Senate Hearing, 107TH Congress - Confirmation Hearing On The Nomination of Thomas L. Sansonetti To Be Assistant Attorney General

S. HRG.
107673
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. J10747
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, JR., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DEWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina MITCH MCCONNELL, Kentucky
BRUCE A. COHEN, Majority Chief Counsel and Staff Director
SHARON PROST, Minority Chief Counsel
MAKAN DELRAHIM, Minority Staff Director
(II)
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 Environ-
ment 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 Environ-
ment and Natural Resources Division ................................................................ 4
STATEMENT OF THE NOMINEE

Sansonetti, Thomas L., of Wyoming, Nominee to be Assistant Attorney Gen-
eral 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 Wyo-
ming, statement in support of the nomination of Thomas L. Sansonetti
to be Assistant Attorney General for the Environment and Natural Re-
sources ................................................................................................................... 97
(III)
CONFIRMATION HEARING ON THE NOMINA-
TION OF THOMAS L. SANSONETTI TO BE AS-
SISTANT 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
SD226, Dirksen Senate Office Building, Hon. Maria Cantwell, pre-
siding.
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 tak-
ing up the nomination of Thomas L. Sansonetti to be Assistant At-
torney General for the Environment and Natural Resources Section
of the Department of Justice.
Mr. Sansonetti, you are nominated to an extremely important po-
sition 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 As-
sistant Attorney General but I want to say that I have heard testi-
mony from my colleagues on both sides of the aisle that com-
pliment your legal skills and your willingness to work cooperatively
toward responsible solutions, so I look forward to hearing your an-
swers 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 protec-
tion regulations in the face of challenges, and simultaneously to
pursue responsible enforcement of our major environmental stat-
utes 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
(1)
2
that protects our public health, preserves our natural resources,

and does that for future generations.
The person who holds this job is our nations 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 per-
cent believe that our current environmental laws should be main-
tained.
What the American people seek but are not finding is the same
level of commitment from the administration to enforce our exist-
ing 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 en-
ergy-efficient air conditioners, reneged on our commitment to re-
duce greenhouse gas emissions, and contemplated repealing regula-
tions 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 com-
mitment that as Assistant Attorney General the process will begin
of restoring the publics confidence in the administrations commit-
ment to environmental protection by upholding the laws and ad-
vancing strong pro-enforcement actions. In this job you will be re-
sponsible 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 spe-
cies.
When the department is sued to weaken environmental regula-
tions you will be in charge of the litigation. These suits have al-
ready included efforts to invalidate the roadless area rule that pro-
tects 58 million acres of forests, and to overturn the air condi-
tioning 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 regula-
tions.
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 enforce-

ment 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 environ-
ment and public health over the past 10 years, because of the vig-
orous 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, Id 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 thenand we have had some
delays in moving forward with your nomination due to the events that have con-
sumed 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 Attor-
ney General.
I have heard testimonials from my colleagues on both sides of the aisle as to Mr.
Sansonettis legal skills, and his willingness to work cooperatively toward reason-
able 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 Re-
sources Section of the Department of Justice is a job that comes with enormous re-
sponsibilities.
The person holding this position has the duty both to uphold our environmental
protection regulations in the face of challenges, and simultaneously to pursue re-
sponsible 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, pre-
serves 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 nations top environmental law enforcer, re-
sponsible 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 en-
vironmental regulations and seventy-five percent believe that our current environ-
mental laws should be maintained.
4
What the American people seekbut are not findingis the same level of com-
mitment 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 Administrations commitment to envi-
ronmental 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 con-
tamination.
Just last week the Administration announced that she would change the rules
governing hardrock mining for gold and silverso that the Bureau of Land Manage-
ment would no longer prohibit mining where it would cause substantial irrep-
arable harm to the environment or public health.
What we seek from Mr. Sansonetti today is a strong commitment that as Assist-
ant Attorney General he will begin the process of restoring the publics confidence
in the Administrations 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 Super-
fund 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 condi-
tioning efficiency standard that would spare us the need to build thirty-nine mid-
size 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 enforcementin deciding what cases
to prosecute or appeal and what cases to settlehe takes into account the impor-
tance of strong environmental protection laws in a healthy economy.
In my viewshared by a significant majority of the American peoplestrong en-
vironmental protections should be a priority for this country and for this Adminis-
tration, 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 es-
sential 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 in-
vestments in creative technologies to protect and preserve our environment and
public health over the past ten years is the vigorous enforcement role taken by De-
partment of Justice and specifically the Environment and Natural Resources sec-
tion.
A continued commitment to strong enforcement is necessary to keep businesses
moving forward in the development of creative solutionsrather than allowing a re-
turn to a focus on short-term benefitsand long-term lossesof 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. Sansonettis 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 Cubins hus-

band 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 Com-
mittee. 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 nomina-
tion is one that I have personally followed very closely and encour-
aged the Committee and the Senate to undertake as soon as pos-
sible, 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. Cer-
tainly, however, the Committee is familiar with his law back-
ground. Suffice to say he is a Wyoming lawyer, which, of course,
is a good thing, a fine Wyoming lawyer with extraordinary experi-
ence in public service and private advocacy.
Just a few things from his positions in the past. After estab-
lishing his own firm and practicing law in Wyoming, Tom was
named associate solicitor for energy and resources in the Depart-
ment of Interior. As associate, Tom supervised the staff of attor-
neys 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
Cheneys resignation from the House to become secretary of de-
fense, that Tom and I found ourselves engaged in a special election
for that at-large seat. After the primary Tom agreed to be my cam-
paign 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 con-
firmed by the Senate in 1990. It was there that Tom again distin-
guished 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 envi-
ronmental 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 reputa-
tion in government of weighing carefully the concerns of the envi-
ronment, natural resources and the law.
As you know, Tom is a long-time confidante and ally, so I cer-
tainly am proud to call him my friend. The president has nomi-
nated 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 consider-
ation. It would be a mistake and a disappointment if his nomina-
tion 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 Com-
mittee 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 con-
sidering the importance of the position and Mr. Sansonettis 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, Toms 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 Toms many professional accomplish-
ments, 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 thinga fine Wyoming lawyer, with extraordinary experi-
ence as a public servant and private advocate.
Please allow me to highlight just a few of the positions Tom has held that I be-
lieve 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 Cheneys resignation from the House of Representatives to become Secretary
of Defense, that Tom and I both found ourselves engaged in a special election for
Wyomings 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 Im proud to say accomplished a great deal. In addition, Tom was
my primary aide dealing with matters associated with the House Interior and Insu-
lar Affairs Committee. I watched first hand, Toms skill in navigating issues of pub-
lic 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. Im certain Secretary Lujan, if he were at this
hearing today, would echo my endorsement of Toms abilities.
Tom has a reputation in government of weighing carefully the concerns of the en-
vironment, our natural resources and the law. It is a studied, common-sense ap-
proach 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 minewhich
in this case might help him or hurt him. Either way, Im 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. Sansonettis nomination its 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 com-
mittee 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 one-
man practice on Gillettes 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 Gillettes
booming energy industry. He worked hard. He became a part of the
community. Because of his dedication, when I was mayor I ap-
pointed him to the citys 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 ei-
ther answer. He handled it admirably.
While he was in Gillette he also served as president of the Camp-
bell 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 num-
ber 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 nations coal. It is also expected to lead the nation in the pro-
duction 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 popu-
lations of deer, antelope, sage grouse, turkeys and elk, as well as
a number of ranchers and farms. Through his associate with Gil-
lette, he learned the true value of natural resources and I feel con-
fident in saying that Tom would not do anything to compromise the
continued sustainability of our nations 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 so-
licitor 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 Toms 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 situa-
tion 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 pro-
vide the issues and the discussions would go late into the night,
solving the nations and the states problems. So I have had an op-
portunity to witness his thought process and his decision process
and his values and I would highly recommend him to this Com-
mittee. 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. Sansonettis long record and I appreciate
your time and focus today at the hearing.
Now I will ask my colleagues if they have any opening state-
ments 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 Bushs 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
nations environmental law firm. The ENRD, as it is known, is re-
sponsible for litigation concerning the protection, use, and develop-
ment of the nations natural resources and public lands. It also
handles lawsuits involving wildlife protection, Indian rights and
claims, the clean-up of the nations hazardous waste sites, and the
acquisition of federal property for federal use. It also defends envi-
ronmental challenges to governmental programs and activities.
The person who oversees this important division and its approxi-
mately 700 employees must be someone with experience and fortu-
nately 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 Or-
egon. Previous to that, you served for two years as the Interior De-
partments associate solicitor for energy and resources.
Equally important, Mr. Sansonetti has also gained familiarity
representing private sector clients as a lawyer specializing in envi-
ronmental and natural resources law, including cases regarding en-
dangered species, water law, mining regulations, and Superfund
sites. In short, I believe you to be a well rounded and highly com-
petent lawyer with a reputation for fairness. Tom Sansonetti is ex-
actly the person we need to lead the Environment and Natural Re-
sources 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 adminis-
trations 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 con-
firmed 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. Univer-
sity of Virginia undergraduate school, his MBA at the fine Univer-
sity 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 Jus-
tice. 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 rep-
resented 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 ar-
cane 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 fun-
damentally, the power of the Assistant Attorney General of envi-
ronment 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 effec-
tive 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 introduc-
tions and opening statement.
STATEMENT OF THOMAS L. SANSONETTI, OF WYOMING, NOMI-

NEE TO BE ASSISTANT ATTORNEY GENERAL FOR THE ENVI-
RONMENT 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 congres-
sional delegation for coming to my hearing today and I greatly ap-
preciate their kind words this afternoon. I have had the good for-
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 appre-
ciate 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 Bushs nomi-
nee for the position of Assistant Attorney General for the Environ-
ment 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 numer-
ous natural resource and environmental challenges facing our
country.
I strongly believe that it is our responsibility to conserve for fu-
ture generations the opportunity to experience a cleaner, greener
United States than we enjoy now. At the same time we must pro-
vide 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 con-
firmed, I look forward to working closely with members of this
Committee and other members of Congress to deal successfully
with issues involving Americas natural resources.
So if recommended by this Committee and confirmed by the Sen-
ate, 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 ENRDs attorneys di-
rectly affect the daily lives of all Americans.
Now my personal observations of the federal governments im-
pact 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 Wash-
ington 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 nations smallest populace. Likewise, I ob-
12
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 ef-
fects of the inevitable bust that followed.
Now one of the assets that I believe I bring to the job of Assist-
ant Attorney General, if confirmed, would be my previous govern-
ment experience. I was the associate solicitor for energy and re-
sources 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 Envi-
ronment and Natural Resources Division.
Serving in these previous administrations allowed me to develop
an appreciation for the many positions in natural resources litiga-
tion and such litigations 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 Agri-
culture, 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 Wests thirst
for scarce water resources that pits the federal government, indi-
vidual 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 experi-
ences 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 legis-
lative director for thenCongressman 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 interrelation-
ship 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. Accord-
ingly, 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 medi-
ator. 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 chairs inten-
tion to do rounds of 10-minute questions at that point in time, if
that is helpful for members. Then we will rotate that and depend-
ing 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 chairs intention that I will suggest to the chair-
man 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 ap-
pear. 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 North-
west, 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 areasarsenic in clean drinking waterin 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 envi-
ronmental 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 administrations job to make that happen.
Now obviously I have been on the outside practicing law in Chey-
enne, Wyoming this year but I have been observing the administra-
tions activities and frankly look forward to an opportunity, if con-
firmed, 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 Com-
mittee, 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 environ-
mental 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 per-
ception 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 con-
vene 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 ac-
tive part of my life in 1992. It was, I believe, only the third time
that the Endangered Species Committee had ever been called to-
gether. 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, Agri-
culture, 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 agen-
cies 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 groupthe
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 actu-
ally in Oregon at the BPA headquarters for several weeks. At that
time it was my job then to aid that administrative judgehis name
was Harvey Schweitzerthrough an actby that I mean the por-
tion of the actthat 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 Manage-
ment to allow timbering to go forward in areas that were consid-
ered 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 52, 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 with-
in your jurisdiction, but the fish and wildlife agency responsible for
arguing against the exemptionBLM wanting the exemption and
Fish and Wildlife did notthe 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 resourcesI think the gentlemans name
was Paul Cruziwas 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 re-
move 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 pre-
sented 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 admin-
istrative 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 ques-
tioning 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 sug-
gested 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 con-
sequently 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 proce-
dures 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 open-
ing 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 state-

ment 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 com-
mend her for her leadership, particularly in this area on the Judici-
ary 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 nat-
ural 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 mem-
bers of this Committee in advocating for strengthening of federal
environmental and natural resource law, including Senator Cant-
well 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 Sen-
ator Kennedy, working with him to advocate retaining current fed-
eral court interpretations of takings law.
We in this Committee and in the legislative branch have the op-
portunity 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 fed-
eral 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 rep-
resenting 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 re-
gional, in scope?
Mr. SANSONETTI. Thank you, Senator. That is a very good ques-
tion 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 devel-
oped into a specialty of environment and natural resources law be-
62
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 as-
sociate solicitor for energy and resources at the Department of the
Interior. I had three main clients, if you will, within the depart-
ment: the Bureau of Land Management, the Bureau of Reclamation
and the Mineral Management Service. I had a group of about 41
lawyers, $34 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 landsgrazing, 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 Rec-
lamation 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 Inte-
rior is really all 50 states and questions that came up that cross-
cut through the department can touch on things dealing with Indi-
ans. 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 solicitorthere are five all toldI found my-
self continually working with those who were involved with rec-
lamation at OSM, the national parks, Indian matters, and the like.
That just broadened by a number of 100 when I got to be the so-
licitor 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 so-
licitor I had an opportunity to work with folks out of regional of-
fices in Atlanta, Boston, field offices in MinneapolisSt. 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 sen-
ator, 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 trav-
eled to every one of those 23 field offices, from Anchorage to At-
lanta, 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 Depart-
ment 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 Com-
mittee 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 sup-
63
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 regard-
ing 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 amend-
ed.
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 be-
fore 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 Wyo-
ming but in other states like Utah, which were affected. The
amount of coal being taken out today from a Wyoming or an Illi-
nois 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 De-
fenders of Property Rights Lawyers Network on the organizations
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 organiza-
tions 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 Cant-
well has made it possible, being one of those who has helped very
much in putting together hearings that could not be done other-
wise.
In your case we are talking about the Department of Justice en-
vironmental 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 childrens children.
Earlier this year during the confirmation hearing for the position
of attorney general of the United States there was considerable dis-
cussion 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 be-
cause 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 De-
partment of Justice can provide a visible and responsible face for
environmental law policy. I believe during the Clinton administra-
tion they showed stewardship and advocacy and they strengthened
the federal governments institutional commitment to these impor-
tant goals. In fact, they built up a very impressive cadre of profes-
sional 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 sen-
ators 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 Envi-
ronment 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 re-
lates to coal-fired utility plants.
And then the press says that the Bush administration is launch-
ing 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 indus-
try rather than environmental interests, almost by saying Go
ahead and pollute; we dont 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 en-
force them. And I know that it is a tremendous power that the en-
forcers 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 Jus-
tice 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 Re-
sources 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 Sep-
tember 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 posi-
tion as Assistant Attorney General not only needs the full confidence of the Presi-
dent and the Attorney General; he also needs the confidence and trust of the Con-
gress and the American people. We all look to the Department of Justices environ-
mental lawyers to ensure preservation of our precious wildlife, protection of our in-
digenous peoples, and principled approaches to managing our nations natural re-
sources.
66
Earlier this year, during the confirmation hearings for the position of Attorney
General of the United States, there was considerable discussion about what fol-
lowing the law means in relation to the responsibilities of that office. The Depart-
ment 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 develop-
ment. The stewardship and advocacy provided during the eight years of the Clinton
Administration strengthened the federal governments 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 cre-
ated by these dedicated public servants be maintained, and that their accomplish-
ments be built upon, as we continue as a nation to address the critical issues our
society faces in terms of caring for our nations natural resources and handling our
societys environmental responsibilities.
With that said, there are several aspects to Mr. Sansonettis 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 be-
cause 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, refus-
ing to defend pending cases, and continuing to settle conflicts to the benefit of indus-
try rather than environmental interests. I am concerned about Mr. Sansonettis 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 require-
ments 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 Justices 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, hav-
ing 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 Justices 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 re-
gard.
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; todays coun-
sel 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 sepa-
rate 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 Wash-
ington, I believe, in January, helping develop a list of proposals for
changes to federal environmental policies to forward to the new ad-
ministrations transition team at the Department of Interior and
then to Vice President Cheneys 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 presidents 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 appearancefor
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 ques-
tion.
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 BushCheney transition team. I was as-
signed to the Department of Interior team, given my previous expe-
rience 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 dif-
ferent 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 administrations 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 Depart-
ment of the Interior. So recommendations, no.
Chairman LEAHY. Did you take part in any of the recommenda-
tions 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 de-
livered to those that went to the Department of the Interior.
Chairman LEAHY. Well, let me ask you on the specific ones, Sen-
ator 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 reduc-
tions in sulphur dioxide, nitrogen oxide and mercury emissions, it
would require reductions in carbon dioxide emissions. The Bush ad-
ministration has taken the position that carbon dioxide is not a pol-
lutant that should be regulated. What is your view on carbon diox-
ide 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 attor-
ney, 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 administrations
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 Associationyou spoke for them at a hear-
ing just last year; they said the reductions required are draconian.
Do you believe that reducing greenhouse gas emissions is a reason-
able 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 Associations opinion on that par-
ticular issue is concerned, if they do not like the law as it is pres-
ently written then it is their chore to change it. Once I am in posi-
tion 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 dif-
ference 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 De-
partment of Interior, Interior made its recommendations on cases
at the district court level, working with the attorneys within Jus-
tice and usually they were a matter of consensus.
If there was a question on an appeal, if something should be ap-
pealed or not, then it was the solicitor generals 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 chairs intention to hopefully reconvene about 3:50. So we
stand at recess.
[Recess.]
Senator CANTWELL. The Senate Judiciary Committee will recon-
vene 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 vari-
ety 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 re-
sult, 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 con-
tacts and to your knowledge what kind of communication did hap-
pen 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 evi-
dently 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 Com-
mittee 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 De-
partment 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 be-
cause it is not something that had happened very often.
And in the for-what-its-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 Com-
mittee 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 Serv-
ice, 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 agen-
72
cies, one arguing for the endangered species and upholding and the
other arguing against it, all within the purview of your responsibil-
ities 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 in-
cluded giving advise on litigation strategy to all agencies within In-
terior.
So it would be helpful if we just had that document or that infor-
mation. It would be helpful to the Committee.
Mr. SANSONETTI. Okay, I will see what I can do about finding it,
tracking it down.
I would like to turn nowI 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 rule-
making 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 environ-
ment, 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 sen-
sitive surface areas from the effects of subsistence mining and re-
quired public comment and preparation of an EIS? Do you agree
with the decision?
Mr. SANSONETTI. Well, I frankly have no recollection of that deci-
sion 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 Bab-
bitt. 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 com-
fortable 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 al-
lowing 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 mil-
lion 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 Adminis-
trative 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 in-
junction 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
theyve 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 Dis-
trict 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 memo-
rized the numbers, I think that there are over 9,000 cases, Senator,
before this division400 lawyers, 9,000 some casesand over half
of themI 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 remain-
der are either criminal cases or fall into the other categories.
So I will fortunately or unfortunately have a great deal of experi-
ence in situations as you describe.
I would also note that in looking at the conflictsyou spelled out
some of the conflicts that come because you have, say, two agencies
in the same department at odds with one anothernot only did I
see that at Interior but you have Indian Affairs, Bureau of Rec-
lamation, you could have all four of those agencies quarreling and
then add in the fact that you could have the Forest Service in-
volved at Agriculture, the Army Corps of Engineers involved in the
Department of Defense. You can have three or four different de-
partments, 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 be-
cause 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, maam.
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 Leahys
question about Senator Jeffordss 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.
I would now like to talk a little bit about an issue that both Sen-
ator 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 be-
fore the Senate on behalf of the National Mining Association, var-
ious 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 in-
volved 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 Depart-
ment of Justices 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 Feingolds 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 lob-
bying 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 cur-
rently, 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 ques-
tions 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 plan-
ning 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 try-

ing cases, say, out of the EPA realmclean air, clean water
casesbut 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 dis-
agree with the law or the regulation? We are facing with the ad-
ministration a number of areas where valid rules may not be de-
fended 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 En-
vironment and Natural Resources section, do you believe that there
is an obligation to defend the law and regulations even if you dis-
agree 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 nations worst Superfund site, which houses some-
where 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 Washingtons Department of Ecology, Department of En-
ergy, and EPA. It is called a triparty agreement and that agree-
ment lays out specifically the milestones for how clean-up of Han-
ford must be done and the obligations that must be met.
The state of Washington has been levying fines against the De-
partment 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 con-
cerned that those areas that are part of the Superfund sites are
cleaned up. So I think in general I need to associate myself to pre-
vious experience of having had, as solicitor, to order certain agen-
77
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 Ma-
rine Fisheries Service had erred in deciding that in a proceeding
to list a particular species of salmon as endangered, hatchery salm-
on and wild salmon of the same species could be separately consid-
ered in most situations. More importantly, the court immediately
removed the coho from the endangered species list until a new ad-
ministrative process is developed.
The determination of whether or not to appeal this decision rests
with the Division of Environmental and Natural Resources. Be-
cause 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 dif-
ferent species of salmon. So do you agree that in situations like
this the value of having an appellate court ruling is extremely im-
portant 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 par-
ticular 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 prob-
ably 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
secretarys 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 impor-
tant 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
Oregons decision going to be inconsistent with another judge, say
within the Ninth Circuits 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 Cir-
cuit 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 generals 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 Generals Office be-
cause they are in charge of the ultimate appeal.
Senator CANTWELL. Well, we may submit some additional ques-
tions 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 ques-
tions 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 envi-
ronment.
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 Sec-
tionand I believe there are nine sections underneath this par-
ticular 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 actionthat
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 pre-
viously 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 inves-
tigation 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 inter-
ference? What approaches will you have to make sure that the Hill
and the White House do not exert or are not perceived to be exert-
ing 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 noth-
ing 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 Leahys 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 judg-
ment 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 prece-
dents 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 Amer-
ican community will be relying on you for litigation on issues in-
cluding 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 en-
forcer 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 solic-
itor 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. In-
dian 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 prob-
ably 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 re-
sponsibility to the Indian tribes as federally recognized by Con-
gress.
Senator CANTWELL. Well, I thank you for your answer to todays
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 ad-
ditional comments that you would like to make but obviously our
Committee has to make a decision about this position and your re-
sponsibility at a time when I think that many of us do have con-
cerns 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 for-
ward 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 in-
dicate 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 prece-
dential and/or persuasive weight to which they are entitled.
Question 2: Do you believe that modifications to valid rules are best made by com-
plying fully with the APA process, which includes public notice and comment, and
that often requires preparation of a detailed Environmental Impact Statement set-
ting out the possible harms caused by the rulemaking?
Answer: To the extent that modifications to existing rules amount to a rule-
making, then the modifications are, of course, governed by the requirements of the
APA. The question of whether the modification of an existing rule requires prepara-
tion of an Environmental Impact Statement is an independent question to be deter-
mined 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 in-
voking 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 no-
tice and public process are impracticable, unnecessary, or contrary to the public in-
terest.
82
Question a: In your view, does suspending a valid rule that a particular Adminis-
tration 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 excep-
tion 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 cir-
cumstances 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) (empow-
ering 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 (M36971) 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 un-
derground coal mining was exempt from section 522(c) of the Surface Mining Con-
trol 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: Solicitors Opinion M36971, 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 ap-
plied 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 evalua-
tion 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 Solicitors Opinion address that issue. The subject of National Wildlife Federa-
tion 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 Sec-
retary of the Interior for a legal opinion. According to DOI regulations, such Opin-
ions become binding on DOI if the Secretary concurs in them. In this case, the Sec-
retary asked for a legal opinion regarding section 522(e) of SMCRA. To my knowl-
edge, no Solicitor Opinion submitted to a Secretary has ever been subject to the Ad-
ministrative Procedure Acts 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 Sec-
retary Lujan, who signed the concurrence which made it binding on DOI. It is note-
worthy that during the last Administration, DOI concurred with the legal conclu-
sions contained in my Solicitors Opinion M36971 as evidenced by the interpreta-
tive 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 under-
stand that Secretary Lujans 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 En-
dangered 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 par-
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 Inte-
rior, and both relied on the legal guidance of the Solicitors 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 Solicitors 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 Committees convenience is a copy of the document which has already been pro-
vided 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 prepara-
tion of a detailed and specific Environmental Impact Statement, and that the re-
quest to convene the ESC should not have been granted by the Secretary of the In-
terior.
Is it correct that in your role as Solicitor,. You provided legal guidance to the Ad-
ministrative 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 hear-
ing 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 respon-
sibilities 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 in-
structed 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 pro-
ceedings 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 with-
drawal 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 incon-
sistent 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 Solicitors office between yourself, and between attorneys pro-
viding 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 mem-
ber of your staff in the Solicitors 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 Solic-
itor.
Question 9: At your hearing, you also stated that, in your opinion, arguments
challenging the Secretary of the Interiors decision to convene the ESC were not
proper because the Committee had already been convened. Please state what proc-
ess 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 allow-
ing 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 qual-
ify 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 consid-
ered by the ESC. Generally, if a party believes the ESC should not consider an ex-
emption, 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 deci-
sion 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 ESCs 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 Interiors decision to convene the ESC: on the grounds that BLM had not satis-
fied 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 pre-
requisites 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 Lujans 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 Solicitors 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 Sec-
retary 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 con-
cerned 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 offi-
cer, 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 Secretarys 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 ad-
vanced by both parties within the Solicitors 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 alter-
native 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
85
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 Com-
mittee 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 So-
ciety v. Endangered Species Committee, the Ninth Circuit ruled that the ESC ex-
emption process was an adjudication and that ex parte contacts were not appro-
priate. 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 con-
firmed 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 in-
herent conflicts of interest and against political pressure should be implemented?
Answer: Any such decisions would be the primary responsibility of the Depart-
ment of the Interior. I would, however, be open to considering and supporting appro-
priate possible safeguards against conflict or political pressure, real or perceived.
Question 15: A decision was recently made by the National Marine Fisheries Serv-
ice 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 chal-
lenge that may be pending regarding salmon not directly implicated by that case.
Without obtaining a much more thorough understanding of the difficult issues sur-
rounding these concerns and any such litigation, it would not be appropriate to ex-
press 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 attor-
neys general should be viewed as partners in the Departments effort to enforce the
environmental laws in a fair and firm manner, and that we should develop coopera-
tive 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 col-
lectively, 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 ad-
dressing national legal issues.
Question 18: What specific cooperative efforts would you like to see the state at-
torney generals undertake in coordination with the Environment and Natural Re-
source 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 ini-
tiatives of national and regional significance in both the civil and the criminal con-
text. I would strive for greater cooperation in developing such initiatives and in
sharing information to mutually support our efforts in this area, both by commu-
nicating 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 dem-
onstrate 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 Divisions enforce-
ment counterparts in those states, and in the states more generally. I would encour-
age the state attorneys general to work with the Division on environmental enforce-
ment initiatives of national and regional significance in both the civil and the crimi-
86
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 Asso-
ciation of Attorneys General.
Question 20: Will you work both in the courts and in Congress to ensure that fed-
eral agencies such as the Departments of Energy and Defense, which are respon-
sible 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 pollu-
tion 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 super-
vising 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, experi-
ence 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 num-
bers also demonstrate is that I strongly support settlement of matters where appro-
priate. 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 clients 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 privi-
lege, 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 in-
volving 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 au-
thority 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 Depart-
ment of Justices 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 Generals Role as Chief Liti-
gator 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 profes-
sional 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
87
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 en-
dangered 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 spe-
cies into the United States, and if confirmed, I hope to work with the law enforce-
ment 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 Managements discretion to bar min-
ing 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 opin-
ion.
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 preser-
vation, but it would also modify the permitting process, making it easier for devel-
opers 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 nations wet-
lands 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 Envi-
ronmental 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
Actthis responsibility falls to the United States Army Corps of Engineers working
with the United States Environmental Protection Agency. It is further my under-
standing 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 Presidents
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 Presidents direction is consonant with the obligation of any new Ad-
ministration 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?
88
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 nego-
tiations 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 well-
established 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 pur-
poses 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 lessees conten-
tion 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 per-
cent 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 al-
ready 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 regulations 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 post-
regulation transfer of title may defeat a takings claims?
Answer: The area of takings law presents difficult issues concerning the appro-
priate 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 Environ-
ment Divisions 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 coordina-
tion with other affected parts of the Department and the relevant agencies.
89
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 eco-
nomically beneficial use, the government has taken that property, unless the gov-
ernments action merely enforces restrictions that background principles of the
States law of property and nuisance already place upon land ownership. There ap-
pears to be some confusion over whether those permissible restrictions constitute
a States 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 takethat 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
Courts decision in Paloazzolo, as well as significant legal scholarship and lower
court interpretations. Therefore, before adopting a position on this question on be-
half of the United States, I would look to these sources to gain a thorough ground-
ing 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 in-
volved. 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 Inte-
rior, you issued controversial decisions denying fundamental powers of self-govern-
ance 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 Leshys withdrawal of your opinion M36978
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. M36975 (Jan. 11, 1993), and The Scope of Federal Respon-
sibility for Native Hawaiians under the Hawaiian Homes Commission Act, Sol. Op.
M36978 (Jan. 19, 1993). These Opinions are quite lengthy and explain in some de-
tail the rationale for their conclusions; accordingly, I am providing copies of both
for the convenience of the Committee.
Regarding Sol. Op. M36975, that Opinion concludes that lands conveyed to Alas-
ka 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 con-
cludes that, notwithstanding the absence of Indian country, many Alaska Native vil-
lages 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. M36978, that Opinion concludes that the HHCA did not cre-
ate a Jiduciary responsibility in any party, the United States, the Territory of Ha-
waii, or the State of Hawaii. Although the Supreme Courts majority opinion in
Rice v. Cavetano did not reach that issue, Justice Breyers concurrence did and it
reached the same conclusion. See Rice v. Cavetano, 528 U.S. 495, 524 (2000). Ac-
cordingly, 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 governments trust relationship and pro-
tecting 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 Solicitors 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 Val-
ley; assisting the Office of Self-Governance with the preparation of a model compact
agreement which was used in negotiations between Indian tribes and the Depart-
ment of the Interior and led to the adoption of seventeen tribal self-governance com-
90
pacts; assigning a full-time attorney from the Solicitors office to work with the BIA
in the area of child protection; and urging the Department of Justice to support In-
dian 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 cen-
tral New Mexico has been a matter of public controversy for many years. The Pueb-
lo Indians first approached the Department of the Interior seeking a boundary cor-
rection in 1983. On April 4, 2000, after significant litigation and mediation, a settle-
ment 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 Pueblos eastern bound-
ary extends to the crest of Sandia Mountain. Do you agree with the Solicitors action
regarding this matter and what action do you believe should be taken after Novem-
ber 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 ap-
propriate 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 Envi-
ronment 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 op-
portunities and the challenges facing the Division. What was particularly remark-
able 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 sup-
plied to do its important work. They impressed upon me the need to undertake an
inventory of where the Divisions 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 Divisions
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 review-
ing the activities of the Divisions 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 rela-
tionships with the many United States Attorneys Offices and State Attorneys Gen-
eralthey can serve as major force multipliers for our work in enforcing and de-
fending 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 Environ-
mental 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 organiza-
tions, because I have experienced this in my own practice and life. One such exam-
ple 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 en-
vironmental groups to develop economic measurements of the damages to the nat-
ural 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 agen-
cies 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 envi-
ronmental protections and protect resources in cost-efficient ways. Working to-
gether, 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

Cantwell
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 Solicitors 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 pro-
vided to the Judiciary Committee in which I applied the APAs separation of func-
tions provisions to various positions within the Department of Interior generally and
the Solicitors office specifically, I believe it is likely that I concluded that the Solic-
itor, as chief legal officer to the Secretary, was covered by the agency heads excep-
tion. Similarly, I do not remember what weight may have been given to any pre-
vious separation of functions arrangements that may have been established within
DOI under prior Endangered Species Committees. I believe, however, that the direc-
tives 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 ad-
hered to.
Question 3: Did you contemplate the creation of additional separations between
staff designated to provide guidance to the Administrative Law Judge, and staff des-
ignated 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 Sec-
retary and the ESC. It is also important to remember that although Judge Schweit-
zer, 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

Question 1: What is your position on the Endangered Species Act? Please explain.
92
Answer: The Endangered Species Act has as its general purposes the conservation
of endangered and threatened species, many of which have great aesthetic, ecologi-
cal, educational, historical, recreational and scientific value, and the ecosystems
upon which they depend. I support these purposes, and, if I am confirmed as Assist-
ant Attorney General, I will both enforce and defend the provisions of the Endan-
gered 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 wont be any biolo-
gists 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 over-
lapped with Gale Nortons 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 de-
lineation issues. My comment was intended to emphasize that her previous experi-
ence 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 Committees pro-
ceeding regarding timber sales in the Pacific Northwest that threatened the habitat
of the Northern Spotted Owl. Why were the Endangered Species Committees pro-
ceedings 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 Committees 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 adjudica-
tory process, on the other hand, by its nature would have been more highly struc-
tured and exclusionary.)
Question 4: Mr. Sansonetti, during the proceedings on the Northern Spotted Owl
overseen by the Endangered Species Committee, you had many potentially con-
flicting roles. You served as Interior Secretary Lujans official representative to the
Endangered Species Committee, Legal Counsel to the Endangered Species Com-
mittee, 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 con-
ducted by the Endangered Species Committee?
Answer: Yes, I was concerned that, without an effective process in place, that car-
rying 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 Manage-
ment 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 mem-
bers of the Endangered Species Committee without having to function in an
investigative- prosecutorial role. As a consequence of taking these steps, I do not be-
lieve legitimate concerns could be raised about the fairness of the Endangered Spe-
cies 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-in-
come 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 jus-
tice a part of its mission. The Order directs agencies to ensure that federal pro-
grams affecting human health or the environment do not subject individuals to dis-
crimination based on race, color or national origin. Id like to ask you about environ-
93
mental justice generally and thus Executive Order specifically. What is your posi-
tion 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 Environ-
ment and Natural Resources Division, I would work to ensure that the Divisions
activities did not subject individuals to discrimination based on race, color or na-
tional 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 fi-
nancial assistance. Pursuant to Title VI, most federal agencies have adopted imple-
menting regulations that prohibit not only intentional discrimination by the agen-
cies, 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 en-
force 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 abil-
ity of the public to hold government agencies accountable for continuing to imple-
ment 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 Pro-
tection Agency on this important issue.
Responses of the Nominee to questions submitted by Senator Kennedy

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 mi-
gratory birds exceeded the agencys statutory authority. The Court declined to defter
to the agencys interpretation of the statute under Chevron, U.S.A. v. National Re-
sources Defense Council (U.S. 1984), holding that the statute, if so interpreted,
would rare significant constitutional questions as to whether the statute exceeded
Congresss 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
agencywhich would allow regulation of intrastate waters that provide habitat for
migratory birdswould 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 pre-
venting courts from unnecessarily rendering decisions about constitutional ques-
tions. 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 famil-
iarize myself with the agencys 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
statutesor agency interpretations of environmental statutesexceed Congresss
power under the Commerce Clause?
94
Answer: In general, it is the role of tile Department of Justice, as guided by tile
Solicitor Generals Office, to defend the constitutionality of the enactments of Con-
gress 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 under-
standing 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
Constitutions 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 prop-
erty 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 reduc-
tion of water available to claimants under their contracts with the state of Cali-
fornia.
The Assistant Attorney General for the Enviromnent and Natural Resources Divi-
sion 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. Cali-
fornia Coastal Commission (U.S. 1986) (Brief for the United States supporting, re-
versal)).
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 Courts precedent have made clear that the
test as to whether a taking has occurred is highly fact-specific and must be evalu-
ated on a case-by-case basis. Thus, to determine whether a particular regulatory ac-
tion 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 ma-
jority of regulatory takings suits.
Question b: When, in your view, is an environmental regulation sufficiently bur-
densome 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 de-
signed 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 ac-
tion and the claimants distinct investmentbacked expectations. Id. Again, as Assist-
ant Attorney General, I would apply Penn Central to answer this question. given
the cases 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 Gen-
eral.
95
f
Responses of the Nominee to questions submitted by Senator Leahy

Question 1: The Department of Justice best fulfills its law enforcement respon-
sibilities when it presents the appearance, as well as the fact, of unbiased and
impartlal exercise of prosecutorial judgement. Any suggestion, let alone the actu-
ality, 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 exertand are not perceived to be exertingpolitical 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 fed-
eral 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 independ-
ence in their decision-making. Accordingly, if confirmed as Assistant Attorney Gen-
eral, 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 Depart-
ments 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 Re-
view (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 men-
tioned these cases. Accordingly, my current familiarity with the litigation is insuffi-
cient 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. Rep-
resentatives of the Attorney General Offices of the States of Massachusetts, Penn-
sylvania, 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 deci-
sion?
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 DOJs ongoing review of the NSR enforce-
ment cases, called for by the Administrations 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 proc-
ess.
Question f: What do you believe a business should do when faced with a regula-
tion 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 appro-
priate, 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 defend-
ants fair notice defenses. If confirmed, I will familiarize. myself with those briefs.
Question h: What do you understand about the defendants industry practice ar-
guments, 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 defend-
ants 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 consid-
ered 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 Divisions 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 EPAs 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 Departments effort to enforce the environmental laws
in a fair and firm manner, and that we should develop cooperative working relation-
ships 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 enforce-
ment?
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 un-
derlying 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 par-
ticular, 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 im-
portance 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 Divisions representation. It is the responsi-
bility 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 dif-
ficult 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 sub-
stantive 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 reallo-
cating resources? Have you considered whether changes are merited for the Envi-
ronment and Natural Resources Division budget?
Answer: In the last few months, I have met with the many former Assistant Attor-
ney Generals (AAGs) for the Division and found them to be a valuable source of in-
sight 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 avail-
able technology to the Divisions 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 Divisions 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 Generalthese entities can provide invaluable re-
sources in the Divisions work in enforcing and defending the environmental and
natural resource laws.
SUBMISSION FOR THE RECORD

CONGRESS 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. Bushs 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 illus-
trious 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 pro-
fessional 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

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S. HRG.

CONFIRMATION HEARING ON THE NOMINATION

COMMITTEE ON THE JUDICIARY

Serial No. J10747

Printed for the use of the Committee on the Judiciary

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STATEMENT OF THE NOMINEE

QUESTIONS AND ANSWERS

SUBMISSION FOR THE RECORD

TUESDAY, NOVEMBER 6, 2001

UNITED STATES SENATE,

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

that protects our public health, preserves our natural resources,

to be a long and costly war against terrorism. Vigorous enforce-

PRESENTATION OF THE NOMINEE BY HON. CRAIG THOMAS, A

I might say in the beginning that Congresswoman Cubins hus-

Thank you Mr. Chairman and members of the Committee.

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

He also served as counsel to the Endangered Species Committee,

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

have their obligation and commitment to the Constitution and to

STATEMENT OF THOMAS L. SANSONETTI, OF WYOMING, NOMI-

served the beneficial effects of federal environmental regulations

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

Senator CANTWELL. Thank you for your opening statement and

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

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

Senator CANTWELL. If you would like to make an opening state-

ported would have increased those limits to 75,000 acres in any

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

I welcome Mr. Sansonetti this afternoon.

in cases at the Department of Justice concerning the new source

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

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

Mr. SANSONETTI. Well, I may not have a lot of experience in try-

reach this particular recommendation, and then go from there. A

several of which are in the state of Wyoming, and I think I have

Responses of the Nominee to questions submitted by Senator Cantwell

Responses of the Nominee to additional questions submitted by Senator

Responses of the Nominee to questions submitted by Senator Durbin

Responses of the Nominee to questions submitted by Senator Kennedy

Responses of the Nominee to questions submitted by Senator Leahy

SUBMISSION FOR THE RECORD

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