The U.S. Senate voted Oct. 11 to confirm Jeffrey Clark as Assistant Attorney General for the U.S. Department of Justice's Environmental and Natural Resources Division. The upper chamber voted 52-45 in favor of his nomination, with support divided largely along party lines.
As the federal government's top environmental lawyer, Clark will be the lead attorney on litigation involving the U.S. Environmental Protection Agency's policies and regulations. Clark previously served as Deputy Assistant Attorney General for DOJ's environmental division from 2001 to 2005 during the George W. Bush Administration, where he supervised roughly 75 lawyers and staff across the Appellate and Indian Resources sections. During that time, he argued numerous cases in federal appeals courts and worked on every environmental case heard by the U.S. Supreme Court.
Clark later represented the U.S. Chamber of Commerce in a lawsuit challenging the EPA's 2009 endangerment finding, which concluded that carbon dioxide and five other greenhouse gases contribute to air pollution and "may reasonably be anticipated to endanger public health and welfare." The finding provided the basis for the Obama administration's Clean Power Plan for reducing CO2 emissions from existing fossil fuel-fired power plants. However, the Trump administration determined that the system-wide approach was illegal, and the EPA is now proposing a more limited plan called the Affordable Clean Energy, or ACE, rule. Attorneys for environmental groups are preparing to challenge the rule in court after identifying a range of potential legal flaws in the proposed regulation.
Excluding his time in the Bush administration, Clark has worked at the Kirkland & Ellis law firm since 1996. He is "a complex trial and appellate litigator with especially deep experience in administrative law, cutting across dozens of statutes and numerous agencies," according to the firm's website. Clark is also known for defending energy giant BP PLC after the Deepwater Horizon incident, the largest offshore environmental disaster in U.S. history.
Clark was first nominated by President Donald Trump to lead the DOJ's environmental division on June 7, 2017. After holding a confirmation hearing on June 28, 2017, the Senate Judiciary Committee referred Clark to the full Senate on Aug. 3, 2017. But no further action was taken, and Clark's nomination was returned to the White House at the end of the year. Trump renominated Clark on Jan. 8, and Senate Majority Leader Mitch McConnell of Kentucky did not hold a final floor vote until now.
Endangerment finding controversy
Clark sparred with Democratic lawmakers on the Senate Judiciary Committee over his views on climate change during a confirmation hearing on June 28, 2017. Sen. Dianne Feinstein of California questioned Clark about an article he wrote in 2010 criticizing the EPA's endangerment finding, in which he wrote that the determination "would unleash immense negative consequences for the American economy entirely unexpected by most of the citizenry."
"Do you believe greenhouse gases are a threat to Americans' health and safety?" Feinstein asked.
"Senator, I don't think my personal views are relevant," Clark responded.
Pressed further, Clark added, "Senator, I think that's a question for the policymaking agencies and the scientists at agencies like EPA. It's not a question that goes to the Justice Department's role."
Sen. Sheldon Whitehouse of Rhode Island also grilled Clark on podcasts and papers he wrote for the Federalist Society, a conservative legal advocacy group, that argue against the EPA's 2009 finding.
"You've gone beyond just the role of a lawyer representing a client. You've been a political advocate against the endangerment finding and against climate science," Whitehouse said. "How can we trust that that is part of what will be shed by you as you move into this position of public responsibility?" In response, Clark said he is prepared to "direct the very capable lawyers of the Justice Department to take on any entity of any size."
While the Trump administration has raised questions about the EPA's authority to regulate greenhouse gases, it has not signaled that it plans to reconsider the endangerment finding.