberlain: All right. Thank you so much!