The Senate Judiciary Committee is scheduled to vote this Thursday on the nomination of Kirkland & Ellis attorney Jeffrey Bossert Clark to be Assistant Attorney General (AAG) for the Justice Department’s Environment and Natural Resources Division (ENRD). This is a key post. The AAG leads the team of lawyers representing the U.S. government in environmental and natural resource cases.
Clark is eminently qualified for the job. As the White House explained on the day President Trump announced the nomination:
[Mr. Clark] has worked on cutting-edge cases in numerous areas of law, and argued and won numerous cases in multiple Circuits. From 2001 to 2005, Mr. Clark was the Deputy Assistant Attorney General for the Environment and Natural Resources Division of the Justice Department. While there, he supervised the Appellate Section (50 lawyers and staff) and the Indian Resources Section (25 lawyers and staff). Also during that period, he reviewed, edited, or contributed to virtually every brief the Environment Division of the Department of Justice filed in the Courts of Appeals, including several cases of exceptional significance he personally briefed and argued. He also worked on every Supreme Court environmental or natural resource case during this same period.
Clark has glowing endorsements from professionals who know him including 95 colleagues at Kirkland & Ellis, seven former ENRD Assistant Attorneys General, the Solicitor Generals of Arizona and Arkansas, five former General Counsels of the Department of Energy, eight former EPA leaders, including a General Counsel and an Acting Administrator, and Utah Governor Gary R. Herbert.
In their letter of recommendation, the seven former ENRD AAGs write:
Given both our familiarity with the position’s demands and our familiarity with Jeff, we are confident Jeff has the combination of substantive experience, legal knowledge, leadership capacity and sound judgment to successfully lead the Division. ... We firmly recommend Jeff and urge the Committee’s favorable consideration of his nomination, as well as urge the full United States Senate to confirm Jeff to be Assistant Attorney General of the Environment and Natural Resources Division.
However, given the intemperate temper of the times, some Democratic Senators may oppose the nomination on partisan/ideological grounds. Today’s so-called progressives believe environmental agencies are their agencies, and hence should be run only by members of their tribe. Clark is a limited government conservative who has litigated against the previous administration’s climate policies. To hard left partisans, that makes him a deplorable regardless of his abundant professional qualifications.
The Sierra Club’s letter opposing Clark’s nomination is typical in that regard:
Mr. Clark, an attorney with the law firm that represented BP during the litigation following the 2010 Deepwater Horizon disaster, is a prominent denier of climate change, frequently critiquing greenhouse gas regulations and the Clean Power Plan, which aimed to limit carbon dioxide emissions from power plants, and has played a key role in litigation over the DOJ’s finding that emissions endanger public health and welfare.
The foregoing contains serious errors of both fact and interpretation. Clark is not a “denier of climate change,” much less a “prominent” one. Yes, he has criticized the Obama administration’s greenhouse gas regulations and Clean Power Plan, but one can oppose those policies on both legal, economic, and moral grounds yet accept the reality of climate change. Only ideologues or demagogues assert that any human influence on global temperatures = proof of impending catastrophe = moral imperative to “keep it in the ground.”
At the Committee’s June 28 nomination hearing, Democratic Senators repeatedly pressed Clark to express his views on climate change. He declined to submit to their litmus test, arguing that his personal views on scientific issues are irrelevant to the AAG’s job, and besides he should refrain from commenting on issues that might arise in future litigation.
In a written response to senators’ questions, Clark elaborated on those and other points. Herewith a few examples.
At the June 28 hearing, Sen. Diane Feinstein (D-Calif.) asked Clark about his comment during a 2014 Federalist Society panel that the science behind the Obama administration’s climate policies is “contestable.” Clark said he stood by that comment “because there are clearly scientists and private entities who disagree with regulation in that area.”
Typical of the politicized condition of climate science today, Feinstein apparently could not understand the simple factual point Clark was making, and construed it as climate denialism. In her follow-up written questions, she sent Clark an article (“Antarctica Is Melting, and Giant Ice Cracks Are Just the Start,” Scientific American, July 2017), and asked: “What part, if any, of the scientific evidence discussed in this article do you find ‘contestable’”?
Clark replied that assessing the importance of such information “would be a matter committed to the discretion of the federal policymaking agencies, consulting with their resident scientists.” His role, should he be confirmed, “would not be to issue regulations in the light of such evidence, but to defend in court, consistent with law, the outcome of any policymaking decisions made by governmental bodies such as EPA.” In other words, if appointed, he would have no role in assessing Antarctic glaciology.
For the record, though, the science may be more contestable than Feinstein suggests. Scientific American published another article in July on the same topic: “Five Things to Know about the Trillion Ton Iceberg.” According to that report, the recent collapse of the Larson C ice shelf “will not lead to significant sea-level rise.” It “could be a signal that other major changes are on the way,” but “right now scientists do not believe that the calving event will make Larsen C unstable.” The principal expert interviewed said he “would not tie this single event to climate change.”
So, how important climatologically is the recent collapse of the Larson C ice shelf? Who knows! The one thing we do know is it would be foolish to hire or reject a lawyer based on his speculations about it.
Asked by Sen. Feinstein and Sen. Sheldon Whitehouse (D-R.I.) for assurances he would not be biased in favor of the fossil fuel industry, Clark cited several cases where he “advocated for strengthening laws or regulations to protect the environment.”
One such case forced the Department of Energy to issue overdue energy efficiency standards. In another, Clark represented renewable fuels clients who intervened on behalf of the EPA against litigation brought by petrochemical and refinery industries. He briefed and argued an appeal defending the Army Corps of Engineers against a takings claim. He also defended the EPA against a due process constitutional challenge trying to invalidate portions of the Superfund environmental cleanup statute.
My unsolicited advice to Sens. Feinstein and Whitehouse is to pause and think this through. Trump ran on a platform of unleashing America’s energy sector. As president, he is entitled to staff up executive agencies with qualified people who support the policies on which he campaigned. Thus, to oppose a nominee just because he is a pro-energy conservative rather than anti-fossil fuel progressive is an attempt to annul the 2016 elections.
When a party keeps losing elections, some within it may succumb to the notion that elections should no longer determine national policy. Such elitism may in no small part be responsible for the party’s declining political fortunes.
I don’t know Jeff Clark as well as Kirkland & Ellis colleague Richard Godfrey, but I know him well enough to say that Godfrey’s words ring true:
I can state emphatically that Jeff is one of the hardest-working, most diligent, most ethical, most intellectually capable lawyers with whom I have ever dealt; he also is unflappable, as well as a gracious and intellectually honest advocate representing the best traditions of the legal profession. Jeff treats everyone with the utmost respect—including colleagues, adversaries, judges, and witnesses.
For the sake of everyone involved, let us hope cooler heads prevail and the Senate approves Clark’s nomination based on his knowledge, experience, leadership ability, and judicial temperament.