Environmental Quality, Justice, Enforcement, Oh My!

Newsletter 123: It’s well past time and not too late for Biden to go to bat for nominees and policies that serve the public good.

Tuesday dawned with the unwelcome news that Antitrust Chief Jonathan Kanter has been indefinitely barred from working on the anti-monopoly case against Google while the Justice Department decides whether his past work representing Google’s critics should require his recusal. This, despite the fact that none of his past clients are parties in the Google case at issue. 

We’ve compiled a long (and still non-comprehensive) thread of other DOJ officials’ more overt conflicts of interest, with a special focus on DOJ officials who’ve worked on behalf of the tech giants currently facing antitrust scrutiny.

It’s disturbing that Kanter’s record of supporting vigorous antitrust enforcement in his private practice—a goal which actually aligns with the mission of the Antitrust Division he now runs—is being weighed as potentially problematic by the DOJ. Meanwhile, the far more pervasive and troubling pattern of attorneys opposing strong enforcement while in private practice, and then going soft on corporations when in charge of regulating them, is routinely glossed over. 

Gigi Sohn, Biden’s nominee to the Federal Communications Commission, is also facing industry roadblocks to her confirmation because of her strong history of supporting antitrust enforcement. RDP’s Dylan Gyauch-Lewis wrote for The Hill last Friday about corporate America’s smear campaign against Sohn, emphasizing that “Sohn’s nomination is in jeopardy precisely because of the fact that she would be a good public servant.” Biden needs to go to bat for his nominees, and be vocal about the (unpopular!) Big Telecom companies trying to sabotage (popular!) policies and their enforcement, from net neutrality to cracking down on price gouging.

(Yes, Democrats can make ostensibly esoteric issues like FCC nominations about price gouging at a moment when inflation is front and center – wouldn’t that be wise, or, dare we say it, “popularist”?)

In other news, Mother Jones’ May/June issue is a mammoth fifteen-part series investigating the evils of private equity, “the industry that has ransacked the US economy—and upended the lives of working people everywhere.” The series is absolutely worth your time. 

One of its fifteen portraits of maximalist corporate greed features the Midwest Carbon Express, a proposed 2,000 mile ethanol pipeline which would displace farmers across 30 Iowa counties, and in four other states. Secretary of Agriculture Tom Vilsack’s son Jess is general counsel to Summit Agricultural Group, the pipeline’s developer. Even more damning is the personal connection of Brad Crabtree, the Department of Energy’s Assistant Secretary of Fossil Energy and Carbon Management, to the project. Crabtree was the Director of the Carbon Capture Coalition, of which Summit Carbon Solutions is a member, until 2021. Now he runs the office overseeing federal funding for (expensive, flawed, polluting) carbon capture and storage projects like Summit’s. 

If the pipeline succeeds in trammeling its farmer/environmentalist opposition, it can expect to make hundreds of millions of dollars from federal carbon sequestration tax credits for stealing farmers' land in order to transport an ecologically devastating fuel source across the Midwest, after using CO2 captured from ethanol production to extract crude oil from fracking wells. 

Personnel 

Anita Dunn is now back in the White House as Senior Advisor and Assistant to the President. As we highlighted about this prospect two newsletters ago, our ethics concerns remain. RDP's Eleanor Eagan put out a statement last Thursday underscoring the need for Dunn to immediately release a public financial disclosure and sign the White House’s ethics pledge, at the very least. “Even better, she could vow not to work on behalf of corporate clients, at SKDK or otherwise, for the duration of the Biden administration.”

Back in January, two of the three officials focusing on environmental justice at the White House’s Council on Environmental Quality resigned within days of each other. Cecilia Martinez and David Kieve’s resignations punctuated a year of stymied climate policy in Congress and broken environmental promises from Biden. 

Late last week, the White House announced Dr. Jalonne L. White-Newsome’s appointment as CEQ’s new Senior Director for Environmental Justice. Corey Solow was also promoted from Deputy Director to Director for Environmental Justice, rounding out the CEQ’s environmental justice leadership team. But unless CEQ receives more funding, staffing and support, its workload may remain unsustainable. 

After resigning, Cecilia Martinez described the role as “nonstop, seven days a week, all day long,” requiring her to reschedule her stepfather’s funeral around work meetings. (The EPA, which is hundreds of times larger than the CEQ, suffers the same debilitating understaffing: “My people tell me that they have enough work for 2.5 people,” EPA lawyer Nicole Cantello told Buzzfeed News last week.) Biden’s 2022 budget increased the Council’s full-time employees from a meager 14 to a still-meager 22. His 2023 budget maintains funding for 22 FTEs. 

Considering that “Environmental Quality” is this century’s existential emergency, the White House’s “Council on” should probably have more than 22 staffers. 

Governance

Missing the comms opportunity of an Earth Day announcement by just shy of two weeks, the Justice Department announced last Thursday a new Office of Environmental Justice, to be housed within the DOJ’s Environment and Natural Resources Division in coordination with EPA’s Office of Enforcement and Compliance Assurance. We hope to see ambitious, strategic, and undaunted environmental justice litigation emerge from this office in the near future. 

Attorney General Merrick Garland also released a Comprehensive Environmental Justice Enforcement Strategy, and a memo reinstating the use of Supplemental Environmental Projects (SEPs), which had been banned by previous Assistant Attorney General Jeffrey Clark (who you may know as the man who tried to weaponize the Justice Department to invalidate the 2020 election results). Environmentalists have historically supported SEPs for allowing some settlement money to go to third parties for environmentally beneficial projects that directly impact the harmed community. But in late April, a Floodlight investigation found that Texas had been allowing SEPs to divert funding to nonprofits which engage in pro-fossil fuel marketing. With this fresh reminder of how SEPs can be corrupted by industry, it is good to see Garland’s memo of reinstatement requiring that projects meet specific qualifications, and important that the DOJ stay vigilant about corporations’ desire to dilute its environmental justice priorities. 

Biden’s 2023 budget proposal allocates $1.4 million dollars to the Office of Environmental Justice, which is pretty hand-to-mouth for an office with such a big mandate. Contrast that with real money—$8 billion dollars, to be exact—that Joe Manchin and Senate Republicans voted to re-route from the Green Climate Fund Authorization Act to develop new weapons systems. No, not for Ukraine—for us to “compete” with China. Manchin and Senate Republicans would rather live (well, die, actually) on a barren, scorched earth devastated by war than protect the beautiful land we live on and the people we share it with.

If environmental enforcement and the court battles for our planet’s future are of particular interest to you, keep an eye out for more environmental litigation-related work from RDP coming soon.

And Jeffrey Clark was hardly Trump’s only villainous appointee to the Justice Department. Shockingly, despite the announcement of scandal-plagued Bureau of Prisons Director Michael Carvajal’s resignation five months ago, the Trump appointee still remains in the job with no replacement announced. As the Associated Press continues its series of investigations into the Bureau of Prison’s serial dysfunction, the pressure on Biden and Garland to replace Carvajal with a criminal justice reform-minded visionary must not be lifted.

Independent Agencies

Continuing the saga of USPS BS from last week’s newsletter, which highlighted RDP’s Vishal Shankar’s late April piece on the disturbing nonchalance with which Biden’s troubling new USPS nominees treat DeJoy’s disastrous leadership, we have DeJoy doubling down on mailing price increases well above the rate of inflation.

As Vishal puts it: “It is a national embarrassment that someone so committed to destroying a beloved public institution not only leads it, but is able to brag about running it into the ground and still keep his job. Worse yet, the only governing body with the power to fire him is filled with accomplices who refuse to do so.”  

Want more? Check out some of the pieces that we have published or contributed research or thoughts to in the last week:

The IRS Has Finally Been Given The Power to Rebuild. It’s Not Enough.

No honest case against stalled Biden FCC nominee 

Republican ‘Populists’ Are Still Corporate Toadies 

Dunn's Latest White House Spin Makes A Mockery Of Ethics Law

Antitrust Chief Barred From Google Cases Pending Recusal Ruling

SEC Nearly Doubles Crypto Enforcement Unit Size to Tackle Fraud

Top Biden-connected firm splits with Starbucks amid union outcry

Washington DC’s 500 Most Influential People

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