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Defensive Work

Supporting Federal Programs and Activities

ENRD plays a crucial role in ensuring that federal agencies can effectively administer the laws enacted by Congress and further the policies set by the President. Our work supports the mission of virtually every federal agency.

The Division defends the regulations that agencies issue to protect human health and the environment from pollution and to protect and manage federal lands, wildlife, and natural resources. ENRD also defends the actions agencies take to manage and protect our lands and resources, as well as those taken to support infrastructure development and energy production, protect national security, and meet other public needs, while complying with the requirements of environmental laws, and we acquire land for all types of agency programs.

Defending Implementation of Laws Protecting the Environment and Natural Resources 

EPA issues regulations to implement federal pollution-control laws so as to protect human health and to ensure that all Americans have clean air, clean land, and clean water. ENRD defends lawsuits challenging the regulations that EPA promulgates to implement these statutes, including the Clean Water Act, the Clean Air Act, and the law governing the sale and use of pesticides in the United States (the Federal Insecticide, Fungicide, and Rodenticide Act, or FIFRA).

ENRD also represents the federal agencies charged with implementing laws governing the protection and stewardship of the Nation’s lands and its wildlife and marine resources, including the Departments of the Interior (which includes the Fish and Wildlife Service (FWS), the National Park Service, and the Bureau of Land Management (BLM)), Agriculture (which includes the Forest Service and the Natural Resources Conservation Service), and Commerce (which includes the National Oceanic and Atmospheric Administration). We defend the regulations these agencies issue to protect wildlife, control activities on federal lands, manage fisheries, and encourage preservation of wetlands and other natural resources.

The National Environmental Policy Act (NEPA) requires agencies to consider the significant environmental consequences of proposed actions and to inform the public about their decision-making. ENRD works closely with the Council on Environmental Quality (CEQ), which oversees implementation of the Act, and other agencies as they develop implementing regulations and guidance, and defends challenges to NEPA regulations and implementation. 

Defending Land and Resource Management Decisions 

Federal agencies that manage public lands operate under statutory mandates that authorize multiple — often competing — uses, including timber harvest, mineral resource extraction, wildlife protection, recreation, and grazing. This mandate has become increasingly challenging as climate change and catastrophic wildfires alter ecosystems across the West. ENRD defends the decisions BLM makes in managing roughly 250 million acres of public lands and 700 million acres of subsurface mineral estate, as well as those made by the Forest Service in managing some 200 million acres of National Forest lands. We also defend decisions made by other federal agencies charged with managing land owned by the United States, including national parks, monuments, and wildlife refuges. In addition, ENRD defends decisions made by Interior’s Bureau of Ocean Energy Management in managing development of the nation’s offshore resources.

ENRD also defends the actions federal agencies take under wildlife protection statutes. For example, under the Endangered Species Act, Congress authorized Interior (acting through FWS) and the Department of Commerce (acting through the National Marine Fisheries Service (NMFS)) to list species as either endangered or threatened, designate critical habitat for listed species, and then apply the protections of the ESA. The Division represents FWS and NMFS when their decisions under the ESA and other wildlife protection statutes are challenged. 

Supporting Infrastructure, Energy Development and Other Critical Needs

ENRD strengthens America’s national security in numerous important ways. We defend challenges to alternative energy projects, including wind energy and geothermal energy, which facilitate renewable energy infrastructure development and strengthen our nation’s energy security.

ENRD also defends lawsuits brought against the Bureau of Reclamation, which operates large-scale irrigation and hydropower projects throughout the western and mid-western United States. Reclamation is the largest wholesaler of water in the country, and the second largest producer of hydroelectric power. ENRD defends Reclamation’s ability to operate its projects effectively and safely in the face of mounting challenges imposed by climate change, including long-term drought in many western states. 

ENRD regularly defends federal agencies from lawsuits where plaintiffs allege that they failed to comply with NEPA or other environmental laws before issuing an authorization or otherwise taking a particular final agency action. These suits support a broad range of federal interests and activities, including energy and infrastructure development as well as the national security activities of the Departments of Defense and Homeland Security.

Protecting Federal Interests in Land and Water

The Division defends the United States from efforts to claim title in, or control over, federal lands. These cases include situations where plaintiffs dispute the United States’ ownership and ask the court to rule that they own the property in question, as well as scenarios where the plaintiffs are trespassing on federal land. For example, the Division manages a large docket of Quiet Title Act cases in Alaska where the state claims it owns the lands under lakes and rivers within National Park units, national monuments, congressionally designated wild and scenic rivers, and other federal lands. In Utah, the Division manages an even larger docket defending against that state’s claims to over 12,000 rights of way in highways over federal lands. ENRD also protects federal lands by bringing trespass actions against those whose unauthorized activities harm those lands. 

In addition, ENRD represents federal agencies in water rights adjudications that arise in state courts across the western United States, asserting water rights on behalf of the United States and litigating objections to competing private water rights.

Acquiring Lands and Preserving the Federal Fisc 

Through its Land Acquisition Section, the Division assists federal agencies in acquiring real property in support of vital public missions. This work is carried out through condemnations for congressionally authorized public uses. In 2022 alone, the Division acquired land for federal infrastructure projects from coast to coast, including by filing numerous cases to acquire hundreds of acres for the Federal Aviation Administration to ensure the continued operation of the national airspace system. 

In land acquisition cases, ENRD works to ensure that the government’s constitutional duty to pay “just compensation” to the landowner from whom property is acquired is fair to both the landowner and the taxpayers who bear the burden. Our focus on good governance resulted in several successful dispositive motions and many settlements in the past year, involving property valued in the hundreds of millions of dollars. This work saves the federal government many millions of dollars each year and additionally avoids delays in many federal projects and programs.

ENRD also works to preserve the federal fisc in defending federal agencies against unwarranted monetary claims in Fifth Amendment takings cases, where we defend against allegations that agencies have taken real property without providing just compensation. We also defend tribal trust cases, which involve tribal claims for money damages associated with alleged breaches of trust or treaty responsibilities.