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81–753 PDF 2002

S. HRG. 107–673

CONFIRMATION HEARING ON THE NOMINATION

OF THOMAS L. SANSONETTI TO BE ASSISTANT

ATTORNEY GENERAL

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

NOVEMBER 6, 2001

Serial No. J–107–47

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

ORRIN G. HATCH, Utah 

STROM THURMOND, South Carolina 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

MITCH MCCONNELL, Kentucky 

BRUCE A. COHEN, Majority Chief Counsel and Staff Director 

SHARON PROST, Minority Chief Counsel 

MAKAN DELRAHIM, Minority Staff Director 

(III)

STATEMENTS OF COMMITTEE MEMBERS 

Page

Cantwell, Hon. Maria, a U.S. Senator from the State of Washington ................ 1

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 61

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 8

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 9

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 64

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 9

PRESENTERS 

Enzi, Hon. Mike, a U.S. Senator from the State of Wyoming presenting 

Thomas L. Sansonetti to be Assistant Attorney General for the Environment and Natural Resources Division ................................................................ 7

Thomas, Hon. Craig, a U.S. Senator from the State of Wyoming presenting 

Thomas L. Sansonetti to be Assistant Attorney General for the Environment and Natural Resources Division ................................................................ 4

STATEMENT OF THE NOMINEE 

Sansonetti, Thomas L., of Wyoming, Nominee to be Assistant Attorney General for the Environment and Natural Resources Division .............................. 10

Questionnaire .................................................................................................... 14

QUESTIONS AND ANSWERS 

Responses of the Nominee to questions submitted by Senator Cantwell ........... 81

Responses of the Nominee to questions submitted by Senator Durbin ............... 91

Responses of the Nominee to questions submitted by Senator Kennedy ............ 93

Responses of the Nominee to questions submitted by Senator Leahy ................ 95

SUBMISSION FOR THE RECORD 

Cubin, Hon. Barbara, a Representative in Congress from the State of Wyoming, statement in support of the nomination of Thomas L. Sansonetti 

to be Assistant Attorney General for the Environment and Natural Resources ................................................................................................................... 97

(1)

CONFIRMATION HEARING ON THE NOMINATION OF THOMAS L. SANSONETTI TO BE ASSISTANT ATTORNEY GENERAL 

TUESDAY, NOVEMBER 6, 2001

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, pursuant to notice, at 2:00 p.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Maria Cantwell, presiding. 

Present: Senators Cantwell, Leahy, Feingold, Hatch, Kyl, and 

Sessions. 

OPENING STATEMENT OF HON. MARIA CANTWELL, A U.S. 

SENATOR FROM THE STATE OF WASHINGTON 

Senator CANTWELL. The hearing of the Senate Committee on the 

Judiciary will come to order. The hearing is for the purpose of taking up the nomination of Thomas L. Sansonetti to be Assistant Attorney General for the Environment and Natural Resources Section 

of the Department of Justice. 

Mr. Sansonetti, you are nominated to an extremely important position and I am pleased that we are moving forward today on this 

process in this hearing. 

Mr. Sansonetti has previously served as associate solicitor of the 

Interior and as solicitor of the Department of Interior. I will have 

a number of questions about your decision-making process in the 

past and the questions that you are likely to face in the job as Assistant Attorney General but I want to say that I have heard testimony from my colleagues on both sides of the aisle that compliment your legal skills and your willingness to work cooperatively 

toward responsible solutions, so I look forward to hearing your answers on many of our questions today. 

The position of Assistant Attorney General for the Environment 

and Natural Resources Section of the Department of Justice is a 

job that comes with enormous responsibilities. The person holding 

this position has the duty both to uphold our environmental protection regulations in the face of challenges, and simultaneously to 

pursue responsible enforcement of our major environmental statutes that protect the air we breathe and the water we drink. The 

person who fills this position needs to have the confidence not only 

of the president and the attorney general but also of the American 

people. They need to know that the laws will be enforced in a way 

2

that protects our public health, preserves our natural resources, 

and does that for future generations. 

The person who holds this job is our nation’s top environmental 

law enforcer, responsible not only for representing government 

agencies but also responsible for representing the American people 

as their chief advocate. 

The public is strongly committed to protecting the environment. 

According to a March 2001 survey, 75 percent of Americans favor 

stronger enforcement of our environmental regulations and 75 percent believe that our current environmental laws should be maintained. 

What the American people seek but are not finding is the same 

level of commitment from the administration to enforce our existing environmental protection laws. That may be why 57 percent of 

the American public believe that under the administration the 

quality of our environment is getting worse. The public has a right 

to be skeptical but I am hoping, Mr. Sansonetti, that you will 

change that in your position. 

In the past 10 months the administration has repealed rules to 

keep arsenic out of drinking water, repealed requirements for energy-efficient air conditioners, reneged on our commitment to reduce greenhouse gas emissions, and contemplated repealing regulations protecting school lunches from Salmonella contamination. 

Just last week the administration announced that they would 

change the rules governing hardrock mining for gold and silver. 

What we seek, Mr. Sansonetti, from you today is a strong commitment that as Assistant Attorney General the process will begin 

of restoring the public’s confidence in the administration’s commitment to environmental protection by upholding the laws and advancing strong pro-enforcement actions. In this job you will be responsible for prosecuting violations of the Clean Air and Clean 

Water Acts, the two federal laws most directly aimed at controlling 

pollution. You will represent the EPA in forcing the clean-up of 

contaminated Superfund sites and you will make the decisions that 

determine the continued existence of hundreds of endangered species. 

When the department is sued to weaken environmental regulations you will be in charge of the litigation. These suits have already included efforts to invalidate the roadless area rule that protects 58 million acres of forests, and to overturn the air conditioning efficiency standards that would spare us the need to build 

39 mid-size electricity-generating plants. 

Finally, as Assistant Attorney General for the Environmental 

Section, you will have the responsibility for sending a message that 

this administration cares about the environment. You will have the 

opportunity to do this by advancing strong positions in negotiations 

and settlements and by refusing to let back-door settlements be 

used as a convenient under-the-radar means of weakening regulations. 

I know that there are many here who want to talk about their 

support for you and we will get to that but I just want to make 

a final point, that in my view, shared by a significant majority of 

Americans, strong environmental protection should be a priority for 

this country, even in the face of new demands from what is likely 

3

to be a long and costly war against terrorism. Vigorous enforcement and a strong posture in negotiations lead directly to creative 

solutions to the public health and environmental challenges we 

face. 

Getting business and government to work together toward these 

solutions is essential to having livable communities. I believe that 

is one of the key reasons that business has been willing to make 

investments in creative technology solutions to protect our environment and public health over the past 10 years, because of the vigorous enforcement roles that the Department of Justice has taken. 

So Mr. Sansonetti, we look forward to hearing your testimony 

today and your thoughts on the questions that my colleagues and 

I will pose to you. But first we will hear from two of, I believe, your 

ardent supporters, Senator Thomas and Senator Enzi of Wyoming, 

and I believe that Congresswoman Cubin may also be joining us 

here today. 

It is definitely the practice of the Committee to ask the nominees 

who are supported by their members to make statements and the 

two of your senators are here and Senator Thomas, I believe that 

you may want to start with your statement. 

[The opening statement of Senator Cantwell follows:]

OPENING STATEMENT OF MARIA CANTWELL, A U.S. SENATOR FROM THE STATE OF

WASHINGTON

Mr. Sansonetti, I’d like to welcome you here today. When we last saw each other 

in my office on September 6th I think we were planning to hold your hearing within 

the next ten days. Obviously a lot has changed since then—and we have had some 

delays in moving forward with your nomination due to the events that have consumed all of us. 

Mr. Sansonetti, you are nominated to an extremely important position and I am 

pleased that we are moving forward with your hearing today, and I am also pleased 

to be able to chair this hearing. 

Mr. Sansonetti has previously served as Associate Solicitor of the Interior and as 

Solicitor of the Department of Interior. I will have a number of questions about his 

decision making in these positions that has raised some concerns, in addition to 

questions about new issues the nominee is likely to confront as the Assistant Attorney General. 

I have heard testimonials from my colleagues on both sides of the aisle as to Mr. 

Sansonetti’s legal skills, and his willingness to work cooperatively toward reasonable solutions, and I look forward to hearing his answers to our questions here 

today. 

The position of Assistant Attorney General for the Environment and Natural Resources Section of the Department of Justice is a job that comes with enormous responsibilities. 

The person holding this position has the duty both to uphold our environmental 

protection regulations in the face of challenges, and simultaneously to pursue responsible enforcement of our major environmental statutes that protect the air we 

breath and the water we drink. 

The person who fills this position needs to have the confidence, not only of the 

President and the Attorney General, but also of the American people. They need to 

know that the laws will be enforced in a way that protects our public health, preserves our natural resources for future generations, ensures a diverse biosystem 

with the continued existence of threatened species and plants, and protects the 

quality of our air and water. 

The person who holds this job is the nation’s top environmental law enforcer, responsible not only for representing government agencies, but also for representing 

the American people as the chief advocate for our environment. 

The public is strongly committed to protecting the environment: according to a 

March 2001 Fox News poll, seventy- seven percent favor stronger enforcement of environmental regulations and seventy-five percent believe that our current environmental laws should be maintained. 

4

What the American people seek—but are not finding—is the same level of commitment from the Administration to enforce our existing environmental protection 

laws. That may be why fifty-seven percent of the American public believes that 

under this Administration the quality of our environment is getting worse. 

Americans are right to be skeptical of this Administration’s commitment to environmental protection. In the past ten months, the Administration has repealed rules 

to keep arsenic out of drinking water, repealed requirements for energy efficient air 

conditioners, reneged on our commitment to reduce green house gas emissions, and 

contemplated repealing regulations protecting school lunches from Salmonella contamination. 

Just last week the Administration announced that she would change the rules 

governing hardrock mining for gold and silver—so that the Bureau of Land Management would no longer prohibit mining where it would cause ‘‘substantial irreparable’’ harm to the environment or public health. 

What we seek from Mr. Sansonetti today is a strong commitment that as Assistant Attorney General he will begin the process of restoring the public’s confidence 

in the Administration’s commitment to environmental protection by upholding the 

law and advancing strong pro-enforcement efforts. 

In this job he will be responsible for prosecuting violations of the Clean Air Act 

and the Clean Water Act, the two federal laws most directly aimed at controlling 

pollution. He will represent the EPA in forcing the clean-up of contaminated Superfund sites, and he will make decisions that determine the continued existence of 

hundreds of endangered species. 

When the Department is sued to weaken environmental regulations, he will be 

in charge of the litigation. These suits already include efforts to invalidate the 

Roadless Rule that protects 58 million acres of forests, and to overturn the air conditioning efficiency standard that would spare us the need to build thirty-nine midsize electricity generating plants. 

Finally, as Assistant Attorney General for the Environment Section, he will have 

the responsibility for sending a message that this Administration cares about the 

environment. He will have the opportunity to do this by advancing strong positions 

in negotiations and settlements, and by refusing to let backdoor settlements be used 

as a convenient and ‘‘under the radar’’ means of weakening valid regulations. 

These questions are directed at ensuring that, as Mr. Sansonetti upholds the law 

and makes decisions that shape environmental enforcement—in deciding what cases 

to prosecute or appeal and what cases to settle—he takes into account the importance of strong environmental protection laws in a healthy economy. 

In my view—shared by a significant majority of the American people—strong environmental protections should be a priority for this country and for this Administration, even in the face of new demands from what is likely to be a long and costly 

war on terrorism. Vigorous enforcement and a strong posture in negotiations lead 

directly to creative solutions to the public health and environmental challenges that 

we face. 

Getting business and government to work together towards these solutions is essential to having livable communities with strong and diverse economies into the 

next century. 

I believe that one of the key reasons that business has been willing to make investments in creative technologies to protect and preserve our environment and 

public health over the past ten years is the vigorous enforcement role taken by Department of Justice and specifically the Environment and Natural Resources section. 

A continued commitment to strong enforcement is necessary to keep businesses 

moving forward in the development of creative solutions—rather than allowing a return to a focus on short-term benefits—and long-term losses—of a cut, drill, and 

mine philosophy. 

Again, I would like to thank Mr. Sansonetti for his patience in the scheduling of 

this hearing. The position of Assistant Attorney General for the Environment and 

Natural Resources Section of the Department of Justice is a very important position. 

I look forward to hearing Mr. Sansonetti’s views on the issues and challenges he 

will face if he is confirmed. 

Thank you.

PRESENTATION OF THE NOMINEE BY HON. CRAIG THOMAS, A 

U.S. SENATOR FROM THE STATE OF WYOMING 

Senator THOMAS. Thank you very much. 

5

I might say in the beginning that Congresswoman Cubin’s husband has not been well and I think she has submitted a letter. She 

is fully in support of Tom Sansonetti. 

Senator CANTWELL. Thank you. 

Senator THOMAS. Thank you so much, members of the Committee. It is with great pleasure and pride that I join in introducing 

to the Committee Tom Sansonetti to be Assistant Attorney General 

for environmental and natural resources. As you know, his nomination is one that I have personally followed very closely and encouraged the Committee and the Senate to undertake as soon as possible, so thank you again for agreeing to do that. 

I should share, as he will later, in introducing Kristi Sansonetti, 

a wonderful wife and partner, and she will provide a great deal of 

support for him. 

I resist detailing every detail because I have known Tom for a 

very long time and we have worked together in several ways. Certainly, however, the Committee is familiar with his law background. Suffice to say he is a Wyoming lawyer, which, of course, 

is a good thing, a fine Wyoming lawyer with extraordinary experience in public service and private advocacy. 

Just a few things from his positions in the past. After establishing his own firm and practicing law in Wyoming, Tom was 

named associate solicitor for energy and resources in the Department of Interior. As associate, Tom supervised the staff of attorneys that successfully handled all matters within the department 

dealing with public lands and water, mineral royalties, offshore 

and onshore oil and gas development. 

In 1989 Tom returned the Wyoming. It was then, following Dick 

Cheney’s resignation from the House to become secretary of defense, that Tom and I found ourselves engaged in a special election 

for that at-large seat. After the primary Tom agreed to be my campaign manager and later joined me in Washington as chief of staff. 

Certainly he was an effective and magnanimous partner in that 

deal. He was invaluable in assisting me with the staff in all the 

things that we do there. His primary aid was in matters associated 

with the House Interior and Insular Affairs Committee, of which 

I was a member. 

Unfortunately for me, President George Bush nominated Tom to 

be solicitor at the U.S. Department of Interior and he was confirmed by the Senate in 1990. It was there that Tom again distinguished himself as a productive advocate on behalf of the United 

States and became intimately involved in negotiating a host of 

high-profile cases. 

And I should say, Madam Chairman, in some what response to 

your comments, I think Wyoming is particularly interested in environmental things. We are particularly interested in the multiple 

use of our lands and the keeping of our resources in good shape 

and Tom, of course, has been dedicated to that. He has a reputation in government of weighing carefully the concerns of the environment, natural resources and the law. 

As you know, Tom is a long-time confidante and ally, so I certainly am proud to call him my friend. The president has nominated a talented and experienced lawyer who has been involved in 

all these issues that he will now be involved in and certainly I ask 

6

the Committee to give his nomination its full and fair consideration. It would be a mistake and a disappointment if his nomination were to be held up by a senator for political reasons unrelated 

to the important job at hand. So I look forward to his appointment 

swiftly progressing hopefully through the Committee and through 

the U.S. Senate. Thank you, Madam Chairman. 

[The prepared statement of Senator Thomas follows:]

PRESENTATION ON THE NOMINEE BY THE HON. CRAIG THOMAS, A U.S. SENATOR FROM

THE STATE OF WYOMING

Thank you Mr. Chairman and members of the Committee. 

It is with great pleasure and pride that I introduce to the Senate Judiciary Committee today Mr. Tom Sansonetti to be Assistant Attorney General of United States 

for the Environment and Natural Resources. 

As you know, his nomination is one I have personally followed very closely and 

have encouraged this committee and the Senate to take up as soon as possible considering the importance of the position and Mr. Sansonetti’s abilities to do the job. 

Thank you again Chairman Leahy for agreeing to hold this hearing today. 

I would also like to share in introducing Kristi Sansonetti, Tom’s wonderful wife 

and partner. Tom will surely have more to say about her and the great support she 

provides, but I want to join in welcoming her here today. 

I will resist detailing each and every one of Tom’s many professional accomplishments, solid opinions and legal advice. The Committee is by now familiar with his 

background in law and public policy. But suffice it to say he is a Wyoming lawyer 

which is of course a good thing—a fine Wyoming lawyer, with extraordinary experience as a public servant and private advocate. 

Please allow me to highlight just a few of the positions Tom has held that I believe make him uniquely qualified for this important post. 

After establishing his own firm and practicing law in Wyoming, Tom Sansonetti 

was named Associate Solicitor for Energy and Resources, in the Department of the 

Interior. As Associate Solicitor, Tom supervised a staff of attorneys that successfully 

handled all matters within the Department concerning public lands, water, power, 

mineral royalties, onshore and offshore oil and gas development. 

In 1989 Tom returned home to Wyoming. It was then, following 

Dick Cheney’s resignation from the House of Representatives to become Secretary 

of Defense, that Tom and I both found ourselves engaged in a special election for 

Wyoming’s at-large seat. 

It was after the primary that Tom agreed to be my campaign manager and later 

join me in Washington as my Chief of Staff. 

Tom was as magnanimous as he was effective. 

He was invaluable in helping me assemble a staff and office in Washington after 

a bruising 90 day campaign that quickly resulted in a professional Congressional 

organization that I’m proud to say accomplished a great deal. In addition, Tom was 

my primary aide dealing with matters associated with the House Interior and Insular Affairs Committee. I watched first hand, Tom’s skill in navigating issues of public lands, Indian Affairs, and natural resource protection. 

Unfortunately for me, President George H. Bush nominated Tom to be Solicitor 

at the U.S. Department of Interior, and was confirmed by the U.S. Senate in May 

1990. It was there that Tom again distinguished himself as a productive advocate 

on behalf of the United States and became intimately involved in negotiating a host 

of high profile and important cases. I’m certain Secretary Lujan, if he were at this 

hearing today, would echo my endorsement of Tom’s abilities. 

Tom has a reputation in government of weighing carefully the concerns of the environment, our natural resources and the law. It is a studied, common-sense approach that lends itself perfectly to the job he is being asked to assume. 

As you know Mr. Chairman, Tom is a long-time confidant and ally of mine—which 

in this case might help him or hurt him. Either way, I’m proud to call him my 

friend. 

The President has nominated a talented and experienced lawyer, who has been 

through the trenches on the issues that are critical to the Environment and Natural 

Resources Division. His background will serve the Office of Attorney General, this 

Administration, and the American people well. 

I respectfully ask that this committee give Mr. Sansonetti’s nomination it’s full 

and fair consideration. It would be a mistake and disappointment if his nomination 

were to be held up by a Senator for political reasons unrelated to the important job 

7

at hand. I look forward to his appointment swiftly progressing through this committee and the full U.S. Senate. 

Thank you Mr. Chairman and members of the committee.

Senator CANTWELL. Senator Thomas, I know senators’ schedules 

are busy so we appreciate you being here and giving testimony. 

Senator Enzi? 

PRESENTATION OF THE NOMINEE BY HON. MIKE ENZI, A U.S. 

SENATOR FROM THE STATE OF WYOMING 

Senator ENZI. Thank you, Madam Chairman, and thank you for 

holding this hearing today so that I might have the opportunity to 

introduce Mr. Sansonetti to the Committee. 

I have known him for 25 years. He moved to Gillette, Wyoming 

after he graduated from Washington and Lee University School of 

Law. He came to town in a 1966 Volkswagen and opened a oneman practice on Gillette’s main street. I do remember that as part 

of his operation he actually did get to handle some criminal cases, 

including a couple of real gunslingers. 

He eventually became intimately acquainted with Gillette’s 

booming energy industry. He worked hard. He became a part of the 

community. Because of his dedication, when I was mayor I appointed him to the city’s Board of Adjustment. He found out that 

that was an extremely difficult task since when you are on the 

Board of Adjustment there are no right answers, only wrong ones, 

and you are resolving them with people who will not appreciate either answer. He handled it admirably. 

While he was in Gillette he also served as president of the Campbell County Bar Association. He was chairman of the Campbell 

County United Way. He was vice chairman of the Campbell County 

Parks and Recreation Board and made a huge increase in the number of parks that we had throughout the county at that time. He 

was vice chairman of the Campbell County Chamber of Commerce. 

He developed his understanding of the environment, energy and 

natural resources by actually working in the trenches. During the 

time that he was in Gillette, the town almost tripled in size, which 

was due to the energy growth that we had. Gillette is in the heart 

of the Powder River Basin, an area that produces close to a third 

of the nation’s coal. It is also expected to lead the nation in the production of coalbed methane, which is a form of natural gas; it may 

be one of the single largest deposits of natural gas in the United 

States. 

At the same time, the area has been home to growing populations of deer, antelope, sage grouse, turkeys and elk, as well as 

a number of ranchers and farms. Through his associate with Gillette, he learned the true value of natural resources and I feel confident in saying that Tom would not do anything to compromise the 

continued sustainability of our nation’s environment. 

The experience there served him well in his later career as he 

represented the United States interests, as has been mentioned, as 

associate solicitor for energy and resources and then as Interior solicitor in 1990. As solicitor, Tom represented the United States in 

the Exxon oil spill litigation and signed the $1.1 billion settlement 

on behalf of the Department of Interior. 

8

He also served as counsel to the Endangered Species Committee, 

which was a Cabinet-level group convened by former Secretary of 

Interior Manual Lujan to resolve issues surrounding the Northern 

spotted owl, a big issue in the Pacific Northwest, as the chairman 

knows. 

Over the years I have watched Tom’s legal progress and I am not 

surprised by his success. He is a thoughtful, creative person who 

enjoys a challenge and whom even his opponents like. He sees 

every side of an issue. He can negotiate the most contentious situation into a happy resolution. He is fair. He gets the job done and 

he gets it done well. 

Part of my experience with Tom has been some annual dinners 

that he and a Wyoming district judge, who will be coming before 

this Committee to be a federal circuit judge, had on a regular basis. 

When we were having those dinners one would figure out the meal 

and one would provide the refreshment and the third would provide the issues and the discussions would go late into the night, 

solving the nation’s and the state’s problems. So I have had an opportunity to witness his thought process and his decision process 

and his values and I would highly recommend him to this Committee. He is a person who will do an outstanding job. 

I am pleased that he is joined today with his wife Kristi, who is 

one of my new staff members. She is an outstanding attorney in 

her own right. I highly recommend to you Tom Sansonetti. Thank 

you, Madam Chairman. 

Senator CANTWELL. Thank you, Senator Enzi, for your comments 

and your thoughts on Mr. Sansonetti’s long record and I appreciate 

your time and focus today at the hearing. 

Now I will ask my colleagues if they have any opening statements that they would like to make. Senator Hatch? 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. Thank you, Madam Chairman. 

It is a pleasure to be here this afternoon with someone as well 

qualified for this position as Tom Sansonetti. I congratulate you on 

being selected as President Bush’s Assistant Attorney General for 

the Environmental and Natural Resources Division. 

Now having reviewed your distinguished record, I have no doubt 

that you will provide great service to the citizens of this country 

upon confirmation. 

The division you have been nominated to lead is essentially the 

nation’s environmental law firm. The ENRD, as it is known, is responsible for litigation concerning the protection, use, and development of the nation’s natural resources and public lands. It also 

handles lawsuits involving wildlife protection, Indian rights and 

claims, the clean-up of the nation’s hazardous waste sites, and the 

acquisition of federal property for federal use. It also defends environmental challenges to governmental programs and activities. 

The person who oversees this important division and its approximately 700 employees must be someone with experience and fortunately Tom Sansonetti has a proven track record. As the solicitor 

of the Department of Interior from 1990 to 1993, he acted as the 

primary legal advisor to then Secretary Manual Lujan, Jr. You 

9

managed, Tom, a $32 million administrative budget and you 

oversaw the 900-case legal docket. 

You served as one of the six federal negotiators for the Exxon 

Valdez oil spill settlement and you were appointed counsel to the 

Endangered Species Committee for the spotted owl hearings in Oregon. Previous to that, you served for two years as the Interior Department’s associate solicitor for energy and resources. 

Equally important, Mr. Sansonetti has also gained familiarity 

representing private sector clients as a lawyer specializing in environmental and natural resources law, including cases regarding endangered species, water law, mining regulations, and Superfund 

sites. In short, I believe you to be a well rounded and highly competent lawyer with a reputation for fairness. Tom Sansonetti is exactly the person we need to lead the Environment and Natural Resources Division. 

So again, it is a great pleasure to welcome you to the Committee. 

I look forward to this hearing, working with Senator Cantwell, 

other members of the Committee, Chairman Leahy in particular, 

and others to make sure the Committee and the full Senate holds 

timely votes on your nomination. 

Senator CANTWELL. Senator Kyl? 

STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE 

STATE OF 

Senator KYL. Madam Chairman, I just ask unanimous consent to 

submit my statement for the record and would just note that I 

think it is a little incongruous to be so critical of the Bush administration’s enforcement of our environmental laws, note that Mr. 

Sansonetti will be the chief enforcer of those laws, but not get 

around to holding his confirmation hearing until November. I hope 

that we can quickly bring him to the Senate floor and get him confirmed so that he can join the administration and begin fulfilling 

those significant responsibilities. 

Senator CANTWELL. Senator Sessions? 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you, Madam Chairman. 

I had a brief opportunity to chat with Mr. Sansonetti and was 

most impressed but I have also enjoyed discussing this matter with 

the senators who testified here who know him intimately and have 

such a high opinion of him and their opinions mean a lot to me. 

I would just say this. He has an outstanding background. University of Virginia undergraduate school, his MBA at the fine University of Virginia masters of business administration program and 

his law degree at Washington and Lee. 

As the solicitor in the Department of Interior he got a first-hand 

look at the issues he will be dealing with in the Department of Justice. In many ways I would describe the Interior Department to be 

the in-house law firm for the government with the Department of 

Justice being the litigating branch ultimately, handling litigation 

that comes forth. Hopefully they will be able to advise or adhere 

to and support the Department of Interior regulations and ideas 

about how legal matters should be handled but they ultimately 

10

have their obligation and commitment to the Constitution and to 

the law of the land if the Department of Interior is in error. 

In many ways the Environment and Natural Resources Division 

impacts our nation. Mr. Sansonetti, I am glad that you have had 

in-house, in-government experience and I am glad you have represented private businesses. Businesses are not all evil and doing 

wrong. Most businesses want to do what the law says but so many 

of our environmental regulations are vague or hard to apply fairly 

and oftentimes lawsuits have tremendous import over the most arcane rules and regulations in the governmental statutes that we 

have passed and regulations that have been passed. 

So I think it is healthy to have someone who has had a history 

of enforcing the laws through the Department of Interior and, at 

the same time, had a history of representing individuals. 

And I do believe that there is a constitutional right to property 

in America and before property rights can be taken the government 

should have a legal basis to do so and I think and hope that you 

would have some sensitivity to that, Mr. Sansonetti. But fundamentally, the power of the Assistant Attorney General of environment and natural resources is not as great as some would say. 

Basically you are bound by the law and regulations that we pass 

here and the court rulings that have interpreted those regulations 

and statutes that we have passed and the Constitution, and I think 

your experience will put you in a good position to be a very effective leader. 

Thank you, Madam Chairman. 

Senator CANTWELL. Thank you, Senator Sessions. 

Mr. Sansonetti, I think what we would like to do, since we are 

expecting a vote at 2:30, is to call you up and administer the oath 

and have your testimony, maybe make introductions of family 

members that are here, and then it may be that we adjourn for a 

short time for members to come vote and then start the question 

and answer period after that. 

So if you will come forward and stand and raise your right hand, 

do you swear that the testimony you are about to give before the 

Committee will be the truth, the whole truth and nothing but the 

truth, so help you God? 

Mr. SANSONETTI. I do. 

Senator CANTWELL. So you are free to make any kind of introductions and opening statement. 

STATEMENT OF THOMAS L. SANSONETTI, OF WYOMING, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL FOR THE ENVIRONMENT AND NATURAL RESOURCES DIVISION 

Mr. SANSONETTI. Thank you, Madam Chairwoman and members 

of this Committee. 

First of all, Madam Chairwoman, I would like to introduce my 

wife Kristi. She is a Wyoming native, a Wyoming attorney who 

until recently worked as an attorney with Judge Brorby on the 

Tenth Circuit Court of Appeals. 

I would also like to thank the members of the Wyoming congressional delegation for coming to my hearing today and I greatly appreciate their kind words this afternoon. I have had the good forVerDate Feb 1 2002 08:24 Sep 25, 2002 Jkt 081753 PO 00000 Frm 00014 Fmt 6633 Sfmt 6602 C:\HEARINGS\81753.TXT SJUD4 PsN: CMORC
11

tune to know both senators and work with them for over 20 years 

and I am honored that they spoke on my behalf. 

I would also like to thank this Committee for scheduling this 

hearing, particularly when Congress is so engaged in responding to 

the aftermath of the terrorist attacks on September 11 and I appreciate the fact that you held this hearing today. 

As far as my statement is concerned, Madam Chairwoman, 90 

years ago both sets of my grandparents immigrated to America— one from Italy, the other from Slovenia. As they landed on these 

shores they hoped that their lives and the lives of their children 

would be better than the life that they had experienced in their 

countries. Both my parents were born in America into non– English-speaking families with little money but like me, they had 

the great American opportunity of education. And if they were alive 

today my grandparents would feel, as my parents and I do, that 

it is a special family achievement to appear before you today. 

And I do feel extremely privileged to be President Bush’s nominee for the position of Assistant Attorney General for the Environment and Natural Resources Division of the Department of Justice. 

I am excited about the prospect of serving our nation and working 

with Attorney General John Ashcroft and Congress on the numerous natural resource and environmental challenges facing our 

country. 

I strongly believe that it is our responsibility to conserve for future generations the opportunity to experience a cleaner, greener 

United States than we enjoy now. At the same time we must provide future generations with the same kind of opportunity for the 

quality of life and economic achievement that we enjoy today. The 

21st century will be a better place for everyone to live if we make 

wise decisions during these next few years concerning clean air, 

clean water and the multiple use for public lands. I am excited at 

the prospect of playing a role in that decision-making process. And 

in carrying out the duties of the Assistant Attorney General, if confirmed, I look forward to working closely with members of this 

Committee and other members of Congress to deal successfully 

with issues involving America’s natural resources. 

So if recommended by this Committee and confirmed by the Senate, I will have the opportunity to serve in what I believe to be one 

of the premier legal posts in the federal government. I am well 

aware that the legal positions taken by the ENRD’s attorneys directly affect the daily lives of all Americans. 

Now my personal observations of the federal government’s impact on its citizens’ lifestyle and livelihood are based in large part 

on my first-hand experience. As the senators noted, I have resided 

in Gillette and Cheyenne, Wyoming for 25 years and I did first 

move to Wyoming after earning my degrees from U.Va. and Washington and Lee in 1976. I began practicing as an attorney, first as 

a sole practitioner and then in partnerships with other Wyoming 

law firms, with a total of over 300 court cases to my credit. 

Now the variety of clientele I represented offered me a real-life 

perspective on the environment and natural resources issues facing 

our nation today. In particular, as a local attorney I experienced 

the benefits and the impacts of an oil, natural gas and coal boom 

on the citizenry of the nation’s smallest populace. Likewise, I obVerDate Feb 1 2002 08:24 Sep 25, 2002 Jkt 081753 PO 00000 Frm 00015 Fmt 6633 Sfmt 6602 C:\HEARINGS\81753.TXT SJUD4 PsN: CMORC
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served the beneficial effects of federal environmental regulations 

which required reclamation after extraction of coal, gas, oil and 

other minerals. And I also witnessed the devastating economic effects of the inevitable bust that followed. 

Now one of the assets that I believe I bring to the job of Assistant Attorney General, if confirmed, would be my previous government experience. I was the associate solicitor for energy and resources at the close of the Reagan administration and the solicitor 

of the Department of the Interior for three years during the early 

1990s in the George Bush administration. In both capacities I had 

extensive interaction with many of the nine sections in the Environment and Natural Resources Division. 

Serving in these previous administrations allowed me to develop 

an appreciation for the many positions in natural resources litigation and such litigation’s potential impacts on our citizenry. I have 

been exposed to the workings of Congress, the White House, the 

Office of Management and Budget, and the Departments of Agriculture, Energy, Interior and the Environment Protection Agency. 

I understand the need to develop strong working relationships with 

the other legal and policy decision-makers in these institutions. 

And having served as solicitor, I also understand the West’s thirst 

for scarce water resources that pits the federal government, individual states, sometimes Indian tribes against one another. I have 

visited reservations in eight states and know of the poverty and 

unemployment that can exist there. I believe that these life experiences will guide me as I work with attorneys under my supervision. 

I bring to the job of Assistant Attorney General a solid grounding 

in the legislative process, not only through my prior service in the 

executive branch but also from the vantage point of having worked 

in a congressional office. As the administrative assistant and legislative director for then–Congressman Craig Thomas during the 

101st Congress, I followed all of the proposed legislation before the 

House Resources Committee on which he served, plus monitored 

the actions of his Subcommittees on National Parks, Public Lands, 

and Water. 

Thus, I believe I have a clear understanding of the interrelationship between the executive, legislative and judicial branches of our 

government, having worked in the executive and legislative 

branches since 1987 and having practiced before the judicial 

branch for a quarter century during my legal career. 

I have met with several members of this Committee and am 

aware of many of your present concerns about the environment and 

natural resources issues. I understand the concern over the need 

to maintain strong field offices outside of Washington, D.C. while 

coordinating their activities with the policies established inside the 

Justice Department. I recognize that these field offices directly deal 

with many of the day-to-day concerns of your constituents. Accordingly, if confirmed, I plan to travel to those field offices regularly 

to ensure the best service possible is provided by the Environment 

and Natural Resources Division. 

Lastly, I like to think of myself as a problem-solver and a mediator. My years in private practice have convinced me that clients 

are best served by vigorous attempts to resolve disputes short of 

trial. To that end my door would always be open to you and your 

13

constituents in order to address their concerns in a fair manner. I 

need to hear their legal arguments and they need to hear mine. 

I will be happy to answer any questions that you may have today 

and I thank you, Madam Chairwoman, for this opportunity. 

[The biographical information of Mr. Sansonetti follows.]

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Senator CANTWELL. Thank you for your opening statement and 

again thank you for being here and for your wife being here. I am 

glad to see that Senator Enzi has used the judgment of both sides 

of the Sansonetti family in his political dealings. 

I think that since we are expecting a vote, the best way to do 

this is to recess until 2:45, hoping that the vote will occur at 2:30, 

and then we will be back to start questions. It is the chair’s intention to do rounds of 10-minute questions at that point in time, if 

that is helpful for members. Then we will rotate that and depending on how many questions members have, at least have two 

rounds and potentially three if there are people. Obviously we will 

submit questions and set a time frame for responses in writing for 

those but it is the chair’s intention that I will suggest to the chairman of the Committee that we do move quickly after this process. 

With that, we will recess until 2:45. 

[Recess.] 

Senator CANTWELL. The Senate Judiciary Committee will be in 

order. We are here this afternoon on the confirmation hearing of 

Mr. Sansonetti and thank you again for your opening statement. 

As I said earlier, we will start with our round of questions, to 

be basically 10-minute rounds among members. Since the chair is 

the only member here, I might get in a few rounds myself before 

others show up but nonetheless, I will defer to them as they appear. And as stated earlier, we will keep the record open probably 

for a week after this for questions to be submitted in writing to you 

and for your response on that. 

So let me begin with some general questions if I could, given 

your statement and comments, and then maybe get into some more 

specific questions about your background. And I know that Senator 

Enzi mentioned your involvement with the Endangered Species Act 

and the various dealings there, which are important to the Northwest, so I am sure I will have a few questions on that. 

But basically I would like to start with this larger dilemma that 

I see facing us and the country right now, and that is that there 

is a public perception that the administration may have acted in 

a variety of areas—arsenic in clean drinking water—in ways that 

may be backing off of our environmental commitment. I wonder if 

you agree that that has been the case and what generally do you 

think that we need to do to, in this position, convince the public 

that we are going to have an aggressive enforcement of our environmental laws? 

Mr. SANSONETTI. Thank you for the question, Senator. I think it 

is a very good one that individuals all across America are, of 

course, very concerned about their environment and to make sure 

the environment is protected. I happen to share in that belief, as 

I noted in my opening statement. I think it is our responsibility to 

conserve for future generations the opportunity to experience, as I 

said, a cleaner, greener United States than we have now and it will 

be this administration’s job to make that happen. 

Now obviously I have been on the outside practicing law in Cheyenne, Wyoming this year but I have been observing the administration’s activities and frankly look forward to an opportunity, if confirmed, to deal with the individuals that are helping to make those 

decisions at the Department of Interior, Agriculture, Energy and 

58

EPA. The key job is to enforce the law as it is written and to the 

degree that I am fortunate enough to be confirmed by this Committee, I promise you that I will enforce that law. 

Senator CANTWELL. So do you agree that there is a perception 

there that the administration may not have been enforcing environmental laws? 

Mr. SANSONETTI. There have been articles that have appeared 

that have hit on several of the decisions that have been made thus 

far by the administration and some probably do have a perception 

that the administration is perhaps not enforcing the law as well as 

they would like. But I think that to the degree that you have got 

an active Assistant Attorney General that is bound and determined 

to make sure that the law is enforced, if there is that negative perception out there I think that it can only improve for the better. 

Senator CANTWELL. Let me turn to some specific questions when 

you served previously as solicitor for the Department of Interior, 

which I think was from 1989 to 1993 and you had responsibility 

for guiding their legal policy. 

One of the issues that you were involved in was the Endangered 

Species Committee, the so-called God Squad, which is really a 

Committee of high-level administration officials who were to convene for the purposes of exempting an action from the Endangered 

Species Act. I am assuming you are very familiar with this. 

Mr. SANSONETTI. Yes. It has been 10 years but it was a very active part of my life in 1992. It was, I believe, only the third time 

that the Endangered Species Committee had ever been called together. There was the Teleco Dam, the Grey Rocks Dam and then 

this was the third time that the group was called together. 

I think the key import of my involvement in that, Senator, was 

that under the statute the solicitor is to be the general counsel to 

this special Committee and the secretary of the interior is to chair 

it along with, I believe it was several other Cabinet members were 

involved, individuals from the Department of Commerce, Agriculture, and the like. 

The toughest part of the job was that in this particular instance 

the petitioner was the Bureau of Land Management, an agency 

within the Department of the Interior, and one of the other agencies that was basically responding to that petition was the Fish and 

Wildlife Service, which is another agency under the same umbrella, 

the Department of the Interior. 

So I basically had to develop a system so that each group—the 

Bureau of Land Management and the Fish and Wildlife Service—

had representation from the body of lawyers that I had working at 

the Office of the Solicitor, put up a wall between the two so that 

they could each represent zealously their particular client, and 

then I had to make sure that I removed myself from the daily fray 

because it was my job to advise the secretary on what the law was. 

We ended up having an administrative hearing. A special judge 

was called in from Salt Lake City and that hearing was held actually in Oregon at the BPA headquarters for several weeks. At that 

time it was my job then to aid that administrative judge—his name 

was Harvey Schweitzer—through an act—by that I mean the portion of the act—that had never really been followed all the way 

through before. 

59

As I recall, the decision of the Committee was to grant in part 

and to deny in part the application of the Bureau of Land Management to allow timbering to go forward in areas that were considered critical habitat to the spotted owl. That particular decision 

was then voted on by the Committee as a whole. I do not remember 

the vote. It was a split decision, as I recall, maybe 5–2, and after 

the decision was rendered there was an appeal and, as I recall, the 

law requires the appeal to go straight to a circuit court, in that 

case the Ninth Circuit, and it was at that stage of the game that 

the Clinton administration came into power January 20, 1993 and 

I went back to Cheyenne, Wyoming. So that was my involvement 

in that particular experience. 

Senator CANTWELL. If I could ask a couple of follow-up questions, 

thank you for that explanation. I think that was a good summation 

of that process. 

During that time, though, there were a couple of issues that 

came up during that process. Obviously it was a very sensitive 

process, given the issues that were at stake. But first the issue was 

a lawyer from the Fish and Wildlife agency, obviously representing 

BLM and the Fish and Wildlife agency, two different agencies within your jurisdiction, but the fish and wildlife agency responsible for 

arguing against the exemption—BLM wanting the exemption and 

Fish and Wildlife did not—the person responsible for arguing 

against the exemption resigned in protest after being instructed to 

remove legal arguments from the brief. 

So my question is if you were aware of that request for removal 

of that information from the brief and when did you become aware 

of it? 

Mr. SANSONETTI. The answer to the question is, and I am glad 

that I was able to give the initial discussion because an associate 

solicitor for energy and resources—I think the gentleman’s name 

was Paul Cruzi—was the individual in charge of representing the 

BLM and an individual that was an associate solicitor named Dan 

Shilito was in charge of the Conservation and Wildlife Division, 

which represented the Fish and Wildlife Service, they found that 

during the period of time that the hearing was going on that they 

needed additional help. A request came from both of them to my 

office to see if they could hire outside counsel that had expertise 

in the spotted owl arena and I said yes, they could go ahead and 

hire those individuals to be part of their team. 

The individual that you referred to that resigned, I believe his 

name was Parento, was one of those outside individuals who was 

hired. The circumstance was as you described. He wanted to make 

some changes in a brief or did not want to make some changes in 

a brief as he had been instructed by the associate solicitor, who 

was responsible for filing that brief. 

I had removed myself from any of the day-to-day representation 

of either the BLM or the Fish and Wildlife Service because it was 

my job to represent the secretary on the Committee as a whole that 

was going to receive that brief. So I never got down and touched 

either sides—

Senator CANTWELL. How did you remove yourself? Officially remove yourself? 

60

Mr. SANSONETTI. I signed a document that said look, Mr. Cruzi, 

you are responsible for representing the BLM; Mr. Shilito, you are 

responsible with your team for representing the Fish and Wildlife 

Service; I am representing the secretary on the Endangered Species 

Committee. 

So I found out about what you are referring to long after the fact, 

which meant that the briefs were filed. This particular gentleman, 

who I never really even got to know because I was not part of that 

team, if you will, was the outside counsel who had been hired and 

he resigned. The brief was filed by the team representing the Fish 

and Wildlife Service. 

Senator CANTWELL. Do you think that the associate solicitor 

should have recommended that those documents be suppressed? 

Basically his argument was that the Committee should have never 

been convened to begin with. Apparently from what you have just 

said, the associate solicitor advised him, the person from the Fish 

and Wildlife agency, on his documents and what should be presented and asked him to suppress that information. 

Mr. SANSONETTI. I do not recall that particular part of what the 

argument was about. I do know that under the Endangered Species 

Act that the petition that began the process was one that was filed 

by the Bureau of Land Management. So I do not think that there 

is anything that the Fish and Wildlife Service could have done at 

the time to prevent the petition from being filed. 

And as far as the petition being dismissed is concerned, I think 

that it would have had to have been dismissed either by the BLM 

on its own account for some reason that it had changed its mind 

over desiring the exemption or the Endangered Species Committee 

itself. And, of course, they did not meet until there was the administrative hearing because they had wanted a hearing to attract all 

of the information from both sides before they rendered a decision. 

So if the dispute was over whether or not the petition should 

have been accepted, I think that would have been a moot question 

because the BLM had the right to file that petition. 

Senator CANTWELL. I think maybe I will come back to this questioning after we allow some of my colleagues to make statements 

but I think the issue is that the overall agency basically giving 

legal advice to both entities prohibited one of the entities or suggested to one of the entities that they not present information, I 

think primarily because the argument was relevant to BLM in 

other arguments that they were making in other cases and consequently recommended that they not use that information. 

But we will get back to this because it is an important issue in 

the process because it, I think, speaks to the significant challenge 

of representing a variety of agencies and the processes and procedures of adjudication and comment period. But I would like to 

thank my colleagues and the chairman of the Committee for being 

here and we obviously, before reconvening, had a chance for opening statements so I would like to give the chairman and Senator 

Feingold an opportunity—

The CHAIRMAN. Senator Feingold was already here. I will yield 

to him. 

Senator FEINGOLD. Madam Chairman, do you intend that we ask 

questions at this point or—

61

Senator CANTWELL. If you would like to make an opening statement or questions; it is up to you. 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Okay. I thank the chair and want to commend her for her leadership, particularly in this area on the Judiciary Committee. And, of course, I appreciate the courtesy of the 

chairman of the Committee. 

I am glad we are having this hearing today. I know that we were 

trying to get together to have a hearing, actually trying to work out 

the details on September 11, so I do not need to go much further 

as to the reasons for the delay but I am glad this is happening 

today. 

As you know, I have a strong interest in environmental and natural resources protection, which I would like to think is reflected 

in my legislative record. I share many of the concerns regarding 

the issues that senators have voiced today and you will hear from 

others on this Committee as well. I have worked with other members of this Committee in advocating for strengthening of federal 

environmental and natural resource law, including Senator Cantwell on her work on roadless policy; Senators Leahy and Durbin on 

mining law reform, Senator Durbin on protection of BLM lands in 

the West and our national monuments, and, of course, with Senator Kennedy, working with him to advocate retaining current federal court interpretations of takings law. 

We in this Committee and in the legislative branch have the opportunity and the privilege of being advocates for change as have 

you during much of your career in the Interior Department and as 

a lobbyist. However, as you know, the job for which you are now 

nominated requires you to also demonstrate for this Committee 

your ability to avoid the appearance of conflicts of interest in the 

conduct of your job and to defend impartially the United States federal environmental and natural resource laws, despite potential 

conflicts with your personal views. 

I am certain that in your time at the Interior Department you 

were required to show such impartiality and the questions that I 

am going to ask, Madam Chair, are in that spirit. 

First, Mr. Sansonetti, much of the material you submitted to the 

Judiciary Committee describes the body of work that you have done 

and tends to be regionally focussed on Western and Alaskan issues. 

However, we are a very diverse Committee with members representing many regions of the country. Would you tell me, in your 

time as solicitor and as assistant solicitor at Interior, were you able 

to specialize in particular areas of decision-making? In addition to 

your Endangered Species Act work, can you describe other policies 

upon which you worked that are more national, rather than regional, in scope? 

Mr. SANSONETTI. Thank you, Senator. That is a very good question and I appreciate the opportunity to tell a little bit more about 

the previous experiences that I have had. 

I do come from a small town in Wyoming, Gillette, Wyoming. My 

practice was a local one to begin with and then it gradually developed into a specialty of environment and natural resources law beVerDate Feb 1 2002 08:24 Sep 25, 2002 Jkt 081753 PO 00000 Frm 00065 Fmt 6633 Sfmt 6602 C:\HEARINGS\81753.TXT SJUD4 PsN: CMORC
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cause that is what Wyoming does. If you are an attorney out there, 

that is the type of clients that you have. 

When I came into the government for the first time it was as associate solicitor for energy and resources at the Department of the 

Interior. I had three main clients, if you will, within the department: the Bureau of Land Management, the Bureau of Reclamation 

and the Mineral Management Service. I had a group of about 41 

lawyers, $3–4 million budget. 

The BLM lands are largely, of course, Western in nature so many 

of the issues that we got involved in dealt with the surface use of 

those lands—grazing, some timbering, oil and gas leasing, coal 

leasing. The Mineral Management Service was responsible for the 

royalty collections from there. I was also responsible for oil and gas 

leasing in the Gulf and Mexico and offshore. The Bureau of Reclamation has as its major chore to supply the water projects and 

to delve out the water already formed behind those water projects 

throughout the West. 

What I found was that the reach of the Department of the Interior is really all 50 states and questions that came up that crosscut through the department can touch on things dealing with Indians. There is an associate solicitor for Indian affairs, for instance. 

Conservation and wildlife, which is our national parks, which are 

found in all the different states. 

So as an associate solicitor—there are five all told—I found myself continually working with those who were involved with reclamation at OSM, the national parks, Indian matters, and the like. 

That just broadened by a number of 100 when I got to be the solicitor myself. All of a sudden there were 225 attorney in 23 cities 

all across the United States. So for that three years that I was solicitor I had an opportunity to work with folks out of regional offices in Atlanta, Boston, field offices in Minneapolis–St. Paul, 

which happened to be the area that covered your home state of 

Wisconsin, got into Indian gaming matters, which certainly took 

me from the Connecticut case, which kind of formed the predicate 

of the Indian Gaming Regulatory Act that was filed by former senator, then Governor Lowell Weicker, to those very same questions 

in California and Hawaii. 

We did a little group study of the associate solicitors and the 

deputy solicitor and myself at the end of my tenure and we found 

that during our three years that we had had matters that ended 

up touching 46 of the 50 states. And in that role I personally traveled to every one of those 23 field offices, from Anchorage to Atlanta, from Boston to Window Rock, Arizona, to make sure that I 

knew what was going on in those offices, got to meet the people 

personally and got a chance to work with the congressmen and the 

senators in those areas that had concerns about what the Department of the Interior was doing. 

Senator FEINGOLD. Thank you for that answer. Now I would like 

to ask you about a matter. You appeared before a Senate Committee to testify on behalf of the National Mining Association in 

support of a measure to expand mining opportunities on federal 

lands controlled by the Bureau of Land Management. Companies 

are limited to leasing 46,000 acres of federal coal land in any one 

state and 100,000 acres nationwide. The legislation that you supVerDate Feb 1 2002 08:24 Sep 25, 2002 Jkt 081753 PO 00000 Frm 00066 Fmt 6633 Sfmt 6602 C:\HEARINGS\81753.TXT SJUD4 PsN: CMORC
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ported would have increased those limits to 75,000 acres in any 

state and 150,000 acres nationwide. 

As the 3809 regulations and the milsite issues are controversial 

now and likely to be litigated, do you share a similar view regarding the need for additional lands in hardrock mining? 

Mr. SANSONETTI. I think they are totally two different questions, 

totally two different questions between the need for additional 

lands for coal mining and that for hardrock mining. Of course, the 

hardrock mining comes under the 1872 mining law whereas the 

coal leasing comes under the 1920 Mineral Leasing Act, as amended. 

The nature of the question, and I am really glad you asked this 

one because some people just see the numbers and they say jeez, 

if something was 47,000 acres and now it is 75,000 acres, that is 

a big amount. 

The problem is merely this. Laws were passed right after World 

War II, later amended in the mid-’60s to make sure that no one 

or two companies could obtain a monopoly or an oligopoly over any 

of our minerals. There are these types of safeguards for all sorts 

of different minerals. 

As far as coal was concerned, the law was passed at a time before strip mining had become popular. The states that produced the 

majority of coal were places like Pennsylvania and West Virginia. 

Today Wyoming happens to be the largest producer of coal in the 

United States, then Kentucky and then I think Illinois, largely 

through strip mining. 

So the methodology for the extraction of coal made it such that 

47,000 acres was already being bumped up against by the four or 

five or six major companies that were operating not only in Wyoming but in other states like Utah, which were affected. The 

amount of coal being taken out today from a Wyoming or an Illinois or a Kentucky are 20 times what they were back in the 1960s, 

so they needed to expand the limit so that existing companies did 

not have to stop and go out of business. So that was the purpose 

for the legislation and I believe it passed by the Senate and the 

House by large margins. 

Senator FEINGOLD. I have just one more question. I thank the 

chair and especially the chairman of the Committee. 

As recently as April 2001 you were listed as a member of the Defenders of Property Rights Lawyers Network on the organization’s 

website. That organization has testified several times before this 

Committee about the need to establish bright line compensation 

rules and change plaintiffs’ rights in court actions which are now, 

I think, reflected in a bill, S. 1412. 

Is that a position you still hold, and, if so, is that a position you 

will give up upon becoming Assistant Attorney General? 

Mr. SANSONETTI. I would like to ask you again what group I was 

supposedly listed in? 

Senator FEINGOLD. You are listed, I am told, as a member of the 

Defenders of Property Rights Lawyers Network on that organization’s website. 

Mr. SANSONETTI. Mmm. I do not happen to be a card-carrying 

member of that organization. I would be curious to know how I got 

on it. I happen to be a fan of personal property rights and I think 

64

that the Fifth Amendment is there for a particular reason but I am 

no dues-paying member and I am not sure how I would have gotten 

onto that particular website. 

Senator FEINGOLD. I take it the Committee can assume that we 

can work to have your name removed from that website. 

Mr. SANSONETTI. I would be delighted to have you help me do so. 

Senator FEINGOLD. Well, I thank you and again I thank the 

chair. 

Senator CANTWELL. Senator Leahy. 

Chairman LEAHY. Thank you, Madam Chair. 

Obviously if it is a group that is listing you as a member you 

would not need our help. That is something that simply a phone 

call from you would get it off there. 

Mr. SANSONETTI. Yes. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Chairman LEAHY. I want to thank Senator Cantwell. We are all 

doing triple duty around here and I thank her for taking the time 

to do this. Most of the members of this Committee have been out 

of their offices for several weeks now. Even on the day when we 

were evacuating the Capitol, we still held hearings, a number of 

nomination hearings of the Judiciary Committee and a number of 

votes to confirm people within the Committee. And Senator Cantwell has made it possible, being one of those who has helped very 

much in putting together hearings that could not be done otherwise. 

In your case we are talking about the Department of Justice environmental lawyers. They are the ones that have to ensure the 

preservation of wildlife, our indigenous people, have to preserve our 

natural resources, not just for us but for our children’s children. 

Earlier this year during the confirmation hearing for the position 

of attorney general of the United States there was considerable discussion about what following the law means in relationship to that 

office because the Department of Justice is really in many ways the 

law office for the agencies of the federal government. I say this because they have a great deal of discretion not only in which cases 

to prosecute but which ones to decide not to prosecute or even 

which ones to drop. 

Environmental law is an important point in that case. The Department of Justice can provide a visible and responsible face for 

environmental law policy. I believe during the Clinton administration they showed stewardship and advocacy and they strengthened 

the federal government’s institutional commitment to these important goals. In fact, they built up a very impressive cadre of professional talent, men and women lawyers, both Republicans and 

Democrats, who made those goals an impressive reality and I think 

it is essential that we continue the momentum that was created by 

them. I would like to see their accomplishments be built upon, not 

torn down. 

So a number of questions have come up, I know, by other senators and I have heard it and it actually raises a question with me. 

Mr. Sansonetti, I enjoyed my talk with you and a number of my 

friends have spoken very highly of you in both parties. They also 

65

noted that you worked long and extensively as a lobbyist for the 

largest coal companies in the country and I wonder what that 

means for some of the very important cases confronting the Environment and Natural Resources Division, what you do in those 

cases. 

I am concerned about things like the enforcement of the new 

source review provisions of the Clean Air Act, especially as it relates to coal-fired utility plants. 

And then the press says that the Bush administration is launching a quiet campaign to roll back environmental protections, not by 

seeking legislation, which would not pass, but by simply failing to 

enforce existing requirements; for example, refusing to defend 

pending cases, continuing to settle conflicts to the benefit of industry rather than environmental interests, almost by saying ‘‘Go 

ahead and pollute; we don’t give a hoot’’ is really what it comes 

down to. 

We have seen this once before. This happened about 20 years ago 

where a lot of these environmental laws could not be repealed, they 

were passed by bipartisan majorities, so simply they would not enforce them. And I know that it is a tremendous power that the enforcers have. They can enforce a law that the Congress has passed 

or they can ignore a law or they can enforce it so weakly that it 

might as well be off the books. 

So I would ask, let us start with the new source reviews. The 

Clean Air Act requires such reviews whenever a major source of 

pollution, such as refineries and electric power plants, undergo 

major modifications. In the 1990s we saw vigorous enforcement of 

these requirements but now various energy interests, including the 

coal industry clients for whom you have been lobbying in recent 

years, are reportedly making efforts to rescind Department of Justice and EPA enforcement actions against energy producers under 

those new source review requirements. 

[The prepared statement of Senator Leahy follows:]

PRESENTATION ON THE NOMINEE BY THE HON. PATRICK LEAHY, A U.S. SENATOR

FROM THE STATE OF VERMONT

I welcome Mr. Sansonetti this afternoon. 

The position of Assistant Attorney General in the Environment and Natural Resources Division has always been important, but it is especially so as we begin a 

new century, ever more aware of the fragility of our existence and the importance 

of the Earth which sustains us all. Important as well is the effort we are all making 

to ensure that Americans faith in their government, and its many institutions, is 

deserved and preserved in the wake of the special strains that have been placed 

upon all of us, as individuals and public servants, since the terrorist attacks of September 11. 

We have all worked together to expedite the paperwork necessary to consider this 

important nomination and today, and I am pleased that we are able to proceed 

today. 

Having begun his career as a small firm practitioner, Mr. Sansonetti has most 

recently worked in the private sector as well. But between 1987 and 1993, he served 

as Solicitor in the Department of the Interior, as Chief of Staff to Representative 

Craig Thomas, and as Associate Solicitor at Interior. The person who fills this position as Assistant Attorney General not only needs the full confidence of the President and the Attorney General; he also needs the confidence and trust of the Congress and the American people. We all look to the Department of Justice’s environmental lawyers to ensure preservation of our precious wildlife, protection of our indigenous peoples, and principled approaches to managing our nations natural resources. 

66

Earlier this year, during the confirmation hearings for the position of Attorney 

General of the United States, there was considerable discussion about what ‘‘following the law’’ means in relation to the responsibilities of that office. The Department of Justice, in many respects, is the law office for the agencies of the federal 

government. The Department and its officers have great discretion in what cases to 

prosecute, and which to settle or drop. Environmental law is an important case in 

point. 

The leadership at the Department of Justice plays an important role in providing 

a visible and responsible face for environmental law enforcement and policy development. The stewardship and advocacy provided during the eight years of the Clinton 

Administration strengthened the federal government’s institutional commitment to 

these important goals, and built up an impressive cadre of talent in the Division 

to make those goals into impressive realities. It is essential that the momentum created by these dedicated public servants be maintained, and that their accomplishments be built upon, as we continue as a nation to address the critical issues our 

society faces in terms of caring for our nation’s natural resources and handling our 

society’s environmental responsibilities. 

With that said, there are several aspects to Mr. Sansonetti’s nomination that give 

me cause for concern. They are reflected more broadly in the questions that I, and 

I believe other Senators, intend to ask today and in written follow-up, but I would 

like to highlight two of my most pressing concerns now. First, Mr. Sansonetti has 

long worked extensively as a lobbyist for the largest coal companies in the country, 

and I am very concerned that he will necessarily be recused from some of the most 

important cases confronting the Environment and Natural Resources Division because of that representation. But perhaps even more importantly, I am concerned 

that those ties will be reflected in his attitudes towards the many important issues 

dealt with in the Division, especially those involving enforcement of the ‘‘new source 

review’’ provisions of the Clean Air Act relating to coal-fired utility plants. The Bush 

administration is widely reported as having launched a quiet campaign to roll back 

environmental protections by simply failing to enforce existing requirements, refusing to defend pending cases, and continuing to settle conflicts to the benefit of industry rather than environmental interests. I am concerned about Mr. Sansonetti’s role 

in these efforts, and whether he will be able to rise above his past practice and his 

apparent inclinations, in order to guarantee the American people the level of rigor 

and dedication that consistent and responsible enforcement of the environmental 

law demand.

Chairman LEAHY. Do you believe the new source review requirements are being met adequately in this administration? 

Mr. SANSONETTI. Thank you for your question, Senator. And I 

did also enjoy our visit. 

I would say as starters to answer your question that one of the 

first things I did after I was nominated in May to prepare myself, 

if confirmed, to take over this task was to actually go back and 

visit with previous Assistant Attorney Generals that have held this 

particular job. In fact, I have tracked them all the way back to the 

Ford administration. So I did have an opportunity to sit down for 

a couple of hours with the immediate predecessor, Lois Schiffer, 

and visited with her about the way that she brought cases, when 

to bring them, when to dismiss them, how to reach consensus with 

the different departments, and I think that I would try to do the 

same thing if I were so fortunate as to be confirmed by the Senate. 

As far as the new source review is concerned, the law is the law 

is the law. Until you all in the legislative branch change it and the 

president were to sign that change into law, it is my view that it 

is the Department of Justice’s job to enforce the law as it is written 

and to uphold that rule. 

Chairman LEAHY. Do you see a less strict enforcement than has 

been in the last eight years? 

Mr. SANSONETTI. I do not know that I would be a very good judge 

of that. I frankly have been practicing law in Cheyenne, Wyoming 

during this last eight and a half years so I have not been involved 

67

in cases at the Department of Justice concerning the new source 

review. 

Chairman LEAHY. But you have talked with the people who were 

in charge of enforcing that law. 

Mr. SANSONETTI. I have and to the extent that I have visited 

with the people that are at the Department of Justice right now, 

I think that it is my opinion that they are enforcing the law and 

that they are doing an evenhanded application of it. 

Chairman LEAHY. Well, how recently have you been a lobbyist 

for the coal companies? 

Mr. SANSONETTI. As a formal lobbyist it was on the bill that I 

was referring to Mr. Feingold about and so I believe that was in 

the last Congress, so that is when that would have been, in the 

106th Congress. 

Chairman LEAHY. Well, those same coal companies or many of 

those coal companies oppose enforcement of these laws. How do you 

do your balance from that? I mean if you have a new source review 

case in question do you recuse yourself from those questions, having so recently had a client who opposed them? 

Mr. SANSONETTI. I think that as far as when and if and how I 

should recuse myself I am first of all, quite aware of the fact of how 

ones background measures up against the new job that you have. 

In this case, as I noted before, I am a lawyer from Wyoming and 

I was proud to have the clients that I had. But if confirmed, I 

would abide by the Department of Justice’s recusal policies and 

they have a list of who my clients have been over these years and 

I would go see the ethics personnel at the Department of Justice 

and say, ‘‘Is this a case I should be involved in or not be involved 

in?’’

Chairman LEAHY. Well, let us take a couple of those clients. How 

about Peabody, Kennecott or Arch? Suppose you had cases directly 

involving them? Is that a black and white question for you? 

Mr. SANSONETTI. I think if it is a matter that I personally dealt 

with or a subject matter that I specifically dealt with on behalf of 

those companies, yes, and I would have to recuse myself in that regard. 

Chairman LEAHY. I am not talking about directly. I mean they 

might not have a case where they come in and say this case was 

pending earlier and counsel was Thomas Sansonetti; today’s counsel is Mary Smith. There are related cases. You know the positions 

they took on how they felt this act should be enforced and now you 

have Peabody or Kennecott or Arch before you. Can you really, 

even if it is not the exact case you worked on, can you really separate yourself from that? 

Mr. SANSONETTI. I think I can and I think that I have done so 

in the past. I think that to the degree that I have gone through 

this process twice before, the key to the answer to your question 

is that the attorney needs to keep in mind who his or her client 

is. I had those clients in the 1980s and when I became associate 

solicitor it was my job to enforce the law against those folks when 

they broke it. 

The same thing in the 1990s. I was responsible for the Office of 

Surface Mining that was the organization that chased those coal 

companies that did not reclaim as they should and I have never 

68

heard or been told that I did not do that job with vigor and I would 

do it again. 

Chairman LEAHY. Well, you understand the appearance problem. 

I think Newsweek reported that you were in an energy lobbyist 

meeting at the American Petroleum Institute offices here in Washington, I believe, in January, helping develop a list of proposals for 

changes to federal environmental policies to forward to the new administration’s transition team at the Department of Interior and 

then to Vice President Cheney’s Energy Task Force. 

Now there is nothing wrong with doing that. A lot of people I 

know very well and have a great deal of respect for were part of 

the new president’s transition team. I think it is great when people 

are willing to give that time to whoever the president is. But now 

you have been nominated to a position that will allow you to give 

effect to the laws as they exist or as they might have been changed 

by the task force recommendations and the lobbyists that you had 

worked with. 

Do you come into a situation where there is the appearance—for 

example, you made recommendations that there be certain changes 

or that there be less enforcement of such-and-such a law and now 

you are in a position to do that. Are you going to raise a question 

of appearance in the public, a justifiable appearance in the public? 

Mr. SANSONETTI. I am delighted that you highlighted this issue. 

I have heard this from a number of different folks and I—

Chairman LEAHY. I told you I would give you a chance to answer 

these questions. 

Mr. SANSONETTI. I welcome the opportunity to answer that question. 

First of all, the Newsweek article that you referenced is one that 

I was never contacted by the writer of and I never got a chance 

to get my side of that story out. It was just hey, this person met 

with a group of individuals at the Petroleum Institute and heard 

what their ideas were as to what the new administration should do 

and somehow it had the connotation that that was bad. 

Let me state for the record that I was honored to have been 

asked to be part of the Bush–Cheney transition team. I was assigned to the Department of Interior team, given my previous experience there. As part of our duties assigned by the vice president, 

who was placed in charge of the transition, besides resume review, 

preparing Gale Norton for her hearings and the like, it was our job 

to do an outreach program with all the different entities that would 

have a stake in what the new policies of the Department of Interior 

would be. 

So while I did attend that particular meeting that you referred 

to that had individuals from the oil and gas community in it, I also 

held meetings with people from the Indian community from different tribes, I met with different environmental groups, I met with 

the Teamsters, different labor organizations, well over 20 different 

groups in meetings that were there. My job was just to extract 

from them what they thought the administration’s policies would 

be. 

Chairman LEAHY. Did you make any recommendations? 

69

Mr. SANSONETTI. I wrote all of them down and turned them over 

lock, stock and barrel to the people that went over to the Department of the Interior. So recommendations, no. 

Chairman LEAHY. Did you take part in any of the recommendations that were made for changes in the law or for enforcement of 

the law? 

Mr. SANSONETTI. No, because our job was to gather the desires 

and facts of those that were out there and they were listed and delivered to those that went to the Department of the Interior. 

Chairman LEAHY. Well, let me ask you on the specific ones, Senator Jeffords has introduced a bill, the Clean Power Act of 2001, 

that would amend the Clean Air Act to require reduced emissions 

at coal-fired plants beginning in 2007. Along with requiring reductions in sulphur dioxide, nitrogen oxide and mercury emissions, it 

would require reductions in carbon dioxide emissions. The Bush administration has taken the position that carbon dioxide is not a pollutant that should be regulated. What is your view on carbon dioxide and is it a pollutant? 

Mr. SANSONETTI. I am afraid that I do not have a position on it, 

Senator. It is an area that I am not familiar with. I am an attorney, not a scientist, so I do not know the answer to that. 

Chairman LEAHY. Fine. So you would expect that you would be 

obviously ultimately controlled by whatever the administration’s 

position was? 

Mr. SANSONETTI. I believe that ultimately whatever the policy 

may be, it will come from those client agencies that you referred 

to earlier. Maybe it is EPA, maybe Interior will be involved but 

whatever is decided, I am sure that it will be decided there. My 

role as the managing partner, if you will, of a 400-person law firm 

would be to defend cases either brought against the United States 

or to bring them when enforcement of a law is required. 

Chairman LEAHY. The Clean Air Act allowed grandfathering of 

older plants and this bill I just referred to would not allow the 

older, more heavily polluting coal-fired plants to escape regulations 

because of their age. I think it says that if they reach their 30th 

year of operation they have to comply with the new source review 

standards of the Clean Air Act or by five years after passage of the 

bill that Senator Jeffords has recommended, either one. 

The National Mining Association—you spoke for them at a hearing just last year; they said the reductions required are draconian. 

Do you believe that reducing greenhouse gas emissions is a reasonable objective of federal legislation? 

Mr. SANSONETTI. I think that all of us in America are concerned 

about the potential negative effects of greenhouse gas and to the 

degree that they can be lowered, that that is a good result. 

As far as the National Mining Association’s opinion on that particular issue is concerned, if they do not like the law as it is presently written then it is their chore to change it. Once I am in position as Assistant Attorney General, it would be my role to enforce 

the law as it is written. 

So consequently I would like to reemphasize that there is a difference and I hope it is one that is not confused, between my legal 

expertise and what I happen to have been working on and have 

that mixed with somehow that there would be a biased approach 

70

to law enforcement because those used to be my clients. That has 

not happened in the past and it will not happen in the future. 

Chairman LEAHY. We have a vote on and I understand the chair 

wishes to recess. Who has the final say on whether to defend a suit 

or bring a suit? Is it EPA or ENRD? 

Mr. SANSONETTI. Again I have not been inside the building so I 

do not know what the protocols are within. When I was at the Department of Interior, Interior made its recommendations on cases 

at the district court level, working with the attorneys within Justice and usually they were a matter of consensus. 

If there was a question on an appeal, if something should be appealed or not, then it was the solicitor general’s office that had the 

final say. 

Senator CANTWELL. Thank you. Since we do have a vote that I 

think is well under way, we are going to recess for 15 minutes and 

it is the chair’s intention to hopefully reconvene about 3:50. So we 

stand at recess. 

[Recess.] 

Senator CANTWELL. The Senate Judiciary Committee will reconvene on the nomination of Mr. Sansonetti. 

Thank you for your indulgence today, for these numerous vote 

interruptions. I think we are safe for at least another hour here so 

I appreciate your hanging in there with us as we go through a variety of remaining questions. 

And I just will remind that members can submit questions in 

writing and that will be open for a week after this hearing and 

hopefully you can get the answers back to those written statements 

in an expeditious fashion. 

I would like to go back to some questions that we had started 

in my first round related to the Endangered Species Committee 

and your time at Interior and talk about for a few minutes the fact 

that there was a second issue involved in that decision as it related 

to the Oregon case. That basically was the fact that there was a 

challenge in the Ninth Circuit that the members of the should have 

been protected from ex parte contacts with the White House and 

I am not sure if you are familiar but basically the proceedings with 

regard to political pressure, there were some comments from the 

White House to the Committee as it regarded their decision and I 

wanted to discus that with you. 

As solicitor and counsel for the Endangered Species Committee 

you prepared a memorandum that asserted that the Committee 

proceedings qualified as a rulemaking rather than an adjudication 

under the Administrative Procedures Act and as that and as a result, the ex parte contacts between decision-making members of the 

Committee and interested parties, such as the White House, were 

not prohibited. 

The Ninth Circuit subsequently found that not only were the 

Committee proceedings and adjudication, basically a quasi-judicial 

process, but even if they had been a rulemaking, ex parte contacts 

with the White House should not have been allowed. So I would 

like you to tell me your basis of the memo for determining the contacts and to your knowledge what kind of communication did happen between the Committee and the White House at that time. 

71

Mr. SANSONETTI. Boy, it has been a while and to be perfectly 

honest, I did not even recall that until you just read it to me. 

I guess the first thing is that I never was contacted myself by 

the White House. I think that the claimed ex parte contacts were 

probably made from the White House to members of the Committee 

themselves, perhaps the secretary or whatever. I was asked to evidently develop that memorandum as an aid to the people on the 

Committee as to whether or not they could receive input from the 

White House. Evidently I felt that the answer was yes, they could, 

the Ninth Circuit said no, you cannot. 

So if this happens again and we are under the same law because 

to my knowledge this particular portion of the ESA has not been 

revised or amended since 1992, there would be no contact allowed. 

At least that is what I am reading into your statement. 

Senator CANTWELL. Do you know if other members of that Committee were contacted by anybody from the White House at that 

time? 

Mr. SANSONETTI. I personally do not, no, but the question would 

not have come up if it had not occurred so I assume that there 

were contacts. I am just not sure who was contacted and by whom. 

Senator CANTWELL. And to my earlier question you said that you, 

through memo or process, recused yourself from that process at the 

time, that you had not given counsel to the assistant solicitor who 

then advised the Fish and Wildlife agency. 

Mr. SANSONETTI. That was once the petition was filed. In other 

words, up to the point where the petition by the BLM was filed for 

an exemption from the ESA, then all the questions dealing with 

the spotted owl matter were handled under the umbrella of the Department of the Interior. So I had charge at that point over all 225 

attorneys. Once the petition was filed, that is when we had to look 

at the statute and try and figure out how do we implement this because it is not something that had happened very often. 

And in the for-what-it’s-worth department category and getting 

back to a portion of my opening statement where I said that I 

hoped to be able to work with you and this Committee to make the 

laws better that we all want to enforce, after that exercise was 

over, having seen both the good parts and difficult parts of the 

statute to be able to implement, I obviously have some background 

now, what it is like to go through that process. 

So when and if the time comes for the Endangered Species Act 

to be reauthorized and changed for the better I hope I have a 

chance to visit with you about the entire process and how to make 

it better. 

Senator CANTWELL. Well, do you think that this document where 

you said that you recused yourself exists in a fashion that the Committee could have access to it? 

Mr. SANSONETTI. I do not know. I really do not remember. It has 

been too long. But there would have been guidance given to the two 

associate solicitors saying you represent the Fish and Wildlife Service, you represent the BLM, and the solicitor is representing the 

Endangered Species Committee. 

Senator CANTWELL. In several articles that were written at the 

time, mostly in the Oregon newspapers, there was quite a bit of 

discussion about this because again in this sense, we had two agenVerDate Feb 1 2002 08:24 Sep 25, 2002 Jkt 081753 PO 00000 Frm 00075 Fmt 6633 Sfmt 6602 C:\HEARINGS\81753.TXT SJUD4 PsN: CMORC
72

cies, one arguing for the endangered species and upholding and the 

other arguing against it, all within the purview of your responsibilities and one, it seems, assistant solicitor telling the agency not to 

present certain information that would have been damaging to the 

other agency. In that article it states that your responsibility included giving advise on litigation strategy to all agencies within Interior. 

So it would be helpful if we just had that document or that information. It would be helpful to the Committee. 

Mr. SANSONETTI. Okay, I will see what I can do about finding it, 

tracking it down. 

Senator CANTWELL. Thank you. 

I would like to turn now—I know my colleague from Wisconsin 

asked about mining issues so I would like to turn to another area. 

In a matter that you handled as solicitor of Interior you issued an 

opinion that was criticized by the District Court in Columbia for 

failing to comply with the public participation requirements of the 

Administrative Procedures Act. In this opinion you wrote that a 

provision of the mining law that protected the rights of surface 

landowners to be free from damage from mining did not apply to 

below-ground or subsistence mining. 

The court did not take issue with the substance of the petition 

but it found that the Department of Interior ruling was a rulemaking governed by the Administrative Procedures Act and that 

Interior violated the acct by not allowing public participation in the 

form of notice and comment or preparing an environmental impact 

statement. 

The reason why I am bringing this up is because there are so 

many issues now with the administration on questions of environment, whether it is the roadless area rule or others in following the 

Administrative Procedures Act, so I just want to ask you a few 

questions about that. 

Specifically, do you agree with the decision of the court in this 

particular case, which was the National Wildlife Foundation versus 

Babbitt, that the Interior Department decision did not protect sensitive surface areas from the effects of subsistence mining and required public comment and preparation of an EIS? Do you agree 

with the decision? 

Mr. SANSONETTI. Well, I frankly have no recollection of that decision and have not read it but to the degree that that is law then 

it does not matter whether I disagree with it or not. I will abide 

by it if that is what the law in place right now is, NWF versus Babbitt. Again I have not read it and am not familiar with its holding 

but if that is presently good law then I am bound to follow it. 

Senator CANTWELL. I know we are bringing up questions from 

your past responsibilities and anything that you feel more comfortable with coming back to the Committee on is fine, as well, as 

you refresh yourself with information. 

So in general as it relates to the applicability of the APA in allowing public comment in that process regardless of the time and 

expense, you support that process or you do not— Mr. SANSONETTI. I certainly do. I support do support the APA 

and I would note that the rulemakings that would be coming out 

of this administration will actually be coming out of places where 

73

I used to be, like the Department of the Interior, but also other 

agencies in departments like Agriculture, Energy, Defense and the 

like. So those rules are basically promulgated out there and they, 

of course, are going to need to abide by the APA in so doing and 

it is after those rules and regulations come into existence and are 

challenged that I would now get involved in it. 

So I will not be involved in the actual drafting of those rules over 

at Interior in this particular role as Assistant Attorney General if 

I were confirmed. 

Senator CANTWELL. Well, let me ask you a question then that is 

a little more specific and that is the roadless area rule, which 

would protect 58 million acres of our national forest and this rule 

was developed by a multi-year process of public input, over 1.6 million public comments, and something that a lot of people across the 

country support enthusiastically. 

During his confirmation last January I asked Attorney General 

Ashcroft about this issue because I thought it was a clear case in 

which he may be coming into office on something that he may not 

have supported as a United States senator and may be coming in 

as attorney general to enforce a law that was done by the Administrative Procedures Act that would then be on the books but it may 

not be something that his new boss was enthusiastic about, so I 

thought it was a very relevant question for his hearing. And under 

oath he said, ‘‘I will uphold and defend any rule that has the full 

force and effect of law.’’ And since that time and that commitment the Boise Cascade 

Timber Company has sued the Forest Service and sought an injunction preventing the rule from taking effect and the Department 

of Justice has done the following, basically in defense of the rule, 

which really has not been much a defense is my point because 

they’ve failed to impose the injunction on the merits, they read a 

prepared statement and made no arguments at the hearing on the 

issuance of the injunction, they filed a follow-up brief with the District Court that was virtually identical to the press release issued 

by the Department of Agriculture, filed no appeal of the granting 

of the preliminary injunction, and filed no briefs when the appeals 

to the injunction were filed by environmentalist groups which 

granted expedited review by the Ninth Circuit, and failed to appear 

at the hearing before the Ninth Circuit just two weeks ago. 

So here we have a rule that is basically on the books and yet we 

are not really defending it. So I guess my question to you is in your 

reaction to this do you think what the Department of Justice has 

done constitutes a defense of the rule? 

Mr. SANSONETTI. Well first of all, I want to acknowledge that this 

is a very important issue. It is one that you and I discussed when 

we had a chance to visit last month and I know that this is high 

on your list of priorities. As a consequence, it is going to become 

high on my list of priorities. 

As you also know, I have not had the opportunity of being inside 

the Department of Justice yet so while I have been paying more 

attention since our visitation about the roadless rule as I have been 

following it in the newspapers, I have not yet had the opportunity 

to visit with whoever the attorneys are that are assigned to this 

matter inside the Department of Justice or read the briefs or the 

74

counterbriefs or, for that matter, visit with those that are at the 

Department of Agriculture that are responsible for enforcing the 

status of the rule as it exists. 

I will do that and if confirmed, I will visit with the Department 

of Justice staff, hopefully will learn from their expertise as to why 

these decisions were made. I do not know why they were made but 

I will find out. 

It is my position that if there is a law on the books and it has 

not been changed by Congress and the United States is sued on 

that particular application of that rule, then it is my job to defend 

the United States and all of its people. 

So I think it is going to frankly be more than 50 percent of my 

time that I am put in that position. In fact, while I have not memorized the numbers, I think that there are over 9,000 cases, Senator, 

before this division—400 lawyers, 9,000 some cases—and over half 

of them—I think it is around 55 percent of them are defensive in 

nature, where the cases are there because someone sued the 

United States. About a third of them are offensive and the remainder are either criminal cases or fall into the other categories. 

So I will fortunately or unfortunately have a great deal of experience in situations as you describe. 

I would also note that in looking at the conflicts—you spelled out 

some of the conflicts that come because you have, say, two agencies 

in the same department at odds with one another—not only did I 

see that at Interior but you have Indian Affairs, Bureau of Reclamation, you could have all four of those agencies quarreling and 

then add in the fact that you could have the Forest Service involved at Agriculture, the Army Corps of Engineers involved in the 

Department of Defense. You can have three or four different departments, six agencies, all with a different position on a particular 

matter. 

One of my aims and one of my tasks is going to be to pull the 

people in from those different agencies, as well as their general 

counsels, and see if there is a way that we can reach a consensus 

on what ought to be done. 

Senator CANTWELL. So does that translate into a position if you 

are confirmed that will defend the roadless rule on its merits and 

instruct the attorneys to begin a substantive participation in the 

case? 

Mr. SANSONETTI. Well again, I am not going to characterize what 

they have done thus far as either substantive or nonsubstantive because it would be prejudging what somebody else has done that I 

do not know, but as far as where I go once I get into the building 

is concerned, I am going to say what is the status of the roadless 

rule? What is the law right now as it exists? Then I will say our 

job is to defend that—

Senator CANTWELL. And defend it substantively? 

Mr. SANSONETTI. And to substantively defend it, yes, ma’am. 

Senator CANTWELL. And does that change at all if, in fact, the 

administration is pursuing a new rulemaking during that same 

time period? 

Mr. SANSONETTI. No, because as long as the law in effect is the 

law in effect, just because there is perhaps either an attempt here 

in the legislative branch of the government or in the executive 

75

branch of the government to change that does not mean that the 

law is not in effect. It is kind of like a reference to Senator Leahy’s 

question about Senator Jeffords’s three-pollutant bill. It is still here 

in the legislative branch. If that ends up being law then that is 

when I would have to be concerned about defending it or not. 

Senator CANTWELL. Thank you. 

I would now like to talk a little bit about an issue that both Senator Leahy and Senator Feingold referred to and that was your 

past activities from a lobbying perspective. In the past year you 

have advocated for the expansion of mining rights by testifying before the Senate on behalf of the National Mining Association, various coal companies. What will you do to ensure your impartiality 

in applying mining laws should you be confirmed? And what are 

your plans on recusing yourself from specific matters? 

Mr. SANSONETTI. I think that any time that I am going to be involved in a case that either involves lawyers that I know, clients 

that I have had over the last 25 years, I will abide by the Department of Justice’s recusal policies. They have a whole group of folks, 

as I understand it, that are part of their ethics personnel that you 

go to and say here is the case, I represented these folks in 1994, 

it was about A, this is about B; is this something I should handle, 

not handle? And I will abide by their decisions. You need that kind 

of help and I will seek it. 

I also, since you referenced Senator Feingold’s question, I want 

to go back and mention that just because a person lobbies on behalf 

of a company or an industry does not mean that they necessarily 

are beholden to every stance that that client or industry takes. 

I started, as I said, as a sole practitioner in Gillette, Wyoming 

in criminal defense. I have defended rapists and all that but I am 

not a rapist. I have represented folks all down the line. 

In regard to that particular matter on the coal that I was lobbying for, that ended up being passed unanimously by both the 

House and the Senate. It was very bipartisan and the Department 

of Interior was behind it, too. Secretary Babbitt was in favor of it 

and sent someone to testify, as well. So— Senator CANTWELL. I think it is safe to say that if my colleagues 

all understood that point we would probably have more judges in 

both the Clinton administration approved faster and probably currently, too. People are definitely held accountable for their past 

practices and activities. 

So nothing beyond what the ethics or the specific requirements 

of the agency are? 

Mr. SANSONETTI. That is exactly where I should go. I think it is 

best to let them help me through the ethical thickets as they occur. 

That is where I will go for my advise on matters. 

If I personally do not feel comfortable about taking a case, I will 

not. 

Senator CANTWELL. And turning to broader enforcement questions if I could, and obviously that is one of the key responsibilities 

of the job, is enforcement and litigation. I might start actually with 

a broad question. You do not really actually have a lot of litigation 

experience in your background so I am assuming that you are planning on relying on the team of lawyers that will be working with 

you in that area. 

76

Mr. SANSONETTI. Well, I may not have a lot of experience in trying cases, say, out of the EPA realm—clean air, clean water 

cases—but as far as litigation experience in and of itself, I have 

had well over 300 cases in front of judges, jury trials, appearances 

in front of the Wyoming Supreme Court. I have had some appellate 

cases. So I have had litigation experience, starting with criminal 

defense and going to a civil practice about 1982. 

But regardless, everyone at the Department of Justice that will 

be part of that team is a litigator and so yes, I will be counting 

on their experience and borrowing their legal expertise to aid me 

in that regard. 

Senator CANTWELL. And even in areas where you basically disagree with the law or the regulation? We are facing with the administration a number of areas where valid rules may not be defended or litigation may not be brought maybe because there is a 

difference within the administration about that particular rule or 

process. 

So I am just asking as a nominee for attorney general for the Environment and Natural Resources section, do you believe that there 

is an obligation to defend the law and regulations even if you disagree with them? 

Mr. SANSONETTI. I do. 

Senator CANTWELL. And do you believe that the administration— I already asked you about the rulemaking authority. 

Let me turn specifically to a couple of issues that are important 

to my state but I think probably are significant in the larger issue 

of enforcement because I think they speak to the challenge that 

your agency has. 

First is the issue of Hanford, the Hanford Nuclear Reservation, 

which is our nation’s worst Superfund site, which houses somewhere around 500 million gallons of high-level nuclear waste and 

it is basically located in aging tanks along the Columbia River. So 

the clean-up of this site is governed by an agreement between the 

state of Washington’s Department of Ecology, Department of Energy, and EPA. It is called a triparty agreement and that agreement lays out specifically the milestones for how clean-up of Hanford must be done and the obligations that must be met. 

The state of Washington has been levying fines against the Department of Energy since July of this year amounting to $50,000 

because of its failure to begin the construction of a waste treatment 

facility that was stipulated in the triparty agreement. 

So in the past the effort to move forward on this clean-up has 

been greatly aided when the Assistant Attorney General from the 

environmental section is a committed arbiter eon behalf of the 

clean-up, when he pushes the agencies involved to proceed with the 

agreement, with the triparty agreement. 

So as the nominee for this section can you provide me assurances 

that you will continue to honor this triparty agreement and make 

sure that the Hanford clean-up process stays on track? 

Mr. SANSONETTI. I think that you touch on a question that may 

be specific to your state but you are correct; all Americans are concerned that those areas that are part of the Superfund sites are 

cleaned up. So I think in general I need to associate myself to previous experience of having had, as solicitor, to order certain agenVerDate Feb 1 2002 08:24 Sep 25, 2002 Jkt 081753 PO 00000 Frm 00080 Fmt 6633 Sfmt 6602 C:\HEARINGS\81753.TXT SJUD4 PsN: CMORC
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cies within Interior to clean up matters that had been left over 

from the World War II period. So I have had some experience with 

this. 

To the degree that the Hanford case, which I, of course, am not 

specifically familiar with but as I follow your explanation of where 

things are right now, it looks like that is going to have to be high 

on the agenda, as well. I need to find out who is working on that 

case within the Department of Justice and see what we can do to 

move the tripartite agreement forward so that we can get those 

milestones met and let us get this Superfund site cleaned up. 

Senator CANTWELL. Well, this is an important issue as it relates 

to working within the administration because in this particular 

budget year the Congress has very much supported a budget that 

helps us meet that triparty agreement and our responsibilities. The 

administration has not. So there has been a very, very bipartisan 

support for meeting those obligations in both the House and the 

Senate and on both sides of the aisle but it is critically important 

that the administration understands that the breaking of that 

triparty agreement is a very serious matter beyond the relative 

small fines that are being paid today. 

I would like to go back if I could to the Endangered Species Act 

and an important decision that has recently been made and get 

your thoughts on it, although I think some of this process will play 

out prior to you actually being in a position to act on it. But on 

September 10 the District Court of Oregon issued an opinion that 

will have tremendous implications for the salmon in the Northwest 

and on the Endangered Species Act. 

In that decision the District Court found that the National Marine Fisheries Service had erred in deciding that in a proceeding 

to list a particular species of salmon as endangered, hatchery salmon and wild salmon of the same species could be separately considered in most situations. More importantly, the court immediately 

removed the coho from the endangered species list until a new administrative process is developed. 

The determination of whether or not to appeal this decision rests 

with the Division of Environmental and Natural Resources. Because the decision on taking an appeal to the Ninth Circuit will 

need to be made within the next couple of weeks you will not likely 

play a role in this. However, I would like to explore your views on 

the subject generally. 

If the decision in this case is not appealed we will be left with 

an unclear standard for the listing of salmon throughout the Pacific 

Northwest and face the possibility of inconsistent rulings on different species of salmon. So do you agree that in situations like 

this the value of having an appellate court ruling is extremely important and should be a major factor in consideration within the 

Department of Justice about whether to file an appeal, even where 

you may agree with the underlying substantive holding? 

Mr. SANSONETTI. Well, again I have to acknowledge the fact that 

this is a question obviously of keen importance to you and to those 

in the Pacific Northwest but it also seems to be a case that could 

have implications nationwide as far as the ESA standard that you 

are referring to. 

78

I again am not familiar with what this particular case is. Is there 

a name of this case? 

Senator CANTWELL. Yes, it is the Elisi Valley versus Evans. 

Mr. SANSONETTI. The Evans case? I would obviously have to find 

out about the case once I went in but in general, because you were 

asking about what you do in general about cases when you appeal 

them and do not appeal them, it would be my practice to first start 

with the department from where this came from. If this one is 

NMFS, that would be the Department of Commerce, I take it, so 

I think it would be my obligation to go to the individuals at the 

Department of Commerce and say, ‘‘How did we get in this particular situation? What is at stake? What is the policy that you are 

trying to evince here?’’ And then seek their recommendations, as 

well. ‘‘What is your recommendation? Do we need to appeal this, 

not appeal this?’’ And to the degree that it affects more than just the Department 

of Commerce and I sense from what you have told me, without 

reading the case, I sense from what you have told me that this 

could have an impact on, say, the Fish and Wildlife Service and the 

way that it handles recoveries of endangered species. Then I probably ought to make sure that people from my division go over to 

the Department of Interior, as well, and visit with the head of the 

Fish and Wildlife Service, maybe the assistant secretary for Fish, 

Wildlife and Parks. If it is that important it might even get to the 

secretary’s level. Visit with the solicitor and say, ‘‘How would this 

affect cases that you have on-going over here right now?’’ Get that 

kind of input and from that hopefully be able to reach a consensus 

on what might be done. 

I know that sometimes cases are appealed and sometimes they 

are not. 

Senator CANTWELL. But do you think it is an extremely important factor, the fact that a decision at the District Court level could 

have such significant impacts and have inconsistency with how we 

are handling—

Mr. SANSONETTI. It well might. And I think one of the things 

that would be interesting to know in any given case is where that 

other inconsistency may develop. In other words, is that judge in 

Oregon’s decision going to be inconsistent with another judge, say 

within the Ninth Circuit’s purview, in which case maybe the Ninth 

Circuit would be interested in trying to determine whether the 

judge in Billings, Montana or the one in Oregon was correct. 

But what if the inconsistency was with a judge in the Fourth Circuit or the First Circuit? You might have to consider where would 

you want that appeal to be brought, in which circuit? And, of 

course, appellate matters at that level are also dealt with with the 

solicitor general’s area. That would not be a decision that would 

simply be a box that I could check off on. I would have to go visit 

with Mr. Olson and the people at the Solicitor General’s Office because they are in charge of the ultimate appeal. 

Senator CANTWELL. Well, we may submit some additional questions on that particular area but it is safe to say that there will 

be much discussion from that court decision. 

I would like to, and there is not an endless pile up here of questions for you. We will get through this; I assure you. And, as I have 

79

said twice now in the hearing and I will remind members who did 

not attend and their staffs that they can submit questions up to 

the following week for your response. 

But the last area is just generally your views on the enforcement 

tools within the agency and the fact that you will have decisions 

about prosecuting environmental crimes. By that I mean the willful 

violation of our environmental laws that result in pollution damage 

to our environment. 

So you have enormous discretion in making decisions about 

whether to proceed against polluters via a criminal prosecution or 

a less rigorous civil enforcement process. And I have often heard 

the view expressed that the environmental crimes are bad acts 

committed by good people, meaning that the industry polluters do 

not have the willful intent to violate the laws and pollute the environment. 

What are your views on the importance of enforcement as a tool 

to ensure protection of the environment and our natural resources? 

Mr. SANSONETTI. That is an excellent question and obviously if 

confirmed, I would like to note that I would actually look forward 

to enforcing our Clean Air and our Clean Water Acts and for those 

that willfully and intentionally are harming our air and our water, 

I look forward to chasing them, and I have done it before. When 

I was at the Department of Interior our role there was smaller, it 

dealt with surface mining and things like that, those that abused 

the BLM lands, and I was not shy to go after those individuals that 

had intentionally done that. 

I believe that there will be in our Environmental Crimes Section—and I believe there are nine sections underneath this particular division, Environmental Enforcement and Environmental 

Defense and then the one you are referring to right now, which is 

Environmental Crimes Section, which has the ability to bring a 

criminal action against a polluter, as opposed to a civil action—that 

there are guidelines that are in place as to the things that one 

should consider before you file something criminally versus civilly. 

Senator CANTWELL. What are your personal views? 

Mr. SANSONETTI. My personal belief on it is that I would take 

into account was it a single perpetrator? Was it a company that is 

acting in concert with others? What is the nature of the damage? 

Did they know that there was going to be harm to the air or the 

water? Have they done it before? Was it somebody that had previously been convicted and paid a fine so they were chased civilly 

this time and they thought they could get away with it again and 

that they would just be chased civilly? Those are the kinds of folks 

I would come down hard on. 

Is it somebody that left a gate open by accident and something 

got out? That would fall perhaps less so. 

So I think you have to look at the facts of each individual case. 

You have to visit with the investigators because these things just 

do not pop up at the Department of Justice on their own; they are 

brought by either individuals at the Fish and Wildlife Service or 

they are brought by people from the EPA that have done the investigation and you need to sit down with them, say have similar 

cases been prosecuted criminally or civilly before, how did you 

80

reach this particular recommendation, and then go from there. A 

lot of it will be decided on the basis of the facts of a particular case. 

Senator CANTWELL. And how do you deal with the challenges of 

making sure that those decisions are free from political interference? What approaches will you have to make sure that the Hill 

and the White House do not exert or are not perceived to be exerting political pressures on your division? 

Mr. SANSONETTI. I suppose those things will happen. I mean you 

cannot keep somebody from placing a phone call to you or sending 

you a letter encouraging you to do A, B, or C. But again it is nothing that I have not deal with before. I mean I have had calls from 

the White House and from the Hill on both sides of any number 

of different issues and it is one of the toughest parts about the job. 

But in the end, as I mentioned in my opening statement and in 

my answers to Senator Leahy’s questions, the key is to remember 

who your client is and the clients are the individuals that are part 

of our United States of America. And in the end will there be judgment that has to be utilized by myself? Yes. Am I going to be 

wrong sometimes? Probably. But I think that I can tell you that I 

will look at each case individually, look at the law, apply the facts 

to the law, and in an evenhanded, unbiased manner make my best 

judgment as to whether the case should be A, B, or C. 

I cannot avoid phone calls from certain individuals or letters or 

something like that that are trying to influence that decision. That 

will happen and it is part of the process. But in the end you have 

to look at the hard, cold facts that are there, the law, the precedents that have previously been set and make your judgment and 

go forward. 

Senator CANTWELL. One last area that I neglected to bring up 

earlier which if you could comment on and that is in your role and 

responsibility for protecting and enforcing the rights of Native 

Americans. Obviously this is a position in which, in addition to 

prosecuting those who violate our environmental law you will be 

responsible for representing the United States in support of rights 

of tribes, especially those confirmed by treaties. The Native American community will be relying on you for litigation on issues including establishment and protection of water rights, protecting 

hunting and fishing rights, collection of damages and establishing 

reservation boundaries. 

If you are confirmed to this position will you be a diligent enforcer of Native American rights, particularly those conferred by 

treaty? 

Mr. SANSONETTI. I would. Let me answer the question: I would 

be diligent in that regard. And you bring up a subject matter that 

I have had some experience with. Both when I was associate solicitor and as solicitor part of my legal venue concerned the Bureau 

of Indian Affairs and the assistant secretary for Indian affairs and 

many of the issues of a highly controversial nature got all the way 

to the secretary of the Interior and you have to deal with them. Indian gaming, Indian water, the rights to certain portions of the 

BIA budget are all of concern. 

But I recognize right off that trust the responsibility that the 

United States has to the federally recognized tribes in the United 

States, many of which are in your home state of Washington and 

81

several of which are in the state of Wyoming, and I think I have 

a reasonably good record with dealing with Indian questions during 

my previous tenures. 

And in private practice I have had an opportunity to work with 

any number of companies working with Indian tribes to improve 

their economic circumstances across the United States. I have probably had dealings with seven or eight different Indian tribes in the 

last eight years. 

So I recognize the issue, I associate myself with your concerns 

and if confirmed, I will work as best I can to uphold that trust responsibility to the Indian tribes as federally recognized by Congress. 

Senator CANTWELL. Well, I thank you for your answer to today’s 

questions and to the future answers that you will give on various 

questions. In ending this hearing I do not know if you have any additional comments that you would like to make but obviously our 

Committee has to make a decision about this position and your responsibility at a time when I think that many of us do have concerns about where the administration is heading and with you as 

the top law enforcer officer, that you are going to vigorously enforce 

the law and pursue those who are not abiding by it. So we look forward to further comments. 

Mr. SANSONETTI. Thank you very much for your questions and 

the opportunity to have this hearing today, Madam Chairwoman. 

Senator CANTWELL. Thank you. The hearing is now adjourned. 

[Whereupon, at 4:44 p.m., the Committee was adjourned.] 

[Questions and answers and a submission for the record follow.]

QUESTIONS AND ANSWERS

Responses of the Nominee to questions submitted by Senator Cantwell 

Question 1: Please explain your understanding of the purpose of the APA and indicate how, if at all, your views about the procedural requirements of the APA have 

changed since the decisions in National Wildlife Federation v. Babbitt, 835 F. Supp. 

660 (D.D.C. 1993.) and Portland Audubon Society v. Endangered Species Committee, 

984 F.2d 1534 (9th Circuit 1993). 

Answer: The purpose of the APA is to set out procedural requirements for various 

administrative activities, including provisions for notice find opportunity for public 

input. To the best of my knowledge, the decisions in the cited cases still stand, and 

if I am confirmed as Assistant Attorney General, I will give those cases the precedential and/or persuasive weight to which they are entitled.

Question 2: Do you believe that modifications to valid rules are best made by complying fully with the APA process, which includes public notice and comment, and 

that often requires preparation of a detailed Environmental Impact Statement setting out the possible harms caused by the rulemaking? 

Answer: To the extent that modifications to existing rules amount to a rulemaking, then the modifications are, of course, governed by the requirements of the 

APA. The question of whether the modification of an existing rule requires preparation of an Environmental Impact Statement is an independent question to be determined by applying the requirements of the National Environmental Policy Act, and 

will depend on a factual analysis on a case-by-case basis.

Question 3: At the beginning of the Bush Administration, implementation of many 

final rules were initially delayed for sixty days pursuant to a memo issued by Chief 

of Staff Andrew Card. Since that time, multiple rules have been suspended by invoking the ‘‘good cause’’ exemption of the APA. The exemption provides that an 

agency may act without providing public notice and comment when it finds that notice and public process are impracticable, unnecessary, or contrary to the public interest. 

82

Question a: In your view, does suspending a valid rule that a particular Administration does not agree with constitute a circumstance where public participation is 

impracticable, unnecessary, or contrary to the public interest? 

Answer: Public notice and comment are generally an important part of agency 

rulemaking procedures, but as this question notes, the APA itself contains an exception to its general notice requirements for rulemaking procedures ‘‘when the agency 

for good cause finds . . . that notice and public procedure thereon are impracticable, 

unnecessary, or contrary to the public interest.’’ 5 U.S.C.§ 553(b)(3)(B). Whether it 

rulemaking satisfies the requirements of this exception will be a highly fact-specific 

inquiry which the agency must make in the first instance, and which a court may 

ultimately review under the appropriate standards set forth in the APA.

Question b: May an agency ever invoke the good cause exception where there is 

a sufficient time to solicit public comment before suspending a rule? 

Answer: The terms of the statute itself contemplate that there may be circumstances when, even though there is sufficient time to solicit public comment, the 

exception may he properly invoked. See APA § 4(6)(13), 5 U.S.C. § 553(b)(B) (empowering agencies to ‘‘for good cause find[] . . . that notice and public procedure thereon 

are impracticable, unnecessary, or contrary to the public interest’’) (emphasis 

added).

Question 4: At your hearing you stated that you were either not familiar with, 

or did not recall, the case of National Wildlife Federation v. Babbitt 835 F. Supp. 

660 (D.D.C.1993), in which the Federal District Court for the District of Columbia 

ruled that the an opinion you issued as Solicitor of the Interior (M–36971) was in 

fact a major action that required a full rulemaking process in order to comply with 

the Administrative Procedures Act. That opinion concluded that subsidence from underground coal mining was exempt from section 522(c) of the Surface Mining Control and Reclamation Act, that protects surface landowners and uniquely vulnerable 

property from potential mining damage. Having now had additional opportunity to 

review the SOI opinion and the District Court decision, please answer the following: 

Question a: What was the basis fur the determination that the decision to exempt 

subsidence mining did not require an APA ruler making process? 

Answer: Solicitor’s Opinion M–36971, entitled ‘‘Applicability of Sec. 522(e) of the 

Surface Mining Control and Reclamation Act to Subsidence,’’ addressed a question 

of statutory interpretation involving which provision or provisions of SMCRA applied to subsidence resulting from underground coal mining operations. My legal 

conclusion that subsidence from underground mining was regulated exclusively 

under section 516 of SMCRA, and not under section 522(e), was based on an evaluation of the statutory language, its legislative history, past regulatory actions on this 

issue, and relevant case authority. National Wildlife Federation v. Babbitt (835 F. 

Supp. 654) did not address whether that opinion was subject to the APA, nor did 

the Solicitor’s Opinion address that issue. The subject of National Wildlife Federation v. Babbitt was a Notice of Inquiry issued by the Secretary of the Interior.

Question b: What was your role in the process of preparing the opinion and 

issuing the notice indicating that the Department had adopted the opinion of the 

SOI and would not be undertaking further rulemaking proceedings? 

Answer: Solicitors’ Opinions are only written in response to requests from the Secretary of the Interior for a legal opinion. According to DOI regulations, such Opinions become binding on DOI if the Secretary concurs in them. In this case, the Secretary asked for a legal opinion regarding section 522(e) of SMCRA. To my knowledge, no Solicitor Opinion submitted to a Secretary has ever been subject to the Administrative Procedure Act’s notice and comments requirements. Solicitor’ Opinions 

are for the guidance and the use of the Secretary and those who work in DOI. As 

I did with all Solicitor Opinions that I authored, I reviewed this Opinion with Secretary Lujan, who signed the concurrence which made it binding on DOI. It is noteworthy that during the last Administration, DOI concurred with the legal conclusions contained in my Solicitor’s Opinion M–36971 as evidenced by the ‘‘interpretative’’ rule promulgated on December 17, 1999, at 64 Fed. Reg. 70,838, concluding 

that subsidence due to underground mining is not a surface coal mining operation 

and accordingly, is not prohibited under section 522(c) of SMCRA. It is my understand that Secretary Lujan’s decision to issue the Notice of Inquiry, which was the 

subject of National Wildlife Federation v. Babbitt, was made after consultation with 

the Assistant Secretary for Lands and Mineral Management and the Director of the 

Office of Surface Mining.

Question 5: You were asked a number of questions at your November 6, 2001, 

nomination hearing about your roll; in the convening. and the operation of, the Endangered Species Committee (ESC), also known as the God Squad. Some of those 

questions focused on the inherent conflicts resulting from the fact that the two parVerDate Feb 1 2002 08:24 Sep 25, 2002 Jkt 081753 PO 00000 Frm 00086 Fmt 6633 Sfmt 6621 C:\HEARINGS\81753.TXT SJUD4 PsN: CMORC
83

ties appearing before the ESC, the Bureau of Land Management (BLM) and the 

Fish and Wildlife Service (FWS), were both Divisions of the Department of the Interior, and both relied on the legal guidance of the Solicitor’s office that you headed. 

a) You have agreed to provide to the Committee the document you executed as 

Solicitor, in an attempt to create firewall protections within tile Solicitor’s office to 

ensure that both FWS and BLM had adequate and independent legal guidance. 

Please describe that document including whether it contains a formal recusal by you 

from involvement with the proceeding of FWS and RLM 

b) Please also .indicate whether that document sets forth any explanation or legal 

support for the Solicitor serving as legal advisor to the Secretary of the: Interior, 

to the Administrative Law Judge in the proceeding, and to the Endangered Species 

Committee its a whole. 

Answer: Rather than restate what the document contains, enclosed herewith for 

the Committee’s convenience is a copy of the document which has already been provided to the Committee on November 13, 2001, by FAX.

Question 6: At the first hearing convened by the Administrative Law Judge for 

the purpose of compiling a record to be presented to the ESC members, an attorney 

who had been hired by FWS for the proceeding and was under the supervision of 

an Associate Solicitor, advanced an argument to the Administrative Law Judge that 

the BLM application to convene the ESC for purposes of seeking the exemption had 

failed to meet the two required prerequisites, good faith consultation, and preparation of a detailed and specific Environmental Impact Statement, and that the request to convene the ESC should not have been granted by the Secretary of the Interior. 

Is it correct that in your role as Solicitor,. You provided legal guidance to the Administrative Law Judge on this question, and that after conferring with you he 

ruled that the argument by FWS that the prerequisites for convening the ECS out 

of order? 

Answer: It is correct that, as contemplated in the division of functions within the 

Office of the Solicitor for the entire ESC process, I provided guidance to the hearing 

officer presiding over the proceedings. (Judge Schweitzer was presiding over the 

hearing and the process, but did not act as the interim or ultimate decisionmaker 

and hence was not acting in the capacity that one normally associates with the term 

‘‘Administrative Law Judge.’’) It is also correct that after the first hearing, the hearing officer determined that an argument made by FWS concerning the prerequisites 

for convening the ESC was not appropriately raised by tile FWS at that juncture. 

It is my understanding that this is because it was not within the sphere of responsibilities of the hearing officer presiding over the process.

Question 7: At the conclusion of the ESC proceedings before Administrative Law 

Judge, Judge Schweitzer issued an order that a number of legal issues should be 

briefed by the parties, including the arguments originally advanced by FWS that the 

BLM had failed to satisfy the prerequisites for convening the ESC. According to a 

former FWS attorney, an Associate Solicitor with the Department of Interior instructed him to remove arguments from legal briefs to be presented to the ESC, and 

the FWS attorney resigned in protest. Does your recollection of these events differ 

in any significant way? 

Answer: My recollection of events was that at the conclusion of the ESC proceedings in January 1992, the hearing officer issued an order allowing the briefing 

of a number of issues, including the issue noted above. I understand that a brief 

setting out these arguments was withdrawn upon direction of the Associate Solicitor 

ultimately responsible for representing the FWS. I also understand that the withdrawal was based on mutual concerns of the FWS and the Department of Justice 

that the FWS not assert a position that could have been interpreted to be inconsistent with the position of the Administration in on-going litigation (Lane County 

Audubon Society v. Jamison) then being litigated before the Ninth Circuit Court of 

Appeals. I further understand that as a result of the direction of his supervisor that 

the argument in question be withdrawn, the outside attorney that had been hired 

by the FWS to represent it resigned.

Question 8: At your hearing you testified that because of the firewalls you had 

crected within the Solicitor’s office between yourself, and between attorneys providing advice to FWS and to BLM, you were not aware of these events at the time, 

but learned of them later. Please state exactly when you became aware that a member of your staff in the Solicitor’s office had instructed removal of arguments ordered 

by the ALJ. and explain what, if any, action you took upon learning of these events. 

Answer: At no time did I suggest or recommend removal of arguments in briefs 

to be submitted to the hearing officer. I do not remember exactly when I became 

aware of the events recounted above, but I believe that I must have been aware of 

84

these actions by the time the hearing ended in Portland in January 1992. I did not 

take any actions upon learning of these events since decisions on the presentation 

of the FWS and BLM positions were to he made by the appropriate Associate Solicitor.

Question 9: At your hearing, you also stated that, in your opinion, arguments 

challenging the Secretary of the Interior’s decision to convene the ESC were not 

proper because the Committee had already been convened. Please state what process you believe should be followed in bringing a challenge to the decision to convene 

the ESC. Please explain why presenting that argument to the ESC itself and allowing the: ESC to certify the issue for consideration by a federal court would not be 

a proper process? 

Answer: The provisions of the Endangered Species Act setting out the steps for 

applying for an exemption generally provide that upon receiving an application for 

an exemption, the Secretary shall determine whether various requirements to qualify for an exemption have been met. 16 U.S.C. § 1536(6)(3). If these conditions have 

not been met, the Secretary is to deny the application and the matter is not considered by the ESC. Generally, if a party believes the ESC should not consider an exemption, the threshold question is considered at that time by the Secretary. If the 

Secretary determines that the application should be denied at that stage, the decision is subject to judicial review. The Endangered Species Act also allows the review 

of ‘‘any decision’’ rendered by ESC and does not appear to contemplate a separate 

certification process by the ESC for what the Court of Appeals should review in the 

course of ESC’s decisionmaking process and outcomes.

Question 10: Is it correct to state that, due to the actions of members of the staff 

of tile Office of the Solicitor of the Interior, arguments challenging the Secretary of 

the Interior’s decision to convene the ESC: on the grounds that BLM had not satisfied the prerequisite requirements were never presented to the ESC members? 

Answer: It is correct that ESC members did not consider whether the prerequisite 

conditions for convening the ESC were present in this case. After the first hearing, 

the hearing officer determined that an argument made by FWS concerning the prerequisites for convening the ESC was not appropriately raised by the FWS at that 

juncture. It is my understanding that the hearing officer made this determination 

because it was not within the sphere of his responsibilities.

Question 11: During the ESC process you played a number of roles. You served 

as Interior Secretary Lujan’s designee on the ESC, as counsel to Secretary Lujan, 

as counsel to the full ESC, and as legal advisor to the ALJ. Moreover, although you 

testified that you created firewalls within the Solicitor’s office, your office continued 

to provide legal advice to both parties before the ESC, the FWS, and the BLM. In 

hindsight, do you believe that providing counsel to the ALJ and to the Secretary 

at the same time presented conflicts that should not be repeated in a future ESC 

proceeding? 

Answer: No. I believe that providing counsel to the hearing officer and to the Secretary was consistent with the letter aid the spirit of the Endangered Species Act. 

The ESA provides that ‘‘if the Secretary determines that the federal agency concerned and the exemption applicant have met the requirements. . . . he shall, in 

consultation with the Members of the Committee, hold a hearing on the application 

for exemption....’’ 16 U.S.C. § 153G(g)(4). In this case, the Secretary chose the 

hearing officer that presided over this hearing. Since under the statute, the hearing 

was the responsibility of the Secretary and the Secretary selected the hearing officer, serving as the chief legal advisor to both the Secretary and the hearing officer 

was not a conflict. (I should note that I did not serve as the Secretary’s ‘‘designee’’

on the ESC.)

Question 12: Do you believe that bringing in separate counsel for the parties, FWS 

and BLM rather than keeping the supervision of the legal arguments being advanced by both parties within the Solicitor’s office would have protected the ESC 

against allegations of conflict of interest? 

Answer: It is possible that other staffing arrangements could be considered, but 

I believe that the approach that I adopted was in accordance with the statute and 

the regulations in existence at the time. Moreover, it is probable that any alternative arrangements in such a contentious proceeding would have given rise either 

to allegations of conflict or some other serious concern, such as a lack of sensitivity 

to how positions taken in one agency matter can have adverse consequences for the 

public interest in another agency matter.

Question 13: You testified at the hearing that you did not have ex parte contacts 

with the White House during the ESC process, but that it was possible that other 

ESC members may have. Did you believe that those contacts were acceptable at the 

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time, and do you continue to believe that individuals serving in an adjudicatory role 

like the ESC should refrain from ex parte contacts with interested parties? 

Answer: It was my legal conclusion at the time that the Endangered Species Committee exemption process was an informal rulemaking rather than an adjudication, 

and further that because it was an informal rulemaking, ex parte communications 

with members of the ESC were not prohibited. However, I am not personally aware 

that there in fact were such communications. In its ruling in Portland Audubon Society v. Endangered Species Committee, the Ninth Circuit ruled that the ESC exemption process was an adjudication and that ex parte contacts were not appropriate. To the extent that that decision is still the law, if confirmed as Assistant 

Attorney General, I will ensure that its requirements are met.

Question 14: Should the ESC be convened again in the future, if you are confirmed as the Assistant Attorney General for the Environment section, you may play 

an advisory role in its structure and in defending it against any legal challenges. 

Do you believe that in any such future proceeding, additional protections against inherent conflicts of interest and against political pressure should be implemented? 

Answer: Any such decisions would be the primary responsibility of the Department of the Interior. I would, however, be open to considering and supporting appropriate possible safeguards against conflict or political pressure, real or perceived.

Question 15: A decision was recently made by the National Marine Fisheries Service and the Department of Justice not to appeal the decision of the Oregon District 

Court in the case of Alsea Valley Alliance v. Evans, and to instead initiate a new 

rulemaking aimed at creation of a new hatchery policy for Pacific salmon. Do you 

agree that all petitions or court challenges that seek to remove salmon not directly 

implicated in the Alsea Valley Alliance v. Evans decision from the protections of the 

Endangered Species Act should be stayed pending the outcome of the rulemaking 

on a new hatchery policy? 

Answer: Although I am generally aware of the concerns about the protection of 

Pacific salmon under the ESA and I know this is an important issue to you, I am 

not familiar with the facts of the case in question or of any petitions or court challenge that may be pending regarding salmon not directly implicated by that case. 

Without obtaining a much more thorough understanding of the difficult issues surrounding these concerns and any such litigation, it would not be appropriate to express an opinion regarding a possible stay of such petitions or court challenges. If 

confirmed, I plan to become fully educated on this issue.

Question 16: What is your view of the role of state attorneys general relative to 

the U.S. Department of Justice in our system of government? 

Answer: With respect to the work of the Division, I believe that the state attorneys general should be viewed as partners in the Department’s effort to enforce the 

environmental laws in a fair and firm manner, and that we should develop cooperative working relationships to resolve any concerns or issues that may arise in the 

arena of environmental and resources law.

Question 17: Do you believe that lawsuits brought by state attorneys general collectively, and aimed at addressing national problems, are a useful way of addressing 

national legal issues? 

Answer: Yes, 1 believe that in some situations they can be one useful way of addressing national legal issues.

Question 18: What specific cooperative efforts would you like to see the state attorney generals undertake in coordination with the Environment and Natural Resource Division to address national environmental issues? 

Answer: If I am confirmed as Assistant Attorney General, I would encourage the 

state attorneys general to work with the Division on environmental enforcement initiatives of national and regional significance in both the civil and the criminal context. I would strive for greater cooperation in developing such initiatives and in 

sharing information to mutually support our efforts in this area, both by communicating directly with state attorneys general and through the National Association 

of Attorneys General.

Question 19: If confirmed, will you respect the efforts of those states that demonstrate the intent and capacity to enforce federal standards through the exercise 

of state authority by working cooperatively with those states? If so, in what ways 

will you demonstrate that commitment? 

Answer: Yes. If confirmed, I will demonstrate this commitment by reaching out 

to cooperate and develop strong working relationships with the Division’s enforcement counterparts in those states, and in the states more generally. I would encourage the state attorneys general to work with the Division on environmental enforcement initiatives of national and regional significance in both the civil and the crimiVerDate Feb 1 2002 08:24 Sep 25, 2002 Jkt 081753 PO 00000 Frm 00089 Fmt 6633 Sfmt 6621 C:\HEARINGS\81753.TXT SJUD4 PsN: CMORC
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nal context. I would also strive for greater cooperation in developing such initiative 

and in sharing information to mutually support our efforts in this area, both by 

communicating directly with state attorneys general and through the National Association of Attorneys General.

Question 20: Will you work both in the courts and in Congress to ensure that federal agencies such as the Departments of Energy and Defense, which are responsible for some of the most polluted sites in the nation, are accountable for complying 

with state environmental and natural resource management laws? 

Answer: Just as it is important that private parties take responsibility for pollution they may have caused, so too is it important that federal agencies comply with 

all applicable environmental and natural resource laws, including all applicable 

state laws in this area. To the extent that federal agency compliance with such state 

laws is an issue in matters handled by the Division, I will work to ensure that those 

agencies comply with the law.

Question 21: As the Assistant Attorney General for Natural Resources, you will 

be charged with guiding the litigation strategy in hundreds of cases and in supervising over 400 experienced environmental litigator. You would oversee attorneys in 

cases before state and federal courts, as well as federal agencies, and would be 

called upon to advise the rest of the Justice Department and to make decisions on 

behalf of other Departments including the EPA and Interior when the need arises. 

At your hearing you stated that you have handled over 300 litigation matters, yet 

can your questionnaire that was submitted to the Committee you indicated that you 

had tired to judgment approximately 50 matters. Could you provide clarification 

about your litigation experience, and provide details of the ten most recent cases 

in which you have been the primary person responsible for litigation strategy. 

Answer: As this question indicates, I have extensive litigation experience. Since 

1976, I have handled over 300 litigation matters dealing with civil and criminal law, 

and of those 300 matters, approximately 50 have been litigated through trial to 

judgment, which also gives me considerable experience as a trial litigator, experience that I hope will serve the Division well if I am confirmed. Of the remaining 

250, those that are not ongoing have been resolved by settlement. What these numbers also demonstrate is that I strongly support settlement of matters where appropriate. Litigating a matter through trial can be a very expensive proposition, both 

in terms of resources and time expended, and it is often in a client’s best interest 

to settle a case and obtain the certainty that it needs to proceed with its business, 

rather than await what may turn out to be a less favorable outcome after a trial. 

I also note that in my tenure as Solicitor at DOI, I gained considerable experience 

supervising large numbers of lawyers and developed great respect for the expertise 

and judgment of career attorneys working in public service. 

Although I am prohibited from revealing specifics about cases that I have worked 

on by my bar associations’ ethical requirements pertaining to attorney-client privilege, I can give you a general sense of the types of litigation matters that I have 

worked on recently. I have recently litigated an Endangered Species case in federal 

district court in Alabama, a grazing case in federal district court in Idaho, a tort 

case in state district court in Wyoming, approximately five cases before the Interior 

Board of Land Appeals (involving, for example, pipeline easements), and a case involving Indian jurisdiction before the Interior Board of Indian Appeals. As these 

cases show, I have diverse recent experience in litigating natural resource issues.

Question 22: If you are confirmed, will you work to support the enforcement authority and resources of federal environmental and resource protection agencies, 

both in the courts and the legislature? 

Answer: Yes.

Question 23: Do you believe that, in representing agencies in court, the Department of Justice’s client is simply the agency or does the Department also represent 

the public and the broader interests of United States citizen? 

Answer: There is an Opinion of the Office of Legal Counsel of the Department of 

Justice that addresses this issue entitled ‘‘The Attorney General’s Role as Chief Litigator for the United States,’’ dated January 4, 1982, and signed by Theodore B. 

Olson, who was then the Assistant Attorney General for the Office of Legal Counsel 

and is now the Solicitor General. (This opinion is available on Westlaw at 1982 WL 

170670.) The Opinion reaches the conclusion that the Attorney General must serve 

the broader interests of the United States as a whole in carrying out his professional duties as well as the interests of the ‘‘client’’ agency. It is my understanding 

that this Opinion still stands and I concur with its conclusion.

Question 24: One of the less prominent responsibilities of the AAG for ENR is the 

investigation and prosecution of takings of protected wildlife and marine species 

through poaching and far trade on the black market. Between $10 billion and $20 

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billion in plants and animals were illegally traded last year, with the buyers in the 

United States leading the list of violators, at about $3 billion. If you are confirmed 

will it be a priority for you to prosecute those who seek to profit form trade in endangered species? 

Answer: It is my understanding that the ENRD has had a number of successes 

in the past few years in prosecuting those who seek to illegally import protected species into the United States, and if confirmed, I hope to work with the law enforcement agencies who are on the front lines of uncovering such violations to carry on 

this effort.

Question 25: On October 30, 2001, the Bureau of Land Management announced 

that it had modified a Clinton Administration decision by revising a rule on 

hardrock mining limiting, the Bureau of Land Management’s discretion to bar mining where it would cause ‘‘substantial irreparable’’ harm. In your opinion and given 

your expertise on mining issues, why is it necessary to limit agency discretion to 

deny a permit when the mine would cause substantial irreparable harm? 

Answer: Although I am generally aware of this announcement and the rule at 

issue, I believe that this rule is the subject of ongoing litigation being handled by 

the Division and it would be inappropriate for me to express an opinion on this 

question before becoming fully informed on the reasoning behind the relevant opinion.

Question 26: Is it your intention to recuse yourself from involvement in any legal 

challenges to this specific rule? 

Answer: With regard to this question and any other question concerning recusal, 

I intend to consult with the appropriate officials in the Department and to abide 

by my ethical and professional obligations both as a Department of Justice official 

and as a member of the Wyoming and District of Columbia bars.

Question 27: Under former President Bush, a policy of no net loss of wetlands was 

created. The Army Corps of Engineers last week simultanoeusly announced that it 

would step up efforts to make certain that developers are meeting the requirements 

of the ‘‘no net loss’’ policy by rebuilding or purchasing wetland property for preservation, but it would also modify the permitting process, making it easier for developers to demonstrate that the proposed dredging or filling wetlands will result in 

‘‘minimal impact to aquatic environments.’’ Do you agree that in order for wetlands 

to be preserved that developers should be required to replace the destroyed wetlands 

can an acre by acre basis? 

Answer: I support the goal of the ‘‘no net loss’’ policy regarding the nation’s wetlands and the efforts that are being made to achieve that goal by the agencies that 

hive primary responsibility for the wetlands protection program under the Clean 

Water Act, the United States Army Corps of Engineers and the United States Environmental Protection Agency. To the extent that these agencies, which have special 

expertise in this area, believe that replacement of wetlands on an acre-by-acre basis 

is an important component of achieving that goal, I support them in that view.

Question 28: Do you agree that developers granted permission to dredge and fill 

wetlands should be granted discretion to replace destroyed wetlands with hedges or 

other vegetation instead of new wetlands if they think that would better protect the 

environment? 

Answer: It is my understanding that the Department of Justice is not responsible 

for granting permission to dredge and fill wetlands protected under the Clean Water 

Act—this responsibility falls to the United States Army Corps of Engineers working 

with the United States Environmental Protection Agency. It is further my understanding that these agencies typically work with permit applicants to resolve issue 

concerning the appropriate mitigation for the dredging and filling of wetlands as 

part of the permitting process, and that there are published guidelines regarding 

such mitigation.

Question 29: The Clean Air Act New Source Review Program has led to a number 

of very significant settlements over the past two years. As part of the President’s 

National Energy Policy document, released in May 2001, the Department of Justice 

was asked to review the program. 

Question a: Do you agree with the need for such a review? If so, why? 

Answer: The President’s direction is consonant with the obligation of any new Administration to familiarize itself with litigation on-going at the time of transition. 

Moreover, it is not unusual for a new Administration to engage in comprehensive 

review of initiatives which may affect questions of national concern such as energy 

resource.

Question b: In your view, and given the recent settlements, what is the benefit 

of such a review? 

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Answer: I am not familiar with the review process or its conclusions so I am not 

in a position to opine on what the benefit to the Justice Department initiative may 

be. I generally believe that any review of ongoing litigation can provide important 

benefits in that the process helps familiarize new agency officials with significant 

actions that have been taken or are ongoing.

Question 30: Over the past few months the Department of Justice was involved 

in settlement discussions in a case challenging a regulation banning snowmobiling 

in Yellowstone and Grand Teton National Parks. The discussions were allegedly 

conducted with the plaintiff machine recreational interests and included no public 

process and no input from interested environmentalists or surrounding residents. 

Do you believe that the Department of Justice should enter into settlement negotiations that have the potential to alter a valid rule, or is the public interest better 

served by the Department advising the agency to seek a modification of the rule 

through a rulemaking process? 

Answer: In settlement negotiations in cases involving a challenge to regulations, 

there is often the potential to alter a rule because this is typically the goal of the 

challenge. To foreclose settlement discussions on this basis alone would therefore 

foreclose many situations in which it is possible to obtain a ‘‘win-win’’ situation for 

the public as well as the parties through an innovative settlement. Whether the 

public interest is better served by a settlement (which might for example include 

a commitment to engage in a proposed rulemaking), by litigating the case to judicial 

decision, or by resort to modification of a rule through a rulemaking process will 

depend on the facts of the given situation and should be decided with reference to 

those facts and the applicable law.

Question 31: The Supreme Court has recognized that a compensable ‘‘total taking’’

occurs whenever a private landowner is deprived of all ‘‘economically beneficial use’’

of his or her property. The question often arises how to define the property that is 

deprived of all value. In the recent case of Palazzolo v. Rhode Island 121 S.Ct. 2448, 

2457 (2001), the United States filed an amicus curiae brief stating that ‘‘it is wellestablished that ‘total taking’ analysis involves examination of the parcel as a 

whole.’’ The Court did not resolve the issue. In future litigation, would you advise 

the United States to take the same position as it took in Palazzolo, that, for purposes of takings analysis, the ‘‘property’’ in question is the parcel as a whole, rather 

than some discrete portion of the parcel? 

Answer: As noted in the question, the Supreme Court in Palazzolo did not resolve 

how to define the scope of the property interest that must be deprived of all value 

to constitute ‘‘total taking.’’ The lower courts will need to address this open issue 

on a case-by-case basis examining the facts of the matter before them. For example, 

the Federal Circuit in Rith Energy, Inc. v. United States rejected a lessee’s contention that the alleged 91 percent reduction in the amount of coal Rith could mine 

constituted a categorical taking, 2001 WL 1380899 (Fed. Cir. Nov. 5, 2001). The 

Federal Circuit noted that the Palazzolo Court rejected the contention that a 94 percent diminution in value constituted a taking. Accordingly, given what will be an 

active, evolving area of the law and the factual nature of the inquiry, any advice 

I would give, if I am confirmed as Assistant Attorney General, would depend on 

lower court precedence and the facts in the case before me.

Question 32: Palazzolo also presented the question whether a takings claim is 

barred because the regulations causing the property to diminish in value were already in place at the time the landowner acquired that property. Palazzolo squarely 

rejected a rule that a ‘‘purchaser or a successive title holder . . . is deemed to have 

notice of an earlier-enacted restriction and is barred from claiming that it effects 

a taking,’’ Id., at 2462. However, Palazzolo is less clear on the Question whether 

the timing of a regulation’s enactment relative to the date of title acquisition is ever 

relevant to takings analysis. What position would you advise the United States to 

take on this issue? Under what.circumstances, if any, would you advise that postregulation transfer of title may defeat a takings claims? 

Answer: The area of takings law presents difficult issues concerning the appropriate balance between protecting private property rights and allowing necessary 

governmental activities. The environmental arena is only one of the many in which 

takings issues arise, and litigation positions with regard to those issues must be 

carefully coordinated throughout the Department, particularly with the Environment Division’s career staff that have much experience in this area, the Solicitor 

General and the Civil Division. Moreover, the analysis of such issues is often very 

dependent on the facts presented by any particular case. Accordingly, the advice 

that I would give on this particular issue, which is an especially complex one, would 

depend on the facts and posture of the case and would also require close coordination with other affected parts of the Department and the relevant agencies.

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Question 33: In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), 

the Supreme Court held that when the government deprives property of all ‘‘economically beneficial use,’’ the government has taken that property, unless the government’s action merely enforces ‘‘restrictions that background principles of the 

State’s law of property and nuisance already place upon land ownership.’’ There appears to be some confusion over whether those permissible ‘‘restrictions’’ constitute 

a State’s nuisance laws and other common law limits on property use, or instead 

include more general statutes directed at substantial public harms. What position 

would you advise the United States to take—that the government may, without 

compensation, deprive land of all value only when so doing implements common law 

property rules, or that the government may do so in a broader class of cases? 

The question of what constitutes ‘‘background principles of law’’ raised by the 

Lucas decision presents an important question which is subject of the Supreme 

Court’s decision in Paloazzolo, as well as significant legal scholarship and lower 

court interpretations. Therefore, before adopting a position on this question on behalf of the United States, I would look to these sources to gain a thorough grounding in the pertinent legal issues. However, even after establishing a thorough 

grounding in these questions of law, it is difficult to respond in precise terms to this 

question without a knowledge of the facts of whatever particular case(s) may be involved. What is a background principle of law for takings purposes could conceivably 

vary from factual setting to factual setting, and depend upon the evolution of the 

specific area of federal or other law involved.

Question 34: In January 1993 just prior to leaving office as Solicitor of the Interior, you issued controversial decisions denying fundamental powers of self-governance to Alaska Tribes and denying a trust relationship obligation between the 

United States and Native Hawaiians. 

Question a) Please explain you rational behind these opinions and respond to 

Clinton Administration Solicitor John Leshy’s withdrawal of your opinion M–36978 

on January 19, 1993. 

Answer: This question appears to refer to two Opinions that I issued as Solicitor 

of the Interior: ‘‘Governmental Jurisdiction of Alaska Native Villages Over Land and 

Nonmembers,’’ Sol. Op. M–36975 (Jan. 11, 1993), and ‘‘The Scope of Federal Responsibility for Native Hawaiians under the Hawaiian Homes Commission Act,’’ Sol. Op. 

M–36978 (Jan. 19, 1993). These Opinions are quite lengthy and explain in some detail the rationale for their conclusions; accordingly, I am providing copies of both 

for the convenience of the Committee. 

Regarding Sol. Op. M–36975, that Opinion concludes that lands conveyed to Alaska Native corporations pursuant to the Alaska Native Claims Settlement Act of 

1971 (‘‘ANCSA’’) did not constitute ‘‘Indian country.’’ A unanimous United States 

Supreme Court later reached the same conclusion in Alaska v. Native Village of 

Venetie Tribal Government, 118S. Ct. 948 (1998). It is notable that my Opinion concludes that, notwithstanding the absence of Indian country, many Alaska Native villages retain their sovereign status and may exercise governmental jurisdiction over 

their members. If I am confirmed as Assistant Attorney General, I will continue to 

respect and enforce all obligations and responsibilities owed to Alaska Natives 

under federal law. 

Regarding Sol. Op. M–36978, that Opinion concludes that ‘‘the HHCA did not create a Jiduciary responsibility in any party, the United States, the Territory of Hawaii, or the State of Hawaii.’’ Although the Supreme Court’s majority opinion in 

Rice v. Cavetano did not reach that issue, Justice Breyer’s concurrence did and it 

reached the same conclusion. See Rice v. Cavetano, 528 U.S. 495, 524 (2000). Accordingly, I stand by my Opinion. Moreover, if I am confirmed as Assistant Attorney 

General, I will continue to respect and enforce all obligations and responsibilities 

owed to Native Hawaiians under federal law.

Question b): In view of this history, what assurances can you provide that you will 

be committed to carrying out the federal government’s trust relationship and protecting tribal rights even where they are adverse to other government entities? 

Answer: When I was Solicitor at DOI, I took numerous actions to ensure that the 

federal government fulfilled its trust responsibilities to Native American Tribes. A 

few examples include: adopting procedures that required all the attorneys within 

the Solicitor’s office to examine matters before them for Indian trust Implications 

and consult with the tribal or individual interests concerned; establishing a new 

field office in Palm Springs, California, to provide on-scene legal assistance for the 

bureau of Indian Affairs and its extensive real estate program in the Coachella Valley; assisting the Office of Self-Governance with the preparation of a model compact 

agreement which was used in negotiations between Indian tribes and the Department of the Interior and led to the adoption of seventeen tribal self-governance comVerDate Feb 1 2002 08:24 Sep 25, 2002 Jkt 081753 PO 00000 Frm 00093 Fmt 6633 Sfmt 6621 C:\HEARINGS\81753.TXT SJUD4 PsN: CMORC
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pacts; assigning a full-time attorney from the Solicitor’s office to work with the BIA 

in the area of child protection; and urging the Department of Justice to support Indian hunting and fishing rights, especially in the Pacific Northwest I can assure you 

that my commitment to these issues has not wavered.

Question 35: The question of the proper location of the eastern boundary of the 

1748 Spanish land grant to the Pueblo of Sandia (adjacent to Albuquerque) in central New Mexico has been a matter of public controversy for many years. The Pueblo Indians first approached the Department of the Interior seeking a boundary correction in 1983. On April 4, 2000, after significant litigation and mediation, a settlement agreement was reached that remains in effect until November 15, 2002 if not 

ratified by. In January, 2001, the Interior Solicitor John Leashy issued an opinion, 

concurred in by Secretary Babbitt, that concluded that the Pueblo’s eastern boundary extends to the crest of Sandia Mountain. Do you agree with the Solicitor’s action 

regarding this matter and what action do you believe should be taken after November 15, 2002? 

Answer: I recognize that this is an important and sensitive issue. For that reason 

and because this appears to be the subject of an ongoing matter being handled by 

the Division and the Departments of the Interior and Agriculture, and because I am 

not familiar with the facts concerning the medication, administrative decision, and 

settlement agreement that are referred to in this question, I do not believe it is appropriate to comment on this matter at this time, except to note that the extent to 

which action will be required after November 15, 2002, will depend at least in part 

on whether Congress acts on this matter between now and then. If I am confirmed, 

I look forward to working with congress on it.

Question 36: At your confirmation hearing, you mentioned that in order to better 

prepare for possible nomination to the Assistant Attorney General (AAG) for Environment and Natural resources (ENR) you met with every former AAG since the 

Ford Administration. After receiving the benefit of their combined wisdom, what do 

you see as the most significant challenges facing the Division over the next four 

years? 

Answer: I appreciated very much the opportunity to meet with the many former 

AAGs for the Division and found them to be a valuable source of insight on the opportunities and the challenges facing the Division. What was particularly remarkable to me was a common theme that ran through my discussions with the more 

recent AAGs, which is the lack of resources with which the Division has been supplied to do its important work. They impressed upon me the need to undertake an 

inventory of where the Division’s workload is and the importance of matching the 

resources that the Division does have with the needs that it must address ever day. 

They also emphasized the need to bring the technology available to the Division’s 

litigators and staff up to workable standards that they can more effectively carry 

out their work on behalf of the American public. A vital part of this effort is reviewing the activities of the Division’s field offices to make sure that their needs are met 

in terms of resources and personnel and to ensure that they are serving the Division 

well. Also, I believe that the Division should continue to develop close working relationships with the many United States Attorneys Offices and State Attorneys General—they can serve as major force multipliers for our work in enforcing and defending the environmental and natural resource laws.

Question 37: One of the successes of environmental years has been the partnering 

of government and private industry in creative solutions. How do you think that 

government and private entities can do a better job of creating partnerships that 

preserve and protect endangered and threatened species, preserve wetlands, lead to 

better and economically efficient compliance with Clean Air and Water laws and 

lead to natural resource policies that will protect resources for future generations? 

Answer: I agree with Christine Todd Whitman, Administrator of the Environmental Protection Agency, who has said that the path to continued environmental 

improvements will require a new emphasis on partnerships. I firmly believe that 

some of the must creative solutions to our problems are generated at the local level 

by citizens, businesses, state and local governments, and other interested organizations, because I have experienced this in my own practice and life. One such example is the work that I did while Solicitor at DOI on the Exxon Valdez matter. The 

various federal entities involved in that matter (including DOI, DOJ, USDA, DOT, 

the Department of Cummerce and ,EPA) worked with the State of Alaska, local 

Chambers of Commerce, representatives of the fishing and logging industry and environmental groups to develop economic measurements of the damages to the natural resources in the area Thanks to the information we developed through this 

partnership, we were able to assist those who were engaged in negotiations and who 

ultimately helped determine the fine that was paid. 

91

Although much of the work in forging these partnerships is being done by agencies such as the EPA and the Department of the Interior, the Department of Justice 

can play a role here as well by being open to creative settlements that improve environmental protections and protect resources in cost-efficient ways. Working together, we can achieve the next generation of environmental progress which will 

protect our resources and the special blessing that we as Americans have been given 

and that we have an obligation to pass down to our descendants.

Responses of the Nominee to additional questions submitted by Senator 

fCantwell 

Thank you for providing two documents you generated as Solicitor of the Interior 

that established procedures for the handling of Endangered Species cases and the 

Endangered Species Committee (ESC) during your tenure. 

The first directive supplied to the Committee establishes a set of guidelines for 

handling Endangered Species cases within the Solicitor’s office and makes clear that 

any Associate Solicitor or staff involved in consultation on an endangered species 

case will be prohibited from providing legal advice to the Secretary during an ESC 

proceeding. It further prohibits the Associate Solicitor for General Law and his staff 

from participating in any substantive endangered species case consultation in order 

to ensure that they will remain available to provide guidance to the Secretary and 

the Administrative Law Judge in an ESC proceeding.

Question 1: With regard to your own role in the process, did you view yourself 

as exempted from the ban on advising the Secretary on ESC issues, even though 

you had previously advised him on consultation, under the ‘‘agency head exception’’

outlined in the document? If so, what was the basis for this determination and was 

a similar practice followed in previous ESC cases? 

Answer: I do not have present recollection of the precise legal analysis I employed 

ten years ago in determining that I was not precluded from acting as a legal advisor 

to Secretary Lujan and the ESC. However, after reviewing the memoranda I provided to the Judiciary Committee in which I applied the APA’s separation of functions provisions to various positions within the Department of Interior generally and 

the Solicitor’s office specifically, I believe it is likely that I concluded that the Solicitor, as chief legal officer to the Secretary, was covered by the ‘‘agency heads exception.’’ Similarly, I do not remember what weight may have been given to any previous separation of functions arrangements that may have been established within 

DOI under prior Endangered Species Committees. I believe, however, that the directives I issued in 1991 outlining the appropriate separation of functions within DOI 

represented my best interpretation of the applicable statutes, regulations, and case 

law as they existed at that time and as applied to the specific facts in the case 

under consideration.

Question 2: Upon the filing of the petition for exemption, you issued additional 

guidance that made clear a ‘‘Chinese wall’’ was to be erected, and that attorneys 

representing the Fish and Wildlife Service and the Bureau of Land Management 

were not to have substantive communications with you, the Deputy Solicitor, or staff 

of the Division of General Law. Were those separations adhered to? 

Answer: To the best of my knowledge and recollection, those separations were adhered to.

Question 3: Did you contemplate the creation of additional separations between 

staff designated to provide guidance to the Administrative Law Judge, and staff designated to provide counsel to the Secretary? Why or why not? 

Answer: No, since the hearing officer was appointed by the Secretary to receive 

the testimony that would result in a report to be given to the Secretary, the staff 

designated to provide guidance was working similarly for the benefit of the Secretary and the ESC. It is also important to remember that although Judge Schweitzer, who happened to be an ALJ, presided over the hearings and the ESC process, 

he did not act as the interim or ultimate decision-maker.

Responses of the Nominee to questions submitted by Senator Durbin 

f Question 1: What is your position on the Endangered Species Act? Please explain. 

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Answer: The Endangered Species Act has as its general purposes the conservation 

of endangered and threatened species, many of which have great aesthetic, ecological, educational, historical, recreational and scientific value, and the ecosystems 

upon which they depend. I support these purposes, and, if I am confirmed as Assistant Attorney General, I will both enforce and defend the provisions of the Endangered Species Act as the law of the land.

Question 2: In praising Gale Norton, the Secretary of the Interior, you reportedly 

made the following statement: ‘‘She understands the system. She is very good on 

national park issues and on Endangered Species Act law. There won’t be any biologists or botanists able to come in and pull the wool over her eyes.’’ Can you explain 

that statement for the Committee? 

Answer: My tenure as Interior Associate Solicitor for Energy and Resources overlapped with Gale Norton’s tenure as Associate Solicitor for Conservation & Wildlife. 

In that role, Ms. Norton was the chief attorney for the National Park Service and 

the Fish & Wildlife Service. I had the opportunity to observe her interaction with 

biologists and botanists on a variety of ESA listing, delisting and critical habitat delineation issues. My comment was intended to emphasize that her previous experience with ESA issues, which sometimes involve conflicting opinions being offered by 

biologists and botanists from the government and private sectors, would serve her 

well as Secretary of the Interior when she again-would be dealing with these types 

of complex issues.

Question 3: As Solicitor at the Department of the Interior during the first Bush 

Administration, you were involved with the Endangered Species Committee’s proceeding regarding timber sales in the Pacific Northwest that threatened the habitat 

of the Northern Spotted Owl. Why were the Endangered Species Committee’s proceedings treated as a formal rulemaking rather than an adjudication? 

Answer: With no guidance being supplied in the statute or the regulations, the 

issues of a rulemaking versus an adjudication had to be handled as a matter of first 

impression. Under administrative law, if Congress does not specify by statute the 

appropriate procedural mode, an agency must make the decision. It was decided 

since the Endangered Species Committee members were not judges or lawyers, that 

it would be best to make the Committee’s decision-making process less formal, 

thereby allowing the record to include more information rather than less. Thus, the 

Committee had an ample supply of information and further opportunity to solicit 

comments on that information, including unsworn reports and economic analyses 

not subject to cross examination, as would be found in a rulemaking. (An adjudicatory process, on the other hand, by its nature would have been more highly structured and exclusionary.)

Question 4: Mr. Sansonetti, during the proceedings on the Northern Spotted Owl 

overseen by the Endangered Species Committee, you had many potentially conflicting roles. You served as Interior Secretary Lujan’s official representative to the 

Endangered Species Committee, Legal Counsel to the Endangered Species Committee, chief legal advisor to administrative law judge Harvey Sweitzer and Interior 

Solicitor. Were you concerned that serving in these capacities might require you to 

commingle decisional and investigative-prosecutorial functions? Do you believe your 

roles in thus case raised legitimate concerns about the fairness of the hearings conducted by the Endangered Species Committee? 

Answer: Yes, I was concerned that, without an effective process in place, that carrying out my statutory duties might otherwise require me to commingle decisional 

and investigative prosecutorial functions. Consequently, I established a structure 

that allowed for both the Fish & Wildlife Service and the Bureau of Land Management to have their own counsel without interference from my immediate staff or me. 

This structure allowed me to concentrate on advising the Secretary and the members of the Endangered Species Committee without having to function in an 

investigative- prosecutorial role. As a consequence of taking these steps, I do not believe legitimate concerns could be raised about the fairness of the Endangered Species Committee hearings. The process established was a reasonable interpretation 

of the statute and accompanying regulations, as they existed in 1991.

Question 5: Environmental justice addresses concerns that minorities and low-income people tend to suffer disproportionately higher exposure to Environmental 

harm than the rest of us. In 1994, President Clinton issued Executive Order 12898, 

‘‘Federal Actions to Address Environmental Justice in Minority Populations and 

Low-Income Populations,’’ which requires each agency to make environmental justice a part of its mission. The Order directs agencies to ensure that federal programs affecting human health or the environment do not subject individuals to discrimination based on race, color or national origin. I’d like to ask you about environVerDate Feb 1 2002 08:24 Sep 25, 2002 Jkt 081753 PO 00000 Frm 00096 Fmt 6633 Sfmt 6621 C:\HEARINGS\81753.TXT SJUD4 PsN: CMORC
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mental justice generally and thus Executive Order specifically. What is your position on thus issue? 

Answer: I support the fair treatment of people of all races, cultures, and incomes 

with respect to the development, implementation, and enforcement of environmental 

laws and policies, and if confirmed as Assistant Attorney General of the Environment and Natural Resources Division, I would work to ensure that the Division’s activities did not subject individuals to discrimination based on race, color or national origin.

Question 6: There is a close connection between environmental justice litigation 

and Title VI of the Civil Rights Act of 1964, which prohibits discrimination based 

on race, color, or national origin in programs and activities that receive federal financial assistance. Pursuant to Title VI, most federal agencies have adopted implementing regulations that prohibit not only intentional discrimination by the agencies, but also agency policies and practices that could have a discriminatory effect. 

Environmental justice litigants have routinely relied on Title VI in bringing judicial 

or administrative complaints against government agencies whose programs result in 

adverse discriminatory impacts. Last year, however, the United States Supreme 

Court in Alexander v. Sandoval ruled that there is no private right of action to enforce disparate impact regulations promulgated under Title VI. This case effectively 

shields state agencies that receive federal funding from private civil rights lawsuits 

over policies that have a discriminatory effect on minorities. While the Sandoval 

case dealt with an English-only law, environmental justice advocates are concerned 

that the ruling of this case effectively precludes the filing of future environmental 

justice lawsuits that rely on Title VI. This will have a detrimental effect on the ability of the public to hold government agencies accountable for continuing to implement the goals of environmental justice and other environmental statutes as, there 

are no other practical legal remedies available to the affected members of minority 

and low-income communities. Should you be confirmed, what assurances can you 

give that environmental justice litigants will continue to have their day ill court? 

Answer: Although I am not familiar with whether Congress is taking any action 

in response to the ruling in Alexander v. Sandoval or whether the lower courts have 

relied on that ruling in the context of environmental justice lawsuits, I support the 

goal of Title VI of the Civil Rights Act of 1964, and if I am confirmed, I pledge to 

work with my counterparts in the Civil Rights Division and the Environmental Protection Agency on this important issue.

Responses of the Nominee to questions submitted by Senator Kennedy 

f Question 1: In Solid Waste Agency v. United States Army Corp of Engineers (U.S. 

2001) the Supreme Court ruled that a federal regulation defining ‘‘navigable waters’’ under the Clean Water Act to include intrastate waters that provide habitat for migratory birds exceeded the agency’s statutory authority. The Court declined to defter 

to the agency’s interpretation of the statute under Chevron, U.S.A. v. National Resources Defense Council (U.S. 1984), holding that the statute, if so interpreted, 

would rare significant constitutional questions as to whether the statute exceeded 

Congress’s authority under the Commerce Clause. Thus, the Court ruled, deference 

to the agency was unwarranted. 

Question a: Do you believe that the interpretation of the statute urged by the 

agency—which would allow regulation of intrastate waters that provide habitat for 

migratory birds—would violate the Commerce Clause? Why or why not? 

Answer: The question of the constitutionality of the ‘‘migratory bird rule’’ under 

the Commerce Clause was not squarely presented in Solid Waste Agency v. United 

States Army Corps of Engineers (SWANCC) because the Supreme Court invoked the 

principle of constitutional avoidance, designed to promote judicial restraint and 

thereby protect the prerogatives of the Legislative and Executive branches, by preventing courts from unnecessarily rendering decisions about constitutional questions. Given that the Court avoided the issue and that my knowledge of it is derived 

solely from a review of the SWANCC opinion, I presently lack sufficient information 

to form a belief regarding whether the interpretation of the statute advanced by the 

agency would violate the Commerce Clause. If confirmed as AAG, I would familiarize myself with the agency’s arguments by reviewing the briefs filed in the case 

and consulting with those in the Department who oversaw the case.

Question b: Do you plan to take the position that any other federal environmental 

statutes—or agency interpretations of environmental statutes—exceed Congress’s 

power under the Commerce Clause? 

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Answer: In general, it is the role of tile Department of Justice, as guided by tile 

Solicitor General’s Office, to defend the constitutionality of the enactments of Congress and the regulations of the Executive branch issued pursuant to delegations 

of authority by Congress. I will work to act in and fulfill this role. It is my understanding that only in rare, and extremely clear, cases has the Department or Justice 

refused to defend the constitutionality of Congressional statutes.

Question 2: In recent years, federal courts leave entertained claims by developers 

and landowners that the application of certain environmental regulations violate the 

Constitution’s Takings Clause. For instance, in Florida Rock Indus., Inc. v. United 

States, 18 F.3d. 1560 (Fed. Cir. 1994), the Federal Circuit held that the government 

may have to pay compensation for a partial regulatory taking or a reduction in property value caused by wetland regulations (on remand the trial court then found that 

a partial taking had occurred). In Tulare Lake Basin Water Storage District v. 

United States, 49 Fed. Cl. 313 (2001), the Court of Federal Claims found a taking 

where federal protections for endangered salmon and delta smelt resulted in reduction of water available to claimants under their contracts with the state of California. 

The Assistant Attorney General for the Enviromnent and Natural Resources Division is responsible for defending legal challenges brought by parties seeking such 

compensation (see, e.g., Flordia Rock) and also, when appropriate, for amicus briefs

when questions of takings arise before the federal courts (see, e.g., Nollan v. California Coastal Commission (U.S. 1986) (Brief for the United States supporting, reversal)). 

Question a: Under what circumstances do you believe that the Takings Clause 

should apply to situations that do not involve physical expropriation or invasion of 

property by the government? 

Answer: The Supreme Court has held that some non-physical. regulatory actions 

may constitute takings. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). 

The Court has also articulated a test for assessing when such regulatory takings 

have occurred. See Penn Central Transportation Co. v. City of New York, 438 U.S. 

104 (1978); Palazzolo v. Rhode Island, 121 S. Ct. 2448 (2001). The Supreme Court 

and the lower courts interpreting the Court’s precedent have made clear that the 

test as to whether a taking has occurred is highly fact-specific and must be evaluated on a case-by-case basis. Thus, to determine whether a particular regulatory action constitutes a taking would require careful examination of the specific facts. In 

most instances, I would apply the Penn Central test, which is applicable to the majority of regulatory takings suits.

Question b: When, in your view, is an environmental regulation sufficiently burdensome as to constitute a taking requiring compensation by the government? 

Answer: In Mahon, the Supreme Court held that regulatory actions become 

takings when they go ‘‘too far.’’ 260 U.S. at 415. Under the Penn Central test designed to flesh out when a regulation has gone ‘‘too far,’’ burdensomeness (more 

commonly termed the economic impact) on regulated parties is only one part of the 

analysis of whether a regulatory taking has occurred. See Penn Central, 438 U.S. 

at 124. The other factors to be considered are the character of the governmental action and the claimant’s distinct investmentbacked expectations. Id. Again, as Assistant Attorney General, I would apply Penn Central to answer this question. given 

the case’s particular factual setting. Subsequent Supreme Court takings decisions 

such as Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), address the 

unusual circumstance in which a regulatory action renders a particular parcel of 

property valueless and denies the owner of all economically viable use.

Question c: If confirmed as Assistant Attorney General how will you approach 

takings claims brought against federal agencies that seek to enforce environmental 

law such as those protecting endangered species and wetlands? 

Answer: The facts of endangered species and wetlands cases are often complex, 

as is the statutory and regulatory law in these areas. The precise manner in which 

I would approach takings questions in these areas will depend upon the specific 

legal and factual context of a case. I will, of course, follow the applicable Supreme 

Court case law in determining my approach if confirmed as Assistant Attorney General.

f95

Responses of the Nominee to questions submitted by Senator Leahy 

Question 1: The Department of Justice best fulfills its law enforcement responsibilities when it presents the appearance, as well as the fact, of unbiased and 

impartlal exercise of prosecutorial judgement. Any suggestion, let alone the actuality, of political, interference with those important decisions would undermine the 

credibility and effectiveness of the critically important law enforcement efforts of the 

Justice Department. What approaches will you take to ensure that the Hill and the 

White House do not exert—and are not perceived to be exerting—political pressures 

on you and your division? 

Answer: While I believe that it is desirable to have open lines of communication 

between the Justice Department, Congress, the White House, and the various federal agencies on issues of mutual interest and concern, I also believe it is important 

for those in the Department of Justice to maintain a proper institutional independence in their decision-making. Accordingly, if confirmed as Assistant Attorney General, I would ensure that my decisions and recommendations in the Environment 

and Natural Resources Division were based on my best judgement as informed by 

existing statutes, regulations, and controlling case law. I would abide by the Department’s ‘‘pending matters policy’’, which addresses congressional involvement in 

pending litigation, as well as any other policies designed to avoid the appearance 

or reality of political interference.

Question 2: Following up on the discussion of the Clean Air Act New Source Review (NCR) enforcement eases against coal-fired power plants and refineries that 

we began at your hearing: 

Question a: Do you have any opinion about the merits of these cases, and if so, 

what is the basis of your information? 

Answer: The information I have on these cases comes from press accounts and a 

meeting I attended at which representatives of the Attorney General Offices of the 

States of Massachusetts, Pennsylvania, New York, Vermont and New Jersey mentioned these cases. Accordingly, my current familiarity with the litigation is insufficient to allow an opinion as to their merits.

Question b: Have you met with any representatives of industry about these cases, 

and have you been briefed about these cases by any parties and, if so, by whom? 

Answer: I have not met with industry representatives about these cases. Representatives of the Attorney General Offices of the States of Massachusetts, Pennsylvania, New York, Vernmont, and New Jersey mentioned these cases to me at a 

meeting this past summer.

Question c: Do you plan to make any changes in the prosecution of these cases, 

and if you leave not yet decided that, how do you plan to go about making that decision? 

Answer: If I am confirmed, I will ensure that these cases proceed consistent with 

the conclusions of the Presidentially-mandated DOJ review of the NSR cases.

Question d: Have you been briefed on DOJ’s ongoing review of the NSR enforcement cases, called for by the Administration’s national energy policy? 

Answer: No.

Question e: Will you abide by whatever recommendation has been made or will 

you reevaluate the issue when you start? 

Answer: If I am confirmed, I will ensure that these cases proceed in a manner 

consistent with the conclusions reached by the Presidentially-mandated review process.

Question f: What do you believe a business should do when faced with a regulation that may be capable of more than one reading? 

Answer: The business should consult with its legal counsel. It may also want to 

consider relevant case law, agency guidance, and the rulemaking record. If appropriate, the business could contact the regulating agency for further guidance.

Question g: What do you understand about the defendants’ fair notice defenses in 

the power plant cases? 

Answer: I have not read the briefs in these cases and am unfamiliar with defendants’ fair notice defenses. If confirmed, I will familiarize. myself with those briefs.

Question h: What do you understand about the defendants’ ‘‘industry practice’’ arguments, in which defendants argue that anything done within the industry, no 

matter how infrequently, is ‘‘routine’’ for purposes of the NSR routine maintenance 

exemption? 

96

Answer: I have not read the briefs in these cases and am unfamiliar with defendants’ ‘‘industry practice’’ arguments. If confirmed, I will familiarize myself with 

those briefs.

Question i: What is your understanding of the environmental and public health 

impacts of the violations at issue in these cases? 

Answer: Other than generalized descriptions in press accounts, I am unfamiliar 

with the impacts of the violations at issue. If confirmed, I would familiarize myself 

with the NSR cases, including the environmental impacts and public health issues 

raised by the alleged violations.

Question j: How should environmental impacts and public health issues be considered iin setting priorities? 

Answer: Priorities regarding environmental impacts and public health issues are 

made in the first instance by the program agencies, rather than by the Department 

of Justice. However, I believe that these issues are an important factor in setting 

priorities.

Question k: Will you continue to devote extensive resources to these cases? 

Answer: I am not familiar with the extent of the resources devoted to these cases. 

If firmed, I will review these cases in light of the Division’s workload and budget 

to determine whether appropriate resources are devoted to them.

Question l: What is your view of the relationship hotween EPA and DOJ on the 

decisionmaking regarding these cases? 

Answer: I any not familiar with the relationship of the two agencies on the 

decisioninaking regarding these cases.

Question m: If EPA recommends changes to the NSR rules, would that impact 

your view of the cases that concern past violations? 

Answer: I am not familiar with the substance of the rules or the nature of any 

of EPA’s potential recommendations and I do not have a view of the cases. If I am 

confirmed as Assistant Attorney General, I will familiarize myself with the litigation 

and any EPA recommendations to change the NSR rules.

Question n: What is your view of the role of states inenvironmental enforcement? 

Answer: With respect to the work of the Division, I believe that the states should 

be viewed as partners in the Department’s effort to enforce the environmental laws 

in a fair and firm manner, and that we should develop cooperative working relationships to resolve any concerns or issues that may arise in the arena of environmental 

and resources law.

Question o: What is your view of tile role of citizens in environmental enforcement? 

Answer: A number of enviromnental statutes provide for citizen suit enforcement. 

I support the Congressionally-mandated role of citizens in errvironrnental 

1enforcement. Also, several of these statutes require that the Department of Justice 

review proposed consent decrees in citizen suit actions for consistency with the underlying statute. This is an important obligation that the Division will continue to 

discharge.

Question p: Do you have any views oil working with citizen and state plaintiffs 

in enforcement cases? 

Answer: I believe the Department can benefit from developing cooperative working 

relationships with citizen and state plaintiffs to enforce tile environmental laws in 

a fair and firm manner. Such relationships can help to resolve any concerns or 

issues that may arise in the arena of enviromnental and resources law. In particular, I would strive for greater cooperation and in sharing information to support 

mutual efforts in matters of both regional and national significance in the civil and 

criminal context.

Question 3: From your experience, what would you say that EPA and DOJ done 

wrong in the arena of envirownental enforcement, defense, and policy development? 

Do you have any plans for changing the emphasis of the agencies in these areas? 

Answer: When I was Solicitor of the Department of the Interior, I learned the importance of constructive working relationships with the Department of Justice, and 

with other federal agencies, including EPA. If continued, I would look forward to 

ensuring that constructive relationships and open communication exists with EPA 

and agencies oil matters related to the Division’s representation. It is the responsibility of the client agency to determine its priorities.

Question 4: In a few cases, the EPA is changing certain reulatory requirements 

prospectively: what effect should that have on existing enforcement cases brought 

under the regulations that are being changed? 

97

Answer: The effect of a changed regulation on existing enforcement cases is highly 

dependent on the particarlar facts of the regulation and cases at issue, so it is difficult to make a general statement about how such cases would he handled. Aniong 

the factors to be considered would be: whether the regulatory change was substantive or procedural; the purpose of the regulatory change; the procedural status 

of the case at tile time the regulation is changed; and the nature of the relief 

sought.

Question 5: What is your impression of the quality of DOJ staff attorneys? Do you 

have any plans for changing the management of the litigating sections? Do you have 

any particular concers about particular sections? Do you have any plans for reallocating resources? Have you considered whether changes are merited for the Environment and Natural Resources Division budget? 

Answer: In the last few months, I have met with the many former Assistant Attorney Generals (AAGs) for the Division and found them to be a valuable source of insight on the opportunities and the challenges facing the Division, and its extremely 

capable attorney staff. This latter observation is consistent with any experience as 

Solicitor of the Department of the Interior where I found the staff attorneys in the 

Division to be very professional, qualified, and dedicated. Particularly remarkable 

to me was a common theme that ran through my discussions with the more recent 

AAGs, that the Division suffers front a lack of resources necessary to accomplish 

its important work. The former AAGs impressed upon nee the need to bring available technology to the Division’s litigators so that the attorneys can more effectively 

litigate on behalf of the American public. A vital part of this effort is ensuring that 

the needs of the Division’s field offices are met. Also, I believe that the Division 

should continue to develop close working relationships with United States Attorneys 

Offices and State Attorneys General—these entities can provide invaluable resources in the Division’s work in enforcing and defending the environmental and 

natural resource laws.

SUBMISSION FOR THE RECORD

fCONGRESS OF THE UNITED STATES

HOUSE OF REPRESENTATIVES

November 6, 2001

Senator Patrick Leahy 

Chairman 

Committee on the Judiciary 

224 Dirksen Building 

Washington, DC 20510

Dear Senator Leahy:

I am writing to voice my strong support for Thomas L. Sansonetti as President 

George W. Bush’s nominee to be Assistant Attorney General for the Environment 

and Natural Resources Division. 

I have a great respect for Tom and complete confidence in his abilities. His illustrious career speaks volumes as does his strong desire to serve our country in the 

capacity of a public official. 

His extensive background and experience in environmental and natural resources 

policy will surely benefit every American. Knowing Tom in both a personal and professional capacity, I am very familiar with his sound analysis and his fairminded 

judgment on these important public policy matters. 

Mr. Chairman, I give my full support for his confirmation as Assistant Attorney 

General. Thank you for your timely consideration of his confirmation. 

Sincerely, 

BARBARA CUBIN

Member of Congress

Æ