John Cruden Complete Oral History

John C. Cruden, Esq.
Oral History Project
The Historical Society of the District of Columbia CircuitOral History Project United States Courts
The Historical Society of the District of Columbia Circuit
District of Columbia Circuit
John C. Cruden, Esq.
Interview conducted by: Tracy Hauser Scarrow, Esq.
November 20, 2019, February 25, 2020
April 8 and August 30, 2021, and November 14 and January 5, 2023ORAL HISTORY OF JOHN C. CRUDEN, ESQ.
TABLE OF CONTENTS
Preface. ……………………………………………………………………………………………………………….. i
Oral History Agreements
John C. Cruden, Esq…………………………………………………………………………………….. iii
Tracy Hauser Scarrow, Esq……………………………………………………………………………..v
Oral History Transcript of Interview
November 20, 2019 ………………………………………………………………………………………….1
February 25, 2020…………………………………………………………………………………………..40
April 8, 2021 …………………………………………………………………………………………………78
August 20, 2021 …………………………………………………………………………………………123
November 14, 2022 ………………………………………………………………………………………179
January 5, 2023 ……………………………………………………………………………………………195
Appendices
Appendix 1 Virginia Journal of Law ”Ranking the Courts’s Top Cases”
Appendix 2 Gemeinschaft zum Schutz des Berliner Baumbestandes v. Marienthal
Appendix 3 Cruden Gertz-Billingsley Environmental Forum Article
Index …………………………………………………………………………………………………………….. A-1
Table of Cases and Statutes …………………………………………………………………………………B-1
Biographical Sketches
John C. Cruden, Esq…………………………………………………………………………………C-1
Tracy Hauser Scarrow, Esq……………………………………………………………………… D-1NOTE
The following pages record interviews conducted on the dates indicated. The interviews were
recorded digitally or on cassette tape, and the interviewee and the interviewer have been afforded
an opportunity to review and edit the transcript.
The contents hereof and all literary rights pertaining hereto are governed by, and are subject to,
the Oral History Agreements included herewith.
© 2025 Historical Society of the District of Columbia Circuit.
All rights reserved.iv
Schedule A
Tape recordings, digital recordings, transcripts, computer diskettes, and DVDs resulting from six
interviews of John Cruden on the following dates:
Interview No. 1 November 20, 2019 1-39
Interview No. 2, February 25, 2020 40-77
Interview No. 3, April 8, 2021 78-122
Interview No. 4, August 30, 2021 123-178
Interview No. 5, November 14, 2022 179-194
Interview No. 6, January 5, 2022 195-229
Voice recordings of the six interviews are on one DVD.iv
Schedule A
Tape recordings, digital recordings, transcripts, computer diskettes, and DVDs resulting from six
interviews of John Cruden on the following dates:
Interview No. 1 November 20, 2019 1-39
Interview No. 2, February 25, 2020 40-77
Interview No. 3, April 8, 2021 78-122
Interview No. 4, August 30, 2021 123-178
Interview No. 5, November 14, 2022 179-194
Interview No. 6, January 5, 2022 195-229
Voice recordings of the six interviews are on one DVD.PREFACE
The goal of the Oral History Project of the Historical Society of the District of Columbia
Circuit is to preserve the recollections of the judges of the Courts of the District of Columbia
Circuit and lawyers, court staff, and others who played important roles in the history of the
Circuit. The Project began in 1991. Oral history interviews are conducted by volunteer
attorneys who are trained by the Society. Before donating the oral history to the Society, both
the subject of the history and the interviewer have had an opportunity to review and edit the
transcripts.
Indexed transcripts of the oral histories and related documents are available in the
Judges’ Library in the E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue,
N.W., Washington, D.C., the Manuscript Division of the Library of Congress, and the library of
the Historical Society of the District of Columbia
With the permission of the person being interviewed, oral histories are also available on
the Internet through the Society’s Web site, www.dcchs.org. Audio recordings of most
interviews, as well as electronic versions of the transcripts, are in the custody of the Society.1
Oral History of John C. Cruden, Esq.
First Interview
November 20, 2019
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Tracy H. Scarrow, and the
interviewee is John C. Cruden. The interview took place at Beveridge & Diamond, 1900 N St
NW, Suite 100, and Washington, D.C. on November 20, 2019. This is the first interview.
MS. SCARROW: John, can you tell me a little bit about your early childhood? Let’s start
from the beginning.
MR. CRUDEN: I was born in 1946 in Topeka, Kansas in the Florence Crittendon Home
for Unwed Mothers. I was ultimately adopted by a couple in Michigan, but
while waiting for their arrival, was cared for by my adopted father’s sister
in Kansas City. According to her, I was delivered without any paperwork,
and did not have a birth certificate until later. My adopted parents drove
from Michigan, full of excitement about getting a new baby, but
unencumbered by diapers or bottles or blankets. They picked me up in
Kansas and brought me to what became my childhood home in an
exceedingly small town in Michigan called Taylor.
MS. SCARROW: Do you have any records of your birth and the adoption?
MR. CRUDEN: I do now. When I became D.C. Bar President, I was interviewed by the
editor of the DC Bar Magazine and recounted the story of my humble
origin. Shortly after that interview, the Topeka Florence Crittendon Home
sent me a letter, advising me that they had gone back to their records and
verified that I was born there. They sent me the record of my birth, my
birth mother’s name, birth information, and visitors. I learned for the first
time that my birth mother was pregnant at 15 and gave birth to me when2
she was 16. I have had no contact with my birth mother and have only a
small toy she made for me. However, I was quite fortunate with my
adopted parents, who I always will think of as my “real” parents. They
have now passed away but were significant forces in my life and I treasure
them both for what they did for me and how they guided me into
adulthood.
MS. SCARROW: What were your parents like?
MR. CRUDEN: Both of them were immigrants. My father was born in Scotland, and then
moved with his family, including his father who was a Presbyterian
minister, first to Canada and then ultimately to Kansas City, Kansas,
where he grew up. My mother’s family came from Slovenia, and so she
was first-generation American, growing up in a postage-stamp, tiny
mining town called Cherokee, Kansas. My parents ultimately met in
Kansas City and were secretly married in 1933. They did not want to tell
their parents about their marriage as they were important breadwinners for
their respective families. A year later, Ford Motor Company advertised
that they were hiring, and would pay the then-princely sum of $5.00 a day,
and my parents quickly announced their marriage and immediately moved
far north to Detroit, Michigan.
MS. SCARROW: You said they moved for jobs. What kinds of jobs did they do?
MR. CRUDEN: My father received company training at Ford Motor Company and
ultimately worked in the steel mill as a crane operator, responsible for
moving molten hot ingots of steel from creation to loading onto railroad3
cars. He was enormously proud of his work and told everyone that he
thought he was the best crane operator in all of Ford Motor Company. My
mother went to business school, and then during World War II, also
worked for Ford Motor Company in an administrative position. A few
years later they adopted a second child, my brother James.
MS. SCARROW: How much younger is your brother than you are?
MR. CRUDEN: My brother has now passed away, but he was two years younger. Also
adopted, he was born in the Detroit area, served in the military, and then
moved to Oklahoma City.
MS. SCARROW: What was it like growing up?
MR. CRUDEN: The town that we grew up in was then a township of maybe 8,000 people,
a 20-square mile former farming community in between Detroit and Ann
Arbor. The town grew rapidly with people like my parents who migrated
from the west and south to have jobs in the auto industry. Our community
was very heavily a blue-collar, middle-class environment, and we were
self-organized by streets into blocks that had their own traditions, culture,
and even neighborhood sport teams. Your friends tended to be those on
your block, and we met others as classmates in our small but vibrant
community. In retrospect, it was like so many other parts of the so-called
downriver area of Detroit, little rapidly growing towns, often evolving
from farming origins to become distant suburbs of Detroit but banded
together in a protected blue-collar environment.4
MS. SCARROW: Do you have any particular friends who stick out in your mind from your
childhood?
MR. CRUDEN: I do and remain close to several of them. The president of our high school
class, James Day, is a close friend and became a psychologist; my best
friend in Boy Scouts, Lee Cagle, went on to teach high school and
coached an award-winning girls’ volleyball team; and my favorite
neighborhood friend, Richard Jones, who led our hockey team, is now a
Baptist minister. They all still live in Michigan.
MS. SCARROW: Can you talk a little about the schools that you attended?
MR. CRUDEN: We could walk to our elementary school with moms serving as crossing
guards for main roads. The rapid expansion of our small town often
resulted in overcrowding, and we moved through a series of interim
schools while new ones were being built. Our blue-collar parents had an
affinity for education, often because they themselves did not have that
opportunity. For example, my father left school in the 9th grade to get a job
to support his fatherless family but cherished and endlessly promoted
education as a pathway to success. Heeding him, my brother and I
attended the local public schools, expanded our circle of friends, played
many of the sports being offered, studied, and lived in a cocoon of lower-
and middle-class families all struggling to be better.
MS. SCARROW: What was the name of your high school?
MR. CRUDEN: Taylor Center High School, then the only high school in the town. As the
town expanded, two other high schools were built, but by the 1990s the5
town was contracting in size, no longer buoyed by amazing birth rates.
One aside. As the need for three high schools evaporated, a decision was
made to close the oldest high school, which was the one that I attended.
For the last graduating class, the principal invited me to return as the
graduation speaker. All went well, but just as I finished my address to the
graduating class, they all stood up, whipped off their robes, to show that
they were all wearing colorful t-shirts with the words, “We saved the best
for last.”
MS. SCARROW: Did you have any teachers or mentors who you would say particularly
shaped your childhood?
MR. CRUDEN: Two things come to mind. I was continually active in Boy Scouts, and my
Scoutmaster, Ellis Ankony, was certainly somebody that I looked up to,
clearly mentored me, and set me on a path to become an Eagle Scout. He
was a quiet man with great outdoor skills, who did not motivate you by
words, but by the example he set in his daily life and the way he treated
everyone with great courtesy and dignity. In high school, my track coach,
Claude Herman, was also the school counselor. He took a personal interest
in me and encouraged me to apply to West Point. The coach went so far as
to go to the local congressman’s office and pick up an application for me.
I had already received a track scholarship to the University of Michigan,
but going to West Point was a great dream, and one that clearly changed
my life.6
MS. SCARROW: You mentioned being involved in Boy Scouts. Can you talk a little more
about that?
MR. CRUDEN: Participating in Boy Scouts was an important part of my growing up life.
We had an active troop, with frequent campouts, and many of my friends
and their parents were involved. My mother was the den leader for our
Cub Scouts group, and my father was actively involved when we aged up
to become a full-fledged Boy Scout. (He later received the Silver Beaver
Award, the highest award for volunteers). Boy Scouts provided great
training in leadership, moral behavior, self-reliance, and outdoor skills. It
was competitive with elections for key positions but had a set process of
moving up in rank, ultimately studying for and then being tested to earn
merit badges. I was all caught up in that, and ultimately became an Eagle
Scout, which I was quite proud of. There was also another elite program,
limited to those selected from individual troops, called Order of the
Arrow, and I became active in that program as well.
MS. SCARROW: What is the Order of the Arrow and how did you get elected to what I
understand is an elite boy scout organization?
MR. CRUDEN: The Order of the Arrow has a close relationship with Native American
traditions and histories, which is reflected in its name, symbols, and
ceremonies. The Order’s Native American names come from the Lenni
Lenape language and translates to “A Brotherhood of those who serve
cheerfully.” The Order’s fundamentals are also based on the Lenni Lenape
Tribe’s legend. Members often wear Native American regalia and perform7
traditional ceremonies, but the Order is really oriented to providing service
to others of all types. It is considered to be highly prestigious to be
selected, and those selected advance through various levels. In my case,
the Order was administered by the Detroit Council of the Order of the
Arrow. Their representatives came to our local troop and conducted an
election. My troop elected me, and after the initiation process, I became a
full-fledged member. The Detroit area had a large and diverse membership
with two large camps. For each of my summers, starting when I was 15, I
spent the entire summer working in a Boy Scout camp. Those were paid
jobs for the princely sum of $15 a week, and I was an assistant scout
master for other young boys coming to those camps. Not only did those
summers change my life, but they also gave me employment every
summer.
MS. SCARROW: I understand that you were the Detroit area President of Order of the
Arrow?
MR. CRUDEN: Yes. By my senior year of high school, I was on the leadership track
having served as the Vice President. By then I had achieved the highest
rank, the Vigil rank, and was given the Native American name of
Clamhatenauen, translated as “the calm minded one.” As the Order of the
Arrow is largely a service organization, I led efforts to assist other Boy
Scouts but also to help underprivileged people in the greater Detroit Area.
During my senior year I was elected as President of the Detroit area.8
MS. SCARROW: I understand you also had the opportunity to speak at the Detroit Eagle
banquet?
MR. CRUDEN: Yes, Detroit had a large, annual celebration for those selected as Eagle.
Once you were chosen as an Eagle, two things happened. First of all, you
were invited to a gala banquet that I did speak at, but second, they offered
you a mentor of your choice, depending on what you wanted to do in the
future. I wanted to go into government service, and so they gave me as a
mentor the Chief of Staff to the Governor of Michigan. I then spent the
day with him in Lansing, which became relevant later when I was
applying to West Point, as he wrote a genuinely supportive letter of
recommendation that helped me. When I spoke at the Eagle banquet, the
featured speaker was the famed actor, Jimmy Stewart. We had several
hours together, and he emphasized to me how important Boy Scouting was
in his life, and the need to have high moral standards and then to live by
them. Good words to an impressionable young man. I deeply admired him.
MS. SCARROW: One more Boy Scout event, the National Boy Scout Jamboree in Colorado
Springs. You attended that?
MR. CRUDEN: I did. The Detroit area created a composite troop, and we traveled by train
to Colorado Springs, Colorado for the Jamboree, which occurred every
four years. It was the first time I had ever been on a train and had a
wonderful experience meeting other Boy Scouts from across America. I
remember two things from that trip. First of all, we stopped at Boys Town
in Nebraska, which had 300 to 400 boys who were in foster care. Since I9
was adopted, that was meaningful for me to see all of them. And then in
Colorado Springs, it was the first time I saw a President. President
Eisenhower came and visited the camps, so we got to see him. That was
quite significant to me.
MS. SCARROW: Did you get an opportunity to meet him?
MR. CRUDEN: I did not. We were in a group. He came through and saw and talked to us,
but I was just part of the group.
MS. SCARROW: You mentioned that you were deeply involved in track competition. Were
there other organizations during high school that you were particularly
involved in?
MR. CRUDEN: There were several. I was in the Science Club, played basketball in a
church league, ran cross country, and then wrote and co-directed the
senior play. Primarily, however, I ran track and ultimately received a track
scholarship to the University of Michigan, which is where I would have
gone but for my nomination to West Point. My events were the 440 and
the one-mile relay.
MS. SCARROW: I understand you were also involved in the United Nations Forum?
MR. CRUDEN: Yes. Each year, at least in our high school, one person was selected to join
a Detroit group that went to New York City and then spent three days
attending briefings and meetings of the various countries at the United
Nations. We were able to meet students from across the United States, all
of whom had at least some interest in international issues. And along with
going to the Jamboree in Colorado, this was another time that I was able to10
meet a lot of impressive young people outside of my small town. It was
eye opening for me, and it gave me a great impetus to seek diversity in all
that I would do in the future.
MS. SCARROW: I understand that you met your future wife, Sharon, while you were in
high school. Is that correct?
MR. CRUDEN: I did. I mentioned that our high school had plays. One of the plays the
school put on was the musical “Anna and the King of Siam.” Sharon, my
wife to be, was Anna in that play. I did not know her, but I was really,
really impressed by her. At that time, however, you did not just walk up to
a girl and say you wanted to date her, which is what I wanted to do. You
had to be introduced, so I had to find a person who knew her and who also
knew me. A mutual friend arranged the introduction between Sharon and
me, and then we started dating and then became a couple. After I
graduated from West Point, we were promptly married.
MS. SCARROW: What kind of influence do you think your parents had on your education?
MR. CRUDEN: My father had only gone through 9th grade, and while my mother had
graduated from high school, her graduating class had only twelve people.
Despite that, they were enormously interested in education, and in my
earliest recollection, they made it clear they wanted me to go to college
even though they barely understood what college entailed. They didn’t
really understand how to apply and be accepted, they just believed
strongly that education could be a trajectory to success. So, despite the
fact that they did not attend college, nor had they even visited a college,11
they made it very clear to me that they expected me to go to college. They
also had no idea what college cost or how to fund it, and so the track
scholarship that I received for the University of Michigan was enormously
important as it gave me confidence and some crucial financial support.
Ultimately, the West Point nomination solved the financial challenges –
but created others. But without question, my parents had a key role in
encouraging me to go to college. And that was particularly true in my high
school where under 5% attended college.
MS. SCARROW: When you were growing up, did you have dreams of doing anything in
particular?
MR. CRUDEN: Yes. I wanted to be a basketball star. The only problem was that my ability
certainly did not connect with my aspiration. During that time period,
there were a lot of good Detroit sport teams that we followed, and all of
our heroes were sports figures, like Gordy Howe the Red Wing hockey
star and Al Kaline the Tigers baseball player. However, I was completely
drawn to the life and then presidency of John F. Kennedy, and the signed
picture he sent me at my request when he is was just a Senator is in my
office today. In many ways his inaugural address was the inspiration that
ultimately caused me to seek government service.
MS. SCARROW: Is there anything else about your childhood that we haven’t covered that
you would like to talk about?
MR. CRUDEN: No. Wait, just one, my father took me to the Tigers baseball game when
Mickey Mantle hit the ball completely out of the park.12
MS. SCARROW: Wow, what a great sports moment to witness. As you mentioned, you
went to West Point. Can you talk a little bit more about how you ended up
there?
MR. CRUDEN: There’s a rigorous process that you go through to apply, which includes
competing for a congressional appointment. Ultimately, I had two such
appointments. My local congressman nominated me, as did the Michigan
congressman-at-large. We then completed qualifying mental and physical
tests. There was a relatively brief period of time between graduating from
high school and then reporting to New York to West Point. And it is fair
to say that I had little idea what I was getting myself into, as I knew no
one in the military and certainly did not know any West Point graduates. I
was about to learn what being a plebe really meant.
MS. SCARROW: You mentioned that you were also recommended by the chief of staff of
the Governor of Michigan.
MR. CRUDEN: Yes, he wrote a glowing letter on my behalf, as did others, which I am
sure helped me get the appointment since he was well known, and highly
regarded in Michigan.
MS. SCARROW: Who were the congressmen?
MR. CRUDEN: William Ford was the congressman from my district, and Neil Stabler was
then the congressman-at-large from Michigan.
MS. SCARROW: You mentioned that you were the first person in your family to go to
college. I understand that you were also the first person in your town to go
to West Point.13
MR. CRUDEN: That’s true.
MS. SCARROW: Was there something else in particular, other than, of course, the financial
impact of going to college, which drew you to West Point?
MR. CRUDEN: After I received, or at least knew I was going to get the Congressional
nomination, another fellow, Ed Thal, who was then a freshman at the
University of Michigan, also received a nomination from the Department
from his congressman, and he contacted me and asked me: “have you
accepted yet,” I said “no,” and he said he had not either. He suggested,
because he had a sporty red convertible, that we would drive to West Point
and check it out. We drove from Michigan to West Point nonstop and
stayed in the historic Thayer Hotel, which is on the grounds of West Point.
We walked the beautiful campus, talked to people, and were amazed, as
only 18-year-old young men can be, gifted with raw energy but with no
common sense. We thought West Point to be a spectacular place. A
beautiful set of granite buildings on a turn of the Hudson River,
surrounded by mountains, with its own ski slope, lake, and golf course.
Everybody looked happy. Of course, we neglected to find out that we were
not actually seeing any plebes, because they were not let out, and those
smiling students we saw were all upperclassmen. So, after our highly
naïve review, we both decided this would be a grand place to attend. Our
comeuppance came soon enough.
MS. SCARROW: Going from Michigan to West Point, what was the transition like for you?14
MR. CRUDEN: It came fast and hard. My parents drove me to West Point’s Thayer Hotel,
and a bus then drove us to the gates of the Academy, the so-called sally
ports. We were greeted by an enormous cadet, a football player type, who
quickly informed us that we now belonged to him. Our lives changed at
that moment and the first stop was at the barber shop where they shaved
off all my hair. They politely took my suitcase, which I never saw again
until Christmas. Then we were given a vast array of vaccinations, taped,
measured, and photographed, and then instantly sent out to learn to march
so we could be sworn in that afternoon in front of adoring parents.
That summer was one long physical and mental challenge of the
highest order. We were taught to march, wear a uniform, polish brass and
shoes until they glowed, and memorize countless pages of West Point
historical information and information on leadership, ethics, and survival.
We did enormous numbers of athletic activities and military drills. This
was all during the first summer, when the Academy leadership was
dedicated to trying to train new cadets to be a military officer, but also
teaching century’s worth of critical thought that has gone into growing
ethical leaders, which is really an essential part of the West Point process.
Now looking back on it, at that stage in my life, I can confidently
state that we were all a bit overwhelmed. Every minute of your life was
regimented, programmed, and organized. We had classes every Saturday
and the Sunday chapel was mandatory. We could not leave the Academy,
and vacations were one month in the summer and one week over15
Christmas. Just last year I went to the Air Force Academy for a football
game with some of my West Point classmates. One of the wives asked us
collectively, “did you like it?” No one answered yes. One person then
responded for all of us: “It is not something you liked. It was something
you endured. And we are all proud that we did it.”
MS. SCARROW: Do you feel that it was what you were expecting and that you were
prepared for it, or was it all new?
MR. CRUDEN: I was completely unprepared. As an impressionable teenager I entered a
military world where college courses were only just part of the experience,
but often not the most demanding part. I would say my Boy Scout training
helped because it made me comfortable in the military-like environment.
But most of the training was absolutely new to me. Also, because it’s
West Point, there are massive amounts of challenges to meet, from semi-
annual comprehensive physical tests that are mandatory to pass, to
complying with the most rigorous Honor Code in the nation, demanding
that you do not “lie, cheat, or steal, or tolerate anyone that does.”
MS. SCARROW: Obviously, West Point is extremely rigorous, both in the physical sense
and the educational sense. Were there things that you found particularly
hard or particularly easy?
MR. CRUDEN: Starting with athletics, it was mandatory to take and pass classes in
boxing, swimming, wrestling, and gymnastics. I had swum before, and my
father had been a semi-pro boxer and showed me moves, so it turned out16
that I was good at boxing, and I boxed or coached boxing all four years.
Wrestling and gymnastics were new.
In school, the Sylvanus Thayer academic model meant that you
received a grade in every class every day. You were called on to “recite,”
by standing at the blackboard and outlining a math problem, an English
literature plot, or a military exercise. You then rushed home in the
afternoon to change clothes and participate in organized sports, either at
the varsity level or with the highly competitive, well-organized intramural
program. My first year I ran track, competed in skiing, and then did canoe
racing. And everyone received annual leadership evaluations from other
cadets and officers that could also result in them being asked to leave the
Academy.
We started out with a class of about 1,000 people and ultimately
graduated just over 700, all of whom would ultimately serve in combat.
MS. SCARROW: Did you find it difficult going from Michigan to West Point away from
your family? You were presumably away from your girlfriend at the time.
Was that hard, that isolation?
MR. CRUDEN: Yes. All of us had moments of loneliness, missing our family or – in my
case – my wife-to-be. We were very envious of those cadets who had
nearby families who would visit them and bring them food. Food was
enormously important because you were constantly hungry, not because
they didn’t feed us well but because of the intense level of physical
activity. But I would also say on the other side that being intensely active,17
requiring total concentration and dedication, very often meant loneliness
was superseded by basic survival strategies. And your classmates became
your family.
MS. SCARROW: I understand that you were a cadet officer and also elected to be an honor
representative.
MR. CRUDEN: Yes. By my last year I was selected as a cadet officer and was elected by
my peers to be on the Honor Committee. Leadership opportunities start in
your third year and those who did well were selected for higher positions
their senior year. The Honor Committee was different, as that was an
elected position, voted on by members of your company. At that stage in
West Point history the Honor Code was run exclusively by cadets, who
were charged with investigating possible violations, and resolving the
allegations. Some violations were self-reported, others discovered and
reported by classmates or the Academy professors. My experience on the
Honor Committee was a forerunner to my legal profession. Allegations
were resolved by the committee, sitting as a jury. Those determined to
have violated the Honor Code were dismissed from the Academy.
Although the Honor Code remains in effect today, it now has much more
officer involvement and expulsions are not automatic.
MS. SCARROW: Did you find it difficult sitting in judgment of your peers?
MR. CRUDEN: Yes. West Point faculty and senior cadets spent a lot of time from the very
first week explaining the Code, and emphasizing it was also an
expectation of Army officers. As an honor representative, we met all the18
time with all of our Company-mates explaining what was happening,
discussing anything that caused problems and reacquainting them with the
Honor Code’s requirements and implementation. The process was
detailed, fair, and demanding, and the Code became a touchstone for my
personal morality.
MS. SCARROW: Did you have any particularly influential teachers or courses that stick out
in your mind?
MR. CRUDEN: Two. I had my first law course at West Point, a survey course on law, with
many case studies. It caught my attention, and I studied beyond the
requirements and did well. Later, in my first assignment as an officer in
Germany, I started taking law courses in the evening to find out whether
or not I really wanted that as a profession. It all started, however, with one
good professor and one good course. That person made a difference in my
life, and I wish I could thank him now.
One of the only four electives that I could take during my four years was
on national security issues, and the professor was Major Peter Dawkins.
Pete Dawkins was a Heisman trophy winner and a Rhodes Scholar. He
was a wonderful teacher we all looked up to, and he frequently invited us
to his house after school. He talked about his own experiences in the
military and was inspirational to me because despite his many athletic
accomplishments, he chose military service.
I won’t say the next person was a mentor, although we all looked up to
him, as he was our regimental commander. The leader of the regiment I19
served in was Colonel Alexander Haig. Colonel Haig had just returned
from serving in Vietnam, and he ultimately became the President’s Chief
of Staff, the Supreme Allied Commander in Europe, and the Secretary of
State. Because I was the designated Honor representative, I had a number
of discussions with Colonel Haig about what we were doing, and he gave
me practical advice about becoming and being an Infantry officer. Later
when he became the head of Europe Command, and I was in Heidelberg,
he would contact me, and I would give him legal assistance and legal
advice on a personal level.
MS. SCARROW: I understand that Norman Schwarzkopf was also there at the time?
MR. CRUDEN: A lot of future generals pass through West Point to either teach or serve as
tactical officers. I knew then-Major Schwarzkopf when he was assigned to
West Point. Later, we renewed our acquaintance when he spent a day with
me in Charlottesville, Virginia when I was part of the faculty teaching law
to General Officers before they assumed command. Ultimately, he led the
task force that liberated Kuwait.
MS. SCARROW: Were there any fellow classmates who stick in your mind or who went on
to do other important things?
MR. CRUDEN: Yes. I would first honor those too many classmates of mine who died in
Vietnam. My class commissioned a painting, which now hangs on the wall
of my office, with West Point in all its splendor, looking up from the
Parade Grounds to the Chapel. Superimposed on that beautiful scene is the
names of the 21 of my classmates who died in Vietnam. My roommate,20
John Darling, and my debate partner, Peter Connor, both paid the ultimate
price.
My class gave the country ten Generals, over 500 combat tours, three
Deputy Assistant Secretaries of Defense, 50 medical doctors, 50 lawyers,
five ministers, and two college presidents. And then there was John Wing,
who became the vice president of Samuel Adams Beer Company. Well,
you can imagine how popular he became at each class reunion when the
Sam Adams beer truck followed us everywhere we went and would set up
the station as soon as we stopped to dispense libations for all. Ours
became one of the more popular reunion classes because of Sam Adams’
beer truck.
MS. SCARROW: Can you talk a little bit about the types of activities that you participated in
at West Point?
MR. CRUDEN: Although life was governed by academics, athletics, and military
responsibilities, there was a vast array of other activities available. I found
that I was good at boxing and did that for all four years. I joined the Fine
Arts Forum that brought speakers, artists, and musicians from New York
City to educate and present to us. In one of these sessions, I met George
Balanchine, the well-known choreographer, who co-founded the New
York City Ballet. He spoke to us about The Nutcracker ballet, and then
invited us to watch it in New York City and meet with the dancers.
I was also on the intercollegiate debate team, which competed in a number
of places in the United States. And I participated in a number of Model21
United Nations Forums, where we were assigned a country to represent
and then role-played UN votes and debates. There were Forums in many
unusual places, so the combination of debate and Model UN Forums
allowed me to leave the Academy on trips a fair amount my last few years
at the Academy.
Probably my most important extracurricular activity was serving as the
National President for the XIX Student Conference on United States
Affairs (SCUSA). SCUSA was a gigantic student-run event each year and
I was selected as the National President. Hundreds of colleges sent
representatives to the conference at West Point and leaders of the
Administration gave presentations including the Secretary of State and the
Undersecretary of Defense. We spent countless hours preparing for the
conference, and then I introduced the speakers, was master of ceremonies
for our dinners, and gave presentations throughout the conference. It was
quite successful, and completely immersed me in foreign affairs and
national security issues.
MS. SCARROW: I know that you had a 30-day vacation during the summer, but what else
did you do?
MR. CRUDEN: Each summer we had proscribed activities, some at the Academy and some
elsewhere. The first summer was spent at Camp Buckner, located on a
lake just outside of the Academy. That was a summer of advanced military
training with weapons, military tactics, strenuous PT, and the occasional
swimming event in the adjoining lake. The second summer before my22
junior year I spent at Fort Riley, Kansas as a platoon leader with the Ninth
Infantry Division. I was given a platoon with thirty men, new armored
personnel carriers, and helicopters; and we were allowed to use large
training areas. We did all the things that soldiers do, and I found that to be
personally rewarding. I really liked leadership responsibility. This was my
first real taste of an Infantry unit, and that experience led me to choose
that branch of the military my senior year. The other summer activities
included time supervising plebes, traveling to many of the key military
bases in the United States, and going to sea on a naval battleship.
MS. SCARROW: You mentioned the academics and the other extracurricular that you were
involved in. How did you manage your time with all these competing
interests?
MR. CRUDEN: One of the most popular things to do at West Point was sleeping. We were
all forced to learn time management and how to prioritize. We all learned,
some more slowly than others, and I had to find out the hard way that
staying up all night typing English papers just before a major physical
fitness test was not a pathway to success. In retrospect, they gave us far
more challenges than we could do, but that was intentional, as it mimics
real life. Setting priorities was essential and life demanding. Later, in
combat, decisions were made by all of us based on the best intelligence we
could gain, but often with little time. The Academy was preparing us for
what we would experience as soldiers.23
MS. SCARROW: West Point is also known for emphasizing personal relationships. Do you
think that background influenced you later in life in your own personal
philosophy?
MR. CRUDEN: We referred to this philosophy as the concept we called “shared agony,”
but it did bring us close together, relying on one another completely. My
classmates are still some of my closest friends and in the DC area we get
together bi-monthly. That was something else I think was probably done
intentionally – pushing everyone so hard that you had to rely on
classmates to survive. That had a positive factor for me later in the
military, as it taught me to delegate to trusted individuals, motivate others
toward a common goal, and maintain a valued circle of friends.
I would say that another part of West Point legacy is that you do
become close to all the people that you room with and all the people you
competed with on sport teams. By the time that I was graduating in 1968,
we were already burying members of the class in front of us at the West
Point cemetery, including my first boxing coach, Richard “Buck”
Thompson. Marching alongside a casket of someone you cared for deeply
puts a real premium on life and causes reflection on what you consider to
be important and worth doing. And it made you draw closer to those you
lived with and came to admire, hoping that they would be one of the
fortunate ones who would survive the inevitable combat assignments we
all knew would be in our immediate future.24
MS. SCARROW: You mentioned roommates. I understand that you’re assigned roommates
for a semester or a short period of time, so you would have had multiple
roommates over the course of a year.
MR. CRUDEN: We all had multiple roommates, some randomly assigned, some chosen.
The first few years were all random, often three to a room, so working out
the logistics of sleeping, bathing, and cleaning rifles was always
challenging. By the time that I was a senior I had the same roommate, Bill
Kunzman, throughout the entire year, and we remained close friends. Of
course, all of my roommates were young men, all high testosterone, sleep-
deprived, remarkably strong, with low tolerance and a complete absence
of great virtues like patience and fear. Arguments were normal, vigorous
wrestling matches common, and pranks abounded. I remember my junior
year when we had three roommates in a small room, and one of them was
on the wrestling team, cutting weight, and generally unbearable. My other
roommate and I decided we had enough and moved all of his clothes and
books into the hall and then locked him out of the room. Since he was
way bigger than we were, we ultimately let him back in but with
assurances of better actions in the future.
MS. SCARROW: History and tradition are also especially important aspects of life at West
Point. Do you think that also had an influence on your life and how you
look at things?
MR. CRUDEN: Yes. We were inculcated constantly with West Point dedication to “duty,
honor, and country.” We memorized portions of famous speeches that25
were given there, and rapidly absorbed the history and traditions of an
institution that has been in place since 1802. The values of the Academy
become embedded in my life, placed there at a very formative age, and
then honed to action in military experience. Not everything they pushed us
to do was consequential, but without question it changed my life in a
positive direction and gave me a moral compass that I rely on daily.
MS. SCARROW: Do you have any stories or particularly fond memories of any of the
traditions? Also, were there a lot of injuries?
MR. CRUDEN: This is not a tradition, but as a lawyer, you will roll your eyes when I tell
you this. When we arrived at West Point, we were given three religious
choices. You could be Protestant, Catholic, or Jewish. Those were your
only choices, and that was really relevant because we had a mandatory
church. So, on Saturday or Sunday, you were lined up and marched to
your religious place. Now many fell asleep during church, but you still had
to attend. There was only one exception, volunteering to be a Sunday
school teacher, an option I chose. Instead of being marched to the chapel,
we were bused to a nice little elementary school. I had an elementary class
to teach and became fond of the children and their parents. When my
future wife came to visit me, she would stay with one of my students.
Those sorts of relationships mattered and made the unique college
experience more bearable.
Injuries were also a part of our life because it was physically demanding.
One of my better friends was my roommate, John Darling, who later died26
in Vietnam, but in a volleyball match, I broke his nose in a downward
swing at the net. And in a subsequent lacrosse match, he, and another
cadet cross-blocked me, split my thigh muscle open, which caused me to
spend about three months in the hospital my senior year.
I have to say those sorts of injuries were just absolutely normal, virtually
everybody knew a lot about rehabilitation and physical therapy.
MS. SCARROW: How did you manage to be in the hospital for three months and keep up
with all your academic work and everything else?
MR. CRUDEN: My three months started because of my lacrosse injury and then was
extended when I contracted hepatitis. Faculty members came to the
hospital for my academic instruction. They would wheel me over to a
small room, and I would get one-on-one instruction, and take the same
tests as everyone else. I am incredibly grateful for the extra work they had
to do in order for me to succeed. I would not have graduated on time
without the support of the individual professors who came to my hospital
bed each day.
MS. SCARROW: You mentioned that it was the Infantry that was interesting to you. Why
was that the case and how did you select that branch?
MR. CRUDEN: The Army has something called the Combat Arms. Those are the branches
that go to war: Infantry, Armor, Artillery, Signal Corps, and Engineers.
When it came time to select a branch, we went to the largest auditorium on
campus and on the stage was a board listing the number of positions
available in each branch. Then, one at a time, by class rank, each cadet’s27
name was called, and you had to select a branch. If you were at the end of
your class, you only had an extremely limited choice of what was left.
Fortunately, I was high enough in my class to get my first choice, and I
picked Infantry. I thought that the leadership opportunities and the tactical
and strategic thinking that went into Infantry’s military operations was a
good fit for me. And I chose Airborne Infantry for the perfectly good
reason that my salary as a new Second Lieutenant would be about $350 a
month, but by being a parachutist, I received an extra $110 a month. It was
also exhilarating to participate in airborne operations. And my selection
allowed me to join elite units. I stayed in Airborne, Ranger, or Special
Forces units from then until law school.
MS. SCARROW: You mentioned that you at least periodically got to see Sharon during your
time at West Point. Did you get to see her often? How were you able to
maintain your relationship over those years?
MR. CRUDEN: That was not easy. She was in college in Ann Arbor and then in Chicago.
At that stage, we did not have cell phones. We had pay phones, and there
was only one in our area. If I wanted to call her, I would stand in line with
a bag full of quarters. I would then call her dorm, and someone had to find
her. By the time we started talking, the cadet behind me would already be
knocking at the telephone door, telling me I had been on too long. We
wrote a lot of letters to each other.
Each year we were together on Christmas vacation, and thirty days leave
in the summer, but those were the only times that I was home during my28
four years at West Point. And West Point prohibited anyone from being
married while they attended the Academy. I had to sign a statement and
pledge when I returned from leave confirming that I had not married
during that time. So, our romance was truly letter-writing, occasional
phone calls, only seeing each other a few times a year in person for the
first two years. By the time of the third and fourth years, we were able to
see each other more. I am still amazed she was willing to marry me.
MS. SCARROW: I understand you got married shortly after graduation.
MR. CRUDEN: We decided not to get married at West Point. Although it’s popular to get
married there shortly after graduation in their gorgeous chapel with a
nearby officer’s club for a reception, we wanted to have our hometown
friends with us and all of our family. In my new Pontiac Le Mans, bought
on credit, Sharon and I drove from West Point to Michigan and were
married ten days later. We chose the historic Mary Martha Chapel at
Greenfield Village in Dearborn, Michigan to be married. Greenfield
Village, then and now, was a place Henry Ford put together where he
assembled scientific homes and engineering artifacts from across the
nation. Thomas Edison’s laboratory and the Wright Brothers bicycle shop
are there, as is the Mary Martha Chapel, the chapel of Henry Ford and his
mother. Four of my classmates came and we were all in our dress
uniforms. My classmates presented the arch of sabers as we exited the
church, and our local newspaper showed that picture in the paper the next29
day. Those forming the arch were new Lieutenants Ed Thal, William
Kunzman, George Heckman, and John Darling, all close friends.
MS. SCARROW: You transitioned right from West Point to getting married. What was that
initial newlywed period like?
MR. CRUDEN: We had 60 days to adjust before I reported to active duty. Our honeymoon
consisted of camping across Canada, and then down the western coast to
California. We had a Highlight trailer, a small trailer that folds out into a
bed and room. We went across the Trans-Canadian Highway and then
drove south through Glacier National Park and then along the west coast
to California before returning to Michigan. We now look back and ask
ourselves “what were we thinking”! We didn’t have any money and barely
knew each other. But that whole experience brought us closer together.
We were a young, married couple that had spent four years in a long-
distance romance, now forced to spend every moment together. We both
realized we had a lot to learn about each other, about being married, about
sharing thoughts and dreams, about arguing and not winning, about caring
deeply, and expressing feelings. We remember that time fondly, but it was
hardly planned, more like a series of episodic learning events.
MS. SCARROW: What did you do after your camping honeymoon?
MR. CRUDEN: I reported to Fort Benning, Georgia, the home of the Infantry Branch, and
began a series of schooling. As I was ultimately going to an airborne
battalion in Germany, I first went to the three-week airborne school that
culminated in 5 tactical jumps, many from a C130 aircraft. Following30
airborne school, I then went to a more advance training called the
“jumpmaster” school, which included more parachute jumps and more
rigorous instruction. Jumpmasters are plane leaders who check gear for
proper alignment, direct the parachutists’ exit out of an airplane, and are
generally in charge of the parachuting operation. I went right from that to
the Infantry officers’ basic course, designed to introduce new officers to
the Infantry and the military way of life.
The last, and by far the most demanding school of my life, was the
famous Ranger school, at Fort Benning, Dahlonega, Georgia, and Florida.
The three-month Ranger school lasted until just before Christmas of 1968.
During that time Sharon returned to Michigan to be a substitute
elementary school teacher.
Ranger school was in three phases. The first phase at Fort Benning
consisted of basic small unit training, then the mountain phase in the snow
of Georgia, and finally the swamp phase in the wilds of southern Florida.
Training was rigorous, weather conditions were often awful. But it was the
best class of my life and probably saved me in Vietnam. We parachuted
from helicopters into simulated combat, navigated through swamps at
night in small rubber boats, climbed mountains with heavy weapons and
little food or water, and learned to be resourceful, flexible, versatile, and
never, never to give up. Later, in my Ranger unit in Vietnam, I put to use
all of the skills I learned in this remarkable course.31
When Ranger School was over, I flew home to join Sharon. We had our
own small Christmas, and then packed up to go to our first military
assignment in Mainz, Germany.
MS. SCARROW: Tell me about your first post in Mainz, Germany.
MR. CRUDEN: Germany was then the Federal Republic of Germany, divided into east and
west. Mainz, Germany was along the Rhine River, with the headquarters
of the First Brigade of the 8th Infantry Division. The brigade had two
airborne battalions, and I was assigned to the 2d Battalion. We had both
offensive and defensive responsibilities in Europe. The Battalion was
constantly training, often at distant training grounds in Baumholder or
Grafenwöhr, Germany. We earnestly trained, regularly jumped out of
airplanes into various places in Europe and practiced military maneuvers
in specialized armored personnel carriers. The military exercises were all
designed, during the height of the Cold War, to offset possible invasion
routes by what was then the Soviet Union.
MS. SCARROW: What was your position there?
MR. CRUDEN: First as a platoon leader, with thirty combat-trained soldiers with far more
experience than me. Later I was selected to be the Battalion Operations
officer, a position the military calls the S-3. The position called for a
Major, but I was only a First Lieutenant, full of more ambition than
knowledge. I was responsible for all the training and operations of the
entire battalion. I stayed in that position until I was assigned to Vietnam.32
MS. SCARROW: I understand that as part of those roles, you ran the airborne exercises
across Germany?
MR. CRUDEN: I did. It was a heady time for a recent West Point graduate and now a First
Lieutenant. The responsibility of directing an entire battalion in airborne
exercises all across Germany was a wonderful experience. We also were
on call as a quick reaction force during tense political times and
sometimes sat on a runway with parachutes and all our gear so that we
could have quickly responded to a crisis situation. It was a highly trained,
high morale, elite unit, proud of its history, proud of being airborne
soldiers.
MS. SCARROW: I understand that as part of these exercises, both in Germany, and later on
when you were in Vietnam, you completed about thirty parachute jumps,
correct?
MR. CRUDEN: I did. Most of my parachute jumps were in Germany, but I also did a
combat jump in Vietnam and was a secondary jumpmaster for a
clandestine airborne operation there as well.
MS. SCARROW: Was that something that you enjoyed or would do again?
MR. CRUDEN: Not always enjoyable but usually exhilarating. It was incredibly exciting
to jump out of airplanes, sometimes from helicopters, and occasionally
from big jets called C141s. It was absolutely adrenalin producing, but for
me, this was a job to do. And I do recall one jump missing the drop zone
and hitting the back of a pickup truck.
MS. SCARROW: Was Sharon with you when you were in Germany?33
MR. CRUDEN: She was. Sharon came, and she became a teacher in Germany while we
were there. She was also elected as Vice President of the Women’s
Association.
MS. SCARROW: Did you all have much free time to take in the German culture?
MR. CRUDEN: We took a number of small trips across Germany, and Sharon was able to
take advantage of military vacations that were available, like a learn to ski
week. We then went downhill skiing together at the Zugspitze, the highest
mountain in Germany, south of Garmisch. We also went to London over
Christmas, and took a week’s vacation in Greece, traveling from Athens to
Olympia.
MS. SCARROW: In early 1970, you were assigned to a post in Vietnam.
MR. CRUDEN: Yes.
MS. SCARROW: Can you talk a little about that?
MR. CRUDEN: Yes. I was assigned to be the Senior Advisor to the 38th Ranger Battalion,
part of the 5th Ranger Group. We wore distinctive camouflage uniforms,
and berets. Their headquarters was a little south of Saigon. The 38th
Battalion was famous in Vietnam, having broken through enemy lines
during the 1968 Tet offensive and rescued many trapped in Saigon.
I went first as a senior advisor of that battalion with a team led by my
Master Sergeant Edward Abbadusky and Senior Lieutenant Kenneth
Pliskie. Later, because of my experience as an operations officer in
Germany, I became the senior operations officer for the brigade. Then,
when the combat operations into Cambodia were being planned, I was34
transferred to be the Senior Advisor of the 33d Ranger battalion, one of
the lead units in that incursion. Then when I came out of Cambodia, I was
reassigned back to where I started, with the 38th Ranger Battalion. I stayed
in that assignment until the end of the year. At that time, the battalion
commander that I’d had in Germany, Colonel BJ Pinkerton, had become
the head of the Special Forces Unit in Vietnam, and he offered me a job in
the Special Forces. I then transferred from being in the Rangers to Special
Forces, a clandestine unit called the Studies and Observation Group,
which had responsibility for intelligence gathering and cross-border
operations into Laos, North Vietnam, and Cambodia.
MS SCARROW: Anything stand out during your time with the Rangers?
MR CRUDEN Yes. During my tenure I went through a second Ranger school, this one
conducted by Australian Special Forces in the mountains west of Nha
Trang. The entire battalion went through four demanding weeks.
Excellent training, and graduation exercises were a live fire battalion size
operation in hostile territory. My most memorable event was when the
battalion commander shot a many-banded krait, probably the snake with
the most toxic venom in the world, lingering next to my head.
MS. SCARROW: I understand when you were with the Rangers you received the
Vietnamese Cross of Gallantry with Silver Star?
MR. CRUDEN: I did.
MS. SCARROW: For people not familiar with the military, can you tell us what that means
and what it meant to you?35
MR. CRUDEN: It was a Vietnamese valor award, which is their highest, for operations in
Cambodia. When we were deep into Cambodia, we went by helicopter to a
Cambodian village and had a firefight there with North Vietnamese
regulars. When we thought we had secured the village and protected the
local citizens, we started to leave, and I called in the helicopters for a
pickup. We moved to a small clearing, big enough for the helicopters to
land, but surrounded by a jungle. Just as the helicopters were starting to
land, a large force attacked us from all sides, driving the helicopters away
and making us take protective cover. We were attacked by a large force of
North Vietnamese, who were there to trap us, but everyone stayed calm,
and we fought back for a considerable period of time. That allowed me to
move to a better location and call-in supporting helicopters, called
gunships, that then provided protective fire as I directed them. The
battalion was then able to regroup, counterattack, and stabilized their
position. By that time, I had the helicopters safely landing for the pickup. I
came out last. We had a number of our force wounded, but no one killed
in what could have been a tragedy. The Vietnamese were grateful and
gave me their award for valor and even a parade. Frankly, I thought I was
just doing my job.
MS. SCARROW: These positions, as you mentioned, were combat positions. That must have
been an exceedingly demanding thing to experience. How did that affect
you?36
MR. CRUDEN: All combat is difficult. Every war is horrible, and I strongly believe that is
one of the reasons why soldiers are good people to talk to about peace
because anybody who has experienced the horror of war knows that it
should only be the last resort. All who have been involved in any war are
usually firm advocates for peace except when national security is
endangered. Some of the greatest people I’ve encountered in my life were
in the Special Forces, officers and men who I served with. They were
exceedingly brave and remarkably able, and it was an honor to be part of
that elite unit, and the professionalism was extraordinary. It was what I
was trained to do. At the same time, war is always a great tragedy with
many innocent people as victims. In my own case, I found that I was good
at something I was not at all certain I wanted to continue, and clearly did
not want war making to be my life’s calling.
MS. SCARROW: When you were with the Special Forces, I understand you received the
Bronze Star for that work.
MR. CRUDEN: When I was in the Special Forces, we received credible intelligence of a
prisoner of war (POW) camp with U.S. personnel in Cambodia. I led the
effort attempting to confirm the camp’s location and then prepare for an
operation to rescue them. I first flew over the area at an elevated level in a
small airplane but could not confirm the location. I then directed and
supervised a team to jump by parachute at night into Cambodia to
determine whether the POW camp was actually there. We had a lot of
valuable surveillance but ultimately decided that although there had been a37
prisoner of war camp some time ago, it had been moved out of our area.
We did, however, learn a lot about enemy operations in the area. For that
action I received the Bronze Star.
MS. SCARROW: I understand you also received the Air Medal with oak leaf clusters.
MR. CRUDEN: Yes. The Air Medals were really for surviving. We directed and planned
endless helicopter operations when I was in the Rangers to protect U.S.
military located in large installations. My ranger units ran what we called
“High-Low” operations in which there was a lower helicopter below a
higher helicopter. The lower helicopter had a massive searchlight which
often drew enemy fire, and then the higher helicopter descended with their
rockets and machine guns when needed. I did a lot of those operations,
and spent hundreds of hours in the air, and received the Air Medal with
oak leaf clusters for multiple actions, many under hostile fire. I did see my
first tiger in the wild in Vietnam in one of these operations where we had a
search light and the tiger stared back up at us, and then casually walked
away. And, when Bob Hope came to town, it was my Ranger Battalion
that provided security, using these helicopters and ground patrols.
MS. SCARROW: You mentioned that you took some law classes at West Point which you
enjoyed and then you took some night courses to see if that was something
you were interested in. And I understand that when you were in Vietnam,
you started to think maybe law school was something you should pursue.
Is that where that idea really took hold?38
MR. CRUDEN: It did. During my first year in Vietnam, I was allowed to go to Hawaii for
Christmas, and my wife Sharon joined me in Honolulu, we spent a week
reacquainting ourselves but also planning what I would do next. (Sharon
had returned to Michigan and was an elementary school teacher and lived
with her mother). I had done some research and found that an Army
program called Excess Leave existed, and if I could get accepted into a
law school, the military would let me attend on a leave of absence.
Although I would not get paid while in school, they did pay during
summer and holidays when I reverted to active duty. We decided that it
would be our next step.
You’ll smile at how naïve I was at that stage because I never heard of
anything called the Law School Aptitude Test (LSAT), nor did I have any
idea how to apply to law school and certainly did not know how to do that
from Vietnam. Ultimately, I figured out that I had to take the LSAT, but
as I was still in Special Forces that was logistically difficult but, somewhat
surprisingly, there was one LSAT test site in Saigon. The few of us taking
the test all came with guns, ammunition, and hand grenades as this was a
war zone. The test was given in a small, smelly room at a protected air
base. They passed the tests, then asked if we had number 2 pencils. Of
course, none of us did, so they had to find us pencils. Then they decided
we needed to stack our guns along the wall. Midway through the test the
supervisors also decided they should collect our ammunition and hand39
grenades. Unencumbered by preparation or any factual knowledge of what
the test was about, I took the LSAT.
When I received the LSAT results, which ultimately allowed me to apply
to law school, not surprisingly I had lots of other things going on as a
Special Forces Officer so the act of applying, or even filling out an
application, was difficult. When I finally had a free day, the application
deadline for every single law school in the nation had passed. So, I made
my decision to apply to schools based on which deadline was the most
recent. The three schools with the most recent deadlines were
Georgetown, Duke, and Santa Clara in California. By this time, I’d
already told the Army that I wanted to go to law school, and they had
decided that if I did not get accepted, I would be assigned to one of the
worst posts in the U.S. So, I sent out my applications to those three
schools. Ultimately, God bless them, all three accepted. But Santa Clara
Law School accepted me first and it was that acceptance that allowed me
to advise the Army I was going to law school. I am, therefore, eternally
grateful for Santa Clara’s immediate response because if they hadn’t
accepted me as quickly, I would have been sent to another assignment for
three years and probably another assignment to Vietnam, which might
have put my law school dreams beyond my reach while I was in the
military. Going to law school was another turning point in my life.40
ORAL HISTORY OF JOHN C. CRUDEN, ESQ.
Second Interview
February 25, 2020
This interview was conducted on behalf of the Oral History Project of the District of Columbia
Circuit. The interviewer is Tracy H. Scarrow, and the interviewee is John C. Cruden. The
interview took place at Beveridge & Diamond, 1900 N St NW, Suite 100, and Washington, DC
20036 on February 25, 2020, and was updated in 2024. This is my second interview
.
MS. SCARROW: All right, we’re here on February 25, this is the second interview with
John Cruden. And just to back up for a second, in our first interview we
generally covered your childhood, West Point, your marriage and then
your initial military service in Germany and Vietnam. Is there anything
that we didn’t cover that we should touch on or should we move forward?
MR CRUDEN: I did not tell you about my departure from Vietnam. Remember, I was
with the Special Forces then, a group of truly brave patriots, but a wild,
untamed bunch. After going through the necessary clearance process,
which meant turning over my accumulated weapons and ammunition to
authorities, I was driven by several of my friends in an open-air jeep
through the middle of Saigon. Somehow, they managed to collect some
fireworks, so they drove me right onto the runway at the Tan Son Nhut
airfield. With the military plane waiting, they set off the fireworks, put me
on the plane, and then saluted me as I left. The other plane passengers,
held up for my arrival, were not as amused as my friends were with the
farewell.
MS. SCARROW: Great. So, you then went directly from Vietnam to law school – Santa
Clara University School of Law – and can you talk a little bit about what
that transition was like, it must have been quite the culture shock.41
MR. CRUDEN: Although each of the schools I applied to ultimately accepted me, Santa
Clara Law School, which had been recommended to me by a JAG lawyer
in Saigon, responded first, which was critical for me as the Army
personnel office was impatiently waiting. I am now eternally indebted to
Santa Clara Law because their quick acceptance was quite significant to
me. Had they not accepted me when they did, the Army in its wisdom was
primed to give me another assignment which would have prevented me
from going to law school. I am now a donor to the school and an adjunct
professor.
MS. SCARROW: What happened after you returned from Vietnam?
MR. CRUDEN: My wife found to her dismay that I was malnourished from extended
periods of dysentery, had bad growths on my feet, but was completely
delighted to be on home ground where no one was shooting at me. After a
brief vacation along Lake Michigan with my wife, we drove in a new
yellow VW beetle she had proudly purchased to what is now the Silicon
Valley of Northern California. We found a small apartment, and then
waves of internal conflict spread over me as I realized I no longer needed
to carry a M16 everywhere I went, did not need to pat down my bed at
night to make sure no unwanted creatures were there, did not have to walk
gingerly to avoid mines and traps, could sit down without triggering
grenades and drink water from a faucet without facing sickness. In short,
my transition to a world of peace and education took some time. Yet, I42
was blessed by a supportive group of new friends, a beautiful campus, and
professors genuinely interested in my well-being.
MS. SCARROW: Can you explain how that worked? Were you on leave from the military or
how does that work when you go to school when you are in the military?
MR. CRUDEN: At that time, the only available Army program was called “Excess Leave,”
which allowed me to go on a leave of absence from the Army while I was
in school and then return to Army jurisdiction during vacation periods.
Now there is a congressionally enacted program that pays all expenses, but
that was not available to me when I went to law school.
MS. SCARROW: Did the military pay for you to go to law school?
MR. CRUDEN: The military did not pay any of my law school expenses or give me any
expenses while I was in law school, but they did pay my salary during the
summers while I worked at Fort Ord, on the Monterey peninsula.
Fortunately, Santa Clara Law School gave me a full scholarship for all
three years. That is another reason I am fond of, and a donor now to, my
law school.
MS. SCARROW: And can you talk a little about your law school experience generally? Did
you have favorite classes, professors, things that stick out in your mind?
MR. CRUDEN: Once I adjusted to not being in a war zone and not having to clean a
weapon each evening before I went to bed, I found the entire law school
experience exhilarating. New and bright friends, committed professors, an
area of California that was rising dramatically and attracting young,
energetic computer geniuses, and a whole new galaxy of legal issues43
which I thoroughly enjoyed studying. I’m still very close to a number of
my classmates. Just this year I returned to Silicon Valley to teach an
intensive 3-day weekend course on environmental enforcement, and then I
spent Sunday with my classmates living in Santa Cruz. Because I was
doing well academically, the law school gave me a number of remarkably
interesting opportunities. I served as a teaching assistant to Professor
(Father) Paul Goda, rose to leadership in the Law Review, was a finalist in
a state moot court competition, became a part time Public Defender when
future Chief Justice Rose Bird headed that office, and then clerked most of
my final year on the California Supreme Court for Justice Stanley Mosk.
MS. SCARROW: Can you tell us a little more about that clerkship experience, what type of
cases you worked on, and what you learned from Justice Mosk?
MR. CRUDEN: I’m a great fan of Justice Mosk who became a lifetime mentor and friend.
He was Attorney General of California and then was selected for the
Supreme Court by Governor Edmund Brown. A year before my time with
him his clerk was Jerry Brown, Governor Brown’s son, who later went on
to become California’s governor.
Mosk was a great Supreme Court justice at a time when the
California Supreme Court was at its zenith, with such powerhouse justices
as Chief Justices Donald Wright, Roger Traynor, and Matthew Tobriner.
Justice Mosk ultimately became the longest serving justice on the court,
serving from 1964 until 2001. When I wrote speeches for him, he would
often start by saying that “California courts are to courts as UCLA is to44
basketball.” That always elicited a good response in a California
audience, as this was the John Wooden era of UCLA basketball when
UCLA won ten NCAA titles, including seven straight titles from 1967
until 1973.
I learned a lot from him about writing, being fair, and taking care of
others. He held my first daughter as a baby, and later when I was at the
Department of Justice and litigating a TRO in San Francisco, he became a
temporary babysitter for my then-high school aged daughter who stayed
with him in his chambers while I was litigating a case. When I returned,
she was sitting at his desk, and she told me that she had gone to lunch with
the judge and the famed San Francisco Chronicle journalist Herb Caen.
She was thrilled.
MS. SCARROW: And you mentioned that you also worked for Rose Bird, can you talk a
little more about that?
MR. CRUDEN: Rose Bird co-led an amazing class/internship, done jointly with Stanford
Law School, known as the “Public Defender Course.” We met weekly in
Stanford for classes, led by Professor Anthony Amsterdam and Rose Bird.
The course included videotaped practice sessions, mock trial exercises,
and lectures by Stanford law professors on trial practice and criminal
justice. Beyond the classwork, we were all actively involved as interning
in public defender offices. Rose Bird was then the leader of one of the
state’s largest Public Defender Offices in Santa Clara, and she became a
mentor of mine as she supervised me when I was working in her office.45
She was particularly supportive of my family when my daughter was born,
and she came to my graduation with a baby gift. Later, Governor Brown
appointed her to be Secretary of Agriculture and subsequently to be Chief
Justice of the California Supreme Court. She was one of the very first
women appointed as a state Chief Justice.
MS. SCARROW: So, it sounds like both of these experiences had big influences on your
career and serving as mentors.
MR. CRUDEN: Without question great attorneys like Father Paul Goda, Justice Stanley
Mosk, and Chief Justice Rose Bird had a significant impact on my life and
guided me in my opening moments as a lawyer.
MS. SCARROW: And I understand you were involved in a couple of other activities while
you were in law school. You were in the finals of the state moot court
competition?
MR. CRUDEN: Yes. Santa Clara had a well-known moot court program. It was highly
competitive inside of the law school. Our state team, in which I was co-
lead, did quite well in the state court competition.
MS. SCARROW: And you also participated in the law review.
MR. CRUDEN: Yes. I was the managing editor in our Law Review, and the law review
members became some of my best friends. We did a highly regarded
review of mental health programs in the State. And they were good
enough to publish my first ever law review article.
MS. SCARROW: Do you recall the name of the article that you published?46
MR. CRUDEN: I authored an article on the Federal Medical Care Recovery Act.1 As I
mentioned, I worked for the military JAG office in the summer, doing
civil litigation work, and running an office responsible for obtaining
reimbursement for the Army under the Federal Medical Care Recovery
Act. That experience gave me the information I needed to write the law
review article, which was then distributed to every Army legal office in
the nation.
MS. SCARROW: You mentioned that during the summers you would revert back to active
duty, can you explain sort of how that worked and what you did during
those summers?
MR. CRUDEN: During the summer I would return to active duty, put my uniform on, and
become Captain Cruden again. I spent each summer in the Office of the
Judge Advocate at Fort Ord, California, near Monterey, and did civil cost
recovery work. That work became valuable to me in the future, as I
worked with countless Assistant U.S. Attorneys in California.
MS. SCARROW: And you did that both for the summers in between your first and second
year of law school, and between your second and third year?
MR. CRUDEN: I did that each summer while I was in law school.
MS. SCARROW: And I understand that you and your wife had little side business going on
while you were in law school, so that you could make a little money?
1 John C. Cruden, Government Recovery: Federal Medical Care Recovery Act, Automobile
Insurance and Workmen’s Compensation, 13 SANTA CLARA L. REV. 720 (1973)47
MR. CRUDEN: Yes. Even though the law school gave me a full scholarship, we still
needed other income as my wife was also in graduate school. My wife and
I ran an apartment house in San Jose which had about fifty units, each of
them occupied – some by students and some by married couples. We were
responsible for collecting the rent and doing basic maintenance for this
apartment house which prompted us to learn more about painting,
plumbing, and electricity. For this we received a free apartment, modest
payment for our maintenance work, and a real garage.
MS. SCARROW: And I understand that your wife was also teaching during this time, at least
before your daughter was born?
MR. CRUDEN: While I was in law school, my wife Sharon attended what was then the
University of California at San Jose and obtained her master’s degree in
special education. She then taught at the University of California and later
at De Anza College in her area of special education.
MS. SCARROW: And as we noted, your first child was born while you were in law school,
was it difficult to sort of balance the family life and school?
MR. CRUDEN: We were quite excited and a little overwhelmed when our first daughter
was born at Stanford Hospital. We had a VW Camper bus which I parked
each evening in the hospital parking lot so I could be with them in the
morning. Kirsten became the darling of the law school – the only child
born during our class – and was well known to the law review members. A
woman in our apartment complex became her nanny, and Kristen spent a48
lot of time as a baby in our VW Camper bus including a memorable trip to
Yosemite National Park.
MS. SCARROW: And you graduated in 1974, and I understand that you graduated with
honors?
MR. CRUDEN: Yes. I graduated summa cum laude. As I recall they gave me as a prize for
a set of books detailing the writing of the Constitution, and a check for
$25 for being first in my class my last year. Twenty-five dollars meant we
could finally have a great meal in a restaurant in Silicon Valley we could
not previously afford.
MS. SCARROW: And upon graduation, I assume that you then took the bar exam.
MR. CRUDEN: I took the bar in California in San Francisco.
MS. SCARROW: Did you have the summer to study for the bar, or did you go right back to
active duty?
MR. CRUDEN: Like most of my class, I took a bar review course and then the bar in San
Francisco. After taking the bar, my family traveled in a reconditioned
police car (that I bought at a police auction) and drove across the country
to Charlottesville, Virginia, my first assignment as a new military lawyer,
the Advanced Class of the Army’s Judge Advocate Generals School.
MS. SCARROW: Have you returned to your Law School since you graduated?
MR. CRUDEN: Yes, I returned to receive their Distinguished Graduate Award, a great
Honor. And, I am now an adjunct professor at the school and annually
teach a class on Advanced Environmental Law and Enforcement.49
MS. SCARROW: Can you tell us more about the Judge Advocate General’s Legal Center
and School and the Advanced Class you attended?
MR. CRUDEN: Since World War II, the Army’s law school has been located in
Charlottesville, next door to the University of Virginia Law School. The
Advanced Class was a year-long course in all aspects of federal, military,
and international law, but they also had a special program that allowed me
to simultaneously enroll in the master’s program in government and
foreign relations through the University of Virginia. I did that dual
program for the year.
At the same time my wife was selected as a professor at the
University of Virginia in the education department for a special program
involving visually impaired and learning-disabled individuals.
MS. SCARROW: You mentioned that you did these two programs simultaneously, I
understand that you were the first military attorney who ever did them
simultaneously, is that correct?
MR. CRUDEN: That’s true.
MS. SCARROW: How did that come to be? Was it just something you were interested in, or
does it sound like it was an unusual path to do them both at the same time?
MR. CRUDEN: The Army received some special funding, and when we arrived in
Charlottesville, they offered me the opportunity for the dual degree. I long
had an interest in foreign affairs and national security, stemming from my
time as National President of the XIX Student Conference on United
States Affairs while I was at West Point. The graduate school gave me50
credit for some of my JAG School classes, and both the military and the
college allowed me to submit one thesis to satisfy both requirements. I
authored my thesis on the War Powers Act, which had just passed and was
quite controversial. I selected that topic at the suggestion of Colonel Zane
Finkelstein, then the Legal Advisor to the Chairman of the Joint Chiefs of
Staff in the Pentagon.
MS. SCARROW: As part of your War Powers Act thesis, I understand that part of that
involved interviewing Dean Rusk, who was the former Secretary of State?
MR. CRUDEN: Yes. In researching the history of events leading up to the War Powers
Act, which was a post-Vietnam effort to give Congress more power and
restrain the President, I learned of Dean Rusk’s unique role while he was
Secretary of State. He was then a professor at the University of Georgia
Law School, so I called him and set up an appointment.
I then traveled to Athens, Georgia and spent the entire day one-on-one
with Dean Rusk where he discussed his own experiences, legal issues he
confronted before and during the Vietnam War, and the inevitable tension
between Congress and the executive branch during periods of extended
conflict. He also gave me his own candid thoughts about the War Powers
Act and how a president should react to hostilities in the future and
whether or not, and under what circumstances, they should seek
congressional approval. I incorporated much of what he advised me in my
thesis and have always been grateful for the time he spent with a new
lawyer, an undistinguished Army Captain, who was seeking insight.51
MS. SCARROW: And even though you published this paper in 1975, I understand that
despite the age, it’s still the preeminent piece on the War Powers Act.2
MR. CRUDEN: There have now been books written about the War Powers Act. Other law
review articles have also been written, but I do know that in one important
case, Judge Royce Lamberth, then Chief Judge of the United States
District Court for the District of Columbia, referred to my article in his
discussion of war powers law.3
MS. SCARROW: Must be nice that something that you did so long ago still is relevant in the
law.
MR. CRUDEN: Yes, and the law remains controversial, but I have re-read my thesis and
the subsequent article and still stand behind its conclusions.
MS SPARROW: Do any of your professors in the UVA Graduate Program stand out to you:
MR. CRUDEN: Yes. Henry Abraham was the James Hart Professor of Government, a
scholar on judiciary and constitutional law, and the author of over a dozen
books. He served in World War II and received two Battle Stars, He
received numerous awards and is one of the best lecturers I have every
encountered. He became friends and watched over my career for many
years and visited me in DC. I do remember, however, missing one of his
classes because while playing basketball one of my teammates had
accidentally broken my nose. When I finally came to class, Professor
2 John C. Cruden, The War-Making Process, 69 MIL. L. REV. 35 (1975). See also Cruden, Book
Review, The War Powers Resolution: Its Implementation and Practice, 24 VA. J. INT’L L. 513
(1984). See Appendix 1.
3 Ange v. Bush, 752 F. Supp. 509, 518 (D.D.C. 1990).52
Abraham took one look at me and said, regretfully, “John, it was once a
pretty nose.”
MS. SCARROW: As part of the graduate programs, you were selected to be the outstanding
graduate of the class. Was that for the JAG school or for the master’s
program?
MR. CRUDEN: At our graduation from the Judge Advocate General School, they
announced that I had been selected Outstanding Graduate and that my
thesis had been selected as the best of the year. I was elated as the year
had been quite demanding, my wife was pregnant, and I desperately
wanted to impress her, and make her believe our hard work together was
worthwhile.
MS. SCARROW: Do you know how you were selected for that? Is that by professors or
others?
MR. CRUDEN: The professors at the school made the decision. They announced that the
selection was made both on grade point average and leadership potential.
MS. SCARROW: And then upon completion of your masters and JAG school, your first
assignment, as I understand it, was in Germany and you were there from
1975 until 1978. You were both a trial and defense counsel in Germany,
can you talk about that?
MR. CRUDEN: After graduation we were anxious to get to my first assignment as a
lawyer, as my wife was pregnant with our second child and there were
restrictions on foreign travel in the last few months of pregnancy. We
went together to Germany, my first time there as an attorney, and I was53
assigned to a legal center not far from Frankfurt, in the small town of
Butzbach. The legal center was in an old historic castle, and we lived in a
nearby farming community called Gombach, on the bottom floor of a
house with an elderly German couple living above us. I spent the next few
years first as a defense lawyer, then as a prosecutor, and that was an
amazingly busy time. Each day we were either preparing for, or in court,
and I had well over 50 contested cases, many with juries. It was a
wonderful time to gain experience in the court room, which helped me the
rest of my life. We were all young and hungry for court time and spent
every waking moment trying to perfect our burgeoning trial skills. While
serving in that position, I was selected to move to Heidelberg, the
headquarters of the military in Germany, to become the chief of civil
litigation in Germany.
MS. SCARROW: And how were you selected for that second position?
MR. CRUDEN: That position came underneath Army Brigadier General Victor DeFiori
who was responsible for all legal activities in Germany. Because I had
been the outstanding graduate of my JAG School class, he thought I would
be well suited for this special position. That job had two parts,
coordinating any federal civil litigation going on in Germany but also
providing legal review of the intelligence community’s activities. At that
time, the intelligence community activities were largely located in Berlin,
Bonn, and Munich and I spent a great deal of time traveling to those54
locations, reviewing their actions, writing standard procedures, setting
forth a myriad of restrictions, teaching, and counseling them.
MS. SCARROW: And you received the Legion of Merit during this time period, can you
explain what the award is and what you received it for?
MR. CRUDEN: At the end of my tenure in Heidelberg, the senior JAG General in
Heidelberg nominated me for one of the highest peace time awards, the
Legion of Merit, for my actions as head of civil litigation. I was somewhat
surprised, and quite pleased, as I knew I had spent a lot of time telling the
intelligent community things that they could not do.
MS. SCARROW: And while you were in Germany, your second daughter was born, is that
correct?
MR. CRUDEN: Yes, Heather Ashley, my second daughter, was born in the Army’s
Frankfurt hospital. We were then still living around Butzbach and as my
wife’s contractions escalated, we hurriedly drove to a nearby small
medical clinic who promptly sent us to the main hospital, about an hour
away. We were getting nervous at our arrival, but all went well with the
birth. I can easily recall it because it was remarkably close to the
Christmas holidays, and we were just hosting a newly arrived military
lawyer in our small basement apartment. A young bachelor, Thomas
Tudor, soon had the opportunity to share a miniscule bedroom with a new,
loud baby.55
MS. SCARROW: Your daughters were of course little, but did you get a chance to enjoy and
spend much time around the countryside of Germany? Did your wife
work?
MR. CRUDEN: Yes, particularly after we moved to Heidelberg. We were able to take trips
to Israel, Holland, Czechoslovakia, England, Prague, Tunisia, Ibiza, and
southern Germany. We also went on countless “Volksmarches,” normally
10 kilometers in length, with our two small children often in our arms.
And the Germans were very understanding and appreciative of young
children and were very anxious to help us wherever we went. In addition,
my wife, with her expertise in special education techniques, was chosen
by the military hierarchy to develop and then organize a special summer
camp for disabled children, called “Camp Funshine.” It was a huge
success.
MS. SCARROW: And you moved back after that period, back to the United States in 1978
when you became a civil trial attorney in the Army Litigation Division at
the Pentagon. How did that transfer back to stateside happen and what was
that job like?
MR. CRUDEN: In Heidelberg I worked for the demanding, but highly regarded Colonel
Arnold Melnick, who later became Chief of Army Litigation Division in
the Pentagon. Litigation Division was a highly sought-after position, and
he solicited me to come to Washington, D.C. and join the Division. We
bought our first house in Virginia, found schools for girls, and I started
working in the Pentagon as a civil litigator. It was a great position with56
nationwide responsibility, and occasionally international work.
Environmental cases were just starting to be filed, and I was involved in
many of the early cases, including one that received a lot of press attention
in Berlin, Germany.
MS. SCARROW: Can you tell me more about the Berlin case?
MR. CRUDEN: The Berlin case was first filed in federal district court in D.C. challenging
a housing project that was being built in Zehlendorf, which is a suburb of
Berlin. The housing project was being funded by the Berlin government
but overseen by the West German government and was for housing of
soldiers that were living in Berlin. It was one of the earlier cases under the
National Environmental Policy Act (NEPA) and the plaintiffs argued that
NEPA should apply extraterritorially. Working with the Department of
Justice, we were able to get the case dismissed utilizing the political
question doctrine because of the dominant role of a foreign country in the
project.4
The plaintiffs refined the case in a new special court that had just
been established by the State Department in Berlin to try an airplane
hijacker. The hijacker had brought a plane down in the Tempelhof airport,
which was famous because of the Berlin airlift, but it was also in the U.S.
sector of Berlin.
4 See Gemeinschaft zum Schutz des Berliner Baumbestandes v. Marienthal,
No. 78-1836 (D.D.C. November 9, 1978). See Appendix 2.57
The State Department contracted with a federal district court judge
named Herbert Stern to try the case. Representing the government were
State Department lawyer Andre Surena and Assistant U.S. Attorney Roger
Adelman. While the hijacker case was going on, Judge Stern also accepted
the new filing of the environmental case I had been litigating. To represent
the government several of us, including then-Assistant U.S. Attorneys
Royce Lamberth and Hank Schuelke, a Department of Justice lawyer
named Pete Steenland, and I traveled to Berlin to present our position on
whether that case should be heard in this unique tribunal. Before traveling
to Berlin, Peter Steenland and I met with Deputy Secretary of the State
Warren Christopher to receive guidance on presenting the position of the
State Department in court.
At the end of the trial, the hijacker was convicted by a jury established by
Judge Stern but sentenced to time served. Judge Stern then said he would
turn to consider the environmental case. We were, however, able to
terminate his employment by order from the Department of State. That
whole episode became well known as a book that Judge Stern wrote called
“Judgment in Berlin,” which was later made a movie that starred Sean
Penn as the hijacker.
MS. SCARROW: So, are you featured in the movie?
MR. CRUDEN: No, I am grateful to say I was not featured. However, I am a proud
member of the Berlin Bar, which has no dues and limited membership, but
now includes all of us who traveled to Berlin for that amazing case.58
MS. SCARROW: I understand that the Federal Bar Association awarded you the prestigious
Younger Federal Lawyer Award at the Annual Conference.
MR. CRUDEN: Yes, I had individually represented in significant litigation the DOD
General Counsel Deanne Siemer, and David O. “Doc” Cooke, the
Pentagon’s highest-ranking career civil servant as Director of
Administration. They nominated me for the Award. Brigadier General
Ron Holdaway accompanied me to the award ceremony in Denver, my
first real exposure to the Federal Bar Association, which I have come to
treasure.
MS. SCARROW: I understand during that time period you became the General Counsel of
the Defense Nuclear Agency, a civilian position. How did that happen?
MR. CRUDEN: As I gained litigation experience, I was often used by the then-DOD
General Counsel, Deanne Siemer, to litigate significant cases for the
Department of Defense. Several of the cases involved highly classified
operations or important DOD programs. Deanne not only supervised the
DOD lawyers, but also all of the general counsels in the DOD agencies.
One of them, the Defense Nuclear Agency (DNA), was located in
Northern Virginia in its own highly classified building. DNA was one of
the successor agencies to the famous World War II Manhattan Project, and
was responsible for many significant programs internationally, as well as a
great deal of civil litigation concerning its earlier nuclear test programs. I
was selected as their General Counsel and then worked closely with the
Department of Energy during that time period and coordinated with the59
Department of Defense General Counsel, and the Department of Justice
concerning significant national security related ligation. What was unusual
was that I was a military officer serving in what was normally a civilian
position.
MS. SCARROW: When you were the general counsel of the Defense Nuclear Agency what
type of responsibilities did you have?
MR. CRUDEN: The general counsel position had extremely broad responsibilities
including federal procurement, international negotiations, an extensive
litigation docket, and oversight of the testing being done at the Nevada test
site. During that time, the Defense Nuclear Agency was also responsible
for the cleanup of the Enewetak Atoll, which is an atoll that was bombed
with nuclear bombs during and after World War II. And it was
responsible for the health effects of nuclear testing by the Department of
Defense. I stayed at DNA until I was selected for the Army’s Command
and General Staff College.
MS. SCARROW: Before we turn to your stint at the Army’s Command and General Staff
College, I understand that you were awarded the Defense Meritorious
Service Medal after you left the Defense Nuclear Agency. Can you tell me
what that medal was for and how you were selected to receive it?
MR. CRUDEN: At the end of my tenure as General Counsel, Admiral Robert Monroe, the
Director of the Defense Nuclear Agency, awarded me the Defense
Meritorious Service Medal, for my work in representing the Defense
Department in critical federal litigation, participating in a significant60
overseas environmental cleanup, and providing legal advice concerning
DOD’s nuclear weapons activities, including stockpile management,
safety, security, and survivability. Admiral Monroe had been first in his
class when graduating from the Naval Academy and was a superb leader
and highly regarded in the military.
MS. SCARROW: Now, let’s turn to your time at the Army’s Command and General Staff
College. Can you explain what the Command and General Staff College
is, please?
MR. CRUDEN: The Army Command and General Staff College (CGSC), located at Fort
Leavenworth, Kansas is a masters-level program for U.S. Army, sister
services, and international military officers. CGSC is a ten-month
program; the curriculum includes instruction on leadership philosophy,
military history, and the military planning and decision-making
processes. About 1,200 U.S. military and international officers make up a
class, which usually includes five members of the Judge Advocate
Generals Corps who are competitively selected by a military board.
I was fortunate enough to be selected. My family then moved to Fort
Leavenworth in Kansas for that year.
It was a good learning year, and I graduated with honors, but it also gave
me time to recover from my second knee surgery, following a basketball
injury, and enter 5K and 10K road races.61
MS. SCARROW: And then after you finished your time at the Command and General Staff
College, you went on to become the Director of Administrative and Civil
Law at the Judge Advocate General school.
MR. CRUDEN: Yes, I returned to Charlottesville, this time as the leader of the school’s
largest Division – the Administrative and Civil Law Division, which had
about twenty Army lawyers serving as professors in a variety of civil law
subjects, ranging from labor law to environmental law to advanced civil
ligation techniques. I personally taught management and national security
law, civil litigation, and management leadership. My interest in
environmental law then intersected with my interest in national security
law. With professors from the University of Virginia law school, we
created the very first national security case book. I helped prepare the
outline for the entire case book and then personally wrote the chapter on
environmental law and national security. The book is now in its third
edition, is widely used, and I have returned to the law school many times
to teach my chapter of the book in their national security class.5
MS. SCARROW: And you were in this position for three years from 1982 to 1985, are there
other particular highlights that stick out in your mind?
MR. CRUDEN: I would say a highlight for me was my meeting with, and instructing, the
senior military commanders who were required to come to the JAG
School and take legal instruction before they assumed command. Every
5 John C. Cruden, Chapter 8, Environmental Law and National Security, in NATIONAL SECURITY
LAW & POLICY, et al., (3rd ed. 2015).62
new brigade commander who came through the school took a course
called the senior officer legal orientation (SOLO). Generals, who were
selected for command positions, were also required to come to the school,
but they would receive one-on-one instruction, dealing with international
law, how you treat prisoners, legal responsibilities as a commander,
military justice, fraternization prohibitions, and the law of land warfare.
I remember very specifically teaching Norman Schwartzkopf in his pre-
command course. Schwartzkopf had been on the facility at West Point at
the same time that I had been a cadet. I spent a day with him before he
took over his famous command of the Desert Storm operation.
MS. SCARROW: And I understand you also taught management as well as part of your
responsibilities.
MR. CRUDEN: The Army considers a key part of legal instruction to include management
principles as well as leadership issues. And I personally taught
management and leadership to both lawyers and non-lawyers during that
period.
MS. SCARROW: And you mentioned writing the environmental chapter for the course
book, is that sort of where your interest in environmental law started or
just enhanced it?
MR. CRUDEN: Clearly that book enhanced both my knowledge base and my interest. I
had done environmental litigation when I had been in the Pentagon, but
this was broader and more academic. I purchased my very first Apple
computer, printed out virtually every environmental law case that had63
been decided by that time, and immersed myself in this new area of the
law, which excited me and ultimately led me to a new career.
MS. SCARROW: General Bill Suter, who was the Judge Advocate General of the Army at
the time, was your direct supervisor. I understand he would often come to
you with sort of special projects, can you tell us about that?
MR. CRUDEN: The school had a hierarchy of officials and Major General Bill Suter, who
later became the Judge Advocate General, was the head of the school and
my supervisor. He was also a mentor of mine. I knew his family and he
and his wife had been Sunday school teachers for my daughters. I have an
extremely high regard for him and clearly, he was a significant mentor of
mine throughout my life. And he was very, very well regarded within the
Army leadership and so from time to time he was given special projects by
the Army leadership.
One of which was developing the anti-fraternization policy of the Army,
which is in effect today. Later, I often visited him when he became Clerk
of the Supreme Court, and he said my farewell from the Department of
Justice.
MS. SCARROW: Were there other similar projects that you remember?
MR. CRUDEN: Other projects that we worked on largely dealt with instruction that was
given to new officers and new generals in the Army. I traveled almost
every month to Fort Leavenworth Kansas to lecture to new commanders in
the Commander General Staff College on legal issues they would
confront. Because of my prior non-lawyer experience in the military, I was64
able to easily relate to the commanders, often being with them in their
informal gatherings, answering their questions about problems they
expected to encounter. A highly rewarding experience.
MS. SCARROW: Then in 1985, you returned to Germany for what I believe was the third
time as the Staff Judge Advocate for the Third Armor Division. What was
your job there?
MR. CRUDEN: Yes, the Third Armored Division was the famed Spearhead Division that
led the way in the World War II Normandy Campaign. Later it became
famous because General Colin Powell served in the Division, but far more
important, so did Elvis Presley!
As the senior attorney for the Division, I was responsible for legal issues
of thousands of soldiers and their families as well as all legal relations
with the German authorities. The U.S. military divided Germany into
geographic jurisdictions for criminal and international issues and the Third
Armor Division, which was then headquartered in Frankfurt, had by far
the largest geographic jurisdiction. My assignment was the leader of that
legal office, equivalent to a U.S. Attorney’s office, with five different sub-
offices located throughout central Germany. Any international, criminal,
or administrative issue that arose within that geographic area was my legal
responsibility. I was greatly assisted by my Deputy, Major Don DeCort,
who would later be promoted and be the senior legal adviser to the Special
Forces Command. The Commanding General was Richard Graves, a
highly regarded officer who had a distinguished career.65
My position as Staff Judge Advocate included coordinating with
German officials in virtually every town that we were in. We also worked
with criminal investigators who were a part of the Army Criminal
Investigative Division. I had a large office of over 45 attorneys and was
frequently traveling to be with one of the five branch offices, attending
trial, meeting with German officials, or coordinating plans with the
military hierarchy. And, since the military unit trained extensively, all the
lawyers participated in the multi-week training exercises, often using it as
an opportunity to educate soldiers on the law of war and the Geneva
convention requirements for the humane treatment of prisoners.
MS SPARROW: Where did you live and how did your family fare in Germany?
MR CRUDEN: We lived in a small town not too far from the military base called Kaserne,
within walking distance of a German Gasthof, a small neighborhood
restaurant, that we liked a lot. My daughters were in U.S. schools, and my
wife taught for the University of Maryland, which had offices in Europe.
We were able to take several trips to Spain, Scotland, Switzerland,
Austria, Yugoslavia, Holland, and France, giving our children a real
international education in people and customs.
MS. SCARROW: And I understand you received your second Legion of Merit while you
were there at that time?
MR. CRUDEN: I did. One of my jobs was to coordinate almost every day with the various
commanding generals on current legal matters. I received the prestigious
Legion of Merit for my work leading the legal effort there in the central66
part of Germany. Our jurisdiction was one of the largest in Germany, and
we had successful relations with German attorneys and local cities. We
were rated highly, which led to the award. I must smile, however,
remembering the parade Major General Tom Griffin, the Commanding
General, organized in my honor when I received the award. This was an
Armored Division, and parades were not the favorite thing to do for young
tankers, and the parade had more heart than skill.
MS. SCARROW: I understand that you were then selected as one of the few military
attorneys to attend the prestigious War College, but you didn’t really go.
What happened?
MR. CRUDEN: Only a few military attorneys are selected to attend War College each
year, and those that do attend are often later considered for selection for
senior positions in the military or to become a General Officer. I was quite
pleased when then General Bill Suter called me in Germany to tell me that
I had been selected, but then he told me about a brand-new program in
which I could serve my War College year at the Department of Justice. I
readily agreed and became the first military lawyer to do so.
I became the special counsel for the Assistant Attorney General of the
Civil Division at the Department of Justice, who was then Richard
Willard, and later served under Assistant Attorney General John Bolton,
who gained considerable notoriety in the Trump Administration as
National Security Advisor.67
MS. SCARROW: Describe your role as the first military attorney to become a Special
Counsel.
MR. CRUDEN: As Special Counsel to the Assistant Attorney General, I predominately led
civil litigation and national security litigation involving the military.
During that period, I also argued my first case before the U.S. Court of
Appeals for the Ninth Circuit, in Pasadena, California, and participated in
a number of other appellate briefs. That was also the era where the Reagan
administration was actively involved in drug enforcement, and they
created drug testing requirements across the federal government. I was
responsible for leading the federal drug testing effort, which was based on
the military experience of drug testing. With many other representatives
from every federal agency, and a small DOJ team that I supervised, we
created the drug testing protocols which are still in effect. There was also
considerable litigation that arose from those drug testing requirements, and
I was involved in those cases because it was a very high-profile priority
for the administration. It was during this time period that I was called on
to brief President Reagan on the status of both drug testing in the United
States, and the status of the litigation as well.
MS. SCARROW: Was that the first time you had ever met a president?
MR. CRUDEN: Yes. I had seen other presidents, but this was the first time I spoke to one
and was selected to personally brief President Reagan.
MS. SCARROW: What was that experience like?68
MR. CRUDEN: This was the first time I had been in the White House, and I went with
other leaders of the Drug Program as the President and his wife both had
personal interest in what we were doing. We all knew one another, but
then President Reagan came in and sat. He was obviously prepared, and
he’d clearly thought through what he wanted us to accomplish. He had
excellent questions and then turned them over to me to tell him about what
was happening agency by agency. Then, I summarized the current federal
litigation as it was obviously something both he and his wife cared deeply
about, and I was certainly impressed by his level of knowledge. It was a
memorable moment.
MS. SCARROW: You mentioned that there was some litigation that arose as a result of
those policies. Was any of that in the D.C. Circuit?
MR. CRUDEN: The cases that I was personally involved in were largely in California, but
one of them went to the Supreme Court and Attorney General Thornburg
argued that case. I am confident some of the cases were also filed in the
D.C. federal courts.
MS. SCARROW: I understand you were also on television then.
MR. CRUDEN: Yes, my work on federal drug testing led me to several TV and radio
presentations plus speaking at the Conference on a Drug Free America.
MS. SCARROW: Did you have other particular areas that you focused on during your time
as the special counsel other than the drug testing programs?69
MR. CRUDEN: This is a time period where suits against individual government employees
started to increase following a Supreme Court decision called Bivens.6
The Civil Division, which I was then a part of, created a group to decide
when individually sued government employees would receive
representation and how that would happen. I was very much involved in
that process and advising that group particularly when military people
were involved and sued individually.
MS. SCARROW: When you finished your time in the Civil Division, which wrapped up in
1988, I understand that you then returned to military duty as the Chief
Legislative Counsel for the Department of Army. How did you get that job
and what were your responsibilities there?
MR. CRUDEN: As I was finishing out my tenure at the Department of Justice, General
Suter again contacted me to suggest that I take position as Chief
Legislative Counsel of the Army, working with Major General Charles
Dominy who headed the Office of Legislative Liaison located in the
Pentagon. With offices in both the Senate and House, the Office of
Legislative Liaison works every single day with all elements of Congress,
promoting legislation of interest to the military. As the Chief Legislative
Counsel of the Army, I was responsible for all legislative actions, directed
investigations, prepared Army officials to testify, and was responsible for
all presidential nominations for the Army, both civilian and military. I had
a staff of lawyers and non-lawyers and legislative experts that again
6 Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).70
looked at any piece of legislation that impacted on the military. We were
also very much involved in the annual Defense Authorization Act and
coordinated any congressional investigation involving the Army. We all
had badges that allowed us to travel throughout the House and Senate. We
very often travelled with members of the House and Senate when they
were doing oversight visits to military installations, both abroad and in the
United States.
I testified on one occasion during that time period on military issues, was
on the Hill everyday meeting with members of Congress and their staff,
attending and participating in hearings, and working on legislation.
One of my other responsibilities as Chief Legislative Counsel of the Army
was to run all of the Senate confirmations of both the political appointees
and the Army officers promoted to a higher rank. Because each Army
officer was an “officer of the United States,” Senate confirmation was
required. After their recommended promotion we would send a list of
names to the Senate, for confirmation consideration. In only a few cases,
usually General Officer promotions, did we have any Senate questions,
and even for General Officers most of them were quickly confirmed.
Political appointees had a far more rigorous confirmation process, but I
was successful in getting Senate confirmation for the Secretary,
Undersecretary of the Army, five Assistant Secretaries, and the General
Counsel. In each case I accompanied them to meet with Senators,
practiced with them for their confirmation hearing, and then worked with71
Senate staff on questions they might have. Later, that knowledge became
important when I faced Senate confirmation for my position at the
Department of Justice.
MS. SCARROW: What was the experience like working with members of Congress?
MR. CRUDEN: Since we were most often working with members and their staff in the
Senate Armed Services Committee and the House Armed Services
Committee, as well as the Senate Select Committee on Intelligence and
their counterpart in the House, we were dealing with extremely
knowledgeable congressional members and their staff. Members were
largely supportive as it was very common for them to have military
installations in their district or in their state and were supportive of
military families in general. We were dealing with both experienced
people and people who genuinely cared about the well-being of soldiers
and sailors and airmen, wherever they were located, but particularly those
who were abroad in dangerous positions. And it was helpful that a good
friend of mine, Andrew Effron, was general counsel of the Senate Armed
Services Committee. He later went on to become Chief Judge of the Court
of Military Appeals the “Supreme Court” of the military.
MS. SCARROW: Do you have any particular highlights from that time period in that
position?
MR. CRUDEN: I would give two. The first was my involvement with a Senate
investigative team examining illegal drug trafficking issues in South
America. I traveled with a number of the key Senate attorneys, including72
John Sopko, who is now the Special Inspector General for Afghanistan
Reconstruction. We traveled first to Bogota, Columbia, which was then
facing a real assault on democracy as judges were being targeted and
killed if they decided cases against the drug cartel. Before we arrived
twelve of the Supreme Court’s 24 justices had been killed, and 36 lower
court judges assassinated. We met with both local and U.S. federal
officials working there and heard real concerns about the ability of their
judiciary to act independently in the face of such violence. Our next stop
was Lima, Peru, where we also received briefings and then traveled by
CIA aircraft to the Upper Huallaga Valley of Peru, then known to be under
the control of the terrorist organization Shining Path. We stayed in a
border camp that reminded me of Vietnam, surveyed the area by
helicopter, and saw Soviet-made Hind helicopters, vast fields of cocaine,
and many heavily armed commandos guarding their drug efforts. It was a
sobering effort seeing how entrenched the drug trafficking was in the
economy, the obvious role of terrorist organizations, and the danger to the
local populace. We then returned to Lima and then flew to La Paz,
Bolivia. After embassy briefings in La Paz, we traveled with an armed
escort to a special forces camp. We were there for night patrols and the
burning of captured drugs, and met with local farmers to get information
on what they would need to have to grow a substitute crop. It was an
important trip that resulted in reports to Congress and congressional
hearings.73
Second, I had a special assignment from the Secretary of Defense during
that time period that resulted in me going to El Salvador. During
the Salvadoran Civil War, in November 1989, Salvadoran Army soldiers
killed six Jesuits priests and two others at their residence on the campus
of Central American University in San Salvador, El Salvador. The Jesuits
were advocates of a negotiated settlement between the government of El
Salvador and the Farabundo Martí National Liberation Front, the guerilla
organization that had fought the government for a decade. A U.S. Army
major overheard information concerning the Jesuit priest killings and
reported that information to me. I advised DOD officials and the Speaker
of the House who was then running inquiries into misconduct in El
Salvador. I was then assigned the responsibility of taking that Army major
to El Salvador with a Special Forces A team to protect us. The El Salvador
government assembled a grand jury in the house of the Ambassador where
we could be protected, but we were not allowed to stay overnight. The
Major then testified as to who he was told by the Secretary of Defense of
El Salvador was responsible for killing the Jesuit priests. That later
resulted in the conviction of Colonel Guillermo Alfredo Benavides
Moreno, the leader of an elite battalion. For many years Santa Clara
University had crosses in front of its famous mission church, constructed
in 1777, honoring the Jesuit Priests killed in El Salvador.
MS. SCARROW: Didn’t you also have an opportunity to travel to Berlin as the wall was
coming down?74
MR. CRUDEN: I did. Congressman Lane Evans, a Democrat from Illinois, who was on the
House Armed Services Committee, asked me to accompany him to
Germany to view border security, meet with officials in Berlin, and be
with real soldiers in the field. Fortuitously that was just as the Berlin wall
was coming down. We travelled to Germany and met with armored
cavalry units in Fulda, and other nearby towns, where East Germans were
already streaming across the border. There were long lines you could see
from our helicopters, all people anxious to escape to freedom. We then
spent time in Berlin, particularly along the wall, again watching East
Berliners anxious to come across to the West. We all took back pieces of
the wall to give to the military. It was such a symbolic time, the opening
up of East Germany, and eventually Eastern Europe, making that a very
significant trip. Everyone we met was joyful but also anxious, knowing
that the transition to a unified country would have significant economic
and social challenges.
MS. SCARROW: So, you really realized at the time that this was quite a historic event.
MR. CRUDEN: Without question it was. The United States had a long history in Berlin,
from the time of the Berlin airlift to the words of our presidents. John F.
Kennedy speaking at the wall saying, “I am also a Berliner” led to Ronald
Reagan at the wall, making the famous statement “Bring this wall down.”
I have been to Berlin many times because of my time overseeing
intelligence units in Berlin, and the Berlin environmental case I
mentioned. It is a beautiful city but was divided by the wall in a cruel75
fashion, acting as a prison-like bar to the travel of Germans. Now seeing
the wall coming down was really a moving event, and a reason to
celebrate democracy.
MS. SCARROW: And as part of your job, you also travelled to Panama as the war was
ending to evaluate that. What was that like?
MR. CRUDEN: I mentioned that one of the groups we worked with a lot was the Senate
Select Committee on Intelligence (SSCI). As the operation in Panama
called “Just Cause” was winding down, and the hostilities were still
ongoing but were contained, the Intelligence Committee sought to visit
Panama. They wanted to interview commanders while the operation was
still happening to determine whether or not the intelligence, they received
was accurate, and whether or not there was anything that we could learn
from that experience. With very senior staff of the SSCI committee, I
travelled to Panama and spent a considerable period of time really
interviewing commanders and talking to them about intelligence they
received and whether or not we could learn anything from that experience.
It was an especially useful trip leading to a classified after-action report.
MS. SCARROW: So, your position as Chief Legislative Counsel, which ended in 1991, was
your last military service. Is there anything that we didn’t cover about
your military service that you want to talk about?
MR. CRUDEN: In 1991, I was already planning on a next assignment in the military. I
really, really thought being a military lawyer was a superb job, and I had
been given a fascinating set of assignments and experiences. And to this76
day I have unlimited admiration for the military, people, officers, and
enlisted that I served with. But I was given the opportunity, by the people
that I had met at the Department of Justice, to become the Chief of
Environmental Enforcement. It was a difficult decision, and I consulted
with my good friend Tom Taylor, the Army Deputy General Counsel, in
making a final decision. Ultimately, I decided that the position I was being
offered in DOJ was so extraordinary that it led me to retire from the Army
after 23 years of service. I left the Pentagon on a Friday after my
retirement ceremony, put my uniform away, and on Monday started at the
Department of Justice, Main Building on Constitution Avenue, as Chief of
Environmental Enforcement.
The farewell ceremony from the Pentagon was memorable as it included
Major General Bill Suter, then Clerk of the Supreme Court, my West Point
Chaplain Bill Ford, Judge Royce Lamberth, many of my West Point
classmates, the senior lawyers on the House and Senate Armed Services
Committees, and my many Pentagon friends who had served so admirably.
My military friend presented me with a wonderful “Book of letters,” all
personal letters talking about the value of government services and my
role. Major General Charles Dominy awarded me the Legion of Merit, one
of the highest peacetime awards. And my congressional traveling
companion to Berlin, Lane Evans, introduced a resolution in Congress
commending me for my military service. Yet, I was excited to start a77
whole new chapter of my life, this one focused on my passion for
environmental law and policy, centered at the Department of Justice.
MS. SCARROW: Perfect, that was excellent. Thank you.78
ORAL HISTORY OF JOHN C. CRUDEN, ESQ.
Third Interview
April 8, 2021
This interview was conducted on behalf of the Oral History Project of the District of Columbia
Circuit. The interviewer is Tracy H. Scarrow, and the interviewee is John C. Cruden. The
interview took place on April 8, 2021. This is the third interview.
MS. SCARROW: In our first two interviews we covered your childhood, education, and
military service and so now we’re going to turn to your career at the
Department of Justice. After leaving the military you served as Chief of
the Environmental Enforcement Section at the Department of Justice and
that was from 1991 until 1995. Can you tell me how that shift came about
from the Department of the Army and then back to DOJ?
MR. CRUDEN: While I was serving in the Pentagon as Chief Legislative Counsel of the
Army, I was approached by senior DOJ officials who encouraged me to
fill the then vacant position of Chief of the Environmental Enforcement
Section. The position was open because the predecessor, a great lawyer
and friend named David Buente, had gone into private practice. I was
known to these DOJ officials because of my previous position as Special
Counsel to the Assistant Attorney General of the Civil Division, and my
litigation of environmental cases while I was in the Army Litigation
Division, including the well-known Berlin case.
Three of the senior people in the Environment Division interviewed me:
Myles Flint, the Deputy Assistant Attorney General; Pete Steenland the
Chief of the Appellate Section; and Barry Hartman the Principal Deputy79
Assistant Attorney General. They recommended me to the Assistant
Attorney General, Richard Stewart, who was the deciding official. Dick
selected me and then the Office Personnel Management approved my
Senior Executive Service status.
MS. SCARROW: I understand that part of your interest in the position was that it combined
not only your passion for the environment but also the federal litigation
responsibility as well. Is that correct?
MR. CRUDEN: Yes. The position of Chief, Environmental Enforcement for the United
States was a dream job for me, combining my passion for environmental
improvement with my background in litigation, both teaching and
practicing. The Environmental Enforcement Section was still a young
section but was then the largest litigating section in the Department of
Justice, full of inspired, active, and committed individuals. I knew it
would be challenging, but I was honored to be selected and excited about
advancing environmental protection.
MS. SCARROW: I understand that when you started in the Environmental Enforcement
Section that Dick Stewart, who was then the Assistant AG for the
Environment and Natural Resources Division, convened the entire section
in the Great Hall to welcome you. What was that like?
MR. CRUDEN: The welcoming ceremony was surprising and delightful. I left my job in
the Pentagon on Friday and then on Monday found myself at the
Department of Justice in an entirely different position with a Section of
new people. Dick Stewart intended this welcoming ceremony to be a80
significant announcement which would be in support of me, but also make
it clear he was energizing the section with new leadership from outside the
Department. This was the first time the Division had such a ceremony,
similar to what the military does when they bring in a new commander,
and I was honored by the outpouring of support, particularly since my
wife and teenage daughters were present.
Later I found out that there were some people at the Environmental
Enforcement Section concerned about having a former military officer as
their leader. They thought I was going to dictate what people wore or
check haircuts. Of course I wasn’t interested in any of that. What I wanted
was to hit the ground running, learn from experts, and mold the Section
into the best litigators of the Department.
MS. SCARROW: How did you get educated at DOJ in your new role?
MR. CRUDEN I was fortunate in having superb lawyers – who were also great teachers –
in my organization. Even before I started, while I was still in the Pentagon,
Jennifer Haverkamp, now a Professor at University of Michigan and
Director of their Sustainability Institute, spent the day with me teaching
me the changes in the Clean Air Act which had just passed. When I
arrived at DOJ, Bob Van Heuvelen was my Deputy, and he made sure that
I was adequately briefed on each new case. Then, when I needed specific
knowledge on the technical aspects of CERCLA/Superfund cost recovery,
Steve Novick stepped in and gave me weekly classes complete with an
outline and examples. Later, when I was preparing to testify before81
Congress, Nancy Stoner, now the Executive Director of Potomac
Riverkeeper Network, updated me on Clean Water Act law. Finally, in the
relatively new world of natural resource damage, Bill Brighton spent
hours going over with me the intricacies of the statutory structure that
became so important in future mega cases like Exxon and Deepwater
Horizon. And even before I met her, I watched hours of video tape of
Nancy Firestone, later a judge on the Court of Federal Claims, lecturing
about all the changes to CERCLA/Superfund that had recently been
enacted. All this was my introduction to the practice of law in the
Environment Enforcement Section.
MS. SCARROW: Can you tell me a little bit about the Department of Justice’s
Environmental and Natural Resources Division and the Environmental
Enforcement Section?
MR. CRUDEN: The Environment and Natural Resources Division was established in
1909, by Attorney General George Wickersham who created what was
then called “The Public Lands Division.” As the nation grew and
developed, so did the responsibilities of the Division, and its name
changed to the “Environment and Natural Resources Division” or ENRD
to better reflect those responsibilities. Today, the Division, which is
organized into ten practice areas, has offices in Washington, D.C.,
Anchorage, Boston, Denver, Sacramento, San Francisco, and Seattle, and
a staff of over 600 people. During much of my time in the Division it
handled thousands of cases each year and represented virtually every82
federal agency in courts in all states. About half of what the Division does
is offensive, bringing cases on behalf of the federal government, and the
other half is defensive, responding to lawsuits filed against some element
of the government.
The Environmental Enforcement Section or EES that I led is the largest
litigating section in the Division. The Section is responsible for bringing
civil actions under the federal environmental laws enacted to protect
public health and the environment from the adverse effects of pollution,
such as the Clean Air Act, Clean Water Act, Safe Drinking Water Act, Oil
Pollution Act, Resource Conservation and Recovery Act, and the
Comprehensive Environmental Response, Compensation, and Liability
Act (commonly referred to as CERCLA or Superfund).
To accomplish this large charter of responsibilities, the Environmental
Enforcement Section, during my tenure, had about 250 people, including
150 lawyers, divided into five litigating groups. During those years, the
Section achieved through litigation the highest record of environmental
improvement valued in billions of dollars and judgments totaling hundreds
of millions of dollars. We also gained new favorable court decisions in
particularly critical areas, all assisting in our goal of improving and
advancing the environment through the rule of law.
MS. SCARROW: What changes did you make to the organization of the office when you
started as Chief?83
MR. CRUDEN: For the same reason that when teaching management to military
commanders, my counsel to them when they assumed a new command
position, was to listen first before making major changes, I followed my
own advice. At the beginning of my tenure, it was incredibly important for
me to gain the advice and recommendations of those highly qualified
people, both attorneys and support staff, who I was supervising. And I
needed to demonstrate my own work ethic, my own commitment to the
goals of the section, and my own ability to litigate.
During those early moments I had the good fortune of receiving advice
from individuals who would become lifelong friends. One of them, Nancy
Firestone, who was then the Chief of Staff in the Environmental Protection
Agency, had been the Deputy of the Environmental Enforcement Section.
Nancy reached out to me right away. We spent time together, her talking
to me through not only the people involved but the statutes and the
relationship with EPA as well as the new CERCLA amendments. Another
was Scott Fulton, who was the Deputy in the EPA’s Office of
Enforcement and Compliance Assurance and a past-Assistant Chief in the
Environmental Enforcement Section. Scott was generous with his time,
briefing me on many of the current issues as well as the EPA bureaucracy.
He also spoke about the relationship between the Department of Justice
and EPA. There were a number of people inside of the Enforcement
Section who became close confidants. One of them, Clicky Stone, was the
head of the administrative part of the Section, and I quickly learned that84
she was the backbone of the administrative staff. We developed a great
relationship, and I always solicited her advice when making personnel
decisions. Other leaders in the Environment Division included Walker
Smith, Joel Gross, Bill Brighton, Jack Lipshutz, Susan Akers, Lori Jonas,
Bruce Gelber, Catherine McCabe, Ben Fisherow, Tom Mariani, Sarah
Himmelhoch, Tom Carroll, Henry Friedman, Jeff Sands, Nat Douglas,
Karen Dworkin, Ellen Mahan, Alan Tenenbaum, Cynthia Ferguson,
Patrice McKenna, Bill Weinischke, Tom Clark, Bruce Buckheit, Phil
Brooks, Jim Kilbourne, Bill Cohen, Andy Mergen, Jennifer Newmann,
Deborah Harris, Joe Poux, Cherie Rogers, Ann Shields, Justin Smith, Lisa
Russell, Seth Barsky and Pete Steenland and many others who became
lifelong friends and esteemed colleagues. They all provided me with
advice and channeled my impatience into reasonable action.
I would add one other environmental giant, who became a mentor of mine,
David Sive. David was one of the fathers of environmental law, and even
before I started work at DOJ, he reached out to me and offered his
assistance in introducing me to the environmental community and inviting
me to speak at the annual ABA-ALI Conference on Environmental Law.
He continued to advise and assist me throughout my career.
Before I made any significant structural changes in my new position, I
needed time to listen to people, time to find out how best to gain the trust
and confidence of the Section and mobilize its efforts in a very fast-
moving environment in what ultimately became the best section in the85
Department of Justice, with the highest morale, the most significant
results, and the highest retention of qualified individuals. Eventually,
relying on my background in teaching management, I made changes to
how the Section was organized, how people were selected for key
positions, the role of senior lawyers, our relationship with other agencies,
and the process by which we received, researched, and prosecuted cases.
The Section leadership met at my house on several occasions to gain
consensus on our direction and goals. When we made decisions, we then
immediately communicated everything to the Section. At that time, I was
also pushing hard to find and attract qualified women for our leadership
positions. We did so by recognizing those with leadership skills and
promoting them. One, Catherine McCabe, ultimately became the Acting
Administrator of EPA. Finally, we had to improve our relations with our
primary agency clients, as we were dependent upon them for investigatory
resources and important litigation advice and support.
MS. SCARROW: I heard that in your first year of your tenure as Chief you had a
confrontation with the Governor of California. Is that true? [LAUGHTER]
MR. CRUDEN: Yes, we did. I had not been Section Chief long, maybe a month, when I
was called into the office of the Assistant Attorney General Dick Stewart.
Dick read me a scathing letter from the Governor of California to the
Attorney General concerning our handling of the infamous superfund case
known as the Stringfellow Acid Pits a toxic waste dump located in Jurupa
Valley California. The site became the center of national news coverage in86
the early 1980s, in part because it was considered one of the most polluted
sites in California, and because it became linked with mismanagement and
scandal involving EPA. Ultimately Assistant Administrator Rita Lavelle
was convicted of perjury and Administrator Anne Gorsuch Burford
resigned.
I conferred with the trial counsel, Phil Brooks, who had obviously
irritated the State Attorney General. While Phil made some decisions that I
might not have made, he did so in the best interests of the United States
and exercised sound judgment. I advised Dick Stewart that I stood behind
all of the decisions made by my trial attorney and concurred in his
judgment. He accepted my position and briefed the Attorney General. I
can remember him coming back—remember, this is a Republican era,
during the presidency of George Bush—Dick took me aside and asked me
that if in the future, if I was going to irritate governors, would I mind
choosing Democratic ones. [LAUGHTER]
MS. SCARROW: Your tenure as Chief was during a great active period of environmental
enforcement, seminal cases like Exxon Valdez and Love Canal. Can you
talk a little about these now famous cases?
MR. CRUDEN: Exxon Valdez was one of the first cases I worked on when I arrived at
DOJ, the result of an environmental disaster of major proportions when
the ship owned by Exxon ran aground on Bligh Reef in Prince William
Sound in 1989. Approximately 11 million gallons of crude oil spilled from
the Valdez, fouling the waters and shorelines of a pristine area which87
included national wildlife refuges and national parks. Thousands of
migratory birds, including 100 bald eagles were killed. There was a
massive cleanup effort led by both state and federal officials, as well as
both criminal and civil investigation.
The case was settled, at least by the federal and state governments, in 1991
when Exxon Corporation and Exxon Shipping Company agreed to pay
$900 million in damages and a criminal fine of $100 million. The
aggregate of one billion dollars in civil damages and criminal restitution
was by far the largest single amount ever paid because of environmental
violations at that time. While I was involved, the real key people were the
lead counsel on the criminal case, Charles DeMonaco, and on the civil
side, William Brighton.
I approved the final civil consent decree settlement. The money we saved
went into a trust fund administered by both state and federal agencies, all
designed to achieve the cleanup of the area. Ultimately, the Exxon Valdez
disaster led to the creation of the Oil Pollution Act, which I used
successfully when prosecuting BP and others for the Deepwater Horizon
oil spill many years later.
The other case you asked me about, the famous Love Canal litigation,
largely occurred before I came to the Division, but I supervised the final
settlements of that important case, which ultimately led to the passage of
the Comprehensive Environmental Response, Compensation, and Liability
Act, better known as the Superfund Act or CERCLA.88
The history of Love Canal has often been told, but essentially between
1942 and 1954, the old canal was used by Hooker Chemicals & Plastics
Corporation as a landfill for toxic chemical wastes from its Niagara Falls
plant. The company then transferred the site to the City of Niagara Falls
School Board, and an elementary school was built in the central section.
The site became a national story when the contamination seeped out of the
canal into other buildings, and President Carter declared an emergency at
the site and many homeowners had to move. EPA and the State of New
York sued Hooker Corporation to recover the costs of cleaning up and
assure the safety of the Love Canal area. After the Superfund Law passed,
Love Canal became the first entry on the cleanup list. The case ultimately
settled, but in some ways lives on as the catalyst of today’s superfund
litigation.
MS. SCARROW: You mentioned some cases in California. Was the case involving the
Palos Verdes Shelf one of those?
MR. CRUDEN: Yes. California, as a large and prosperous state, generated a significant
amount of environmental litigation. While Chief of the Environmental
Enforcement Section we created an office in San Francisco, adding to the
Division’s office in Sacramento, to handle the large number of significant
cases. There were many, including the Palos Verdes Shelf case,
Stringfellow, Operating Industries, and many others. As a California
lawyer, I had a good relationship with many of the California attorneys
both in the Attorney General’s office and in California’s EPA which89
helped us in many instances. In addition, EPA had an excellent office in
San Francisco, with Nancy Marvel as the Regional Counsel, and we had a
superb relationship.
The case you mentioned, involving the Palos Verdes Shelf, was
contentious and well publicized in California. At that time, other than the
Exxon Valdez oil spill case, that lawsuit was the largest in U.S. history
alleging damages to natural resources from chemical dumping.
From the late 1940s to early 1970s, the Montrose plant in California
discharged over a thousand tons of DDT into Los Angeles County sewers
that empty into the Pacific Ocean. Montrose also dumped DDT
contaminated waste into the ocean near Santa Catalina Island. That
discharge created one of the largest known areas of DDT contamination in
the world, a 17-square mile of contaminated sediment on the Palos Verdes
Shelf, off the coast of Los Angeles. DDT had been banned in the US
because of its significant ecological problems. We filed a lawsuit with the
State of California and then had contentious litigation with the volatile
District Court Judge Hauk, who made several key rulings that we appealed
to the 9th Circuit. The 9th Circuit ultimately overturned his decisions
dismissing the case on statute of limitation’s grounds and capping the
amount of liability. The favorable appellate rulings paved the way for a
trial jointly prosecuted by federal and state agencies, seeking to recover
millions of dollars in damages to help restore the area.90
We ultimately settled for the money needed to restore the natural resources and clean up offshore
contamination. As I recall, the total of all the settlements in the case
exceeded $130 million, at that time the largest such settlement of its kind.
I was personally interested in the case since DDT concentrates on the
tissue of fish and birds, including some of my favorites: bald eagles,
brown pelicans, and peregrine falcons. Although this was a superfund site,
led by EPA, we also represented the natural resource trustees, the National
Oceanic and Atmospheric Administration, and the U.S. Fish and Wildlife
Service, as well as California agencies who were developing projects like
artificial reefs to provide new habitats for displaced fish and birds.
Lead counsel on the case, who I worked with all the time, was a well-
known DOJ lawyer, Gerry George, who was also the head of our San
Francisco office, and Steven O’Rourke, who would later become lead
counsel for the Deepwater Horizon oil spill.
MS. SCARROW: The other major case that I think might have been during your tenure there
involved the Bunker Hill Superfund Site and its various owners and
operators.
MR. CRUDEN: Yes. The Bunker Hill Mine and Smelting Complex in Idaho was at one
time the largest smelting facility in the world. The surrounding area was a
center of extensive silver and other metal mining and processing. The
mining activity resulted in extensive contamination of water, land and air,
endangering residents including the Coeur d’Alene Tribe, which had
traditionally depended on fish from the waterways as part of its91
subsistence. DOJ, joined by the state of Idaho, sued multiple site owners
for cleanup costs and damages. The lawsuits bounced up and down with
the 9th Circuit, and then following a 3-month trial, ultimately resulted in a
series of settlements, first with some of the mine owners, then larger
settlements with ASARCO, and later with Hecla mining company. This
particular case has many different parts we should probably explore in
future questions.
MS. SCARROW: You also personally argued some cases before the District Court. Can you
tell us a little bit about those?
MR. CRUDEN: I did. Serving as Chief of Environmental Enforcement in an incredibly
active era filled up my days with client consultations, meetings, and
settlement conferences. Yet, I had a longing desire to return to the
courtroom. To use my time wisely, I looked for cases in which we were
likely to make new law. The first case I chose was Environmental
Protection Agency v. Fleet Factors, tried in Georgia. I chose that case as it
would be one of the first interpretations of EPA’s Lender Liability Rule.
We sued Fleet to recover the cost of cleaning up their Swainsboro Print
Works, a textile printing plant. Fleet had entered into a standard factoring
agreement, in which Fleet provided funds and took a security interest in
the company’s property and inventory. After the Swainsboro Company
filed bankruptcy, Fleet foreclosed and hired liquidators to auction off the
equipment and clean up the site. When EPA inspected the site, they found
several hundred drums and numerous vats of CERCLA hazardous92
chemicals plus asbestos. At DOJ we assembled a great litigation team, led
by Jon Mueller, now the Director of Environmental Clinic at University of
Maryland Law School, and Brad Campbell, now the President of
Conservation Law Foundation. I remember at trial personally examining
the CEO of the company and showing him pictures of the aborted clean
up. He somewhat surprisingly agreed in response to my questions that his
company had really destroyed the site. It did not go well for the company
and at the end of the trial—I remember this well—the judge read his
decision from the bench upholding the liability of Fleet Factors and then
saying something equivalent to “your clean-up had all the finesse of a
Viking raiding party.” That was a long trial but well-known during that
time period and made important law for the future. The Fleet decision by
the Court of Appeals later resulted in an amendment to CERCLA. As part
of the Omnibus appropriations in 1996, Congress enacted the Asset
Conservation, Lender Liability, and Deposit Insurance Protection Act
which includes lender and fiduciary liability amendments to CERCLA.
MS. SCARROW: I know that you were primarily responsible for District Court actions, but I
believe you also argued precedential cases in both the 6th and the 1st
Circuits. Is that correct?
MR. CRUDEN: Yes. The case I argued in the 6th Circuit was titled Production Plated
Plastics and dealt with chrome plating for the automobile industry. The
manufacturing processes involved creating and storing chromium, which
is a hazardous waste. We sued under the Resource and Conservation Act,93
or RCRA, seeking injunctive relief to bring the company into compliance
with the law and gain civil penalties against the company and its
President, Michael Ladney. We did this in tandem with the State of
Michigan, then led by a person who became a friend of mine, Steve
Chester. This was the first case seeking liability against an individual as
opposed to only a corporation. The district court granted us summary
judgment and there was the appeal that I argued. The Court of Appeals
upheld the personal liability of the president, a weighty decision for EPA
who gave me one of their annual medals for my argument.
The case I argued before the 1st is also well known, United States v.
Charles George Trucking, Inc.
We had been in litigation at this superfund site in Tyngsboro,
Massachusetts for years alleging multiple CERCLA violations. That
litigation, and its voluminous records, led to us establishing a field office
in Boston which still exists. We entered two settlements to partially
resolve the cleanup of a hazardous waste site with Massachusetts District
Court Chief Judge Tauro as the settlement master. The owners of the site
did not settle, and they challenged the settlement arguing that it resolved
some matters that were not in the complaint. Writing for the majority, 1st
Circuit Judge Selya held that: a CERCLA consent decree may (and, in
many cases, should) sweep more broadly than would the court’s judgment
in the event that the litigation culminated in a full trial. That was an
extremely helpful decision, and that case is often cited by the government94
as it gives the standards by which federal courts review the legality of a
consent decree.
MS. SCARROW: If you ever look at your tenure as Chief of the Section, what would you
say your greatest accomplishments were?
MR. CRUDEN: Although I know that people tend to grade such positions by the big cases
argued or negotiated, personally I was most proud of the evolution of the
Section into an exceptionally high-quality litigating entity during my
tenure. We recruited, trained, rehearsed, and then litigated in a highly
professional and incredibly successful fashion. I cannot take credit for all
of this, as it was the product of the extraordinary number of really gifted
men and women—not just all lawyers – in the section but all the
paralegals, secretaries, and other staff. We also invented new social
activities that brought us together, like our own summer Olympics
including an event where we substituted for the normal shotput event a
competitive throw of outdated volumes of the Code of Federal
Regulations. Our retreats in Annapolis and the Eastern Shore of Maryland
were legendary for both their professionalism and their fun, with many
untold adventures and mishaps. Our holidays parties were the envy of all
of the Department (except when we were barred from ever returning to
one unnamed federal agency where we were a bit too loud and
rambunctious). Morale was high. But I also think we moved the
Environmental Enforcement Section from a loose group of lawyers to a
really well-managed and highly motivated group which respected due95
process while implementing and enforcing all the new statutes and
advancing the environmental goals of the nation.
MS. SCARROW: I understand you were also involved in working with Congress and the
Administration on the Superfund Reauthorization and chaired an
important Committee?
MR. CRUDEN: Yes. The extensive Superfund reauthorization effort occurred during the
Clinton Administration. EPA Administrator Carol Browner created a
Superfund Task Force led by the Deputy Administrator of EPA, Robert
Sussman, to completely review the Superfund implementation and make
necessary improvements while opposing a bevy of legislative proposals to
substantially weaken the statute. I chaired one specialized committee of
the overall task force, a task force examining natural resource damage. I
was given a broad charter to create my own committee and brought as an
advisor Bill Brighton who had led the Exxon Valdez case, as well as
senior representatives from all of the relevant federal agencies. We met
frequently and produced a consensus set of legislative proposals which the
Administration approved and transmitted to Congress. That effort gave me
an important role inside EPA, introduced me to the all-important laws of
natural resource damages, and gave me a wide cadre of federal contacts,
all of which were very valuable to me when I was later working on cases
like Deepwater Horizon where natural resource damages was the
centerpiece of the litigation and resolution.96
MS. SCARROW: Beyond the committee that you chaired, did you also work with
Congressional committees on Superfund Reauthorization in general?
MR. CRUDEN: Yes, Superfund reauthorization was clearly front and center during the
Clinton Administration and I frequently worked with key Congressional
staff in the House and Senate, spoke with Senators on the Environment
and Public Works Committee, briefed the EPA Administrator, and
evaluated Congressional proposals. During that time period we were on
the Hill each week and were highly involved with Senators and members
of the House of Representatives. There were several major legislative
proposals weakening CERCLA which did not pass, Instead, the
amendments that did pass concerning lender liability standards,
brownfields, restoration, and small business protections were supported by
the Administration and improved Superfund. In the Senate I worked
primarily with Senators Chaffee and Baucus, and in the House,
Congressman John Dingell who was the elected official from my home
District in Michigan.
MS. SCARROW: You mentioned that this was during the Clinton Administration. In 1995
you were selected as the Career Deputy Assistant Attorney General in the
Environment and Natural Resources Division, and you served in that
position until 2011. How did you get that position?
MR. CRUDEN: As we have discussed, the Environment and Natural Resources Division
was organized into ten sections. The overall leader of the Division is a
presidentially-appointed, Senate-confirmed Assistant Attorney General97
supported by two or three politically appointed Deputy Assistant
Attorneys General. In addition, the Division has, like all of the other DOJ
litigating Divisions, a career Deputy Assistant Attorney General. The
career Deputy provided expertise and continuity as the senior non-political
official in the Division.
When I started my tenure at DOJ the career Deputy Assistant Attorney
General was Myles Flint, a superb lawyer with decades of experience.
When he retired, I was selected by Assistant Attorney General Lois
Schiffer through a competitive process to be the Deputy Assistant
Attorney General. It was a highly regarded position within the Division
and a promotion. I ultimately held that position for 16 years, making me
the longest serving career DAAG in ENRD history. One aside, when I was
selected, I also promoted my longtime administrative assistant, Shanedda
Bogan, who served with me for 22 years. She has now retired but was a
close friend, a wonderful administrator, and always a great friend.
MS. SCARROW: As the Deputy Assistant AG, what were your initial management
responsibilities?
MR. CRUDEN: In the beginning I supervised the Environmental Enforcement Section, the
Land Acquisition Section, which did all of the eminent domain litigation
for the United States, and the Executive Office which controlled the
budget, litigation support, experts, IT, human resources, and education.
MS. SCARROW: Did you retain those responsibilities throughout your tenure, or did it
change at all?98
MR. CRUDEN: Eventually my responsibilities increased as I came to supervise the
Environmental Defense Section as well. When that happened, combined
with my work supervising the Environmental Enforcement Section, I then
had responsibility for about half of the attorneys of the Division, and all of
the federal environmental litigation in the United States. Supervising the
Environmental Defense Section included responsibility to defend EPA
regulations, often in courts of appeal, where petitions for review were
filed, frequently before the U.S. Court of Appeals for the D.C. Circuit. The
D.C. Circuit is highly unique in the area of environmental law because the
Clean Air Act gives the D.C. Circuit exclusive jurisdiction over challenges
to Clean Air Act regulations that are national in scope.
MS. SCARROW: While you supervised all the litigation of your division, were there types
of cases that you were personally involved in, and can you tell me about
those?
MR. CRUDEN: As you can imagine, we had hundreds of cases under my direction,
involving most of the federal agencies. My tenure bridged several
different Presidents, and several different Assistant Attorneys General. I
met weekly with section leadership, and daily on individual cases. I often
handled negotiations of the largest cases, always with the brilliant
assistance and advice of the line trial attorney. The most well-known
types of cases during that period that I was personally involved in were the
various “initiatives” we did in tandem with EPA to direct resources at a
particular area of environmental concern. In the Bush Administration we99
did a well-publicized Lead Initiative which Deputy Administrator Hank
Habicht announced, and during the Clinton Administration we did
Attorney General Reno’s Mississippi River Initiative. Probably the most
famous were the ones we did under the Clean Air Act addressing coal
fired power plants and oil refineries, and under the Clean Water Act
reaching municipalities with significant sewer problems.
MS. SCARROW: Please describe the Coal Fired Power Plant Initiative and any meaningful
results.
MR. CRUDEN: At the end of the Clinton Administration, I joined Attorney General Janet
Reno and EPA Administrator Carol Browner to announce the filing of
civil complaints against seven electric utility companies operating coal-
fired power plants in the Midwest and Southeast, charging that their plants
illegally released massive amounts of air pollutants over a period of
several years without adequate pollution controls that contributed some of
the most severe environmental problems facing the United States. The
filing covered 32 plants located in 10 states. Those important cases jump
started the initiative, which produced extraordinary results. Then the
Administration changed.
The Bush Administration started with an energy task force chaired by
Vice President Cheney. One of the directives of that task force was to
reexamine the power plant cases that we had filed as the cases were very
controversial. Ultimately the DOJ Assistant Attorney General for the
Office of Legal Policy, Viet Dinh, was given the responsibility to conduct100
that legal review, and he concluded that EPA had the legal authority to
take the actions that it had. However, during that Administration various
elements remained hostile to the litigation, and we had to argue inside the
Administration to maintain and advance the cases. At one crucial moment,
a White House official called Attorney General Ashcroft to have me taken
off the cases. He demurred and supported me completely, which has
always made me fond of AG Ashcroft.
Probably my most significant success in the coal fired plant initiative was
the settlement with the Virginia Electric and Power Company or VEPCO
to resolve CAA violations at several of the company’s coal-fired power
plants. The settlement included working with the State Attorney Generals
of Virginia, West Virginia, and the northeastern states of New Jersey, New
York, and Connecticut as parties to the settlement. The National Park
Service also participated in the settlement. Under the settlement, VEPCO
agreed to spend over a billion dollars to install state-of-the-art pollution
controls to meet legal pollution limits. As a result, hundreds of thousands
of tons of sulfur dioxide and nitrogen oxides emissions each year were
eliminated from eight coal-fired electricity generating plants in Virginia
and West Virginia. VEPCO also paid a significant civil penalty and
funded millions of dollars for environmentally beneficial projects.
MS. SCARROW: What about the Petroleum Refining Initiative? Do you know whether the
results were significant?101
MR. CRUDEN: Yes. I also led the DOJ/EPA National Petroleum Refinery Initiative which
addressed illegal air emissions from many petroleum refineries. Since its
inception, DOJ has now entered into over 30 settlements with U.S.
companies that refine over 95 percent of the Nation’s petroleum refining
capacity. These settlements require over a hundred refineries in 32 states
to install advanced pollution control equipment worth billions of dollars
and pay significant penalties. The settlements will result in annual
emissions reductions in hundreds and hundreds of tons of nitrogen oxides
and sulfur dioxide. This is a good example of an initiative in which we
were able to settle virtually all of our cases at the outset, accomplish
significant environmental improvement, but avoid costly and lengthy
litigation.
MS. SCARROW. And I know that you led a number of cases against municipalities with
sewer problems. Please discuss those and specifically cover the two cases
you personally negotiated with the City of New Orleans and the District of
Columbia.
MR. CRUDEN: Older municipalities often have sewer infrastructure problems, particularly
those with combined systems that handle both sewer water and rainwater.
During heavy rainfall and other wet weather events, these combined sewer
systems can overflow, and discharge untreated wastewater mixed with raw
sewage directly into a nearby water body, impairing water quality. There
are hundreds of municipal water systems which have such sewer
problems, often lacking the capacity to adequately treat the water to legal102
standards. There is no questions that there has been massive improvement
in this area, really the result of a series of important enforcement actions,
starting in many ways with the lawsuit that I led against the City of New
Orleans.
We filed our litigation against New Orleans, alleging significant Clean
Water Act violations, and I frequently met Mayor Marc Morial and his
General Counsel, Avis Russell. The litigation was challenging and long,
but we ultimately joined with the city to resolve the case. We were
assisted by a local citizen group which joined in the litigation and the
ultimate settlement. Under the agreement reached with the city and the
Environmental Protection Agency, New Orleans agreed to spend several
hundred-million dollars to upgrade its antiquated sewage collection system
to prevent more discharges into the Mississippi River and other nearby
waters. I also negotiated the first environmental justice Supplemental
Environmental Project with New Orleans outside counsel, Ben Wilson,
who later became the Chairman of Beveridge and Diamond. The city
agreed to spend $2 million to restore water quality in Lincoln Beach, a
once-segregated beach for blacks that was abandoned since the 1960s. As
part of the settlement, the city also paid $1.5 million in civil penalties, then
the highest penalty for such actions.
The other specific case of this type that I negotiated was with the District
of Columbia Water and Sewer Authority (DC Water), located in the
District of Columbia, which owns and operates a combined sewer system,103
including one wastewater treatment plant. DC Water’s problems included
frequent discharges of raw sewage, industrial waste, nutrients, and storm
water discharges (i.e., combined sewer overflows) to District of Columbia
waterways, including the Anacostia River, the Potomac River, and Rock
Creek.
Leading the DC negotiations was Deputy Mayor Robert Bob, advised by
former Secretary of the Interior Bruce Babbitt. Working with the trial
attorney Nancy Flickinger, we created a plan that required construction of
three storage tunnels in the Anacostia River, Potomac River, and Rock
Creek Watersheds. Later, when AAG, I agreed to amend this consent
decree to allow “Green Infrastructure” to be incorporated into the
mitigation measures being undertaken in the Potomac and Rock Creek
watersheds, potentially reducing or eliminating the need for a storage
tunnel in the Rock Creek Watershed and reducing the size of the storage
tunnel in the Potomac River Watershed.
MS. SCARROW: Can you also talk about cases you led involving car and truck emissions?
MR. CRUDEN: Probably the most well-known case I negotiated, at least before the VW
case, was with Honda Motor Co. We alleged that Honda disabled the
misfire monitoring device on over a million 1996 and 1997 model year
Accords, Civics, Preludes, Odysseys, and Acuras, as well as 1995 Honda
Civics. Our complaint also alleged that Honda failed to report this fact
when applying for Certificates of Conformity, which allow for vehicles to
be legally sold if they meet federal emission standards.104
Finally, the series of vehicle cases I led that probably received the most
attention was the set of cases that we brought against six diesel engine
manufacturers, including Cummins, Caterpillar, and Detroit Diesel, and
others for violations of the Clean Air Act Mobile Source provisions.
Mobile Source deals with emissions requirements for cars and trucks.
Because we were proceeding against all six at the same time—and that
was the first time that was done—I was very much involved in those cases
along with Steve Herman, who was then head of EPA Enforcement. We
had multiple negotiations and ultimately settled with each of the
companies. The settlements, all approved by the courts, required a
significant amount of change by all of the diesel companies and an
important decrease in harmful emissions. We did the settlement under the
Clinton Administration but then implemented it in the Bush
Administration. During the Bush Administration, Assistant Administrator
Jeff Homestead and I had to go to Congress and meet with the Speaker of
the House to defend the settlement.
MS. SCARROW: Can you tell us about the American Smelting case? It might be referred to
as the ASARCO settlement. Is it true that you told the Mexican owners of
the parent company that they had to pay $100 million to resolve their
liability?
MR. CRUDEN: Yes, but there is a story behind my demand. Negotiating with the Mexican
owners of the mining company was challenging. I do recall being called
by the Mexican Embassy to complain about my settlement demands.105
ASARCO was one of the owners of the Bunker Hill superfund site I
previously mentioned, and it declared bankruptcy in 2005. The U.S.
Bankruptcy Court for the Southern District of Texas held a two-week
hearing on competing plans of reorganization for ASARCO and the court
confirmed a plan worth well over a billion dollars to fund the cleanup and
restoration of contaminated sites and facilities throughout the country. The
money from the settlements was used to finance past and future costs
incurred by federal and state agencies at more than 80 sites contaminated
by mining operations in 19 states. Of course, that depended on a viable
ASARCO, which led to our next lawsuit.
To ensure that ASARCO had sufficient assets to pay for all their cleanup
requirements, we later filed a unique complaint against the company
seeking an order prohibiting it from selling its most valuable financial
interest in Southern Peru Copper Corporation to its parent company,
American Mining Corporation, at what we thought was way too cheap a
price. Our complaint alleged that the proposed transfer of the Peru stock
would render the company unable to meet all of its environmental
obligations because of its precarious financial condition. After we sought a
preliminary injunction, ASARCO agreed not to transfer the assets until a
settlement was reached. The final agreement with the Mexican attorneys
required their American Mining Company to pay more than $100 million
over their original deal for ASARCO’s stock-ownership interest in SPCC.
The settlement also created an independent environmental trust to pay for106
cleanup of environmental contamination at sites for which ASARCO was
responsible. Significantly, the environmental trust was guaranteed by the
parent corporation of ASARCO, Grupo Mexico S.A. de C.V. of Mexico
City to ensure the cleanup would occur.
MS. SCARROW: And you had previously mentioned wanting to help establish the law, and
your involvement in cases that went to the Supreme Court. Which ones
did you personally work on?
MR. CRUDEN: Because of my position, any environmental case involving the United
States that went to the Supreme Court was under my authority.
Those included such important cases as, Massachusetts v. EPA (2007),
549 U.S. 497 (2007), Whitman v. American Trucking Associations, Inc.,
531 U.S. 457 (2001), Solid Waste Agency of Northern Cook County v. U.S.
Army Corps of Engineers, 531 U.S. 159 (2001), Rapanos v. United States,
547 U.S. 715 (2006), Burlington Northern and Santa Fe Railway v. United
States, 556 U.S. 599 (2009), American Electric Power v. Connecticut, 564
U.S. 410 (2011), Sackett v. EPA, 566 U.S. 120 (2012), EPA v. EME
Homer City Generation, 572 U.S. 489 (2014), Michigan v. EPA, 576 U.S.
743(2015), Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014),
Environmental Defense v. Duke Energy Corp., 549 U.S. 561 (2007),
United States v. Bestfoods, 524 U.S. 51 (1998), Cooper Industries v. Aviall
Services, Inc., 543 U.S. 157 (2004), and Winter v. Natural Resources
Defense Council, Inc., 555 U.S. 7 (2008).107
MS. SCARROW: Could you please talk about the Bestfoods argument and how that
intersected with your congressional work?
MR. CRUDEN: Bestfoods involved a Michigan site littered with thousands of leaking and
even exploding drums of waste, plus soil and water saturated with noxious
chemicals. A chemical plant was responsible. EPA cleaned the site and
sought reimbursement from the parent corporations. The question before
the court was whether a parent corporation that exercised control over the
operations of a subsidiary could be held liable under CERCLA. Justice
Souter wrote the unanimous decision in favor of the United States. The
Court concluded that although Congress did not intend for CERCLA to
displace all of the established principles of corporate law, including the
principle that a parent corporation is not usually liable for the acts of its
subsidiary, a corporate parent that actively participated in and exercised
control over the operations of a facility may be held directly liable in its
own right as an “operator” of the facility. Lois Schiffer did an excellent
job arguing the case for the United States, and as the Deputy responsible
for CERCLA enforcement I was completely involved.
When Bestfoods was argued I was also leading one of the Superfund
reauthorization groups preparing reports to Congress that I previously
mentioned, frequently meeting with Senator John Chaffee, the chair of the
Senate Environmental Committee, and Senator Max Baucus, the minority
leader. As soon as the Bestfoods argument was over, I literally ran to the
Senate building as Senator Chaffee had asked me to join him during108
“mark-up” of some of the bills. When I walked into the Hart building
conference room Senator Chaffee waved to me and brought me to his
table. What I recall is that he was going quite quickly though a number of
proposed amendments, calling out the number of amendments and seeking
a committee vote. Soon after I arrived Senator Baucus raised his hand and
told Chaffee to slow down and said, something like, “You need to slow
down John. I am not going to vote unless you tell me what I am voting
on.” Having just come from the Supreme Court argument of the CERCLA
Bestfood’s case, and the court’s detailed review of statutory language in
that case, it was fascinating to then be part of the legislative process.
MS. SCARROW: The other case I would like you to talk about is Rapanos, because I believe
you testified to Congress several times about the interpretation of that
well-known decision.
MR. CRUDEN: The now infamous Rapanos case considered what constitutes wetlands
that are subject to the Clean Water Act as a “water of the United States.”
The opinion was highly confusing because there was no controlling
majority and provided two radically different tests. A narrow test by a 4-
justice plurality led by Justice Scalia which significantly limited the
coverage of the Clean Water Act, and a broader test, authored by Justice
Kennedy, which included wetlands that have a “significant nexus” with a
water of the United States. As I had supervised the litigation, then
Assistant Attorney General Sue Ellen Wooldridge asked me to take the
lead in developing a federal position on how to implement this confusing109
opinion. After meeting with Solicitor General attorneys, EPA, and Corps
of Engineer officials, in testimony before the Senate Environment and
Public Works Committee, I announced that the position of the
Department of Justice was that a wetland was covered if it met either of
the two tests in the Rapanos case, the broadest and most environmentally
beneficial decision that could have been made. Later, a friend watching
my testimony on CSPAN told me that my presentation before Congress
was entertaining. I suppose that was a compliment but also indicates all of
the questions I received from the Senators.
Later, when a new rule was promulgated during the Obama
Administration, I led the effort to defend that rule. That rule and the
Rapanos decision were ultimately the subject of a subsequent Supreme
Court decision in Sackett v. EPA.
MS. SCARROW: A couple of times you mentioned the D.C. Circuit and its larger role in
environmental issues and the Clean Air Act. Do you have a specific
example?
MR. CRUDEN: Yes, probably the most well-known would-be Massachusetts v. EPA, and
then the defense of the Obama Clean Power Plan. Massachusetts v. EPA
arose during the Bush Administration when EPA denied petitions to
regulate greenhouse gases and many sued, including the State of
Massachusetts. Because I supervised the Environmental Defense Section, I
was also the supervisor of the case. In my entire history at the Department,
it was the only time that I asked that my name be taken off the brief110
because I did not agree with the arguments by the government, which
opposed regulating greenhouse gases for reasons I did not agree with. This
seminal case paved the way for the EPA regulations we now have
regulating greenhouse gases.
MS. SCARROW: In 2006 you were awarded the American Bar Association’s Mary C.
Lawton Award for Outstanding Government Service for your role as the
Deputy Assistant Attorney General. What was that award for?
MR. CRUDEN: Mary Lawton was a quite well-known government lawyer whose name is
on this prestigious ABA Award. My selection was largely because of the
successful array of environmental enforcement cases that we had finished,
including the settlements in the coal fired power plant initiative that I
discussed, including the well-publicized agreement with Alabama Power
Company, and my work on the Duke Energy case, which the Supreme
Court resolved in favor of the United States. We had also resolved that
year’s litigation with Maryland’s Washington Suburban Sanitary
Commission where, with the State of Maryland, the Commission agreed to
a significant upgrade to their facility, a penalty, and a large environmental
project. Although I was quite honored by the award, our record-breaking
success was the product of many people, all of whom deserved the award.
MS. SCARROW: While serving as a career Deputy you also twice served as the Acting
Assistant Attorney General. First during President Bush’s first year in
office in 2001 and under Attorney General Ashcroft, and second during
President Obama’s first year in office which was in 2009 under Attorney111
General Holder. Can you tell us how that came about during those two
periods?
MR. CRUDEN: Yes, transitions between administrations are always a fascinating time.
Since I was the senior career Deputy Assistant Attorney General, I became
the Acting Assistant Attorney General when there was not a Senate
confirmed AAG. Accordingly, I became the Acting Assistant Attorney
General for almost the entire first year of the Bush Administration and for
most of the first year of the Obama Administration. In both instances the
two Attorneys General decided to keep me in that position, even after
political appointees arrived. And, to have the full authority of the Assistant
Attorney General, I received Presidential appointments in both instances.
After my second time, the Division gave me at the end of my tenure a
large replica of an academy award, with a plaque designating me as the
“Best Actor.”
MS. SCARROW: Turning to your first year in the Bush Administration, how was your
relationship with the new Attorney General?
MR. CRUDEN: Becoming the acting head of the Division was immediately eventful. The
Attorney General was John Ashcroft, a former Senator, and Governor of
Missouri, who I came to have a good working relationship with. Although
he was quite conservative, he was a resolute man of law with high ethical
principles and became a firm supporter of the division. And, he had some
significant Superfund experience at the well-known Times Beach
Superfund site which was cleaned up when he was Governor of Missouri.112
I believe the incoming Administration was skeptical about having a career
lawyer in such a significant position, so they assigned a brand-new
political appointee, Lucy Clark, to attend all my meetings with me. Lucy
and I became friends, and I ultimately supported her as she advanced, later
to become the first General Counsel of the Department of Homeland
Security. Another person of great assistance to me was our press advisor,
Dana Perino, who later became press secretary to President Bush.
MS. SCARROW: What stands out to you about this time?
MR. CRUDEN: One aspect of the Bunker Hill negotiations we have talked about before
arose immediately under the new Administration. One of the companies
that did not participate in the settlements was Hecla Mining company.
Hecla and its predecessors disposed of contaminated mine waste, often
directly into the South Fork of the Coeur d’Alene River – well over 60
million tons of tailings, some with lead and zinc contamination.
The Governor of Idaho, Dirk Kempthorne who later became Secretary of
the Interior, came to D.C., and met with Attorney General Ashcroft about
his desire to resolve this case. Ashcroft contacted me, and I was soon in
the midst of contentious negotiations. At my side was Michael Bogert, the
counsel to the Governor, who later became the Regional Administrator for
EPA Region X. We negotiated a settlement with the president of the
company who, as I understand it, was fired by the Board when he returned
to Idaho. Ultimately. we settled for $263 million on behalf of the U.S., the113
State of Idaho, and the Coeur d’Alene Tribe. That money went to pay for
response actions throughout the site, and for natural resource damage.
In addition, I continued to supervise and advance the environmental
initiatives we had ongoing against refineries and power plants for Clean
Air Act violations. I do not recall a single time when the Attorney General
prevented me from doing something I thought was necessary and legally
justified. There were a few times when he did call me into his office
because he received complaints from the White House about us being too
aggressive. Each time that happened he listened, he agreed, and he
defended us to the White House. During this time, I also ran for DC Bar
President, which AG Ashcroft agreed to and then monitored.
MS. SCARROW: I understand that you travelled to New York to meet with the Mayor of
New York after the World Trade Center attack. Can you describe what
happened?
MR. CRUDEN: Yes, those days are still indelibly etched in my memory. Where the
terrorist-controlled plane hit the Pentagon was the location of my office
when I worked in the Pentagon, and I lost friends that day. Shortly after
the attack on the World Trade Center, AG Ashcroft called me in along
with the head of the Civil Division, Robert McCallum, Jr., and told us we
were the DOJ representatives to an emergency White House Meeting
about the World Trade Center. At the White House we were directed to
immediately to go to New York City and meet with Mayor Rudy Giuliani
and his leadership group. We were told to offer any assistance they needed114
and to report back on how they were doing with this tragic set of
circumstances. We traveled immediately to New York City to meet with
Mayor Giuliani and his leadership team. They carefully went over with us
all that they had done so far and their plans for the future. After our offer
of assistance, Mayor Guiliani told us he appreciated our presence, but he
was already cleaning up the site using four different contractors, all under
city direction, and they were on track. We then asked, and were granted, a
chance to walk the entire site, with a Fire Marshall at our side, since the
remnants of the World Trade Center were still on fire.
At that stage there was so much dust and particulate matter that we wore
masks. Not the kind of masks we wear now because of COVID, but more
expansive military-like gas masks as protective gear. While we were there
a phalanx of fire engines spread water on the burning remnants while
cranes gently pulled down the remaining structure. In one of the telling
moments of my life, a rainbow spread across the sky. Later, when I said
that story to the United States Attorney Conference, I told them that the
rainbow symbolized hope, even in tragedy.
MS. SCARROW: Pretty amazing time for you. Now turn to your time as Acting Assistant
Attorney General during the first year of the Obama Administration.
MR. CRUDEN: The second time I became Acting was when we transitioned from the
Bush Administration to the Obama Administration. I was again appointed
as Acting Assistant Attorney General by a Presidential Order. Eric Holder
was the new Attorney General, and I knew him from his prior DOJ time as115
Deputy AG and U.S. Attorney We had an extraordinarily strong
relationship, and I admired AG Holder greatly. During that time there
were clearly matters that we did that were incredibly significant. For
instance, the Washington governor, Christine Gregoire, met with General
Holder about the Hanford case, in which the state had sued the
Department of Energy. Hanford was a huge Department of Energy facility
in the eastern part of Washington with massive radiological
contamination. For more than 40 years, the Hanford Nuclear Reservation
played a critical role in the nation’s military weapons program, producing
plutonium for nuclear weapons. This process generated massive quantities
of waste, much of which was buried on-site or, in the case of liquids,
discharged directly to the ground, risking contamination of the
groundwater that flows into the Columbia River. Hanford holds more
high-level radioactive waste than all other U.S. sites combined. Waste is
stored in over a hundred underground tanks.
Hanford cleanup is governed by a Tri-Party Agreement, an agreed
enforcement order signed by the Washington State Department of
Ecology, the U.S. Environmental Protection Agency, and the U.S.
Department of Energy, that contains detailed schedules for the Department
to clean up the site and bring it into compliance with applicable
environmental laws.
The state of Washington sued the federal government for missing—or being on track to miss—
major milestones for construction and tank waste treatment. Working with116
DOE and the states, we were able to settle the suit in a judicially
enforceable consent decree, defining new milestones and commitments of
time and energy. I announced this settlement at Hanford with Governor
Gregoire, Attorney General Bob McKenna, and other elected officials.
While we were successful then, Hanford has continued to be challenging
for the Energy Department.
MS. SCARROW: When you were Acting were you given full responsibility for the work of
the Division?
MR. CRUDEN: Yes. In both instances the Attorneys General secured for me a presidential
appointment for me to be the Acting Assistant Attorney General. That
gave me full authority to bring complaints, settle cases, and take positions
on behalf of the United States. I was assisted significantly in that regard by
the career Deputy Assistant Attorney General Eileen Sobeck. When new
political appointees arrived, they worked in my direction until a new
Assistant Attorney General was Senate-confirmed. It probably helped that
during that period the Partnership on Public Service rated the Environment
and Natural Resources Division as the “Best Place to Work in the Federal
Government.”
MS. SCARROW: You just talked about the differences between your two tenures, but
you’ve also mentioned that it was obviously a transition period for those
two Administrations. Was that sort of transition process different in those
two periods for you?117
MR. CRUDEN: Yes. The first year of any new Administration is filled with energy, action,
and some chaos. I felt all of that the first year of the Bush Administration
and the first year of the Obama Administration. Political appointees are
coming on board, but the mission of the agencies continues without regard
to whether the new person has been confirmed, understands his or her job
or has any idea how to work with the bureaucracy they have joined. I was
personally fortunate in my two tenures as Acting AAG to work for
Attorneys General who I admired and who valued the career work force.
As we have discussed, the first year of the Bush Administration included
the tragedy of the World Trade Center, and the first year of the Obama
Administration was also quite eventful for me.
MS. SCARROW: What stands out that you were involved in during the first year of the
Obama Administration?
MR. CRUDEN: Beyond the cases that I have discussed, the two big matters were the
historic joining of EPA and the National Highway Safety Administration
or NHTSA on setting car standards and the huge General Motors
bankruptcy. In response to a Presidential directive, EPA and NHTSA, on
behalf of the Department of Transportation, jointly proposed to reduce
greenhouse gas emissions and improve fuel economy for light-duty
vehicles for model years 2017–2025. This was the first time this had
happened, and it was a major undertaking to have these two diverse
agencies work together and synchronize their rulemaking. Ultimately,
NHTSA proposed corporate average fuel economy standards and EPA118
proposed greenhouse gas emissions standards under the Clean Air Act.
These standards apply to passenger cars, light-duty trucks, and medium-
duty passenger vehicles, and represent a continued harmonized and
consistent national program. I moderated many of the meetings which led
to the ultimate successful resolution. A great leader in that regard was
Jody Freeman, then a Counselor in the White House, but now a professor
at Havard Law School.
The second major action I was involved in was the massive General
Motors bankruptcy. Growing up in the Detroit area, I always followed the
auto industry. At the beginning of the Obama Administration, with car
sales declining due to the worst economic downturn since the Great
Depression, General Motors was losing billions and running out of cash.
As General Motors teetered toward bankruptcy in 2009, an Obama-
appointed team used the bankruptcy code to save the company by
segregating and spinning out its valuable assets, while providing billions
in taxpayer funds to make sure the company was viable. I supervised
organizing the portion of the bankruptcy which funded money for
environmental issues. Two Environment Division attorneys, Alan S.
Tenenbaum and Patrick Casey, led the government effort to negotiate with
14 states and the Saint Regis Mohawk Tribe to provide funding for
superfund sites. We filed a bankruptcy proof of claim against Old General
Motors to recover environmental cleanup costs for sites owned or operated
by Old General Motors. Old General Motors ultimately paid nearly a half119
billion dollars for cleanup, money put in trust for particular sites. Leading
that cleanup effort was a good friend of mine, Elliott Laws, who was the
prior EPA Assistant Administrator for the Superfund during the Clinton
Administration.
MS. SCARROW: While you were Assistant Attorney General, did you interact with EPA
and Department of Interior leadership?
MR. CRUDEN. Yes, my primary client was EPA, and I had a superb relationship with first
Administrator Lisa Jackson and then Gina McCarthy, who became friends.
At DOI I knew Secretary Ken Salazar well from his time as Colorado
Attorney General. His Deputy was David Hayes, a lifelong friend of mine.
Both had superb political appointees. Later, I developed a superb
relationship with the new DOI political appointees, Secretary Sally Jewell,
and her Deputy Mike Connor. Also important to me were the EPA
General Counsels Scott Fulton and Avi Garbow and Cynthia Giles, the
leader of EPA enforcement efforts. Finally, my friend, and the first Native
American to become the Solicitor of the Interior, Hilary Tompkins.
MS. SCARROW: I understand you had several interesting interactions with the Secretary of
Energy?
MR. CRUDEN: Yes. I can easily remember my first meeting with the Nobel Prize winning
Secretary of the Energy, Steven Chu. His General Counsel had advised me
that Secretary Chu, who had just left being director of Lawrence Berkeley
National Laboratory, had just been subpoenaed to give testimony in a
deposition arising out of his prior role. I told the Secretary I could oppose120
such a request, and he just smiled, then said something like, “Don’t worry
John, I’ve already agreed to be deposed.” I smiled back, and told him if
that’s what he wanted, then I needed four hours of his time to prepare him
for a deposition. He seemed surprised but then acquiesced and we
developed a good relationship. I did, however, realize that he had a lot of
confidence in his own ability to navigate successfully in the Washington
D.C. environment. We also spent a lot of time working through the
Hanford facility nuclear cleanup issues. And he appreciated hearing about
the successful press conference I did with Governor Gregoire when we
settled. Later, as President of Environmental Law Institute, I awarded him
our most prestigious environmental award in a crowded banquet with over
700 attorneys present. He gave one of the best speeches of any award
recipient. I value him highly.
MS. SCARROW: One last question about your time as a career attorney at DOJ. You
received the Presidential Rank Award from three different presidents of
both parties, which I assume is probably unheard of in that it crossed
parties and three presidents. Can you talk a little bit about that award and
how that came about?
MR. CRUDEN: The government does have their own awards structure and there are
different awards that you can receive through the government. But, by far,
the most prestigious is the Presidential Rank Award. For me to receive
these awards is extremely humble because there are so many gifted people
in the government. I have always been proud of the fact that I received the121
award from three different Presidents of different parties. Yet, I received
the award really for what was done by the entire Division, and each time I
received an award I told all of the people that I supervised that the award
was really for them.
MS. SCARROW: In 2004, while you were still a career Deputy, you were the first
government attorney to ever be elected as the President of the DC Bar.
Can you tell us how that happened?
MR. CRUDEN: During the Clinton Administration, when I was the Deputy Assistant
Attorney General, I decided that it was time for me to become active in
my local bar. By some fortune, the Counselor to the Assistant Attorney
General, Ignacia Moreno, was on the nominating committee for the DC
Bar. She asked if I was interested, and I agreed with little knowledge of
what I was getting myself into. In any case, I was nominated for a position
on the Board of Governors, and was elected by the membership of the
Bar, which was then had something like 80,000 members.
After serving on the Board for several years, the Board President, George
Jones, and the Executive Director, Katherine Mazzaferri, encouraged me
to run for President. To do so I needed the approval of the Attorney
General. John Ashcroft agreed and then followed my election. I believe he
was amused that he had a career attorney running for office. I then had to
set up a campaign committee and because I was a government official
(and could not lobby people who worked under me), I also had an ethical
advisor, Polly Milius. Great lawyers like Steve Solow, Steve Herman,122
Tim Webster, Doug Letter, and many others stepped in to support and
lobby for me.
On election day, right after I found out that I had won, I was called by
Attorney General Ashcroft who wanted to know how I had fared. I replied
that I had won, but it was “hardly a landslide.” He then laughed and asked
me, “what were your numbers?” I told him I had won by 55% to 45%. He
paused for a minute—now remember, this is a man who lost his last
Senate election to a man who had already died in a plane accident. After
his pause, he said “trust me John, that’s a landslide.” [LAUGHTER]. I
then served as the President-elect for one year, and then in 2005 became
President. At that time Alberto Gonzales was the Attorney General. He
had intended to come to my investiture ceremony as I was the first
government lawyer to serve as DC Bar President, but at the last minute he
could not. Instead, he sent the Principal Deputy Associate Attorney
General to introduce me to the Bar – soon to be Supreme Court Justice
Neil Gorsuch. Gorsuch sat with my family during that evening and
charmed my wife and children. Gorsuch gave a wonderful introduction for
me to be Bar President, calling me one of the most well-known lawyers in
environmental law.123
ORAL HISTORY OF JOHN C. CRUDEN, ESQ.
Fourth Interview
August 30, 2021
This interview was conducted on behalf of the Oral History Project of the District of Columbia
Circuit. The interviewer is Tracy H. Scarrow, and the interviewee is John C. Cruden. The
interview took place on August 30, 2021, updated in 2024. This is the fourth interview.
MS. SCARROW: We left off the last time talking about your election as the D.C. Bar
President. So, let’s just dive a little bit deeper into your tenure as the Bar
President. You mentioned you were the first government attorney to hold
the position. Can you give us a little insight as to how you selected and the
election process?
MR. CRUDEN: Even though the D.C. Bar has now well over 100,000 diverse lawyers in
countless states, there is still a mistaken belief that the Bar members are
largely government attorneys. That is incorrect, as only a small portion of
the membership are federal and state attorneys. Therefore, it was truly a
great honor just to be selected by the Bar as a nominee for President. My
great supporters in that endeavor were the Bar Executive Officer
Katharine Mazzaferri, and past Bar Presidents George Jones, Shirley Ann
Higuchi, Rob Weiner, Jamie Gorelick, and Jim Sandman. Of course, it
was still a contested election, so I had things to do. Most importantly, I
assembled an “election committee” – a terrific group of Bar stalwarts
including Doug Letter, Steve Solow, Tim Webster, Steve Herman, and
Joel Gross, who reached out to all members of the D.C. Bar on my behalf.
Pauline Milius was my ethical advisor, a critical role because government124
ethical rules applied to me and limited what I could do to support my
election.
MS. SCARROW: How was it being President of such a large Bar and simultaneously
working every day as the Deputy Assistant Attorney General?
MR. CRUDEN: It was challenging. But the Bar staff was very cooperative, and a lot of my
functions were in the evening. There were periods of time though, which
my wife pointed out on numerous occasions, where weeks would go by
when I was gone every single evening to attend, lead, or support various
Bar activities.
MS. SCARROW: What would you consider to be some of your major accomplishments as
Bar President?
MR. CRUDEN: My theme for the year, which I announced at the annual banquet, was that
“Lawyers Render Service” which had three distinct parts: client service,
community service, and pro bono service. At the end of the year the Bar
gave me a large hand painted caricature of me, which is currently
displayed in the DC Bar office. The caricature has me as a car mechanic in
“John Cruden’s Tune Up Shop” working on a car using a three-legged
stool with each leg labeled as one prong of my threefold service goals.
Hidden in the drawing of the car are all of the major initiatives and
activities in my year including: (1) the Joint Judicial and Bar Conference;
(2) a special member meeting to support the judiciary; (3) and
community service (which included our science fair, youth law fair, and
mayor candidates forum) . Next to the car are the “High Performance125
Tires” highlighting what we did for the poor and disadvantaged (labeled
the Access to Justice Commission, government pro bono program, and
senior lawyer public interest project). There are also car service manuals
(labelled section programs, CLE courses, mentoring programs, Rules of
Professional Conduct review, and others). This drawing really captures the
highlights of my year, which was quite active with a lot of moving parts,
an exceptional Board of Governors, and highly active committees. Each
month I also wrote a column for the DC Bar magazine. Probably the
column that received the most attention was the one in which I outlined
the Bar and my personal support for judicial independence and the full
funding of the needs of our federal and D.C. judiciary.
MS. SCARROW: What stands out?
MR. CRUDEN: Two things. First, Louisiana’s Hurricane Katrina happened during my year
as President. Katrina’s devastation caused over a thousand fatalities and
over a hundred billion dollars of property damage, particularly in and
around New Orleans. The D.C. Bar Board of Governors decided to fully
support the Louisiana and New Orleans Bars as they recovered from the
tragedy. DC Bar members responded and provided help to people forced
to leave New Orleans and law students who needed temporary work. We
also provided IT and web support to the NOLA Bar so its members could
communicate with each other. I mentored and employed the Editor-In-
Chief of the Environmental Law Journal for Tulane Law School and
brought him to Bar meetings to brief us on what was happening on the126
ground. We then dedicated the DC Bar’s annual conference to the
judiciary, including judges from New Orleans, to discussing how other
cities, including D.C., should prepare for catastrophic events like Katrina.
One of the speakers at the conference was New Orleans Judge Madeline
Landrieu, sister of the Louisiana Senator, who was particularly eloquent in
talking about the needs of the judiciary during a crisis.
Second, I had the personal pleasure of speaking at the annual D.C. Court
“adoption day,” celebrating children who were adopted during the year. It
is a moving event, often televised, with both parents and children. It was
particularly meaningful to me to me, as I am adopted. When done, a
darling little girl, just adopted by one of the magistrate judges, came and
sat on my lap and said, “You said you were adopted but you cannot be.” I
replied that I really was adopted and asked her why she thought I wasn’t.
She replied, “because you are too old.”
MS. SCARROW: You mentioned your push for pro bono service especially within the
government and that was a central platform of your year as Bar President.
I understand that you reached out to every single one of the General
Counsel agencies as part of that process. Can you tell us a little bit more
about that?
MR. CRUDEN: The centerpiece of my theme of “Lawyers Render Service” was my
ambitious goal of bringing all government attorneys into the Bar’s pro
bono program. I had done pro bono work myself, and was convinced that
government attorneys, if properly supported and incentivized, could make127
a real difference. I had the advantage of being at the Department of
Justice, where we had a full-time pro bono coordinator, Laura Klein, who
was, and is, extraordinary in her knowledge and vigor. And being at DOJ
gave me a bully pulpit to push hard for real and lasting changes in this
area.
Working with Laura and the Bar pro bono staff, led by the inestimable
Maureen Syracuse, we assembled a list of every General Counsel of a
federal agency in the United States. I wrote each a personal letter and then
followed up with individual meetings with all who expressed an interest.
Our efforts drew a lot of positive attention. When the ABA learned about
what I was doing, it offered its full support. Mike Greco, the ABA
President, also sent letters to the General Counsels saying: “you’re getting
a letter from John Cruden, please do what he asks you to do.” We also
dedicated one issue of the DC Bar monthly magazine to government pro
bono work and put Laura Klein on the cover. Then Laura and the Bar went
to work on training government lawyers, preparing model agency pro
bono guidelines, I met with federal agency leaders to advocate for
allowing, and then encouraging, pro bono work. This is one area in which
the Bar really made a difference.
MS. SCARROW: I have heard that you attracted both a leading agency general counsel and
a Harvard Law School professor working for DOJ to do pro bono work.
Can you tell us how that happened?128
MR. CRUDEN: As we were getting the government pro bono program off the ground, I
knew we needed positive, well- publicized examples of senior government
lawyers headlining our effort. My first outreach was to Jim Haynes, the
Department of Defense General Counsel, and a friend of mine from my
military days. Having Jim working for a day at the Bar’s pro bono Advice
and Referral Clinic showed all government attorneys, including those in
the military, that pro bono service was being encouraged at the highest
levels.
One of my favorite stories of that period involved Harvard Law Professor
Laurence Tribe. Professor Tribe was a well-known constitutional law
expert. During my year as Bar President, he was on sabbatical from
Harvard and serving as a Counselor to the Attorney General. When I
asked him to join me at one of the Bar’s pro bono clinics, he generously
agreed. He did, however, stand out in his dark suit, crisp white shirt, and
thin red tie while the rest of us were in far more casual attire. As he tells
the story, after receiving the initial briefing by the pro bono coordinator
and me, he met his clients, a husband-and-wife couple who just wanted a
will. Tribe admitted that he knew nothing about drafting wills but knew
that he could walk out in the hallway and get assistance from others. He
did so and gave good advice to the clients. As Tribe tells the story, as the
couple were walking out, the man turned to him and said “Thank you
again Mr. Tribe. But I have one last question. ‘Are you a real lawyer?’”
[LAUGHTER] Later, when he and I were providing a Supreme Court129
update at Harvard he told this story to the students. They loved it! It was
also another step in my goal to make it clear that government lawyers
could, and should, do pro bono work and be of great service. I also wrote a
law review article promoting government pro bono service, which was
widely distributed.
MS. SCARROW: Sort of on a similar note, as part of your efforts at the D.C. Bar you
wanted to make sure that the Bar itself was more inclusive and you did
very purposeful outreach to organizations such as the Women’s Bar
Association, the Washington Bar Association, and the Asian Pacific Bar
Association. Can you tell us why you did that and why that was
important?
MR. CRUDEN: D.C. is unique because it has a wealth – over 30 – of exceptional voluntary
Bars including the Women’s Bar Association, Asian Pacific Bar
Association, Hispanic Bar Association, and the Washington Bar
Association. These are well-regarded organizations, each one very
dedicated to service. It seemed to me that we would be collectively better
if we could do things together and gain the synergistic effect of mutual
support of our attractive programs for all members. We started having
monthly meetings at the D.C. Bar offices that the leaders of the voluntary
Bars attended. We shared information, promoted each other’s programs,
and the voluntary Bars supported me, personally, in my various efforts to
expand service opportunities.130
So that I could be seen as firmly in support of the voluntary Bars, I joined
a number, including the Washington Bar and the Women’s Bar; and
attended as many of the voluntary Bars’ functions as possible. The
Women’s Bar, led ably by Karen Lockwood that year, had a wonderful
program advancing women in legal positions, and I spoke at their
conference. I also developed friendships with their amazing leaders like
Lori Masters, Paulette Chapman, Laura Possessky, and Ellen Jakovic who
also became leaders in the D.C. Bar.
MS. SCARROW: Can you talk about any experience you had working with the judiciary
during that time and if there was anything that sticks in your mind related
to the D.C. Circuit?
MR. CRUDEN: The District of Columbia and the federal judiciary played a key role in the
activities and responsibilities of the Bar. Chief Judge Annice Wagner
swore me in as President, and we worked closely together my entire year.
The Chief Judge of the Superior Court, Rufus King, was also a friend and
major actor. Judges attended and took part in D.C. Bar events. Some of the
highlights were the D.C. Circuit’s judicial conference, the judiciary’s
support of my pro bono initiative, and the D.C. Bar’s role in the judicial
nomination and review process. During my tenure, the DC Bar also
undertook a significant revision of its Rules of Professional Conduct that
the court approved.
During my year as President, the Bar also played a significant role in
pushing the creation of the Access to Justice Commission to improve low-131
income residents’ access to the civil justice system. Former DC Bar
President Andy Marks and I met with Chief Judge Wagner to promote the
Access to Justice Commission. We gave her examples of what other states
had done, and she used that information to establish the Commission. We
also strongly recommended Peter Edelman to lead the effort, and he has
been exceptional in all respects as Chair of the Commission. The
Commission now has twenty-five Commissioners, including D.C. Court of
Appeals, Superior Court, and D.C. Office of Administrative Hearings
judges and administrators; prominent members of the D.C. Bar; legal
services leaders; corporate counsel; legal academics; and community
leaders. It is chaired by Peter Edelman and vice-chaired by Jim Sandman.
MS. SCARROW: Is there anything else about your tenure or highlights about your D.C. Bar
Presidency that we haven’t touched on?
MR. CRUDEN: The only other matter of note was that I was elected by other state bar
leaders to the Executive Council of the National Council of Bar Presidents
(NCBP). That is an organization overseeing all the Bar Presidents across
the United States. I served in that organization for the next three years and
became the first Chair of their Diversity and Inclusion Committee.
Because of that role, I was a speaker at many of the NCBP Conferences on
matters related to Bar leadership and management.
MS. SCARROW: In 2011, the D.C. Bar named the award for government pro bono
excellence after you. It’s called the John C. Cruden Federal Agency Pro132
Bono Leadership Award. Can you tell me what that award is for and what
that meant to you to have it named after you?
MR. CRUDEN: I was completely surprised when it was announced by the court that the
award had been named in my honor. Although I deeply appreciated the
honor, it should really have been named after a group of people who made
the successful initiative happen. People like Laura Klein, Maureen
Syracuse, Katherine Mazzaferri, Mike Greco, Jack Keeney, Jim Sandman,
Rob Weiner, and many others. I have been blessed in my life in receiving
a number of military and civilian awards, but this one is the one in which I
am most proud.
MS. SCARROW: You also were recognized by the D.C. Bar as one of their Legends of the
Law and then again in 2017 when you were awarded the Beatrice
Rosenberg Award for Excellence in Government Service. So, it sounds
like you won all the awards that the D.C. Bar has to offer. Can you tell us
about those awards?
MR. CRUDEN: The D.C. Bar developed a program to choose and then honor individuals
who they believed to be “legends of the bar” in various disciplines. I was
chosen for my environmental law expertise. Later, they renewed that
designation in 2022 for the Annual Conference. Each recipient was invited
to speak and give a presentation, and they filmed it and put it in their
repository.
The Beatrice Rosenberg Award for Excellence in Government Service is
the highest award for government service given by the Bar.133
I received this award early in the Trump Administration when I believed
that government lawyers were under siege. In my acceptance speech to the
Bar, I first said that I did not deserve the award compared to all the
government lawyers who worked so hard every day for the American
public, unsung heroes who were overworked, under paid, and
underappreciated. I then said that one of the highlights of our American
system of democracy is the role of our extraordinary career force that
keeps the trains running through every administration, Republican or
Democrat. They are the backbone of the government in so many ways. I
wanted to use my presentation to really highlight the importance of having
a well-funded, fully appreciated, and well-supported career workforce
because I thought then, and believe now, that they are integral to a
functioning democracy.
MS. SCARROW: In addition to your service on the D.C. Bar you continued your practice of
serving on legal organizations when you served as the first government
lawyer to Chair the ABA’s Environmental Section. How did that come
about?
MR. CRUDEN: I am a firm supporter of the ABA, the largest professional organization in
the United States dedicated to professionalism, ethics, and assisting others.
My area of interest is, of course, environmental law; and I served on the
board of the Section on Environment, Energy, and Natural Resources. The
outgoing Chair, Lynn Bergeson, a superb attorney, and a leader in our
profession, nominated me; and at the following Section’s annual134
conference I was elected to be Chair. My leadership year benefited from
the assistance of the Staff Director, Dana Jonusaitis, and the Chair elect,
Steve McKinney, who were both exceptional. I also had a very
distinguished Board of highly qualified environmental attorneys. The
Section has superb educational programs, publications, an amazing array
of committees, and superb staff located in Chicago. It was an active time,
and we accomplished a great deal, advancing environmental themes and
inculcating environmental goals inside the ABA.
MS. SCARROW: What were the highlights of your year as an ABA Chair?
MR. CRUDEN At a policy level, we promoted and advanced an array of environmental
policies within the ABA and the United States that year. During that
period, we were able to get the House of Delegates to approve a number of
far-reaching resolutions that became ABA policy. Our efforts included
resolutions: (1) urging the U.S. government to take an active role in
addressing climate change; (2) asking federal, state, territorial and tribal
governments, when considering and approving legislation, regulations and
policies, to preserve and enhance the benefits that people derive from
ecosystems, with due regard for economic, human, and social impacts; (3)
urging law firms and legal organizations to adopt the ABA-EPA Law
Office Climate Challenge; and (4) recommending that Congress enact
legislation to reform the Toxic Substances Control Act, including specific
principles for reform.135
We also promoted sustainability with a series of resolutions that urged all
governments, lawyers, and ABA entities to act in ways that accelerate
progress toward sustainability. That effort led ABA President James
Silkenat to appoint a Task Force on Sustainable Development to focus on
ways that the ABA could provide leadership on a national and
international basis on sustainable development issues. The Task Force was
chaired by my friend Lee A. DeHihns, and I was a member along with
others representing government, the private sector, non-governmental
organizations, and academia.
My greatest memories, however, of being chair of the ABA
Environmental Section were leading the major conferences. The first was
in Baltimore. The conference began in Baltimore’s wonderful aquarium,
where volunteer docents guided us through the aquarium, lecturing us
about its amazing array of aquatic life. The Baltimore conference was
during the first year of the Obama Administration, and featured very
current presentations by key government officials, and provided ample
opportunity for lively discussion of emerging environmental issues. It was
one of the highest rated and highest attended conferences of the year.
Another highlight for me was being part of the ABA’s program, the
“Return of the Titans.” I joined three well-known, talented trial
attorneys—former federal District Court Judge Ron Hedges and lawyers
Jim Bruen, and Peer Hsiao—to put on a very popular trial practice
demonstration. We used the afternoon to demonstrate trial practice issues136
in a “real life” trial. We began with a hypothetical case (though, to keep
things lively, each advocate was allowed to add facts during argument),
presented evidence and argued motions and objections to the presiding
judge, who ruled on the spot. It was fast moving and full of twists and
turns, with a sprinkle of antics and good humor, all to the delight of the
audience. Another highlight was creating three new ABA projects:
awards for government attorney, the Environmental Justice Project, and
the Outstanding State Bar Environmental Program of the Year. It gave me
a great deal of pleasure to give awards to Ben Wilson, Quentin Pair, and
Nicholas Targ for Environmental Justice, Jeff Civins for leading the Texas
Super Conference, and later Edward Strobehn for his efforts in
establishing the Natural Resources Defense Council. Just last year I was
able to present the Government Lawyer of the Year award to Bill
Brighton, who led the Exxon prosecution and worked closely with me on
the BP/Deepwater Horizon case.
MS. SCARROW: And did that experience differ significantly from your time at the D.C.
Bar?
MR. CRUDEN: Yes, the D.C. Bar acts through a series of committees and voluntary Bars,
and there are monthly meetings of the Board of Governors. Being D.C.
Bar President is really a full-time responsibility when you include evening
activities. The ABA Section of Environment, Energy, and Resources, with
headquarters in Chicago, meets less often and really operates through
conferences and training sessions, often with simultaneous board meetings137
that required more frequent travel. Another difference is that the D.C. Bar
does not have a policy role on most legal issues, while the ABA does.
MS. SCARROW: Let’s return to your government service. You became the Acting
Assistant Attorney General for the Environment and Natural Resources
Division during the first year of the Obama Administration. What were the
big events during that year?
MR. CRUDEN: At the beginning of the Obama Administration, I became the Acting
Assistant Attorney General for ENRD. I served in that role most of the
first year of the Administration. It was a heady time in the new
Administration, which had an ambitious list of goals and new people, all
anxious to be heard. I often was at the White House, particularly on
matters involving greenhouse gas legislation and regulation, the historic
EPA-National Transportation Safety Administration car rule, the General
Motors bankruptcy, and a number of significant cases like our defense of
the Department of Energy’s remediation work at the Hanford facility. I
also led the celebration of the 100th anniversary of the Environment and
Natural Resources Division, which featured Attorney General Eric Holder
and my friend Harvard Law Professor Richard Lazarus, who gave the
keynote speech.
MS. SCARROW: We’re working chronologically so we’ve moved on to April 2010, when
the BP oil spill happened. You were the career Deputy Assistant AG and
oversaw civil enforcement. Can you give me a little background to what
led up to the BP case?138
MR. CRUDEN: April 10, 2010, is etched in my mind, as that was the day of the explosion
on the oil rig Deepwater Horizon that led to the death of 11 people and a
huge environmental catastrophe, resulting in years of litigation. Less than
50 miles off the coast of Louisiana, the Macondo well suffered a
catastrophic blowout sending more than three million barrels of oil into
the Gulf of Mexico over a period of three months. As the public watched
the oil gushing from the well, deep ocean water currents carried the oil
hundreds of miles away from the blown-out well, resulting in oil slicks
that extended across thousands of square miles, affecting water quality,
and exposing aquatic plants and wildlife to harmful chemicals. Oil was
deposited over hundreds of square miles of the sea floor and washed up
onto more than 1,300 miles of shoreline from Texas to Florida.
The spill damaged, and temporarily closed, fisheries vital to the Gulf
economy; oiled hundreds of miles of beaches, coastal wetlands, and
marshes; and killed thousands of birds and other marine wildlife. It was
the largest environmental and economic catastrophe in our history.
Immediately after the spill, I joined with others, including Tony West, the
Assistant Attorney General for the Civil Division, to fly to New Orleans.
We then joined with the U.S. Attorney for Louisiana, Jim Letten, and met
at the command center with Coast Guard Admiral Mary Landry, the
federal on scene coordinator. We were briefed on the status, and then
traveled by Coast Guard plane to the site of the well. We could see from139
miles away a geyser of dark oil gushing out of the damaged well and
spreading exponentially each minute. It was a sight I will never forget.
MS. SCARROW: What did the Administration do right away?
MR. CRUDEN: The President and the Administration took a number of initial steps, even
while the cleanup was occurring. President Obama established the
National Commission on the BP Deepwater Horizon Oil Spill and
Offshore Drilling to provide recommendations on how the United States
could prevent and mitigate the impact of any future spills that result from
offshore drilling. That blue ribbon commission, which produced an
excellent report with recommendations, was chaired by Senator Bob
Graham, former Governor of Florida, and William Reilly, former
Administrator of EPA. The Executive Director was a long-time friend and
DOJ alum, Richard Lazarus, and we also detailed Sam Sankar, then a DOJ
Appellate lawyer and now the Senior Vice President at Earth Justice, to
work on the Commission.
In addition, the Department of the Interior’s Bureau of Ocean Energy
Management and Enforcement and the U.S. Coast Guard teamed to run a
joint investigation examining the causes of the Deepwater Horizon
explosion. They held multiple hearings and heard testimony from 80
witnesses and experts. Multiple congressional committees also had
hearings.
All of this was happening at the same time as we were preparing for
extensive litigation. I was working on the civil side, speaking weekly with140
representatives of the Attorneys General of Louisiana, Mississippi,
Alabama, Florida, and Texas (the states impacted by the spill) while
assembling and briefing the future trial team to ensure steps were being
taken to preserve evidence. For instance, Civil Division’s Deputy
Assistant Attorney General Ann Randel and I sent letters to over 30
potential defendants or witnesses, directing them to preserve evidence and
documents. Relying on our Exxon Valdez experience we also created
evidence collection protocols. At the same time, DOJ initiated a criminal
investigation, using resources from the local U.S, Attorney, the DOJ
Criminal Division, the Environment Division, the FBI, EPA, and others.
In ENRD, we had already locked arms with our friends in the Civil
Division’s Admiralty Section, with whom we had worked on litigating the
Exxon Valdez case and whom we knew well. They were led by Peter Frost
and Mike Underhill, gifted trial attorneys. During this time, we also hired
Canadian riggers to educate us about the practices, language, and
responsibilities of oil rigs like Deepwater Horizon and their operators.
MS. SCARROW: When did the litigation start, and how did the case end up in New
Orleans?
MR. CRUDEN: Multiple class action tort cases were filed by private parties immediately
after the spill. Ultimately, the federal Multi-District Litigation Panel chose
New Orleans as the venue for the cases and Judge Carl Barbier, a well-
respected jurist, as the presiding judge. The U.S. filed its complaint in141
December 2010. I came to have a great deal of respect for the integrity and
wisdom of Judge Barbier.
MS. SCARROW: How did the civil case proceed?
MR. CRUDEN: We first started collecting and evaluating evidence and meeting with
representatives of all the companies involved. At the same time, I was
chairing weekly meetings with all the five State Attorneys General, both
briefing them on what we were doing, and seeking their input on future
actions, environmental harm, and potential natural resource damage
recovery. Judge Barbier, relying upon the federal manual for complex
litigation, organized the parties into separate “pods,” and then gave
instructions on discovery, document management, and motion practice.
Ultimately the litigation resulted in countless depositions, three trials, and
multiple appeals. In September 2014, Judge Barbier ruled in the Clean
Water Act trial that BP was guilty of gross negligence and willful
misconduct under the Act. He described BP’s actions as “reckless,” and
found Transocean’s and Halliburton’s actions to be negligent.
MS. SCARROW: You mentioned natural resource damage. What do you mean and how did
that play out in the Deepwater Horizon litigation?
MR. CRUDEN: The Oil Pollution Act, which became law following the Exxon Valdez oil
spill, creates a cause of action for restoring natural resources that are
damaged by an oil spill. For instance, if wetlands were damaged or
destroyed by a spill, the court could order that a natural resource damage
recovery fund be created that would be used to restore the wetlands. In the142
BP case, natural resource damage trustees from the five Gulf States and
four federal agencies banded together to create a Trustee Council that was
charged with determining what would be needed to restore the Gulf. I was
involved in all of the initial meetings and often played the role of legal
advisor to the Trustee Council.
Early in the litigation, a group of us reached out to BP to determine if it
was willing to discuss an interim settlement of potential natural resource
damage. Our argument was that funding projects right away would reduce
BP’s later costs. And the money was needed to jump start restoration
efforts. Leading the effort from the Department of the Interior was Rachel
Jacobsen, and from NOAA General Counsel Lois Schiffer. Tom Perelli,
the Associate Attorney General, and I represented DOJ. We were able to
craft an innovative settlement that provided $1 billion dollars as an
advance against the ultimate natural resource damage recovery amount.
That money went to the Trustee Council and was used for critical
restoration projects. Right after that settlement I was then offered a new
position.
MS. SCARROW: When did you leave the Department of Justice for a new position?
MR. CRUDEN: I left DOJ in mid-2011 to take a new position, President of the
Environmental Law Institute.
MS. SCARROW: I understand that when you left DOJ you had a spectacular retirement
ceremony, and you were awarded the ENRD’s Muskie-Chafee Award, the
highest DOJ ENRD award. Can you tell us what that is about?143
MR. CRUDEN: The retirement ceremony for me was held in the Great Hall of DOJ. The
master of ceremonies, wearing a tuxedo, was Ben Fisherow, the Chief of
the Environmental Enforcement Section. The Great Hall was packed, with
many who wanted to make sure I was really leaving. The speakers were
very special to me: Attorney General Eric Holder, Deputy Attorney
General Gary Grindle and Clerk of the Supreme Court Major General (ret)
William K Suter. Eric Holder’s speech on my behalf is on the DOJ
website. As you mentioned, I also received the Muskie-Chafee Award. My
favorite part, though, was my parting gift: a two-person kayak, which my
wife had suggested. It looked terrific when several folks carried it up the
aisle. The challenge came later, when I had to work hard to put the kayak
on top of my car and get it out of the low ceiling basement of the DOJ
parking garage. My sons-in-law, Scott Campbell and Travis Mason helped
me move out of DOJ that weekend. To celebrate, we immediately went to
the Thompson Boat House and took our inaugural voyage around
Roosevelt Island. A wonderful gift and a memorable farewell made all the
better because my wife, children, and grandchildren were present.
MS. SCARROW: As you mentioned, you left DOJ in 2011 to become the President of the
Environmental Law Institute. You held that position from 2011 until 2015.
Can you tell me something about the Environmental Law Institute and
how you were selected?
MR. CRUDEN: The Environmental Law Institute, established in 1970, is one of the
original non-governmental environmental organizations. It is a well-144
known and well-regarded bipartisan NGO with a distinguished board that
includes law professors, environmental organizations, law firm
representatives, and corporate attorneys. ELI has played a pivotal role in
shaping environmental law, policy, and management, domestically and
abroad. It is recognized internationally as a non-partisan research,
publishing, and education center working to strengthen environmental
protection by improving law and governance worldwide. It has a
significant number of members, produces some of the best environmental
publications in the United States, presents weekly educational programs,
and maintains a highly regarded research platform. It was an honor to be
selected, and I inherited a superb staff.
Leslie Carothers, a terrific human being, had been the President for many
years before me. Leslie resigned to be a law professor at Pace Law School
in New York. The Chairman of the Board was Angus Macbeth. Angus
had also been a Deputy Assistant Attorney General in the Environment
Division during the Reagan Administration and was somebody that I knew
well. He reached out to me and after all the requisite interviews, the Board
voted to select me as President.
MS. SCARROW: Did you have any hesitation about leaving DOJ?
MR. CRUDEN: Yes. By that time, I had been in the Department for 20 years; and there
were a lot of people working in the Environment Division who were close
friends. And the work during the Obama Administration was challenging
and rewarding. Once again, however, the clarion call of new opportunities,145
new challenges, and a great organization called me. And, I was drawn to
the international responsibilities I would have at ELI.
MS. SCARROW: You mentioned your international responsibilities. Can you tell us a little
bit about the work that you did and the various places you traveled to as
part of that job?
MR. CRUDEN: While at ELI I traveled constantly, often internationally, as that was part
of the ELI charter. I went to Brazil several times, supervised projects in
Jordan, Mexico, and the rd Republic. In addition, at ELI, we hosted week-
long training sessions on environmental law for various countries,
including the senior leadership of Iraq.
I spent quite a bit of time in Mexico. We received a grant to provide
training in environmental matters for the staff of the Mexican Supreme
Court and, later, to its federal judiciary. In Jordan we provided advice and
assistance to their water managers on dealing with their lack of water
resources. And, in the Dominican Republic we provided local education,
and then I made a presentation before their Senate. I also spent time in
China, while many of my staff did training in Uganda, India, and Liberia.
MS. SCARROW: I understand you also did a lot of work in Brazil addressing the World
Congress of Chief Justices, Attorneys General, and Auditors General?
MR. CRUDEN: Yes. The World Congress for the Judiciary was held in tandem with the
United Nations Conference on Sustainable Developments, or Rio plus 20,
in recognition that it was the 20th Anniversary of the 1991 Conference on
Environment and Development held in Johannesburg, South Africa. ELI146
was invited as one of the environmental NGOs to take part in the General
Assembly in Rio de Janeiro. The Congress to which you referred was an
adjunct to, and met concurrently with, the UN’s Rio plus 20 Conference.
The Congress brought together Attorneys General, Chief Judges, and
Auditors; a position like Inspectors General in the U.S. The focus of the
three-day Congress was the role of all countries’ judiciary in
environmental issues, and to present a report to Rio plus 20 gathering. ELI
contributed to the discussion and drafted one portion of the Congress’s
report, advocating, and strongly endorsing a commitment to judicial
education and judicial independence. With the help of Professor Nicholas
Robinson of Pace Law School, the draft report was adopted by the
Congress. Judicial education and independence are core principles of ELI,
and we were incredibly pleased to be able to advance them in this
impressive forum.
MS. SCARROW: The Environmental Law Institute web site has a number of oral histories
of leading environmental figures listed. Did you do that?
MR. CRUDEN: That was one of my favorite projects. Ultimately I did the oral history of
many of our nation’s environmental leaders, including William
Ruckelshaus, the first Administrator of EPA; Gaylord Nelson, who created
the first Earth Day; John Adams, who led the Natural Resources Defense
Council – the very first environmental NGO – and his successor, Francis
Beinicke; David Sive, who was one of the first environmental advocates
and a prolific writer and professor; Congressman John Dingell, long time147
chair of the House Energy and Commerce Committee; Texas lawyer
Kinnan Golemon one of the early founders of Texas environmental
stewardship; and former Secretary of State George Schultz, who helped
create EPA. In addition, Scott Schang, ELI’s Vice President during my
tenure, did a number of interviews, including with Senator George
Mitchell; William Reilly; and former Assistant Attorney General Jim
Moorman. I absolutely loved this project. It gave me many wonderful days
with the pioneers of environmental law; and as many of them have passed,
I honor their words, which are now preserved for posterity.
MS. SCARROW: Is there anything else that we haven’t touched on that you would like to
talk about related to your ELI Presidency?
MR. CRUDEN, I treasure my time at ELI, which was all too short. During my tenure I
promoted new people, including the first women to be Vice President and
CFO; selected new Board members from diverse areas; revised ELI’s
Bylaws; initiated a new Leadership Council; spoke at over twenty law
schools and bar events; and met with numerous foundations, including
Ford, Rockefeller, and McArthur to convince them that our environmental
projects were worth funding. We did groundbreaking research work in a
number of environmental areas, particularly marine research. Then, when
our facilities became too small, I supervised the selection and relocation to
better offices in D.C.’s DuPont Circle area.
MS. SCARROW: How did you get nominated to be Assistant Attorney General?148
MR. CRUDEN: I received a call from Attorney General Eric Holder while I was at ELI.
We had worked together, and I admired him. The Environment Division
AAG, Ignacia Moreno, resigned; and they needed a replacement. Holder
wanted me to return, but being ELI President was a wonderful position,
and I was quite aware of the responsibilities I would inherit at DOJ.
However, after further consideration and talking it over with my wife, I
concluded that my life had been centered around public service and that
serving as Assistant Attorney General would be a high point in my career
and give me the opportunity to engage forcefully in environmental
progress. So shortly after Attorney General Holder’s call, I found myself
at the White House being reviewed and meeting with a number of
Senators who would vote on my confirmation.
MS. SCARROW: What was that confirmation process like for you?
MR. CRUDEN: I had been the Chief Legislative Counsel of the Army where I ran Senate
confirmation for the Army political appointees, so I knew my way around
the process. Nonetheless, other than the fact that it took many months of
my time, it was fascinating and intellectually challenging as I faced a
broad array of issues. I was a known quantity with a long track record in
environmental enforcement; and, as you would imagine, that attracted the
interest of a number of Senators. My aim was to be completely honest
about my goals, stay resolute in my commitment to law and justice, make
no commitments, but be respectful and assure each Senator that I would be149
willing to meet with him or her them if I was confirmed, though I would
make no decisions based on political pressure from any camp.
When I appeared before the Judiciary Committee for my confirmation, the
hearing was led by Senator Al Franken from Minnesota, who famously
had been a comedian on Saturday Night Live. I asked Senator Tom Udall
from New Mexico to introduce me to the Committee. I had worked
extensively with Senator Udall when he was Attorney General of New
Mexico, and we traveled and did cases together. His opening words to the
committee were superb in all respects on my behalf, and I am confident
they made a difference in getting a fairly quick and favorable vote out of
the Committee. When the bureaucratic process dragged on, AG Holder
came to my rescue by calling Senate Majority Leader Harry Reid to push
for a vote on my confirmation before the Senate’s Christmas recess.
Ultimately, in December the Senate had two votes, first on cloture to end
debate, followed by vote to confirm, which was unanimous in my favor.
MS. SCARROW: Can you describe both your position as the Assistant AG and what it was
like returning to the Department of Justice?
MR. CRUDEN: Almost immediately after the Senate confirmed me, I started work at DOJ.
It was not new to me. I was returning to a division that I had twice led and
had been personally selected by the Attorney General. The Assistant
Attorney General’s responsibility is to oversee the Division in all its
responsibilities, primarily supervising and managing the litigation docket
of well over a thousand cases. Although I had been gone for three years, I150
still knew all the Section Chiefs, the career Deputies, and many of the
attorneys and staff. Nevertheless, I sought out, and received, days of
briefings about all significant matters in litigation, as well as the
Administration’s priorities, the budget, congressional appropriations, and
emerging environmental issues and challenges. I then visited and spoke
with the members of each of the ten Sections, soliciting their views on
how to improve the Division.
MS. SCARROW: And you had specific policy responsibilities. What were those?
MR. CRUDEN: In addition to overseeing the Division, I was selected to be Co-Chair of
President Obama’s Task Force on Illegal Wildlife Trafficking. And I
became a member of the White House groups on environmental justice,
Antarctica, and ocean/marine matters. By far the most active for me
personally was the Illegal Wildlife Trafficking Task Force, which led me
to conferences in Hanoi and Botswana.
MS. SCARROW: Let’s talk generally about the office and then we can talk more specifically
about the cases that you were involved with. You were a political
appointee so can you describe what your marching orders were? Also,
who were the DOJ leaders during your tenure?
MR. CRUDEN: Although I worked for Attorney General Holder, he delegated to me all
the environmental law responsibilities; and I was able to make virtually all
of the Division’s decisions consistent with legal and policy requirements,
as well as my own goals for the Division. I had the same relationship with
Attorney General Loretta Lynch and Deputy Attorney General Sally Yates151
when they took office. They became my immediate supervisors, but as
Assistant Attorney General I had delegated responsibility to do most
things. There wasn’t much that I did not have the statutory or legal
authority over within my purview, including the mega-settlements with BP
(Deepwater Horizon) and VW (Dieselgate).
MS. SCARROW How big was your case load and what federal agencies did you work with
the most?
MR. CRUDEN The Division handled the adjudication of over 100 statutes and
approximately 3000 cases annually. We most often represented five
agencies: the Environmental Protection Agency, including its ten regions;
the Department of the Interior, including the National Park Service, Fish
and Wildlife Service, Bureau of Reclamation, and Bureau of Land
Management; the Department of Defense, largely because of the Corps of
Engineers; the Department of Commerce, largely because of NOAA; and,
the Department of Agriculture because of the Forest Service. The Coast
Guard, which was by then under the Department of Homeland Security,
also brought us predominantly ship discharge and criminal cases.
Although these agencies had the most cases, we represented every federal
agency in the federal government.
MS. SCARROW: You mentioned that the Division was one you were remarkably familiar
with coming back to it. Can you talk a little bit about how you went about
setting up your office and some of the key staff members that you had
with you?152
MR. CRUDEN: I was truly fortunate in being allowed to select all my key leadership team,
most of them longstanding career attorneys. The Principal Deputy of the
Division, Sam Hirsch, was already someone I knew well, as he had been a
senior official in the office of the Associate Attorney General. Sam often
said that when he came into the Department at the beginning of the Obama
Administration, I was the first lawyer he met. The other politically
appointed Deputy was Lisa Jones, also an alum of the Appellate Section of
the Division. The two career Deputies, Bruce Gelber and Jean Williams,
were both former Section Chiefs and good friends. I valued them highly.
My Chief of Staff, Varu Chilakamarri, was a great gift to me. She was
center to our front office organization and management, was an
accomplished litigator, and had a great relationship with the Associate
Attorney General’s office where she once served.
I also created a number of special positions to work with the leadership
team. I named Native American Gina Allery then Daron Carreiro Special
Counsel for Native American issues, Andrea Berlow as Special Counsel
for State and Local Governments, and Cynthia Ferguson as Special
Counsel for Environmental Justice. I also named Sarah Himmelhoch as
the first Special Counsel for Discovery and Electronic Information issues
when those matters became paramount. And one other name I should put
at the top of the list—my administrative assistant when I was Chief of
Enforcement was a wonderful woman, Shanedda Bogan. And every time I
wat promoted after that, Shanedda was promoted and moved with me. She153
became the administrative assistant to the Deputy Assistant Attorney
General when I was at ELI. When I returned to DOJ as Assistant Attorney
General she became the senior administrative assistant in the Division.
She’s a terrific, super-organized human being for whom I have a great
deal of personal regard.
MS. SCARROW: How did you make decisions as to which case to bring, which to settle?
MR. CRUDEN: As you can imagine, each case came with its own issues. On the
affirmative side, civil or criminal cases were always logged and reviewed,
and recommendations were made internally as to how to proceed. On the
defensive side, we often had precious little time to respond to court
actions, including requests for temporary restraining orders. In each case,
however, I had the advantage of receiving recommendations from very
qualified lawyers, always supported by attorneys from the agencies they
represented. In criminal cases, I received information and
recommendations from both the Environmental Crimes Section and the
local U.S. Attorneys.
By DOJ policy, before bringing a civil case we provided the defendant
with an opportunity to settle. And, by my own policy, before bringing an
environmental case we reached out to the appropriate State Attorney
General to determine whether the state would join us in the case.
Every decision was guided by what was in the best interests of the United
States, consistent with all applicable law, and fair and reasonable under
the circumstances. I fully realize that defendants did not like what we were154
doing; but I hope that all know we acted in good faith, based our decisions
to file suit on the applicable law, and could be counted on to speak with
honesty and clarity as to our positions. The bottom line is that most cases
settled, although that settlement often occurred only after a substantial
amount of litigation.
MS. SCARROW: What was the first major case you worked on when you returned to DOJ?
MR. CRUDEN: I went to New Orleans my first week as AAG to supervise the third trial in
BP/Deepwater Horizon. The team was led by Steve O’Roark and Sarah
Himmelhoch and a cadre of other superb trial lawyers. They already had
had two trials in the case. The third was the penultimate trial for damages,
with many experts. Soon after I arrived, Magistrate Judge Sally Sushan
sent a note to the courtroom asking me to come and meet with her. I asked
her how she knew that I was there. To my surprise, she replied, “It was
announced on NPR this morning that you were coming to the trial.” Judge
Sushan asked if I wanted to reopen negotiations with BP. I demurred. My
position was straightforward: negotiations had failed, and we were putting
on a great case and expected it to prevail.
MS. SCARROW: How did the settlement negotiations happen?
MR. CRUDEN: When I returned to D.C. after the trial, Deputy AG Sally Yates told me
that former FBI Director Louis Freeh would be calling me about BP
negotiations. He had called her; but she referred to Freeh to me, telling
him that I oversaw all BP matters. Freeh told me that the CEO of BP,
Robert Dudley, who had replaced Tony Haywood, wanted to fly from155
London to meet with me personally about possibly restarting negotiations.
I told Freeh that since this was a matter in litigation, I would not meet with
the CEO without BP’s counsel present, but I did not want to meet with any
lawyer who had been involved in prior unsuccessful negotiations. Dudey
concurred and brought with him a lawyer who was handling their Russian
matters.
At the outset we agreed that our discussions were private and that we were
meeting only to discuss whether we were willing to restart negotiations in
the future. After several meetings, I set conditions to re-initiate
negotiations to which he ultimately agreed. He stipulated that he wanted a
complete civil resolution of the case, including the state and local
government lawsuits. In return, I pledged to him that we would negotiate
in private, that we would negotiate in good faith, and that there would be
“no surprises” in what we were doing. We then alerted Judge Sushan and
arranged for a meeting of principals only in New Orleans, with specific
orders not to discuss anything with others. Judge Barbier agreed to hold
off any decision in the most recent trial during the pendency of the
negotiations.
MS. SCARROW: I know you cannot talk about the settlement negotiations, but can you tell
me who was on your team and who was the lead person negotiating for
BP, and their lead counsel for the negotiations?
MR. CRUDEN: At the outset, the U.S. team was quite small. I led the negotiations, but
was supported by a stellar group: Bruce Gelber, Bill Brighton, Lois156
Schiffer, Tom Mariani, and Mike Zevenbergen. BP was led by the BP
CEO Brian Gilvary and Brian Israel as his principal attorney. In the early
negotiations, none of the trial lawyers on either side knew of the
negotiations.
MS. SCARROW: Where did you negotiate?
MR. CRUDEN: In the beginning, we did all our negotiations in New Orleans in the
Roosevelt Hotel. I once said that during that time, I knew most of the
restaurants in the French Quarter that were open after 1 am. When we
started getting closer to a settlement, we moved to D.C. and worked out of
Louis Freeh’s law offices. At that time, because there were specific Coast
Guard issues to resolve, I added Admiral Fred Kenney and his General
Counsel, Calvin Lederer.
MS. SCARROW: When did the negotiations become public?
MR. CRUDEN: The court’s very tight and extremely specific non-disclosure orders
prevented any leaks during the lengthy negotiations. When we reached an
agreement in principle in the spring of 2016, BP advised us that their
London security laws required them to disclose to the public a summary of
the preliminary agreement. We negotiated a short, but clear, statement of
the key terms that the court approved. The court also instructed we could
not provide more information than the agreed-on text. As you would
imagine, even that limited release of information was front page news
across the United States.157
MS. SCARROW: Given the size and importance of this case, I must ask who you had to
brief to advise or seek approval of the settlement and how you did that.
And, what role, if any, did the White House have in the settlement?
MR. CRUDEN: First, the White House Counsel made it clear to me that because the case
was an enforcement action, the White House would take no role in how
the matter was litigated or resolved. The Attorney General made it clear
in numerous meetings that I was in charge. That said, we kept the AG and
Deputy AG advised as the negotiations progressed. We understood
negotiations had twice been unsuccessful. But I was a new voice, and I
had the confidence of being at trial and knowing that we had a compelling,
well-presented case. I also recognized that there was a premium on speed,
that is, resolving the case and beginning the arduous process of restoring
the damaged ecosystem. I used as a beginning template the two prior
failed negotiation positions but was determined to substantially increase
the government’s recovery by many billions of dollars. The negotiations
were complicated by the need to satisfy five different states and five
different federal agencies. But we were diligent, well prepared, and
believed strongly in our positions; and, in the end, we crafted an
agreement that was satisfactory to each of the five states, and each of the
federal agencies. In their final days, the negotiations were fast moving,
and we didn’t have time to put together a fancy briefing package. Instead,
I gave my final briefing to AG Lynch in her office using an old-fashioned
white board with my handwritten notes and numbers. She kidded me,158
remarking that she would always remember that, somewhat unorthodox,
briefing.
MS. SCARROW: Beyond the Department of Justice, who else had to approve the consent
decree before it was final?
MR. CRUDEN In addition to BP, the heads of five federal agencies involved had to
personally sign the consent decree. And each of the five Gulf States also
had to approve the consent decree. I became concerned that state elections
would be occurring, and I wanted to lock in all the states and BP. So, I
asked Judge Barbier and Judge Sushan, and they both agreed, to order that
the Governor and Attorney General of each state had to sign within 72
hours. We made the deadline.
MS. SCARROW: When was the final settlement announced and can you describe, in general
terms, the ultimate civil settlement?
MR. CRUDEN: On October 5, 2015, Attorney General Lynch, surrounded by the leaders
of EPA; Coast Guard; and the Departments of Interior, Homeland
Security, and Agriculture, announced that the global settlement resolved
the government’s civil claims under the Clean Water Act and natural
resources damage claims under the Oil Pollution Act, as well as economic
damage claims of the five Gulf states and local governments. Taken
together this global resolution of civil claims was worth $20.8 billion,
which Attorney General Lynch announced as the largest settlement with a
single entity in DOJ’s history. The settlement became front page news
across the nation.159
The settlement included a $5.5 billion federal Clean Water Act penalty,
plus interest, 80 percent of which went to restoration efforts in the Gulf
region pursuant to a Deepwater-specific statute called the RESTORE Act.
This is the largest civil penalty in the history of environmental law. An
additional $8.1 billion was designated for natural resource damage to fund
the federal and state trustees’ work in restoring damaged natural resources.
Approximately $5 billion was earmarked for state and local governments.
On the same day that AG Lynch announced the settlement, the Deepwater
Horizon Trustees Council published a draft Damage Assessment and
Restoration Plan and a draft Environmental Impact Statement. The plan
included a comprehensive assessment of damages to natural resources
caused by the oil spill and provided a detailed framework for how the
trustees would use the natural resource damage recovery from BP to
restore the Gulf environment.
MS. SCARROW: What did you have to do after the settlement to get final court approval?
MR. CRUDEN: After lodging the consent decree with Judge Barbieu, we sought public
comment, and then had six public meetings including one in each Gulf
State. I led the one in D.C. and many people spoke, some very
complimentary, others giving us advice on how the money should be
spent. We responded to the comments, and then with the concurrence of
each State, moved the court for final approval of the consent decree. The
court approved and entered the consent decree on April 4, 2016. It is my
understanding that since then BP has made every payment on schedule.160
MS. SCARROW: Anything else about Deepwater Horizon you recall?
MR. CRUDEN: Four things. First, at the press conference announcing the settlement,
which is still on YouTube, I placed on the stage a trial exhibit, the iconic
picture of the Deepwater Horizon rig on fire. After the press conference,
the AG and every cabinet Secretary signed the picture. Later, I donated the
signed picture to the Smithsonian Institute. It was the first entry into their
Deepwater Horizon future exhibit. Second, in 2016 the movie, Deepwater
Horizon, starring Mark Wahlberg and Kate Hudson, was released. The
movie shows the heroic activity of many of the brave people on the
drilling rig when it exploded into a huge fireball. We should never
overlook that there was bravery on the rig. Third, key members of the trial
team and I authored a law review article about the BP Deepwater Horizon
case, which was published in the University of Michigan Law Review.
Finally, in 2024 the Louisiana restoration task force invited folks who
played key roles in the settlement, including Judge Barbieu, Judge Sushan,
Louis Freeh and me to return to the Gulf and—in airboats—visit the site
of the wetland restoration. It was remarkable in its breath and complexity,
but also rewarding to know that our work was resulting in real restoration.
Finally, in 2024 I nominated, and the American Bar Association approved
the award of the Government Lawyer of the Year to Steve O’Rourke, who
led the Deepwater trial team.
MS. SCARROW: I understand that soon after the BP Deepwater Horizon oil spill you
received word from EPA of what was to be Dieselgate, potential violations161
by VW of the Clean Air Act. Can you tell us about the VW case? How did
it start?
MR. CRUDEN: I received a call from EPA Assistant Administrator Cynthia Giles in late
2015, which began “You are not going to believe this,” and then she went
ahead to describe what she knew of the VW matters. It was clear to me
from the very first call that this would be a case as big in some ways as
Deepwater Horizon, impacting thousands of car owners and lessees. I
immediately advised the Attorney General and Deputy and began to form
a litigation team. I chose Josh Van Eaton and Bethany Engel to head the
team. They were directly supervised first by Ben Fisherow, and then by
Tom Mariani as Chiefs of the Environmental Enforcement Section.
MS. SCARROW: How did you proceed?
MR. CRUDEN: We at once started a civil and criminal investigation. Then, with EPA
Administrator Gina McCarthy, and the head of the EPA Air Program,
Janet McCabe, we met with VW leadership. Even then, it was clear that
this was a case we were going to need to litigate. And, by that time, the
senior VW leadership was already changing dramatically. I wanted U.S.
Attorney (Eastern District, Michigan) Barbara L. McQuade, an
outstanding attorney and now a Professor at the University of Michigan
law school, to lead the criminal investigation along with Deborah Harris
and Joseph Poux, the leaders of the Environmental Crimes Section. I led
the civil investigation, which was directed at EPA by Cynthia Giles and
Phil Brooks. Learning from Deepwater Horizon, where I believed we filed162
our complaint late, in the VW case, we filed a complaint in record time,
which allowed us to fully participate in the MDL process and the
formative moments as Judge Bryer structured the discovery, evidence,
motions, and trial considerations.
MS. SCARROW: What type of violations did you believe occurred and when did you file
the complaint?
MR. CRUDEN: DOJ filed the civil complaint against Volkswagen on behalf of EPA on
January 4, 2016, alleging that Volkswagen equipped its 2.0-liter diesel
vehicles with illegal software that detected when the car was being tested
for compliance with EPA and California emissions standards and activated
full emissions controls only during the testing process. During normal
driving conditions, the software rendered emission control systems
inoperative, dramatically increasing emissions. This is known as a “defeat
device.” Use of this type of defeat device resulted in illegal emission of
harmful pollution at levels up to 40 times EPA standards. In March 2016,
the Federal Trade Commission also joined in our lawsuit against
Volkswagen, charging that the company deceived consumers by
advertising its supposedly “clean diesel” VWs and Audis.
MS. SCARROW: How did the case come to be heard in San Francisco?
MR. CRUDEN: Like in the Deepwater Horizon case, numerous cases were filed. The
federal Multi District Litigation (MDL) panel chose San Francisco as the
place for the civil litigation, and Northern District of California Judge
Charles Breyer to oversee the lawsuits.163
MS. SCARROW: Did you have a special master like you did in Deepwater Horizon?
MR. CRUDEN: Yes, I believe I had a corner on the market of former FBI Directors, as
Robert ` became the special master for the VW matter. I came to deeply
honor him as a man of great integrity, balanced in his outreach to us, firm
in his insistence on moving the cases along. And only occasionally did he
forget in our conversations that he wasn’t still the FBI Director.
MS. SCARROW: Who else besides your division was involved in the case?
MR. CRUDEN: Like Deepwater Horizon, the AG made it clear that I was in charge.
However, this was a case where we needed others to be successful. Fairly
quickly I pulled in the Assistant Attorney General of the Criminal
Division Leslie Caldwell along with Andrew Weissmann, the Chief of the
Fraud Section, to join with Deborah Harris and Joe Poux of the
Environmental Crimes Section and U.S. Attorney Barbara McQuade, from
Michigan. Then, because the case involved non-environmental, as well as
environmental, issues, I added the Acting Assistant Attorney General of
the Civil Division, Ben Mizer, to the team. Finally we partnered with both
the Federal Trade Commission and the California Air Resources Board. In
particular, I would single out Mary Nichols, Chair of the California Air
Resources Board, and her General Counsel, Ellen Peter, who significantly
contributed to the outcome.
MS. SCARROW: How did the matter procced?
MR. CRUDEN: Judge Breyer took a page out of the Deepwater Horizon playbook and the
Federal District Court Manual for Complex Litigation. He established164
rigorous procedures for document collection, discovery, and the role of the
car owners. At the same time, I was meeting weekly with VW leadership
to determine if it was possible for them to bring the cars into compliance
with the law.
MS. SCARROW: I know that you had a series of important settlements in this case, and then
finally a criminal plea. Can you describe those settlements in lay terms?
MR. CRUDEN: The settlements required Volkswagen to offer owners of affected vehicles
the option of selling the vehicle back to VW and to offer lessees a lease
cancellation at no cost. Alternatively, in lieu of a buyback, Volkswagen
could offer owners and lessees the option of having their vehicles
modified to reduce emissions but still receive some compensation. For
instance, consumers who choose the buyback option received between
$12,500 and $44,000, depending on the car model, year, and mileage.
Volkswagen had to set aside $10 billion to pay consumers in connection
with the buy back, lease termination, and emissions modification
compensation program.
In separate civil resolutions of environmental, customs, and financial
claims, VW agreed to pay a penalty of $1.5 billion. This included EPA’s
claim for civil penalties against Volkswagen in connection with
Volkswagen’s importation and sale of the affected vehicles, as well as
U.S. Customs and Border Protection (CBP) claims for customs fraud. In
addition, the EPA agreement required injunctive relief to prevent future165
violations. The agreements also resolved alleged violations of the
Financial Institutions Reform, Recovery and Enforcement Act.
In two related settlements, one with the United States and the State of
California and one with the U.S. Federal Trade Commission, Volkswagen
and related entities agreed to spend up to $14.7 billion to settle allegations
of cheating emissions tests and deceiving customers. In the end,
Volkswagen offered consumers a buyback or lease termination for nearly
580,000 model year 2009-2015 2.0-liter diesel vehicles sold or leased in
the U.S. and spent up to $10 billion to compensate consumers under the
program.
In addition, to resolve its Clean Air Act violations, Volkswagen was
required to pay $4.7 billion to mitigate the pollution from the cars
equipped with defeat devices and invest in green vehicle technology. In
addition, $2.7 billion was paid to a mitigation trust administered by an
independent trustee to fund state and Native American projects across the
country to reduce emissions of NOx. The Clean Air Act settlement also
required VW to invest $2 billion toward improving infrastructure, access,
and education to support and advance zero emission vehicles. Finally, in a
section of the consent decree that I personally drafted, VW agreed to take
a number of internal steps to make certain there were sufficient checks and
balances inside the company to make sure this would not happen again.
That process included having a special master that would review VW166
actions in the coming years to make sure they were in compliance with the
law.
The Federal Trade Commission settlement included injunctive provisions
to protect consumers from deceptive claims in the future. The consent
decree prohibits Volkswagen from making any misrepresentations that
would deceive consumers about the environmental benefits or value of its
vehicles or services and specifically bans VW from equipping vehicles
with any device that could be used to cheat on emissions tests.
MS. SCARROW: What happened on the criminal side?
MR. CRUDEN: Volkswagen agreed to plead guilty to three criminal felony counts and pay
a $2.8 billion criminal penalty. In addition, a federal grand jury in the
Eastern District of Michigan indicted six VW executives and employees
for their roles in the nearly 10-year scheme to use defeat devices to cheat
on emissions tests. Each were charged with conspiracy to defraud the
United States, conspiracy to defraud VW’s U.S. customers, and
conspiracy to violate the Clean Air Act by making false representations to
regulators and the public about the ability of VW’s supposedly “clean
diesel” vehicles. One executive, Oliver Schmidt was arrested on Jan. 7,
2017, at the Miami airport trying to return to Germany after a vacation in
Florida. He pled guilty in December 2017 and was sentenced to seven
years in prison and fined $400,000.
MS. SCARROW: Anything else you want to tell us about VW?167
MR. CRUDEN: More than any other case that I did at DOJ, this is the one that people have
sought me out to tell me how much they appreciate the settlement. After it
was over, David Hayes, then at NYU Law School, convened a gathering
of lawyers who had done major cases to talk about lessons learned. That
gathering led to a book published by NYU Law School that includes a
chapter on VW authored by lead counsel Josh Van Eaton and me. We also
published an article about the case in the Virginia Environmental Law
Journal.
Finally, I also nominated three individuals to receive the prestigious
Samuel J. Heyman Service to America Medals presented by the
Partnership for Public Service. The three were Josh Van Eaton, DOJ,
Phillip A. Brooks of the EPA Office of Enforcement and Compliance
Assurance and Byron Bunker of the Office of Air and Radiation.
MS. SCARROW: You talked a lot about the jurisdiction of the office. One thing that doesn’t
intuitively fit into that category is animal cruelty. Can you explain how
that ended up in the Division’s wheelhouse?
MR. CRUDEN: There were several areas of the law that during my tenure I was successful
in bringing into the jurisdiction of the Environment Division. One of them
was animal cruelty. I knew from my Bar experience that a number of
states were starting to address animal cruelty. Armed with empirical
evidence that people who are cruel to animals probably are not good
protectors of the environment, I asked the Attorney General for authority
to consolidate responsibility for enforcing animal cruelty statutes in the168
Environment Division. We hosted a national conference of Assistant U.S.
Attorneys and state Attorneys General who had prosecuted animal cruelty
cases, and experts from humanitarian organizations. After the conference,
we began looking for cases. We reached out to the Department of
Agriculture, which houses the Animal and Plant Inspection Service, and
partnered with U.S. Attorneys who were seeing animal cruelty cases in
their jurisdictions. Some of the earliest cases that we brought came out of
drug busts. While gathering evidence in massive drug cases, investigators
learned that dogs were being bred to fight and that dealers were able to
launder money through betting operations adjunct to the fights. We saw
some truly horrible treatment of the dogs. We also grappled with what to
do with dogs that had been trained to fight. We talked to a few people
about what they had done in similar cases. I was surprised to learn that, in
the past, dogs were euthanized. That seemed to me like a really bad idea
and a really bad result for the dogs. So, we contracted with a humanitarian
organization which agreed to take over the care for the dogs—largely pit
bulls—and attempt to retrain and adopt them out. The success rate was
astonishing: more than 75% of the dogs were retrained and adopted. I saw
that as a great step forward.
MS. SCARROW: What was the other area of the law that you brought into the jurisdiction of
the Environment Division during your tenure?
MR. CRUDEN: During the Bush Administration, Assistant Attorney General Tom
Sansonetti began to work with OSHA to identify environmental cases169
when the Occupational Safety and Health Administration or OSHA was
investigating worker safety. Over a period of years, the number of cases
waned. I was Deputy when Tom Sansonetti was the Assistant Attorney
General, so I had been involved in the collaboration with OHSA and
wanted to re-invigorate the initiative. Deborah Harris, the Chief of
Environmental Crimes Section, had been involved in some of the training
with OSHA. I tasked Deborah with breathing new life into the worker
safety litigation and to gain jurisdiction over the cases. We explained to
the Attorney General’s Advisory Committee (AGAC) that we believed
that the Environmental Division should have responsibility for prosecuting
worker safety violations. The AGAC agreed and we began training
hundreds of OSHA investigators. I testified before Congress on ways to
improve the OSHA statute that would allow more cases to be brought. We
brought our first two cases while I was there. In addition, AG Sally Yates
signed a Memorandum of Understanding between the Department of
Labor’s OSHA and the Department of Justice that gave DOJ jurisdiction
over cases that were not exactly environment but included environmental
violations that made our expertise relevant to the prosecution.
MS. SCARROW: Do you think your management of the office was any different as a
political appointee than it was when you were career?
MR. CRUDEN: Yes, I do. As a political appointee I had delegated responsibility from the
Attorney General to lead all the environmental litigation. That gave me the
authority to direct and control the most important cases of my term:170
Deepwater Horizon/BP and Dieselgate/VW, and I could draw necessary
resources, coordinate with other Division heads, and give the position of
the United States in court as needed. I could also push for congressional
appropriations and work with Congress with more authority than I had as a
career attorney. Finally, I was able to make key personnel selections for
my front office.
MS. SCARROW: Can you describe your approach to hiring lawyers and managing the office
as a whole?
MR. CRUDEN: The Department of Justice Environment Division had both lawyers and
administrative staff. My management style is giving clear directions;
receiving constant feedback; delegating decision-making whenever
possible to qualified and competent leaders; and providing support,
advice, and direction as needed. My goal was to hire lawyers and staff that
I believed would work well in that framework.
New lawyer hires came from the Honors Program or lateral hires of
experienced attorneys. I sought lawyers who would be effective
representatives of the U.S. in court, had high moral and ethical values, had
strong intellect, and who would work hard, often tackling challenging
cases and a variety of client agencies.
MS. SCARROW: So, you had an exceptionally large staff. How did you go about keeping
track of everything and managing the staff and the workflow?
MR. CRUDEN: Every Friday, each Section provided a written report of what they had just
accomplished, and what they planned in the near future. Every Monday,171
the Section Chiefs met in my conference room to orally brief me on the
highlights of their reports, seek directions, and often discuss new issues.
My Chief of Staff monitored the “approval packages,” coming to me: new
complaints, plea agreements, appellate briefs, and settlement documents.
Also, I had an open-door policy so that lawyers with quick needs could get
a decision immediately. Finally, I walked on the floor of each of my
buildings every day. I did so to be visible, check morale, show interest,
and gain information. There were a lot of checks and balances to make
sure that information was passed to me and that, in turn, I was passing it to
the leadership of the Department.
MS. SCARROW: You talked briefly about your Chief of Staff, Varu. She mentioned that
your approach to staff was one of inclusiveness and making sure everyone
from the front office to the staff felt connected. How did you go about
accomplishing that?
MR. CRUDEN: I learned a great deal both within and outside of DOJ watching how good
leaders could maintain high morale, keep a lot of balls in the air, stress
professionalism and integrity, and at the same time have a well-
functioning workforce. One of the things that I learned from leading
organizations in the military was that it was important to surround yourself
with people willing to tell you things that you might not want to hear. My
management style is to encourage open discussion, “never shoot the
messenger,” commend candor, and stay connected to everyone working
with you. To make it work, I had to create an atmosphere in which people172
felt comfortable telling me anything. I did not have to solicit good news, it
came out naturally. I needed all available information to use our assets
wisely, make sure morale was good, and, on occasion, fix problems. By
the way, I didn’t do all of this by myself. Sam Hirsch was particularly
good about visiting a particular Section, talking to them, working with
them, and then coming back to me to report “we’re okay” or “we’re not
okay.” Similarly, the ten section chiefs that worked for me, many of
whom I personally selected, were all accomplished managers and leaders.
MS. SCARROW: What was your role in NAFTA and INECE while you were at DOJ?
MR. CRUDEN: The North American Free Trade Agreement which took effect in 1994,
includes the North American Agreement on Environmental Cooperation.
The Agreement on Environmental Cooperation includes a declaration of
principles and objectives concerning the conservation and the protection
of the environment as well as concrete measures to further cooperation on
these matters among the three countries. A related agreement established
the Commission for Environmental Cooperation, which is charged with
promoting the goals of the Agreement. At various times, I was the legal
representative to the U.S. delegation at the Commission and traveled to
Montreal to meet with the Commission and to present U.S. positions.
INECE is the International Network for Environmental Compliance and
Enforcement. Founded in 1989, it is the only global organization focused
exclusively on achieving compliance with environmental law through
effective compliance promotion and enforcement strategies, including173
administrative, civil, criminal, and judicial enforcement. Both individual
and institutional organizations are members, including the United States
Environmental Protection Agency and the United Nations Environment
Program.
INECE is well known for its international conferences. I attended and
lectured at its conferences in Costa Rica, Morocco, and South Africa.
Working with INECE gave me a lot of international contacts, including a
well-known Brazilian prosecutor, Antonio Benjamin, who later became a
Justice on the Brazilian Supreme Court and a good friend. These contacts
worked to my advantage when I was President of the Environmental Law
Institute.
MS. SCARROW: You have mentioned the Land Acquisition Section at DOJ, which was
instrumental in acquiring land in Pennsylvania for the 9/11 Memorial.
What did the Section do?
MR. CRUDEN: The Land Acquisition Section plays a unique role in acquiring private
property for public purposes while ensuring that landowners are fairly
compensated, as mandated by the Constitution. The Section brings all
affirmative condemnation actions on behalf of the United States including
for military training facilities; construction of transmission line projects;
expansion of national parks, forests, and environmental buffer lands;
veterans’ facilities like hospitals and cemeteries; and rebuilding the
strategic petroleum reserve. The section has tried many cases, often with
juries, and has a superb record of success.174
MS. SCARROW: I understand that during your tenure you published several important
documents on title review and appraisal standards.
MR. CRUDEN: The Land Acquisition Section had responsibility for promulgating the
Attorney General’s Title Standards for all land acquired by every federal
agency. This was a major effort during my tenure as AAG. With the
superb expert work by the Section, led by its Chief, Andy Goldfrank, I
was able to review, approve, and then publish the new Regulations of the
Attorney General Governing the Review and Approval of Title for Federal
Land Acquisitions (2016) and the well-known, Yellow Book, officially
titled Uniform Appraisal Standards for Federal Land Acquisitions (2016).
MS. SCARROW: I understand you also instituted two programs aimed at inclusion. One is
the ENRD’s Fellows Program; the other, the ENRD’s Academy. Can you
talk about those?
MR. CRUDEN: Most people think the Department of Justice is only in the city block
between 9th and 10th and Pennsylvania and Constitution Avenues. My
workforce, however, was principally in the Patrick Henry Building that
was about a mile away. I knew that if I was going to be a good manager, I
needed to have a full and complete connection with everyone, particularly
the trial attorneys. That pushed me to create the ENRD Fellows Program.
Every month a Section designated an attorney as a Fellow. The Fellow
moved into main Justice for one month, attended all the front office
meetings and came with me everywhere, including my briefings of the
Attorney General. If I was going to the White House, the Fellow came175
with me. The experience gave the Fellow insight as to what was really
happening in the front office – our key role in the Administration, our
interaction with client agencies at a high level, and our management
systems. My expectation—which I shared with each Fellow—was that the
Fellow went back to his or her Section telling everybody what he or she
saw and experienced. Over time, being selected as a Fellow was viewed as
a reward. And it improved communication, connected me to trial
attorneys, and strengthened my relationship with each section I
supervised.
The ENRD Academy was different. When we surveyed our workforce, we
learned that, while all liked updates on current events and programs on
innovative trial techniques, people really wanted bread and butter
instruction. They really wanted more educational programs on how to
draft summary judgments, be an expert at depositions, give compelling
opening arguments, be successful in mediation, manage thousands of
documents, and handle a large trial team. So, we created our own
academy. When a new lawyer arrived, either as an Honor lawyer or lateral
hire, he or she attended Academy classes. The Honor lawyers ended the
program by arguing a summary judgment motion before a moot court – a
sort of graduation exercise.
We were proud of the Academy as it focused on the skill sets trial lawyers
needed to be successful in the Environment Division, and we taught it
ourselves – trial lawyers teaching trial lawyers provides great benefit to the176
student and teacher. And the Academy was also committed to excellence
that made the Division stand out as a well-run organization.
MS. SCARROW: Along those same lines, sort of inclusion in a different bent, I understand
that you also thought it was especially important to bring together
environmental leaders in industry, so you had all perspectives together.
Can you explain how you brought those groups together?
MR. CRUDEN: Yes. I knew full well that DOJ did not have a corner on the market of
clever ideas, and at various times I brought in outside groups to talk to
ENRD leadership. For instance, we met with environmental justice
advocates, corporations, private lawyers in environmental practice, the
general counsels of the agencies we represented, and the leadership of the
Section on Environment, Energy, and Resources of the American Bar
Association. In each case we briefed them about what we were doing and
our priorities, and then engaged in a conversation about how they
perceived our work and how we might improve. I found it helpful and
insightful. I announced that at a meeting of corporate officials when we
took jurisdiction over worker safety and sought their input on how we
could best get the word out that this was a priority of mine.
MS. SCARROW: You also stressed the importance of collaborating with the states. You
mentioned that you created Special Assistant positions, including the
Counselor for State and Local Matters. Why did you think that was a
crucial step to take?177
MR. CRUDEN: The environmental law community often refers to “cooperative
federalism.” My own view of that phrase is that the federal government
should be creating uniform standards that are implemented by the states.
Even in environmental enforcement, I believe those closest to the
polluting event should be the most involved. Working with the states was
second nature to me, and I wanted that to be a hallmark of my time as
Assistant Attorney General. As I previously mentioned, during my tenure
as career Deputy I had a strong relationship with state leaders like
Attorneys General Ken Salazar in Colorado and Tom Udall in New
Mexico. And I attended, and spoke at, a number of the meetings of the
state’s Attorneys General conferences and meetings. When I became
Assistant Attorney General, I re-created the position and appointed a
career lawyer, Andrea Berlowe, the Counselor for State and Local
Matters. One of her responsibilities was to liaison with the State Attorney
Generals so that we knew what they were doing, and they knew what we
were doing. I also gave her responsibility for creating a joint enforcement
guide for state, local, and federal officials, an idea that Ken Salazar and I
discussed when he was Attorney General of Colorado. It took quite a
while to write, but we completed it in January 2017, my last month in
office. It is still available on the DOJ’s website. The other policy I put in
place was that before we brought an enforcement action in a particular
state, we alerted the state’s Attorney General and invited the state to take
part. And, if we received a penalty in that case, we shared it with the state.178
That was quite popular with the state Attorneys General and often added
to the bipartisan nature of our enforcement effort.
MS. SCARROW: I understand you also had a chance to visit Camp David. How did that
happen and what did you do?
MR. CRUDEN: That is a good memory. President Obama allowed DOJ leadership to visit
and use Camp David on one occasion. Camp David is a Presidential
Retreat in the Maryland Catoctin Mountains about 60 miles outside
Washington, D.C.. It is incredibly historic. Here, FDR and British Prime
Minister Winston Churchill fished in the woods around what they called
“Shangri La.” The two men reportedly planned the D-Day invasion from a
porch on one of the cabins. President Jimmy Carter turned Camp David
into a place where diplomacy was conducted, like the landmark Camp
David Mideast Accords in 1978. I had read in advance that they had a
great indoor pool. By asking for permission to use it, I was the only person
swimming in a glorious setting. It was an exceptional day for all of us and
a unique privilege to walk, eat, and visit where so many presidents had
been.179
ORAL HISTORY OF JOHN C. CRUDEN, ESQ.
Fifth Interview
November 14, 2022
This interview was conducted on behalf of the Oral History Project of the District of Columbia
Circuit. The interviewer is Tracy H. Scarrow, and the interviewee is John C. Cruden. The
interview took place on November 14, 2022, updated in 2024. This is the fifth interview.
MS. SCARROW: John, last time we met we were in the midst of your Assistant AG position
and sort of working our way through that. So, we’ll jump back in. One of
the questions that I had was as the head of the Environment and Natural
Resources Division at DOJ, what percentage of the time were you
spending litigating versus actually managing and supervising the other
attorneys?
MR. CRUDEN: My life as Assistant Attorney General was in two fairly distinct parts, each
amounting to about half of my time. First, supervising all ten sections,
with over 600 people; reviewing and approving every significant
complaint that was being filed; approving and signing all important
settlements; and approving all key appellate briefs. In addition, I served as
Co-Chair of the President’s Task Force on Illegal Wildlife Trafficking and
being a part of the White House Task Forces on Environmental Justice and
Artic issues added additional time. Second, I was deeply involved in
litigation matters, personally leading several litigation teams, including the
defense of the Clean Power Plan, as well as personally negotiating DOJ’s
two largest enforcement cases: BP and Deepwater Horizon, and VW and
Dieselgate.180
MS. SCARROW: You had a history at the Department of Justice. Do you think that helped
you in your position as Assistant Attorney General?
MR. CRUDEN: Significantly. It was extremely important that I had been in the Division
before. Most importantly, I knew and valued all of the extraordinary men
and women in the Division. I had hired many of them, supervised them,
and knew them personally. To create my front office, I drew from the
ranks of career people rather than political appointees and then worked
hard to strengthen the morale of the Division.
Second, I had been Acting Assistant Attorney General during the first year
of the Obama Administration, so when I returned to the federal
government, I already knew most of the senior officials of the agencies,
already knew the leadership of DOJ, and knew the priorities of the
President. It also helped that the prior three years I had been leading a
well-regarded non-government organization, the Environmental Law
Institute, which kept me abreast of the major legal issues.
MS. SCARROW: Could you tell me a little bit about the role that DOJ plays in the context of
being part of a political wing of the Administration? How is enforcement
affected by that?
MR. CRUDEN: The Environment and Natural Resources Division is one of the premier
litigating divisions of the Department of Justice, like the Criminal, Civil,
Antitrust, Tax, and National Security Divisions. As a presidentially
appointed, Senate confirmed leader, I was part of the Administration. I
met weekly with the Attorney General, often consulted with White House181
Counsel and his staff, and worked with the leaders of the agencies that we
supported to assist them in their priorities. However, in enforcement, we
never had any political direction or interference with any of our actions,
and I made each and every enforcement decision for ENRD based on the
recommendations of our attorneys and the applicable law. Politics, for me,
played no role in any of my decisions. And I am confident we irritated
members of both political parties with equal vigor.
MS. SCARROW: So, it sounds like at least for your division you didn’t feel political
pressure to handle cases in a particular way?
MR. CRUDEN: Clearly on the enforcement side I did not ever feel any pressure. I’ve often
been asked in the context of Deepwater Horizon and Volkswagen, the two
largest federal cases of their type in the history of the Department of
Justice, what role did the White House play in the settlement negotiations.
Absolutely none. I led the negotiations, and when we reached a final
agreement, I sought and received the Attorney General’s approval.
MS. SCARROW: In the media you hear a lot about how the Department of Justice has
become much more of a political entity. Do you think that’s accurate or
has that evolved over time?
MR. CRUDEN: My personal knowledge ended with the Obama Administration, although I
did serve on the transition team for the Biden Administration. Based on
news accounts, it does appear that during the Trump Administration DOJ
became more politicized and did not adequately support the career force.182
MS. SCARROW: Do you think that your division had that same problem after you left or
was it a little more isolated, or insulated, than some other Divisions?
MR. CRUDEN: I only have press accounts to answer your question, but the press accounts
clearly indicate that in some cases there was political pressure to take
particular action. Also, the Trump -appointed Administration Assistant
Attorney General for the Environmental Division put out a series of
memoranda that appeared politically inspired and did not reflect the values
of the Division or the state of law. When the Administration changed, all
those memoranda that he put out were quickly rescinded and the Biden
Administration appointed Assistant Attorney General, Todd Kim. Todd is
an alum of the Division with extensive environmental law experience. I
know him well and respect him greatly. However, I did tell Todd after he
was confirmed that given the tenure of his predecessor, he had mighty
small shoes to fill.
MS. SCARROW: Did you have any contact with the person who followed you?
MR. CRUDEN: After the change to the Trump Administration there was first an Acting
Assistant Attorney General, Jeff Wood, who I knew, and visited him and
his staff. Jeff had previously been on the staff of the new Attorney
General, Jeff Sessions. He occasionally asked for my advice, which I
provided, and thought he was a solid leader. That changed when the
confirmed Assistant Attorney General, Jeff Clark, arrived. I had no contact
with him.183
MS. SCARROW: I read that you described your Assistant Attorney General position as
being the captain of a big aircraft carrier—you can move it, but it moves
slowly. I thought that was an excellent description. Can you talk a little bit
about that?
MR. CRUDEN: The Assistant Attorney General is responsible for literally thousands of
cases that require action and decisions. Many involve new interpretations
of the law, gigantic costs, or administration priorities that demand
attention. All are time consuming. However, I also came in with priorities
of my own and actions I wanted to take to improve Division morale and,
for lack of a better description, bring back a bit of “swagger” in our
efforts, trumpeting our place as the largest environmental law firm in the
nation. To meet those goals, I had to first make sure that all the cases were
being handled expeditiously and correctly and that our client agency needs
were being met. Doing so, then allowed me to slowly turn the aircraft
carrier, giving me the necessary time for other matters I believed to be
important.
MS. SCARROW: Could you talk a little bit about how the work—the substantive work of
the Division — changed over the years?
MR. CRUDEN: The Environment and Natural Resources Division had a different name
before 1990. It was the Lands Division, reflecting the history of the
Division. Over many decades the Division moved from a public land’s
emphasis, including a big eminent domain practice during184
World War II, to focus on the new environmental laws of the 1970s and
80s, like the National Environmental Policy, the Clean Water Act, the
Clean Air Act, and the Endangered Species Act. The resulting expansion
of work required the Division to respond and create the Environmental
Enforcement Section, the Environmental Defense Section, and the
Environmental Crime Section. In 1990, the Attorney General renamed the
Lands Division to be the Environment and Natural Resources Division,
which better reflected what it was doing.
Other changes continued as the Environmental Defense Section picked up
responsibility for wetland enforcement, the Environmental Crimes Section
became responsible for illegal wildlife enforcement and worker safety, and
the Wildlife and Marine Resources Section took on responsibility for
animal cruelty matters. The General Litigation Section was renamed the
Natural Resource Section with responsibility for Native American cases,
takings, public land, as well as implementation of the National
Environmental Policy Act. Later congressional actions also expanded the
role of the Division. The Clean Air Act Amendments of 1990 were
particularly significant. The Lacey Act changes to wildlife laws were also
important. Ultimately the Lautenberg Act also provided new toxic
substances laws to enforce. And there were growing areas of practice in
class action suits or for emerging chemicals, takings issues and wildlife
matters, all of which created more law and more responsibilities for the
Division. It’s actually one of the reasons the job was exhilarating, why185
being Assistant Attorney General was so exciting—because it was
constantly changing. Environmental law, which I practiced most of my
life, is an extraordinary and always exciting combination of law, policy,
and economics rolled up together. Every day was new, and I looked
forward to coming to work every day.
MS. SCARROW: What do you see as the future of the Division? What are the new areas
they are going into?
MR. CRUDEN: Well, I’m hoping that what the Division has done recently, with dual
concentration on climate change challenges and environmental justice
issues, will continue. In particular, greenhouse gas reduction must be one
of the paramount goals of our Nation. The fact that the Division is putting
a lot of weight and emphasis on that, reflects not only what the President
wants but also what the agencies are doing and what is vital for our future.
The challenges both domestically and internationally are real and difficult,
but we must meet the needs of future generations. In that regard, while at
DOJ I created a full day series of panel discussions called “the Future of
Environmental Law,” with participants by leading scholars in the Nation.
The proceedings of that extraordinary event were published in the
Environmental Law Reporter. In addition, during and after my tenure at
the Department of Justice, I gave a series of law school lectures, in which I
described the future of environmental law. My thesis was that the future
would be more bottom up than top down, meaning that citizens would
play a much bigger role in demanding the need for environmental law and186
enforcement in particular areas. Those lectures included the first David
Sive Memorial Lecture on Environmental Law at Columbia Law School ,
the Fedder Lecture at the University of Maryland School of Law, the
annual lecture on law and public service at the University of Indiana Law
School, the annual Judge Frank M. Coffin Lecture on Law and Public
Service at the University of Maine Law School and the 12th annual
Gilbert and Sarah Kerlin Lecture on Environmental Law.at the Elisabeth
Haub School of Law at Pace University.
MS. SCARROW: In addition to the substantive work, there is also obviously a personal side
to what you bring to the position. Can you talk about some of the
initiatives that you brought?
MR. CRUDEN: I’m very proud of the fact that during my tenure the Environment and
Natural Resources Division was repeatedly recognized by the nonpartisan
Partnership for Public Services as either the best, or one of the top best,
places to work in the federal government. Every member of the Division
thought we deserved that designation. We knew how hard the Division
worked. Our success in court also increased morale. Some of our other
morale-building initiatives included having “working retreats” at the DOI
Fish and Wildlife Center in Shepherdstown, West Virginia. Sam Hirsch,
my superb Deputy, also led a task force looking for ways that we could be
even better, and at the same time fulfill our mission at the highest level.
We promoted morale-building social activities, gave spot awards,
celebrated birthdays, and new births, and made sure we were looking at187
individual needs. One aside – to serve alcohol at a DOJ activity required
permission from the Assistant Attorney General for Administration. He
told me once that the Environment Division led the Department to most
requests for that permission.
MS. SCARROW: And I understand that you personally swore in all of the new attorneys?
MR. CRUDEN: Yes. Before I returned to DOJ, new lawyers were just in-processed by
human resource personnel and then immediately reported to their assigned
Section. I wanted every new lawyer to understand the significance of
representing the United States, the structure of the Division, and our
extensive hierarchy of support and dedication to excellence and integrity.
And so, during my tenure, every new lawyer came to me on his or her first
day and attended the weekly meeting of the leadership of the Division. At
that meeting I personally swore in that person using the traditional oath of
office and then introduced the new person to the leadership of the
Division. And then we challenged them. Challenged them to do justice, act
with integrity, promote values, take care of their staff, and seek advice
whenever needed. We assigned mentors and then escorted them to their
new offices (and usually full inboxes).
MS. SCARROW: Can you tell me about your National Parks photo project?
MR. CRUDEN: When I returned to the Department of Justice after being President of the
Environmental Law Institute, I looked around our main conference room
and saw it was full of pictures of past Assistant Attorneys General or past
Attorneys General. I wanted the art in our major conference room to188
reflect the values of the Division and not just pictures of bygone people. I
then established a contest in which members of the Division could submit
a photograph of a national park. We received an amazing number of truly
awe-inspiring photos of scenes in national parks across the United States,
A team of people chose the top ten and then we had them enlarged. We
then had our own wine and cheese art celebration and the individuals who
took the pictures stood by their work, explained the setting, and described
how they came to take the photo. Then we took that information and
printed it out and put it near the pictures. Everybody liked the fact that we
were now in a conference room that was surrounded by pictures of
beautiful scenes in the National Parks of the United States. My hope was
that this art inspired everyone to give their best every day to protect and
maintain our pristine environmental resources.
MS. SCARROW: And I understand that as part of your general outreach for the Division you
also created middle school essay contests for local schools and held
alumni events on the anniversary of the Division. Things to get the
Division out in the community and to keep those who had been involved
back in touch with the agency. Could you talk about those?
MR. CRUDEN: I was fortunate because I had been the President of the District of
Columbia Bar and knew key people in the D.C. government. At holiday
time, I reached out to a D.C. Council member and the D.C. Attorney
General’s office and asked if they would join with me in a celebration for
students writing about why law was important to them — all elementary189
school children. A team of people evaluated the essays. The winners of the
contest received a tour of the Department of Justice with their families and
friends and then each were called up to the stage of the historic Great Hall
to receive a new backpack and the best wishes of the Department of
Justice and the D.C. Government. Each came across the stage, were
recognized, and had their picture taken. It was quite a joyous event,
supported by many volunteers from the Division.
At the same time, many of the Division’s lawyers were involved in
teaching at Anacostia High School. They did an environmental class for
high school students. I also taught one of the classes there, helping me
satisfy my commitment to do outreach to the community and provide an
example to others. Again, it was really helpful that I had been the D.C. Bar
President because it allowed me to reach out and partner with D.C.
government officials. We could not have done this work without the
District’s educational professionals who knew where to go, knew how to
advertise, and knew how to get the teachers to support the themed writing
program. They were instrumental to the success of the program.
MS. SCARROW: I understand you also held an alumni event on the anniversary of the
Division?
MR. CRUDEN: Yes. For the anniversary of the Division, we invited all former Assistant
Attorneys General and all alumni to a celebration. We filled the Great Hall
— each of the Section Chiefs explained how their sections were organized
and what they were doing. Alumni enjoyed hearing an update of what had190
happened since they left. We gave two awards to alumni who had been
true leaders in the world of environmental law. Carol Dinkins, who had
been the Assistant Attorney General during the Reagan Administration but
went on later to become the first female Deputy Attorney General. And
then Richard Lazarus, who had, after he left the Division, became a very
highly regarded professor at Georgetown and then ultimately at Harvard
Law School where he had argued a number of cases before the Supreme
Court. It was a wonderful celebration of a continuing legacy of
professionalism and dedication to our common values.
MS. SCARROW: I understand also, that in an effort to help shape and strengthen the
institution, you invited Justice Kagan to come and speak?
MR. CRUDEN: Yes. We started a speaker series, inviting people of all political views.
One of them was Justice Kagan. We knew her, of course, because she had
been Solicitor General, and one of the very first cases that she argued was
one of our cases. We all loved it because she stood confidently in the full
Great Hall and simply asked, “what kind of questions do you have for
me?” There were plenty of questions about her. She was erudite and
humorous, bright, and thoughtful, and, without question, she charmed and
impressed the audience. But again, she was a returning alumnus, and it
was absolutely clear that we were fond of her in her role as Solicitor
General and proud of her on the Supreme Court.
MS. SCARROW: I understand there’s a story about Janet Reno’s portrait? Can you talk
about that?191
MR. CRUDEN: Funny Story – Janet Reno, of course, was the Attorney General during the
Clinton Administration, and one of my favorite leaders. She had been the
State Attorney in Miami and had a lot of interest in environmental matters.
She often told me that everyone needs a special place in their mind for
peaceful moments, and hers was Everglades National Park. At her
suggestion, we did a Mississippi River Initiative to improve water quality.
She took a personal interest in the Division, and I met with her numerous
times.
During my first tenure as the Acting Attorney General, I was able to pick a
portrait of a former Attorney General to have in our conference room. Not
surprisingly, I asked for the portrait of Janet Reno. Now, since that was a
Republican administration, there wasn’t a big demand for a Democratic
Attorney General’s portrait, so I didn’t really have any rivals for her
picture. The picture stayed in our conference room throughout the Bush
Administrator. When the Administration changed under President Clinton,
Eric Holder came in as Attorney General and he had been Reno’s deputy
during the Clinton Administration. One morning, shortly after Holder was
confirmed, I came into the office only to find someone taking down the
Janet Reno portrait. “What are you doing with my picture?” I asked. They
said the Attorney General wants it. Later I told Eric Holder “You stole my
picture of Janet Reno” but he put it in his conference room — such is the
power of an Attorney General.192
MS. SCARROW: I understand as part of your responsibilities as AAG you flew out to an
aircraft carrier and then a destroyer.
MR. CRUDEN Yes. While we were litigating on behalf of the Navy, I was invited to go to
San Diego and then fly in a small plane that landed on an aircraft carrier in
the ocean, an extraordinary moment. I spent time with the Admiral in
charge of the fleet, watched multiple landings including some on
instruments only, and then flew by helicopter to a destroyer to monitor
what they were doing to avoid contact with marine mammals, including
dolphins. I was impressed by their professionalism, and excited with the
opportunity to fly on and off an aircraft carrier at sea.
MS. SCARROW: So specific cases aside, we were talking a lot about the overall atmosphere
of the office. Are there any particular takeaways or important things that
stick with you from your tenure as the Assistant Attorney General?
MR. CRUDEN: I believe that leadership, morale building, and good management are really
important in any endeavor, but it was particularly true in that position.
Since I essentially grew up in the military, where leadership and
management are taught, there are profound principles worth emulating in
non-military places. One of my mentors, Colin Powell, had thirteen
management principles that he talked about. His first one is no matter how
bad it seems, it’ll look better in the morning. His words always lifted me
up on challenging days. Again, I was absolutely blessed by really
excellent leaders in the ten sections that I supervised, but also the Deputy
AAGS, both political and career people who cared deeply, were wonderful193
managers and superb leaders. People who could get things done maintain
high morale even when people were working really hard and sacrificing a
lot and still promote ethics and integrity in all matters. Looking back, I
realize how important leadership and good management is for success.
MS. SCARROW: My final question about your tenure as Assistant Attorney General is
about your effort at scholarship and transparency. Did you write anything,
give speeches, or otherwise interact with the public? Did you give press
briefings or speak with reporters?
MR CRUDEN: I believed it was my responsibility to inform the public about what we
were doing. The DOJ Press office assigned me my own press person,
Wyn Hornbuckle, who arranged meetings with reporters, drafted press
releases, attended Division meetings, and traveled with me. Wyn was a
tremendous partner, and we were energetic in getting the word out about
what we were doing, and fortunately we had such groundbreaking cases as
BP and VW to announce, which brought worldwide attention to the
actions of the Division. For every major case we issued a press release,
often including input from the local U.S. Attorney or the General Counsel
of the Agency involved in the litigation. We also often had reporter calls
where we discussed what we were doing or the importance of a particular
case. I also traveled to places like California, Puerto Rico, Washington,
and Texas, to announce significant cases, always doing that with local
U.S. Attorney to give them the deserved credit for the case.194
I also gave a number of speeches during my tenure, often to the American
Bar Association, American Law Institute, Environmental Law Institute,
various state Bars, and various state organizations. In my role as Chair of
the Presidents’ Task Force on Illegal Wildlife Trafficking, I spoke on
behalf of the Administration at worldwide conferences in Botswana and
Hanoi, and to the International Union for Conservation of Nature. Those
speeches remain on the DOJ web site.
My congressional testimony on the state of the Division is available, as is
my prior testimony on issues such as worker safety, federal consent
decrees, and the Supreme Court’s Clean Water Act decisions.
Finally, I worked with others to publish law review articles on our work.
We published articles in the Harvard Law Review, Michigan Law Review,
and Virginia Law Review on the most important cases, and in other law
publications on broader issues like the United Nations priorities and the
needs of Native Americans.195
ORAL HISTORY OF JOHN C. CRUDEN, ESQ.
Sixth Interview
January 5, 2023
This interview was conducted on behalf of the Oral History Project of the District of Columbia
Circuit. The interviewer is Tracy H. Scarrow, and the interviewee is John C. Cruden. The
interviews took place on January 5, 2023, and June 15, 2023. This is the sixth and final
interview.
MS. SCARROW: We are jumping back in talking about cases that you were involved with
during your last stint at DOJ. We talked about the VW case and the BP
case, so next I thought you could talk a bit about the Clean Power Plan
litigation. What was that case about?
MR. CRUDEN: The Clean Power Plan regulation was one of the most significant
greenhouse gas reduction rules promulgated during the Obama
Administration. The rule was the Administration’s effort to provide a
regulatory framework to reduce emissions from coal fired power plants. I
led and supervised the voluminous defense of the rule, worked extensively
with the leadership of EPA, coordinated with the White House, and
supervised exceptional attorneys from the Environmental Defense Section
who drafted all of the United States’ pleadings in the case.
MS SCARROW: What was the rule about and why was it so controversial?
MR. CRUDEN: The Clean Power Plan was a creative and far-reaching effort led by the
Environmental Protection Agency Administrator Gina McCarthy to try to
regulate the emission of greenhouse gases from coal-fired power plants,
which at that stage were the United States’ largest source of greenhouses
gases. EPA went through an arduous series of public meetings and196
conferences to develop regulations (dubbed “The Clean Power Plan”) that
the EPA believed would result in a significant reduction of greenhouse
gases from the planet. Each state was assigned specific goals for reducing
carbon emissions. Their goals could be accomplished however the state
saw fit, but EPA could step in if the state refused to submit a carbon
reduction plan. If every state met its target, the Clean Air Plan was
projected to reduce carbon emissions from power plants by 32% by 2030
and to achieve significant health benefits due to reduced air pollution.
The final version of the Plan was unveiled by President Obama in August
2015. Opponents immediately declared that the Plan was illegal. Only ten
days after EPA announced the final rule, twenty-seven states petitioned
the United States Court of Appeals for the District of Columbia Circuit for
an emergency stay, arguing that the scope of the rule’s “building blocks”
for action went beyond the authority of the Clean Air Act. Eighteen states
filed in support of the rule.
MS. SCARROW: What happened with the stay requests?
MR. CRUDEN: We prevailed in the Court of Appeals for the D.C. Circuit, but in February
2016, in one of the most well-known examples of the Supreme Court’s
“shadow docket,” the Court stayed implementation of the Clean Power
Plan pending judicial review. To put it mildly, we were shocked by the
stay. It was truly unprecedented and unfortunate. This turned out to be the
last vote of Justice Scalia.
MS. SCARROW: Did the case get argued on the merits?197
MR. CRUDEN: Yes. Surprisingly, the D.C. Circuit decided sua sponte to hear the case en
banc, but without the Chief Judge of the Court, Merrick B. Garland, who
recused himself, as he was at that time President Obama’s U.S. Supreme
Court nominee. We prepared for oral argument as if it was a Supreme
Court argument and held multiple rigorous moot courts that included
senior lawyers from the DOJ office of the Solicitor General, EPA, and
FERC. In September of 2006, the en banc court heard over 7 hours of oral
argument. At the end of the argument by many excellent oral advocates, I
was firmly convinced that the court would uphold the rule.
MS. SCARROW: What happened?
MR. CRUDEN: Unfortunately, the D.C. Circuit did not rule before the end of the
Administration, and the Trump Administration predictably repealed the
Clean Power Plan and replaced it with what they called the “Affordable
Clean Energy Rule,” which was not nearly as significant in reducing
greenhouse gases as the Clean Power Plan. Much later, the rule became
the subject of a Supreme Court decision in West Virginia v. EPA.
MS. SCARROW: Who argued the cases you were supervising?
MR. CRUDEN: The case was argued by exceptional attorneys: Eric Hostettler, Amanda
Berman, and Norm Rave. There were many good attorneys in the case, but
I thought the DOJ team was by far the best.
MS. SCARROW: This case is probably an excellent example of how slowly these cases
make their way through the courts. After the administration changed, you
weren’t involved, but can you tell us what’s happened since then?198
MR. CRUDEN: As I mentioned, the Plan was stayed by the Supreme Court and before the
D.C. Circuit issued its ruling on the merits, the Trump Administration
withdrew the Plan and replaced it with their own less rigorous Affordable
Clean Energy rule. The Trump Affordable Clean Energy rule was also
challenged; and just before that administration changed, the D.C. Circuit
ruled 2-1 invalidating it. That decision was then appealed to the Supreme
Court. In June 2022, relying on a new rendition of the Major Case doctrine
(a substantive canon of construction that bars agencies from resolving
questions of major economic and political significance without clear
statutory authorization), the Supreme Court held in West Virginia v. EPA
that EPA lacked the authority to create the Clean Power Plan.
Nevertheless, EPA retained the authority and responsibility to regulate
power plant emissions. In early 2024 EPA finalized rules establishing
greenhouse gas standards for power plants under the Clean Air Act for
existing coal-fired power plants and rescinded the Affordable Clean
Energy rule. In May 2024, EPA published its new rule in the Federal
Register. And on the same day, states and industry filed petitions in the
D.C. Circuit Court of Appeals challenging the rule. The case is still
pending at this time.
MS. SCARROW: Can you describe your interaction with the White House on the Clean
Power Plan?
MR. CRUDEN: Unlike enforcement cases where the Obama White House gave that
responsibility solely to the Department of Justice, the White House was199
involved in the defense of key regulations, as they were the
implementation of key policy decisions. From time to time, the White
House counsel would ask me for briefings on cases. This certainly was
true in the Clean Power Plan litigation. At one key moment, the White
House Chief Counsel called me to ask something about the Clean Power
Plan, and I told him what we were doing. This inquiry frustrated me
because his call came at a time when we were facing multiple deadlines in
a challenging schedule. The White House counsel paused a little bit, then
said something like, “Well, it probably irritates you that I make all these
calls to you, and you’d probably like me to leave you alone so you can do
your job.” I agreed, albeit, perhaps, too enthusiastically. Then he said,
“Well, let me tell you something, John. Every time the President of the
United States asks me what you are doing, I’m going to ask you what you
are doing.” Hard to disagree.
MS. SCARROW: You have been a proponent of environmental justice. Can you tell me
about your role in both creating and then supervising the government’s
efforts on environmental justice?
MR. CRUDEN: Environmental justice has been a centerpiece of my professional work for
many years. There is little question that pollution falls disproportionately
on those who lack resources. My own view is that environmental justice
gives a voice to many who are impacted by environmental problems, but
have no real access to assistance, and their voice is unheard.200
I recall Dean Schmoke, then Mayor of Baltimore, speaking at the Annual
DC Bar Conference in which I was announced as the new President. His
thesis was that environmental justice was the new civil right.
While at DOJ I established an Environmental Justice Task Force, and then
created a special counsel, Cynthia Ferguson, to supervise and enhance our
environmental justice matters. She was aided by a well-respected friend of
mine from my military time in Europe, Quentin Pair, also an
environmental justice advocate in ENRD. The Task Force reviewed cases
for environmental justice implications and then monitored those cases.
During my tenure as Assistant Attorney General we met with
environmental justice groups to get a better understanding of their needs
and to benefit from their advice. I also served on the White House Task
Force on Environmental Justice. In that capacity, my recommendation to
broaden our outreach of the environmental justice effort to include Native
American Tribes was accepted. While I understand SEPs are
controversial, and banned during the first Trump Administration, I am a
firm advocate of such environmental projects.
MS. SCARROW: Can you talk about several of the more famous cases with environmental
justice issues, for example DOJ’s suit against New Orleans and your work
crafting the settlement?
MR. CRUDEN: We previously discussed the settlement with the City of New Orleans,
which led to the complete upgrade of the city’s antiquated sewer system.
That settlement also created the first environmental justice Supplemental201
Environmental Project, called a SEP. The New Orleans SEP is one of the
best examples of environmental justice playing a role in the ultimate
settlement. The illegal sewer overflows in that case flowed to a number of
locations, including the nearby Lake Pontchartrain. One victim of the
pollution was Lincoln Beach, a 17-acre beach and amusement park that
was created in the 1950s as a segregated beach. Over a period of years,
probably due in no small way to the pollution coming from the city, the
beach was closed. When we negotiated the final consent decree to resolve
the City’s Clean Water Act violations, we included a Supplemental
Environmental Project that required the City to make Lincoln Beach
“fishable and swimmable,” for all the citizens of New Orleans. This is a
classic example of promoting and obtaining environmental improvement
in impoverished areas with a history of neglect.
MS. SCARROW: I understand there was another environmental justice case here in D.C.
where DOJ brought suit against the District for historic sewer overflow
problems.
MR. CRUDEN: Yes. The D.C. case was similar to what had happened in New Orleans.
As in many older cities, about one-third of the District has a combined
sewer system. The system overflowed during heavy rain when the mixture
of sewage and stormwater exceeded the capacity of the sewer pipes. The
overflow, which contained bacteria and trash that can be harmful to
waterways and the aquatic life they support, discharged in three locations:
the Potomac River, Rock Creek, and the Anacostia River. The Anacostia202
River, in particular, is an area that is used by minority communities all
along the water for fishing and recreating. Pollution clearly has an
adverse impact on the community.
DOJ sued the District of Columbia, handled ably by Nancy Flickinger, a
superb attorney, and I led the negotiations with the Deputy Mayor that
ultimately resolved the case. In the original settlement, D.C. agreed to
build an underground tunnel capable of holding 30 million gallons of
combined stormwater and sewage under the Potomac River. The tunnel,
which should be completed by 2030, will use gravity to allow the
collected combined sewage to flow to the Blue Plains Advanced
Wastewater Treatment Plant for treatment. The Anacostia River solution
required construction of a 13-mile-long underground tunnel for combined
stormwater and sewage storage during rains. That project is already
reducing overflows by over 90 percent.
Originally, one underground tunnel was to be constructed to divert the
overflow from Rock Creek. Later, while I was Assistant Attorney General,
we negotiated an amendment to the consent decree to eliminate the
underground tunnel for Rock Creek. Instead, stormwater runoff will be
managed through innovative green infrastructure such as rain gardens,
porous pavement installations, and rain barrels. In addition to helping
reduce combined sewer overflow, which adversely impacted minority
communities, a side agreement between DC Water and the District of
Columbia created an ambitious local jobs program, including training and203
certification opportunities for District residents interested in construction,
inspection, and maintenance jobs. The goal was to have over half of the
new jobs created by the green infrastructure project filled by District
residents.
MS. SCARROW: So, you previously mentioned when we were talking about your overall
responsibilities that you were one of the leaders of President Obama’s
Task force on illegal wildlife trafficking. What did that mean?
MR. CRUDEN: During the Obama administration, the President set up a task force to
focus on illegal wildlife trafficking. The task force was managed by three
co-leads: the Deputy Secretary of State, the head of the Fish and Wildlife
Service in the Department of the Interior, and me. We brought together
every agency that had responsibility in any way for wildlife trafficking.
I’m very pleased that during our tenure, we also brought in the
Department of Defense because they had unique information that was
beneficial to our work. In particular, DoD’s presence in Africa and
elsewhere gave us a better idea of what was happening on the ground.
As Co-chair, I hosted multiple meetings at DOJ of relevant agencies, was
the lead federal official on worldwide conferences on illegal wildlife
trafficking in Botswana and Hanoi and helped draft the National Strategy
to Combat Wildlife Trafficking.
I also testified before the House of Representatives Committee on
Foreign Affairs in a hearing entitled “Poaching and Terrorism: A National
Security Challenge.” In my testimony I reported that ENRD had204
significantly increased its work in this critical area. Not just prosecutions
but also conducting numerous training sessions abroad on investigating
and prosecuting illegal activity in Indonesia, Brazil, Peru, Honduras, and
Russia. The Division also conducted international capacity-building in the
area of illegal wildlife trafficking through its participation in INTERPOL
(specifically the Wildlife Crime Working Group, Environmental Crime
Committee, and Fisheries Crime Working Group) and the International
Law Enforcement Academy (with programs for eastern European and
Southeast Asian law enforcement officials). I also spoke about our
enhanced prosecution efforts, their results, and challenges we were facing
and highlighted the decline in elephants and rhinos worldwide.
I usually kept a fake rhinoceros’ horn on my desk, which I showed during
press conferences. When I had the audience’s attention, I would explain
that poaching and illegal trafficking of tusks and horns was so widespread
because of the value of the tusks and horns. A single rhino horn is worth
tens of thousands of dollars. And, when the horn is ground up into a
powder, it is more valuable by weight than gold or cocaine!
My testimony before Congress both described the problem and supported
legislation to improve enforcement. Fortunately, this is one area in which I
absolutely received bipartisan support. There was consensus that it was
critical to address illegal trafficking if we were to protect species; and after
my testimony, both Republican and Democratic members approached me
to offer their support.205
The year after my congressional testimony, I was asked to speak at
the annual conference of the International Union for Conservation of
Nature in Honolulu. In that speech I described a prominent example of the
Environment Division’s robust prosecution of illegal wildlife trafficking
known as “Operation Crash,” a multi-agency effort to detect, deter and
prosecute those engaged in the illegal killing of rhinoceros and the illegal
trafficking of rhinoceros’ horns. A “crash” is the term used to describe a
herd of rhinoceros. Nearly 40 individuals and businesses had been
charged; and, by then, over 30 had been convicted. Defendants in these
cases were sentenced to significant prison terms and forfeited millions of
dollars in cash, gold bars, rhino horn, luxury vehicles, and jewelry.
MS. SCARROW: You mentioned the international conferences held in Botswana and Hanoi.
What was your role and what were these conferences like?
MR. CRUDEN: There were two internation illegal wildlife conferences during my tenure.
As the senior Administration official, I led the U.S. delegations to both the
conference at Botswana and the later one in Hanoi. At both conferences I
presented the position of the United States, urging aggressive enforcement
and describing what the U.S. was doing. My speech at the Botswana
meeting is on DOJ’s web site. In Hanoi I met with senior Vietnamese
officials, as well as the head of the British delegation, Prince William.
My visit with Prince William was memorable, although we only briefly
discussed wildlife issues. What we really talked about was what we had
done that day in downtown Hanoi. He told me about playing soccer with206
local high school students, while I had been in a pedicab going through the
city’s narrow but wonderous streets. Prince William said he was envious,
as his embassy would not let him do what I did, believing it to be too
dangerous. When I finished the meeting and briefed the U.S. delegation
staff, they were most disappointed that I had not met Prince William’s
wife, Kate Middleton
MS. SCARROW: You mentioned meeting with the Chinese in Botswana. I also understand
you went to China as part of the delegation led by Secretary John Kerry,
also concerning illegal wildlife trafficking.
MR. CRUDEN: That is correct. When the Chinese leaders came to the U.S. and met in the
State Department, I spoke to them about the status of illegal wildlife
trafficking in the world, urging them to do more. Secretary Kerry then
invited me to join his delegation when he visited China. (One aside:
enroute to Beijing, in a China Airlines plane, we suddenly lost power and
were forced to land in a small town in northern Canada. We stayed the
night, delayed as they fixed the plane). My China visit was fascinating as
my days were spent with China’s equivalent of our Department of Justice
and the Environmental Protection Agency. At my request, the U.S.
Embassy set me up with a series of meetings with NGOs and law school
professors, and I spoke at China’s equivalent to our U.S. Chamber of
Commerce. My favorite part, though, was walking the Great Wall.207
MS. SCARROW: I think we pretty much covered everything from your DOJ tenure, but I
understand that as President Obama’s term was ending, as was yours, you
met with him personally in the Oval Office. What was that like?
MR. CRUDEN: Toward the end of the Administration, I was called by the White House
Personnel Office and told that the President would like to see me. He
knew I had led the litigation and settlement in the BP/Deep Water Horizon
oil spill litigation, and he wanted to talk to me about the result. People are
always surprised when I tell them that the White House played no role in
enforcement cases, leaving all the decisions to the Department of Justice.
That said, I knew that the President was personally interested. He had
established the National Commission on the BP Deepwater Horizon Oil
Spill and Offshore Drilling, spoken a number of times about the oil spill,
and had personally met with governors to make sure they knew the
Administration was in full support.
I had been to the White House many times, but never to the Oval Office.
Senior staff brought me to the waiting area, then at the appointed time, I
walked through a hall directly into the Oval Office, where President
Obama was standing to greet me. His first words to me were “I am glad to
have had an Army Ranger on my side.” He had me right there, as his
words meant then he had reviewed my background and knew of my
military experience.
We spent one-on-one time together, with me outlining the challenges of
the case, the year of negotiations, and the final consent decree that five208
Governors, five state Attorneys General, and five federal agency heads,
had signed. I told him about the six public meetings on the Consent
Decree which we held to packed audiences in six different locations, and
that the court ultimately approved the detailed settlement without changes.
He had numerous questions about how everything had evolved, and his
knowledge of the case was impressive. I was able to tell him with
confidence that the result would be a positive legacy for the
Administration, as billions of dollars over a 20-year period would be
available and restricted in use to restoring the Gulf and surrounding area to
what it was before the devastating oil spills. And, federal and state
governments were being reimbursed for their expenses, and new
requirements were being put in place to avoid future oil spills of this type.
At the end of that time, he thanked me and directed me to go back to the
Department of Justice and tell everybody involved how proud he was of
them and the result. It was late at night by the time I left the White House,
but I went back to the Department of Justice, and sat down at my
computer, and thanked everybody that had been involved including the
support staff, on behalf of the President. Later, the White House
photographer sent me a whole album of pictures of just the two of us. One
of my favorite moments.
MS. SCARROW: Back to your discussions with the President. I understand that he later said
to you, “run through the tape, right to the very end, right to your last day,209
and you’re doing good things for the American people.” How did that
resonate with you?
MR. CRUDEN: Like most of America, political appointees of the Obama Administration
were completely unprepared for the election results in November 2016.
Like many others, we were disheartened over the election. While we were
still processing the result, the President called his senior political
appointees to the White House to talk with us personally. Notwithstanding
the election, he exhorted us to work every day for the American public,
right to the very end of the Administration, and, in his words, “to run
through the tape.” I knew immediately he was using a track analogy for
his words, the image of running through the tape. As a track person in high
school and college, I understood what that meant. We were taught to lean
forward at the end of the race because sometimes even a few inches might
help you prevail. He knew enough about that sport to be able to use that as
an image for us as a goal, to serve the United States in the best
conceivable way right to the very end and to do so by going forward and
breaking the tape. That supercharged all of us.
The President’s words were particularly important to me, as we were then
working round the clock to wrap up the civil settlement and criminal plea
agreement with Volkswagen in that massive case, now referred to as
“dieselgate.” We resolved the case and held a packed press conference
announcing the agreement on the criminal phase and the final civil
settlement in late January, just before the end of the Administration. We210
were motivated by the President charging us to work until the very end
and every day acting in the best interest of the United States.
MS. SCARROW: It sounds like you clearly ran through the tape. Was there any sort of
transition between you and your successor? Did you have any contact with
them, or did you sort of walk out of your office and that was it?
MR. CRUDEN: There was a transition team that came into the Department of Justice.
Ronald Tenpas, a former Assistant Attorney General, a former U.S.
Attorney, and a Rhodes Scholar, led the team reviewing the
Environmental Division. I knew Ron well and had extremely high regard
for his knowledge and professionalism. He interviewed Section Chiefs,
discussed the state of the Division with me, and advised the transition
team.
MS. SCARROW: Looking back on your long and illustrious career at the Department, why
do you think you stayed for so many years?
MR. CRUDEN: I didn’t plan to stay as long as I did. But, counting my various
assignments at DOJ as Special Counsel to the Assistant Attorney General,
Civil Division; Chief of Environmental Enforcement; Deputy Assistant
Attorney General; and finally Assistant Attorney General, Environment
and Natural Resources Division, I was at DOJ for more than 23 years.
There’s something magical about standing in court, looking at a judge or
jury and saying, “I’m John Cruden, I represent the United States.” It’s
very humbling, and a great responsibility. I loved the challenge and
thought the men and women at the Department of Justice were some of the211
finest lawyers I ever met and ever had the honor of serving with. The
Department of Justice is the only federal agency whose name also is its
goal: justice. All of us at DOJ bonded together to try to bring meaning to
the name of our organization. When I thought my prosecutors were being
overly aggressive, I reminded them that we were the Department of
Justice, not the Department of Prosecution. The concept of “justice,” was
something that guided me. I was motivated by the mission and wonderful
colleagues. Speaking to law students, encouraging them to consider public
service, I often said: “Not every day, and not in every case, but in some
days and in some cases, I go home at night believing that I just made a
difference.”
MS. SCARROW: So, you were entitled to some well-deserved R&R after you finished your
tenure with the Department. What was the first thing that you did when
you left DOJ?
MR. CRUDEN: During my final couple of months at DOJ I started having serious hip
issues, probably related to my military time in Airborne, Ranger and
Special Forces units. My doctor wanted to replace the hip immediately,
but we were in the middle of VW negotiations and that was my highest
priority. After negotiating with my orthopedic surgeon, we agreed to a
date almost immediately after the Administration changed.
MS. SCARROW: What did you do after you recovered from your hip replacement surgery?
Did you travel? I understand you visited several law schools.212
MR. CRUDEN: After I recovered from the hip replacement surgery I went on a speaking
tour, fulfilling commitments that I had made while I was at DOJ. My wife
joined me on a multiple city tour in which I taught at West Point, lectured
at the University of Vermont Law School, and spoke to the Virgina and
West Virginia bar conferences. Later, I was invited to be a featured
speaker and be interviewed on television at the annual International
Association Bar Conference in Sydney, Australia concerning the
Volkswagen enforcement action and settlement. They are all quite
interesting, in particular teaching at West Point. While there we visited
their beautiful cemetery, which sits high above the Hudson River, the final
resting place for many friends, including my college roommate and my
college debate partner. At that time, my wife and I agreed we would
eventually be buried there. A few years later, I returned to that graveyard
for the memorial service of my beloved wife.
MS. SCARROW: I understand you later received an Award from the United States Military
Academy.
MR. CRUDEN: Yes, I received their Alumni Award for professional accomplishments.
One of my West Point roommates, Glen Hewitt, nominated me for the
award and assembled a number of letters in support. It was a real honor to
receive the award, as my career was shaped by West Point in many ways.
MS. SCARROW: You also became highly active with the American College of
Environmental Lawyers. Can you explain what that organization is and
how you were involved?213
MR. CRUDEN: Yes. Former Deputy Attorney General Carol Dinkins nominated me to
become the first federal government lawyer in the prestigious American
College of Environmental Lawyers or ACOEL. In 2017, I was elected to
President of ACOEL. During my tenure, the annual conference was held
in Charleston, South Carolina, which drew the Governor and the Mayor of
Charleston, and we put on programs with the Environmental Protection
Agency and others on environmental issues. We also supported pro bono
work including capacity building for illegal wildlife trafficking in Africa.
MS. SCARROW: While you were serving as President of the American College of
Environmental Lawyers, you also were leading a small consulting group
that had contracts with two state groups that were working on water
issues. Can you describe that work?
MR. CRUDEN: After I left the Administration, but before I joined a private law firm, I
formed a small consulting group, with Steve Samuels, a retired water
expert at the Department of Justice’s and his wife JoAnn, a retired
environmental consultant and we worked with two state organizations: the
International Commission on the Potomac River Basin and the Delaware
River Basin Commission. Our most significant product was a lengthy
report, following interviews with senior leaders in Virginia, Maryland, and
D.C., examining the Potomac River and making recommendations as to
how they could handle low flow issues if there were water drought
problems. I understand they refer to this as the Cruden Report.214
MS. SCARROW: I think this is out of order chronologically, but there are two organizations
that we haven’t talked about, and I wanted you to briefly touch on. You
were a member of the Administrative Conference of the United States
from 2013 to 2014. How did that fit into the work that you were doing?
MR. CRUDEN: That’s a very unique organization with a highly qualified membership of
professionals, many from the academic community. I was involved for
one year while President of the Environmental Law Institute. I
participated, and voted, but had just a modest role. As soon as I was
nominated by the President to be Assistant Attorney General, I had to
resign from that position.
MS. SCARROW: Second, I’d be remiss if we didn’t talk about your role in the D.C.
Circuit’s Judicial Conference Committee on Pro Bono Legal Services.
We talked about your commitment to pro bono work, but can you talk
about your role on the Committee and how important it was to you?
MR. CRUDEN: The D.C. Circuit has several important committees, and one of them is on
pro bono representation. Then Chief Judge Sentelle appointed me to that
committee based on my experience in the D.C. Bar. The committee was
quite active, met frequently under the supervision of a federal District
Court judge, and prepared reports on pro bono activities for the annual
D.C. Circuit Judicial Conferences. Because of my interest and support of
government pro bono, I wrote the portion of the report outlining
government pro bono activities. Each year the number of government
participants was on the rise. And each year the committee selected the best215
federal agency doing pro bono work. I was, and continue to be, very
honored that the accolade is named the John C. Cruden Award.
I can remember standing with then Chief Judge Merrick Garland, who I
knew from his days at the Department of Justice, at one of the government
pro bono award ceremonies. He was the main speaker and told me that it
was one of his favorite meetings. He enjoyed meeting with, and honoring,
the government pro bono winners of the year. His presence and
enthusiastic support made these award ceremonies a real success.
MS. SCARROW: Getting back on track chronologically, since 2018, you’ve been working at
Beveridge and Diamond as principal. Can you talk about what drew you to
the firm?
MR. CRUDEN: Initially I was attracted to the firm and encouraged by its then-managing
partner Ben Wilson. At one stage Ben called my wife from Germany to
encourage her to support him in getting me to the firm. I knew Ben well. I
had lectured in the class that he teaches at Howard Law School and
brought him on to the Board of the Environmental Law Institute when I
was President. As I learned more about the firm, I concluded that
Beveridge and Diamond was the best fit for me. It practices exclusively
environmental law, I knew many of their attorneys, and I liked the firm’s
commitment to quality of life, excellence, integrity, and professionalism.
This year the firm celebrated its 50th anniversary. It has received many
environmental accolades, has a remarkably diverse group of lawyers and
staff, and is dedicated to professionalism and service.216
MS. SCARROW: Is it correct that you’re co-leader of the firm’s Litigation Practice Group?
MR. CRUDEN: Yes, I co-lead the Litigation Practice Group and serve on firm committees,
including the firm’s Pro Bono Committee.
MS SCARROW: Can you discuss your work at Beveridge and Diamond?
MR CRUDEN: My practice is diverse, exciting, and enriching. The biggest area for me is
environmental litigation; and I have had a variety of clients, including the
International Joint Commission, which governs the boundary waters
between the United States and Canada. I have also represented an
environmental NGO in New York, a crane company, the State of
Oklahoma, Arlington County, and a number of others. And I am involved
in representing the City of San Francisco in a Clean Water Act case that is
currently before the Supreme Court. Another part of my work is
providing strategic advice to companies on changes to the law, ways to
make certain they remain in compliance with the law, and ways to
improve performance and management. I also serve in several cases as an
expert witness. I have now done about 5 such cases and have another
pending right now. It is interesting for me, a litigator, to now serve as an
expert and have others preparing me. Finally, I have continued to have a
robust speaking schedule, giving lectures on the Supreme Court to
conferences of the American Bar Association, the American Law Institute,
and the American College of Environmental Lawyers. In addition, I have
been a featured speaker at Internation Bar Association conferences in
Seoul, South Korea and Lisbon, Portugal.217
MS. SCARROW: More recently, in October 2020, you were awarded the ABA’s Lifetime
Achievement Award in Environmental, Energy, and Resources Law and
Policy. Can you tell me about that?
MR. CRUDEN: I was surprised and very honored. That is their highest award.
MS. SCARROW: I understand that the award is given to someone who has dedicated a
lifetime of work in environmental, energy, or resource law and policy, in
government agencies, the U.S. Congress, State legislatures, and other
institutions, and that you were only the third recipient to ever receive this
award.
MR. CRUDEN: I believe that’s correct. When they announced the award, they focused on
my efforts to improve the environment, my work leading record-breaking
enforcement, and my efforts to promote civility and integrity.
MS. SCARROW: I understand that you are still active in the ABA, and that you have served
on the Board of Governors.
MR. CRUDEN: Yes. The ABA’s Board of Governors makes policy decisions for the ABA.
A few years ago, I was elected to represent the District of Columbia and
Virginia on the Board. It is a fascinating organization. While on the Board,
I was a member of the Profession, Public Service and Diversity
Committee and served as liaison to the Center on Human Rights and the
Government and Public Sector Lawyers Division.
MS. SCARROW: I understand that at the beginning of President Biden’s term, you served
on his transition team. Can you talk about that role?218
MR. CRUDEN: After the election, but before inauguration, I served on the transition team.
Our work was confidential. I can say, however, that my work was entirely
Department of Justice-oriented.
MS. SCARROW: You might not be able to talk about it, but was it helping to recommend
people to put it into place in the offices or more policy related?
MR. CRUDEN: There were people other than me also focused on the Department of
Justice, but my responsibility was almost entirely reviewing and then
interviewing candidates for key political positions and then making
recommendations to the overall transition team, which, of course, reported
to the President-elect as to who should be selected and when it should
happen.
MS. SCARROW: You’ve also served as an adjunct professor, both at George Washington
University and Santa Clara University Law Schools since 2018. Can you
talk a little bit about teaching and what you like about it?
MR CRUDEN At George Washington University I teach a class on environmental law in
the Trachtenberg School of Public Policy and Public Administration. My
students are enrolled in the Master of Public Policy program. I find the
students fascinating because they’re not lawyers and they ask more “why”
questions that focus on policy.
The class I do annually at Santa Clara Law School is advanced
environmental enforcement. It is a weekend class starting Friday afternoon
and ending Sunday afternoon. It is very interactive, very practical. The
students role play, present arguments and positions, and brief leading219
cases. Their final exam is to prepare a citizen complaint in a Clean Water
Act case.
MS. SCARROW: Sounds interesting. Before we leave your professional life and turn to your
family, I have one last environmental law question. What do you think the
challenges are ahead in the environmental world and where is the future of
environmental law headed?
MR. CRUDEN: Two parts to your question. I frequently talk to law students, both as a
professor and a mentor. I’m very bullish about the environment, energy,
and natural resources sectors as a good place for law students to study and
find a satisfying job.
Without question, the threats of climate change and weather events are
going to be challenging throughout the world for the rest of our lifetimes.
There have been some gains, including the impressive Biden era Inflation
Reduction Act that put more money into advancing and promoting
alternative energy projects and research and development. That’s all
positive, but the challenges are daunting; and we need worldwide
cooperation and not just U.S. efforts to address the crisis. A key issue in
the future will be the role of China, by far the largest emitter of
greenhouse gases.
Our bedrock environmental laws were passed with overwhelming
bipartisan majorities in the 1970s and 1980s. There really hasn’t been
anything significant since the Clean Air Act Amendments in 1990 and the
Lautenberg Act Toxic Substance Control Act or TSCA Amendments since220
then. Changes are needed to address the modern era of environmental
issues. For example, changes and improvements in chemistry, recently
uncovered unforeseen dangers of “forever,” or PFAS, chemicals. Our laws
must be adaptable enough to address new and unforeseen developments.
I continue to support the environmental justice concept. I still believe that,
without question, much of the environmental degradation of the United
States is falling disproportionately on minorities and low-income people
and that we need to continue to work on correcting both historical and
current injustices.
And, last but certainly not least, we must continue efforts to improve and
make the environment something that we can be proud to pass on to our
grandchildren and beyond.
MS. SCARROW: Next we’re going to turn to your family and round out our oral history. I
know that we’ve interspersed conversations about your family throughout
our talking but wanted to turn more specifically to them. I thought we
could first start talking about your daughters, Kristen, and Heather. Can
you tell me a little bit about what they were like growing up?
MR. CRUDEN: I am passionate about my exceptional daughters and am enormously proud
of them. Kristen was born in California at Stanford University Hospital
when I was in law school. Heather was born in Frankfurt, Germany when I
was stationed there as a JAG officer. Both are distinguished professionals,
mothers, and wives. Kristin earned a master’s degree from the University
of Virginia in education. She is a reading specialist in the Loudon School221
District. Heather lives in Yorktown, Virginia, with her husband, who was,
up until recently, an F-15 pilot with the Air Force. He is now a financial
planner, often working with military families. Heather works with him.
Both daughters have two children of their own, making me the proud
Grandad of four grandchildren—two boys and two girls—who are the
centerpiece of my life.
MS. SCARROW: I understand that while your daughters were in high school you were
teaching high school students at St. Stephens Methodist Church. Can you
talk a little bit about that?
MR. CRUDEN: When we came back from Germany, we found a nearby Methodist Church
which we selected because it had a wonderful youth program. While there
I was asked to teach high school Sunday school, which included both my
daughters. Talk about being constantly evaluated! It was a rewarding
experience.
MS. SCARROW: I understand that when Kristen returned home from her freshman year of
college that she had a job at the Justice Federal Credit Union and the two
of you would often drive to work together. That must have been fun.
MR. CRUDEN: Yes. We usually commuted together to Main DOJ. The Justice Credit
Union is inside the Department of Justice, so I knew it would be safe for
her to be there. Kristen worked as a bank teller; and when Heather
graduated from high school, she replaced Kristen at the Credit Union.
They worked summers and over the Christmas holidays, an important
source of money for college. I thought it was a wonderful entry level222
position for them: a real job requiring professional clothes, the need to
arrive on time, and real clients to serve. And they both ended up knowing
a lot of people at DOJ, including Attorney General Janet Reno. I treasure
that time together with my beloved daughters.
MS. SCARROW: You mentioned that Kristen went to Virginia Tech. Where did Heather go
to school?
MR. CRUDEN: Heather went to James Madison University and received her degree in
computer information systems. She also played on JMU’s water polo
team.
MS. SCARROW: You mentioned that you have four grandchildren. Can you talk a little bit
about them?
MR. CRUDEN: The oldest, Ryan, just graduated from Virginia Tech studying cyber-
security and national security. Lauren just graduated from the University
of Virginia in Charlottesville as an English major. Both will be staying an
extra year in college to get their master’s degrees. Third, is Jonathan, who
just finished his freshman year at James Madsion University. And then,
fourth, is Katelyn who is graduated from high school in June 2024 and has
an athletic scholarship to Radford University. Each of them was the
captain of his/her high school cross-county team. Ryan and Jonathan are
Eagle Scouts. Each one makes me immensely proud.
MS. SCARROW: Ryan and Jonathan are siblings, and Lauren and Katelyn and siblings?
MR. CRUDEN: That’s correct.
MS. SCARROW: I understand that Katelyn was born in Okinawa?223
MR. CRUDEN: Katelyn was born in Okinawa. Heather and her husband, Scott, were
assigned to the air base in Okinawa because Scott was an F-15 pilot. We
visited Okinawa, an utterly amazing island, reminiscent of Oahu in the
1960s.
MS. SCARROW: I also understand that you had a special trip with each grandchild when
they turned ten.
MR. CRUDEN Yes. An organization called Road Scholar puts together vacations for
grandparents and their grandchildren. We encouraged each grandchild to
choose a National Park vacation. Ryan chose Yellowstone. Lauren picked
the Glacier. Jonathan wanted Mt Rushmore and Custer State Park in South
Dakota. And Katelyn chose white water rafting through the Grand
Canyon. Wonderful memories.
MS. SCARROW: I know this might be difficult to talk about, but can you talk a little bit
more about your wife Sharon?
MR. CRUDEN: I am honored beyond belief to have had a wife I adored in marriage and
greatly admired for over 52 years. We grew up in the same small town in
Michigan, dated our senior year of high school, and then she went to
college first in Michigan and then Chicago while I was going to West
Point. We married ten days after I graduated from West Point at the Mary
Martha Chapel in Greenfield Village, Dearborn, Michigan. After all the
military schools that I needed to go through — airborne ranger, jump
master, infantry — we went to Germany together. She taught all during the
time that I was in the military. She often said that she taught at every224
possible level. from pre-school to graduate degree classes. While I was in
law school, she received a master’s in special education through the
University of California at San Jose and then taught at De Anza College.
Later, she received her education specialist degree and taught at
University of Virginia. She also taught multiple officers and enlisted
people through the University of Maryland when we were in Europe.
Sharon was a groundbreaking force in the then new field of special
education and was well known in that discipline. She also had an
astonishing musical ability, both singing and playing the piano, which she
did throughout her lifetime including in several choruses. When we were
in Europe, she was the church choir director. Her legacy as an educator,
musician, and mother was extraordinary in all respects.
In 2021, Sharon had a tragic accident and died from a fall. She was buried
at West Point at the cemetery we visited together a few years earlier.
Through donations and contributions made by people who knew her and
loved her, we now have three benches that bear her name. The first one is
in Oronoco Park in Alexandria, Virginia, in a path along the water that she
walked almost daily. The second is opposite the new Army Museum,
dedicated not just to her, but to all Army wives. We had a formal
ceremony inaugurating both of those benches. The Oronoco memorial was
led by our minister, and the one at the Army Museum was led by the
former Judge Advocate General of the Army, Major General William K.
Suter. Both involved a number of my West Point classmates and officers I225
served with in the Army. And then more recently, through donations by
the American College of Environmental Lawyers, there’s another bench
dedicated to her and located in a wonderful park at Accotink Lake in
Virginia. This bench recognizes her musical contributions as well.
Finally, we established a scholarship in her name for graduates of our high
school who choose to teach. So, her legacy continued, and she was an
absolutely integral part of my life.
MS. SCARROW: So, we’ve discussed your wonderful career, your rich family life, but tell
us what you like to do for fun.
MR. CRUDEN: Much of my life has involved athletics and being outdoors. In spite of my
zeal, my high basketball career was cut short by a lack of size and talent.
The rest of my athletic endeavors have been fueled by my love for athletic
competition, unencumbered by any real ability. In high school I ran track
and received a scholarship to the University of Michigan before being
accepted at West Point. In college my primary sports were track and
boxing. While in the military, I joined the Potomac Valley Track Club and
participated in many of their national level meets, along with competing in
the Senior Olympics in both running and biking. When stationed in
Europe, I learned to cross-country ski and competed in military
competitions. Returning to the U.S, my athletic career then went from
Master’s track, to longer 5 and 10k races, and then ten “sprint” triathlons.
At the suggestion of my daughter, I became SCUBA certified and have
now dived in multiple countries, including Australia’s famous Great226
Barrier Reef. And have completed kayaking trips in Alaska and the
Canadian Thousand Islands, and this year near Key Largo in Florida.
Now, living in Old Town, Alexandria, near the wonderful Mount Vernon
trail, my exercise is often biking and hiking on that glorious path along the
Potomac River, which is also a national park.
MS. SCARROW: I understand that you also had DOJ-oriented vacation travel group
adventures?
MR. CRUDEN: Yes, I should mention my exceptional vacation travel group. Starting in
2011, David Buente, a past Section Chief of the DOJ Environmental
Enforcement Section, organized a National Geographic Society trip to
Alaska and Denali National Park. Those invited and participating were:
Angus McBeth, former Deputy Assistant Attorney General, and his wife;
Nancy Firestone, a federal judge and former Deputy Chief of
Environmental Enforcement Section, and Pat Payne; Steve Ramsey,
former Chief of Environmental Enforcement, and Ann Ramsey; Sheila
Jones, former Assistant Chief, Environmental Enforcement Section, and
Doug Browning; Don Carr, former Section Chief, and Celia Lin; Dave
Buente and Fran Dubrowski; plus my wife and I. Subsequently we have
traveled together to Ecuador, Galapagos, Turkey, Greece, Albania,
Montenegro, Bosnia, and Croatia. Some of the latter trips were on the Sea
Cloud, a historic 5 mastered sailing ship.227
MS. SCARROW: One last. question about your background. I know that you have coached a
Special Olympic swim meet for over two decades. Can you describe how
you became involved?
MR. CRUDEN: When my youngest daughter, Heather, was a senior in high school her
Honor Society had a requirement for community service. As she was on
the school swimming team, she decided she would volunteer in the Special
Olympic program for swimming. She then asked me to accompany her –
an opportunity no dad would pass up! That experience taught me a lot, and
I went through the several rounds of training to become a certified coach
for Fairfax County, and I now have my own team.
MS. SCARROW: What do you do as coach? How often do you practice and do you have
another assistance?
MR. CRUDEN: My team has now grown to 55 special needs swimmers. We meet in three
class segments each Saturday. With a co-coach and ten volunteers, we
teach beginner, intermediate, and competitive swimming. We also have 3-
4 swim meets each year that are identical to any high school swim meet
with the same events. At the end of the season, selections are made for the
annual Virginia Special Olympic Games swim meet in Richmond. In
2024, 15 of our swimmers were selected to participate and 5 of them won
their event. This is a passion of mine, and I strongly believe that I receive
more than I give from these dedicated young people. They may have
special needs, but they give their absolute best and are a constant
inspiration to me.228
MS. SCARROW: I understand that you received Fairfax County’s Volunteer of the Year
award for your Special Olympics work.
MR. CRUDEN: I’m proud of that but am prouder of our athletes’ effort and dedication and
the fact that so many of our swimmers have gone on to be successful in
the competition. Many of our athletes at the Virginia Special Olympics
Games win their events. And two of our athletes have competed in the
International Special Olympics Games. I continue to believe that I receive
much more than I give by working with these amazing athletes.
Before each competition, we all recite the Special Olympics Oath, written
by Eunice Kennedy Shriver: “Let me win. But if I cannot win, let me be
brave in the attempt.” Those few words describe much of my life, too.
MS. SCARROW: Thank you for sharing that with us. Is there anything else you would
include as we close?
MR. CRUDEN: Thank you, I would like to close by honoring a fallen friend who had a
significant impact on my life as a mentor, Steve Pollak. I knew of Steve,
as a former Assistant Attorney General of the Civil Rights Division at
DOJ. When I became President of the DC Bar, he was gracious in giving
me advice and assistance. Throughout his five decades of practice, Steve
was actively involved in the legal services community in Washington,
D.C., serving in various leadership roles at the District of Columbia Bar
Foundation, the D.C. Access to Justice Commission, the Lawyers’
Committee for Civil Rights Under Law, and the Washington Lawyers’
Committee for Civil Rights and Urban Affairs. Steve recruited me to be a229
Board member of the DC Bar Foundation while he was President, and we
were lifelong friends. I miss him and honor his memory.
MS. SCARROW: So that pretty much wraps up the questions that I have. Is there anything
else that you would like to touch on before we finish up?
MR. CRUDEN: No. Only to thank you. You’ve spent a lot of time talking with others to
prepare for this interview, and you have had to review many press
releases, my law review articles, and even my congressional testimony.
You were so professional and so thorough, and it’s really been wonderful
for me to get to know you and appreciate just how you handled this
interview.
MS. SCARROW: My pleasure.A-1
Oral History of John C. Cruden, Esq.
Index
ABA (American Bar Association), 85, 110, 128, 137 198, 219
ABA Chair, 135
Board of Governors, 123, 127, 138, 220
Chair Environmental Section, 134, ere
136
SEER Section (Section of Environment, Energy, and Resources), 138
Adelman, Roger, 58
American Smelting (case), 106
Also see ASARCO
Ange v. Bush (case), 51
ASARCO, 92
Also see American Smelting
settlement, 105-06
Ashcroft, John, 101, 112-15, 123
Asian Pacific Bar Association, 130
Balanchine, George, 20
Barbier, Carl, 141-142, 156
Baucus, Max, 96, 108
Berlowe, Andrea, 178
Bestfoods (case), 107-08
Bird, Rose, 43-45
Bivens v. Six Unknown Named Agents (case), 69-70
Bolton, John, 66
BP (British Petroleum), 88, 137, 155-57, 159-62, 171, 181, 19
See also Deepwater Horizon
oil spill, 139-40, 142-43, 148
MDL (multi-district litigation), 163-64
Brighton, Bill, 81, 84, 87, 95, 157
Government Lawyer of the Year award, 137
Brooks, Phillip, 84, 86, 163, 168
Brown, Edmund, 43
Brown, Jerry, 44
Browner, Carol, 96, 100
Buente, David, 79, 229,
Bunker, Byron, 168
Bunker Hill (case), 91, 105, 112
Bunker Hill Mine and Smelting Complex, 91
Superfund, 91, 105
Bush Administration, 86, 99,-100, 104, 110-12, 115, 117, 170, 193
Caen, Herb, 44
CAFE (Corporate Average Fuel Economy) standards, 1Cagle, Lee (childhood friend), 118A-2
California Supreme Court, 43, 45
Campbell, Brad, 92
Campbell, Scott (son-in-law), 144)
Carothers, Leslie, 145
Carter Administration, 88, 179
Caterpillar Inc., 105
CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act), 82-83,
92-96, 107-08
Chu, Steven, 120
Clean Air Act, 81-82
amendments, 186, 221
Clear Air Plan, 198
coal fired power plants and oil refineries, 99, 113
D.C. circuit exclusive jurisdiction, 98, 110
diesel engines, 104
Volkswagon (dieselgate), 162, 166-67
greenhouse gas emissions standards, 118, 200
Mobile Source Provisions, 100, 125, 127
New Source Review Provisions, 101
Clean Water Act, 81-82, 99, 159
British Petroleum, 142
District of Columbia sewer system, 203
New Orleans, 102, 203
San Francisco, 218
wetlands, 110
Clinton Administration, 95-97, 99, 104, 119, 121, 192-93
Connor, Peter, 20
Cruden, Heather (daughter), 54, 222-25, 229
Cruden, James brother, 3-4
Cruden, John, Government Recovery: Federal Medical Care Recovery Act, Automobile
Insurance and Workmen’s Compensation, 13 Santa Clara L. Rev. 720 (1973)., 46
Cruden, John, The War-Making Process, 69 Mil. L. Rev. 35 (1975, 51
Cruden, John – Personal
birth Topeka, Kansas, 1
Boy Scouts, 4-6, 8-9
National Boy Scout Jamboree, 8-9
Eagle Scouts, 5-6
President of Order of the Arrow, 7
father
birth Scotland, 2
Ford Motor Company, 2-3
steel mill crane operator, 2
Fairfax County’s Volunteer of the Year Award, 230
Gombach, Germany, 53
Hawaii, 38
immigrant parents, 2A-3
LSAT (law school aptitude test), 38-39
law school aptitude test in Saigon, 39
Mickey Mantle, 11
mother
birth Cherokee, Kansas, 2
Ford Motor Company in an administrative position, 3
parents key role in encouraging college, 11
Santa Clara University Law School, 39-42
Law Review, 43, 45-46
summa cum laude, 48
swimming coach, 229
Taylor, Michigan (childhood home), 1
Taylor Center High School, 4-5
high school activities, 9
thesis on the War Powers Act, 50
United Nations Forum, 9-10
West Point, 5, 8, 9-13, 15-16, 19-24, 29-30, 33, 52, 78, 230
athletics, 15
boxing, 15, 20
cadet officer, 18
hepatitis, 27
history and tradition, 24, 25
Honor Committee, 17
intercollegiate debate team, 22
law courses, 19, 38, 65
Model United Nation Forums, 20
National President, XIX Student Conference on United States Affairs (SCUSA), 22, 48
religion, 26
Sylvanus Thayer academic model, 17
teaching, 217
Cruden, John – Professional
Access to Justice Commission, 129
American Bar Association’
Chair, 138
Chair Environmental Section, 137
Lifetime Achievement Award, 222
Mary C. Lawton Award for Outstanding Government Service, 113
animal cruelty, 172, 189
British Petroleum spill Natural Resource Damage Task Force, 98
Cambodia, 33
Chief of civil litigation in Germany, 55
Chief of Environmental Enforcement, 78, 91
Chief of the Environmental Enforcement Section, 74, 81
Co-chair Task Force on Illegal Wildlife Trafficking, 151, 180
China, 150
DC Bar, 1, 117, 129-30A-4
DC Bar Magazine, 1
Beatrice Rosenberg Award for Excellence in Government Service, 133-34
Executive Council of the National Council of Bar Presidents, 132
Legends of the Law, 133
President, 1, 113, 121-27, 129, 131, 148, 182
Board of Governors, 122, 126, 137, 218
revising the Rules of Professional Conduct, 129, 135
Defense Meritorious Service Medal and Air Medal, 59
Defense Nuclear Agency, 58
General Counse, 58
Department of Justice (DOJ), 67, 76, 78, 80-81, 84, 87, 91-92, 101, 112, 116, 118-19, 122, 128,
144-45, 149-51, 155, 156, 163, 168, 172-73, 177-78, 160, 188-89, 195
Acting Assistant Attorney General, 111, 115-16, 138, 164, 181
AGAC, (Attorney General Advisory Committee), 170
Assistant Attorney General, 62, 74, 92-93, 98, 108, 110, 115-19, 127-29
Deputy Assistant Attorney General, 97, 110-11, 117, 121, 211
educational programs, 135
Environmental Justice Task Force, 201-
Land Acquisition Section, 98, 174-75
special counsel for the Assistant Attorney General of the Civil Division, 66
Trump Administration, 182
World Trade Center, 114
dog fights, 169
Dominican Republic, 146
Environment and Natural Resources Division (ENRD), 82, 97, 138, 141, 143
Academy, 175
Fellows Program, 175
Muskie-Chafee Award, 143-44
Environmental Enforcement Section Chief, 84
Environmental Law Institute (ELI), 144, 146-47, 153, 160, 216
President, 147-49
Heidelberg, Germany, 19, 54-55
Chief of Civil Litigation, 53
inclusivity, 130, 172, 175, 177
Jordan, 146
Judge Advocate, 60, 64-65
Director of Administrative and Civil Law at the Judge Advocate General school, 48, 52, 61
Fort Ord, California, 46
Legal Center and School, 49
Legion of Merit, 54, 65, 76
Mainz, Germany, 311-32
National Council of Bar Presidents, 132
Chair Diversity and Inclusion Committee, 132
Natural Resource Damage Task Force, 104
NRD Task Force Chaiir, 91
Panama, 75A-5
Presidential Rank Award, 121
pro bono work, 125, 136-39, 143-44
clinic, 129
federal judiciary, 131
government, 126-30
United States Army
Chief Legislative Counsel of the Army, 69-70, 75, 78, 149
“Excess Leave,” 42
Army Command and General Staff College (CGSC), 59-61
Army Litigation Division at the Pentagon, 55, 79
Fort Benning, Georgia, 29
Bronze Star, 36
Pentagon Litigation Division, 109
Ranger school, Georgia and Florida, 30, 34
Special Forces, 72
Staff Judge Advocate for the Third Armor Division, 64
Vietnam, 19, 26, 30-33, 37-41, 50, 72
Vietnamese Cross of Gallantry with Silver Star, 34-35
worker safety, 170-71, 177, 185, 195
World Congress of Chief Justices, Attorneys General, and Auditors General (Rio+20), 146
Cruden, Heather Ashley daughter, 54, 223-25
Cruden, Sharon Holland (wife), 10, 27-33, 38, 40, 45-47, 213, 216, 224, 227
Germany Vice President of the Women’s Association, 33
teaching at the University of California and De Anza College, 47
University of California, at San Jose, 47
Cummins Inc., 104
Darling, John, 20, 25, 29
Dawkins, Peter, 18
Day, James (childhood friend), 4
Deepwater Horizon (case), 81, 88, 90, 96, 139-42, 152, 155, 160-65, 171, 180, 182, 208
Defense Authorization Act, 70
Defense Nuclear Agency, 58-59
Department of Agriculture, 152, 159, 169
Department of Commerce, 152
Department of Homeland Security, 112, 152, 159
Department of Interior, 103, 113, 119-20, 140, 143, 152, 159, 204
Detroit Diesel, 104, 152
dieselgate, 161, 210
Eisenhower, Dwight, 9
Environment and Natural Resources Division, 80-81, 97, 117, 138, 180-81, 184-85, 187, 241
Environment and Public Works Committee of the Senate, 96, 109
Environmental Enforcement Section, 78-83, 89, 95, 98, 144, 185, 227A-6
Environmental Protection Agency (EPA), 83-86, 92-93, 95-96, 98-109, 110, 118-20, 140–48,
147, 159, 161-63, 165-66, 168, 196-99
Everglades National Park, 192
Exxon Valdez (case), 81, 87, 89, 95, 137, 141-42
Federal Medical Care Recovery Act, 46
Firestone, Nancy, 81, 83, 227
Fleet Factors (case), 92
Flint, Myles, 79, 97
Ford, Bill, 76
Ford, William, 12
Freeman, Jody, 118
Fulton, Scott, 83, 120
Garland, Merrick, 198, 216
Gelber, Bruce, 84
Giles, Cynthia, 120, 162
Giuliani, Rudy, 114
Goda, Paul, 43, 45
Gregoire, Christine, 115-16, 120
Haig, Alexander, 19
Hanford (case), 115-16, 120, 138
Harris, Deborah, 84, 162, 164, 170
Hartman, Barry, 79
Hirsch, Sam, 153, 173, 187
Hispanic Bar Association, 130
Holder, Eric, 111, 115, 138, 144, 149-51, 192
Hurricane Katrina, 126-27
Idaho, 91, 113
Coeur d’Alene Lake, 91, 113
John C. Cruden Federal Agency Pro Bono Leadership Award., 132-33
Jones, George, 122, 124
Jones, Lisa, 153
Jones, Richard (childhood friend), 4
Jones, Sheila, 227
Kempthorne, Dirk, 113
Kennedy, Anthony, 109
Kennedy, John F. 11, 74
Ladney, Michael, 93
Lamberth, Royce, 51, 57, 76
Lazarus, Richard, 138, 140, 191A-7
Letter, Doug, 122, 124
Love Canal (case), 87-88
Lynch, Loretta, 151, 158-60
Macbeth, Angus, 145, 227
Mexican Supreme Court, 146
Monroe, Robert, 59-60
Moore, John Norton, et al., National Security Law & Policy (3rd ed. 2015), 61
Moreno, Guillermo Alfredo Benavides, 73
Moreno, Ignacia, 121, 149
Mosk, Stanley, 43, 45
Mueller, Jon, 92
Mueller, Robert, 164
National Environmental Policy Act (NEPA), 56, 185
National Highway Transportation Safety Administration (NHTSA), 118
National Oceanic and Atmospheric Administration (NOAA), 90, 143, 152
Native American tribes, 6-7, 120, 153, 166, 185, 195, 201
Obama Administration, 109-11, 115, 118-19, 138, 145, 147-48, 153, 181-82
Clean Power Plan, 110, 180, 196-200
Obama, Barack, 140, 151, 179
Office of the Solicitor General, 109, 191, 198
Oil Pollution Act, 82, 88, 142, 159
Operating Industries, 89
Occupational Safety and Health Administration (OSHA), 169-70
Pair, Quentin, 137, 201
Palos Verdes Shelf (cases), 88-89
Production Plated Plastics (case), 88
Rapanos (case), 106 108-09
Reagan Administration, 67, 145, 191
Reagan, Ronald, 67-68, 74
Resource Conservation Recovery Act, 82
Robinson, Nicholas, 147
Rusk, Dean, 50
Safe Drinking Water Act, 82
Salazar, Ken, 119, 178
Sansonetti, Tom, 169-70
Scalia, Antonin, 109, 197
Schiffer, Lois, 97, 108, 143, 157
Schwarzkopf, Norman, 19
Shriver, Eunice Kennedy, 229
Siemer, Deanne, 58
Sopko, John, 72A-8
Stabler, Neil, 12
Steenland, Pete, 57, 79, 84
Stewart, Jimmy, 8
Stewart, Richard (Dick), 74, 79-80, 86
Stone, Clicky, 78, 84
Stoner, Nancy, 81
Stringfellow (case), 86, 89
Superfund, 81, 82, 88, 84, 91, 96, 108, 112, 119
Times Beach, 112
Superfund Reauthorization, 95
Task Force, 95
Supreme Court of Columbia, 72
Superior Court of the District of Columbia, 131-32
Supreme Court, 63, 68-69, 71, 76,106, 108-11, 138, 123, 169, 191, 195, 197-99, 217
shadow docket, 197
Bestfoods case, 107-08
Sussman, Robert, 95
Suter, Bill, 63, 66, 69, 76, 144, 225
Tenpas, Ron, 211
Thornburg, Richard, 68
Times Beach, Missouri (Superfund site), 112
Tobriner, Matthew, 43
Tribe, Laurence, 129
U.S. Army Corps of Engineers, 106
United States Coast Guard, 139-40, 152, 157, 159
United States Court of Appeals for the DC Circuit, 68, 96, 98, 109, 131, 199, 215
United States Court of Appeals for the Eleventh Circuit, 88
United States Court of Appeals for the First Circuit, 92, 93
United States Court of Appeals for the Ninth Circuit, 67, 89, 91
United States Court of Appeals for the Sixth Circuit, 92
United States Court of Federal Claims, 81
Udall, Tom, 150
Volkswagon (case), 103, 152, 162-63, 167, 171
War Powers Act, 50-51
Washington Bar Association, 130
West, Tony, 139
wetlands, 108-09, 139, 142, 161, 185
cases, 108
Willard, Richard, 66
Williams, Jean, 153
Wilson, Ben, 102, 137
Wilson, Pete, 80A-9
Wing, John, 20
Women’s Bar Association, 130
Wright, Donald, 43
Yates, Sally, 151, 155, 170B-1
Oral History of John C. Cruden, Esq.
Table of Cases and Statutes
Cases
Ange v. Bush, 752 F. Supp. 509, 518 (D.D.C. 1990, 51
American Electric Power v. Connecticut, 564 U.S. 410 (2011), 206
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), 69
Burlington Northern and Santa Fe Railway v. United States, 556 U.S. 599 (2009), 206
Cooper Industries v. Aviall Services, Inc., 543 U.S. 157 (2004), 206
EPA v. EME Homer City Generation, 572 U.S. 489 (2014), 206
Environmental Defense v. Duke Energy Corp., 549 U.S. 561 (2007), 206
Environmental Protection Agency v. Fleet Factors, 821 F. Supp. 707 (S.D. Ga. 1993), 91
Gemeinschaft zum Schutz des Berliner Baumbestandes v. Marienthal, No. 78-1836 (D.D.C.
November 9, 1978), 56
Massachusetts v. EPA (2007), 549 U.S. 497 (2007), 106, 109
Michigan v. EPA, 576 U.S. 743(2015), 206
Rapanos v. United States, 547 U.S. 715 (2006), 109, 206
Sackett v. EPA, 566 U.S. 120 (2012), 206
Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159
(2001), 206
United States v. Bestfoods, 524 U.S. 51 (1998), 206
United States v. Charles George Trucking, Inc., 642 F. Supp. 329 (D. Mass. 1986), 93
Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014), 206
West Virginia v. EPA, 597 U.S. 697 (2022), 197-98
Whitman v. American Trucking Associations, Inc., 531 U.S. 457 (2001), 206
Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), 206
Statutes
Asset Conservation, Lender Liability, and Deposit Insurance Protection Act, S.394 — 104th
Congress (1995-1996), 92
Clean Air Act, 42 U.S.C. ch. 85 (§§ 7401-7671q), 80, 82, 98-99, 109, 111, 118, 161, 165-66,
184, 196 198, 219B-2
Clean Water Act, 33 U.S.C. §1251 et seq. (1972), 81-82, 99, 102, 108, 141, 158-59, 184, 194,
201, 216, 219
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), P.L. 96-
510 Statutes at Large 94 Stat. 2767, 80-83, 87, 91-93, 95, 107-08
Defense Authorization Act, S. 4638, 118th Cong. (2024), 70
Federal Medical Care Recovery Act, 42 U.S.C. 2651-2653, 46
Inflation Reduction Act, Pub. L. 117–169 136 Stat. 1818, 219
Lacey Act, 16 U.S.C. 3371-3378), 184
Lautenberg Act, Pub. L. 114-182 130 Stat. 448, 184, 219
National Environmental Policy Act, Pub. L. 91–190 83 Stat. 852, 56, 184
Oil Pollution Act, Pub. L. 101-380 104 Stat. 484, 82, 87, 141, 158
Resource and Conservation Act, Pub. L. 94-580 90 Stat. 2795, 92
Safe Drinking Water Act, Pub. L. 93-523 88 Stat. 1660 (1974), 82
War Powers Act, Pub. L. 93-148 87 Stat. 555, 50-51BOOK REVIEWS
THE WAR PowERs RESOLUTION: ITS IMPLEMENTATION IN THEORY
AND PRACTICE. By Robert F. Turner. Philadelphia: Foreign Policy
Research Institute, 1983, xviii, 147 pp.
Reviewed by JOHN C. CRUDEN*
Conceived in anger, written as a compromise between two irreconcilable congressional proposals, and ignored or violated in practice, the War Powers Resolution’ remains the most controversial
effort to define and limit the President’s war-making authority in
our nation’s history. Since its inception in 1973, no major presidential initiative involving forces abroad – from the evacuation of
U.S. citizens from Saigon and Pnom Penh to the ill-fated Iranian
rescue attempt to the recent Grenada incursion – has escaped the
complaint that the Resolution has been violated in spirit or in
practice. Nevertheless, each Chief Executive has made herculean
efforts to pacify Congress, thereby avoiding confrontation, while simultaneously taking action to avoid complying with its terms. This
seemingly contradictory effort is a facet of modern day executivecongressional relations that should be examined and resolved.
* Lieutenent Colonel, Chief, Administrative and Civil Law Division, U.S. Army Judge
Advocate General’s School The views expressed herein are those of the reviewer and do not
necessarily represent those of the U.S. Army or any other governmental agency.
1. 50 U.S.C. § 1541(c) (1976). The Resolution has ten sections, including a “purpose and
policy” provision which purports to define the three constitutional methods by which the
President, as Commander-in-Chief, can introduce U.S. forces into ho3tilitie3. The most critical sections require consultation before and reporting after forces are committed into actual
or imminent hositilities, limit such actions to 90 days without congressional approval, and
allow Congress to order removal of committed forces at any time by concurrent resolution,
the so-called “legislative veto.”VIRGINIA JOURNAL OF INTERNATIONAL LAW
Robert F. Turner, now Principle Deputy Assistant Secretary of
State for Legislative and Intergovernmental Affairs,2 has written a
superb book which goes a long way toward setting the stage for a
congressional reconsideration of the Resolution. The War Powers
Resolution: Its Implementation in Theory and Practice3 should be
mandatory reading for all individuals involved in national security,
foreign relations, or executive-congressional relations. The book,
which begins with a foreword by Senator John G. Tower, is divided
into three chapters. The first chapter is a summary of the Resolution, its genesis, and its historical underpinnings. The next chapter, which reads like a summary of the major political events of the
last decade, describes the application of the Resolution from Cy-
prus in 1974 to Lebanon in 1982. The last chapter is a scholarly
review of the Resolution from both its legal and foreign policy
aspects.
The author is quite candid in his appraisal of the Resolution and
does not hold the reader in suspense for long as to his personal
views: his preface indicates his belief that the Resolution is “unconstitutional, ineffective and unwise.” 4 Yet, throughout the book
there is ample evidence of the author’s appreciation of the subtleties of the intertwining executive-congressional relationship. He
understands that this relationship is unduly complicated by political realities, confused electorates, burgeoning congressional staffs,
and suspicious allies. Therefore, tension is expected, perhaps even
demanded, as another check in the system; but our domestic tension may well be the step-child of international crisis, and our confusion the causal events in foreign disturbances. If so, the War
Powers Resolution cannot be ignored, transcended, or carved
around much longer without precipitating a constitutional crisis at
the least opportune moment.
From what I have said thus far, it should be clear that I believe
Mr. Turner’s book deserves a careful and thoughtful review. Let
me say at the outset, however, that I am clearly not an impartial
observer on this subject.5 While I may disagree with the path Mr.
Turner follows to his conclusions in several instances, I believe his
destination inescapable. It is clear that troops in combat cannot be
2. Mr. Turner wrote this book before entering the State Department.
3. R. Turner, The War Powers Resolution: Its Implementation in Theory and Practice
(1983).
4. Id. at xv.
5. See generally Cruden, The War-Making Process, 69 Mil. L. Rev. 35 (1975).
[Vol. 24:2BooK RE IEws
governed by a committee process. Sure, certain and clear instructions are vital. My combat experience has led me to conclude that
restrictions on the President once forces have been committed are
not only legally suspect, but dangerous as well. On the other hand,
I welcome and even solicit whatever acts are necessary to insure
that any commitment of combat oriented forces is done with clear
goals, broad public support and understanding, and candid recognition of the limitations of military forces.
It is impossible to understand presidential war-making powers
without first understanding the constitutional bases for executive
versus congressional powers. Mr. Turner, therefore, begins as does
virtually every other article or book on this subject by reviewing
the constitutional language, initial debates of the Framers, presidential practice in ensuing years, and the history of the 1970s just
prior to the passage of the Resolution. Determining the proper allocation of war powers under the Constitution is not an easy task.
As Justice Jackson wryly observed, the constitutional basis for
war-making authority “must be divined from materials almost as
enigmatic as the dreams Joseph was called upon to interpret for
Pharoh.”8
Mr. Turner makes two important points in his analysis of the
constitutional allocation of power. First, despite the Constitution’s
grant to Congress of the power to “declare war,”1 our Founding
Fathers were well aware that formal declarations of war were rare
and not always required.8 Second, the authors of the Constitution
distinguished between offensive and defensive hostilities, requiring
congressional authority only for the initiation of offensive hostilities.9 Turning to the President’s power, Mr. Turner finds ample
authority, express and implied, for substantial war powers. After
reviewing the leading Supreme Court decisions, he finds Congress
unable to restrict by statute the President’s war powers, particularly those done in the Commander-in-Chief role.’ 0
It is clear that Mr. Turner intended this first chapter to be the
necessary precedent to his examination of the events of the last
decade. He writes this chapter more as a practioner than as an aca-
6. Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J.,
concurring).
7. U.S. Const. art. 1, § 8.
8. See R. Turner, supra note 3, at 16.
9. Id. at 17.
10. Id. at 24-32.
1984]VIRGINIA JOURNAL OF INTERNATIONAL LAW
demician. While many have taken the exact opposite approach,
holding and vesting all war powers authority in the legislature, 1
Mr. Turner’s analysis favoring the President is more appealing and
thoughtful. The debate over the war-making clause in 1787 has received intense scholarly examination. Votes have been counted and
recounted, speeches examined in detail, and contemporaneous
writing reviewed for even a hint of insight. Despite this scholarly
attention, all that can be clearly said is that only the legislature
has the power to formally declare war. Once war is declared, however, the President has the sole responsibility to “conduct war” although Congress with its appropriations authority may have a considerable effect on any decision.
It is not in dispute, even among the most ardent critics of presidential power, that history clearly favors the broad use of warmaking powers by the President. Those Presidents considered to
be “strong” or “active” Chief Executives by current historians
Washington, Jefferson, Jackson, Polk, Lincoln, Wilson, and the
two Roosevelts – are those most closely associated with the forceful use of war powers. In his eulogy of James Madison in 1836,
John Quincy Adams said that “[h]owever startled we may be at
the idea that the Executive Chief Magistrate has the power of involving the nation in war, even without consulting Congress, an experience of fifty years has proved that in numberless cases he has
and must have exercised the power. ‘ 12 There have been well over
200 hostilities involving U.S. troops abroad, while there have been
only five declarations of war. To be sure, Congress was involved
and normally supported quite vigorously these military commitments, but the initial decision was always the President’s.
Mr. Turner does not recount many of the historical examples of
executive action, as they are adequately discussed in many other
sources. He does, however, review in detail the often quoted response by President Jefferson to a declaration of war by Tripoli in
1801 that as President he was “[u]nauthorized by the
[Clonstitution without the sanction of Congress, to go beyond the
line of defense. . . .”” Mr. Turner argues that this is an extremely
poor example for proponents of congressional preeminence. He
11. See generally T. Eagleton, War and Presidential Power (1973); J. Javits, Who Makes
War (1973); A. Schlesinger, Jr., The Imperial Presidency (1973).
12. Q. Adams, Eulogy of James Madison 47 (1836).
13. 3 Writings of Thomas Jefferson 329 (A. Lipscomb & A. Bergh eds. 1903). See R. Turner, supra note 3, at 19.
[Vol. 24:2BOOK REvEws
notes that Jefferson decided to send a squad of armed fighting
ships into an potentially hostile situation near Tripoli without formal congressional authorization. Congress later commended the actions of the U.S. fighting force in Tripoli. Subsequently, Congress
authorized Jefferson to respond with even greater force.1 ‘
The Tripoli incident is only one example, as Mr. Turner points
out, that the accusations of presidential belicoseness are a modem
phenomena. For instance, in the half-century period between Jefferson and Lincoln, strong legislatures dominated all but Presidents Monroe and Polk. Many historians have found in their analysis of presidential-congressional relations in the past that the
legislatures have been far more war-mongering in a variety of circumstances. The pendulum-like swing from strong legislatives to
strong Presidents can be predictably charted. Despite this, however, demanding times required demanding Chief Executives, and
few would argue that we were not better off with Franklin
Roosevelt as a world war leader than his immediate predecessor.
Although Mr. Turner’s historical summary in chapter one is superb, I do take issue with his gloss on Harry G. Summers, Jr.’s
highly acclaimed study on the Vietnam War. 5 Summers’ book reviews objectively the Vietnam War within the context of Clausewitz’s principles of war. Summers is a soldier, and his book is from
that viewpoint. Nonetheless, the book is clearly the best analysis to
emerge from that historical, political, social, and economic disaster
loosely referred to as the Vietnam era. In his section summarizing
our commitment to Vietnam, Mr. Turner criticizes the following
language by Summers:
The Constitutional requirement for a congressional declaration of war served a dual purpose. It insured public
support at the outset, and through the legal sanctions
against dealing with the enemy, it created impediments
to public dissent…. Legalistic arguments that the form
of a declaration of war was out of date may have been
technically correct, but they obscured the fact that this
form was designed to be an outward manifestation of a
critical substance – the support and commitment of the
American people…. The failure to involve the national
will was one of the major strategic failures of the Viet14. R. Turner, supra note 3, at 19-24.
15. H. Summers, Jr., On Strategy- A Critical Analysis of the Vietnam War (1982).
1984]VIRGINIA JOURNAL OF INTERNATIONAL LAW
nam war.’1
Mr. Turner contends that Summers fails to appreciate the sweeping scope of the Gulf of Tonkin Resolution. In particular, Mr. Turner argues that the Tonkin Resolution was tantamount to a declaration of war and, in any case, ample evidence of congressional
approval. He concludes that it was not the lack of a declaration of
war that caused the problems in Vietnam, but the “gradualism and
no-win strategy pursued by the Johnson administration. ‘ 17
While Mr. Turner is quite correct in a strictly legal sense, I believe he is wrong from a foreign policy-domestic confrontation
analysis. While his conclusion may or may not be true, 18 he misses
the point of Summers teaching. Summers is not addressing the
question of “who lost Vietnam,” but rather he is analyzing the constitutional and effective use of the President’s war powers. As an
attorney, I find great constitutional and historical support for the
virtually unbridled national security powers of the President in
war, but as a military officer I am reluctant to see those powers
exercised until a national consensus can be identified, acknowledged, or assumed because of the severity and immediacy of the
threat. While I am not an advocate of declarations of war, and believe they are indeed outmoded, forgotten, and clumsy instruments, I am acutely aware of the need to account for and assemble
national will, if for no other reason than to force policy-makers to
explain their policies, goals, and purposes to the individuals who
may be taxed, drafted, and killed in furtherance of those decisions.
The congressional repeal of the Gulf of Tonkin resolution in 1970
and the subsequent congressional actions that Mr. Turner chronicles are evidence that joint resolutions are uncertain foundations
for prolonged hostilities.19
Chapter 2 of Mr. Turner’s book, “Applying the Resolution,” covers roughly half the book and is a major contribution to the history
of the Resolution’s application. He summarizes fourteen hostile or
16. Id. at 14, 17, 19. See R. Turner, supra note 3, at 2-3.
17. R. Turner, supra note 3, at 3.
18. I disagree in part with this conclusion and with other portions of the book where Mr.
Turner claims Vietnam was lost because “a frustrated Congress terminated funding.” Id. at
113. For a more comprehensive view, see H. Summers, supra note 15.
19. R. Turner, supra note 3, at 8-9. Declarations of war should, of course, be limited to
the offensive wars discussed in the original constitutional debates. Such declarations would
be entirely inappropriate in any of the actions the United States was involved in since Vietnam. Who, in fact, would we declare war against in either Lebanon or Grenada?
[Vol. 24:2BOOK REvIEws
potentially hostile commitments of military forces, ranging from
the evacuation of U.S. citizens from Cyprus in 1974 to the use of
U.S. forces in Lebanon in 1982. His analysis is excellent, particularly his detailed description of the vaguely worded reports submitted to Congress by Presidents Ford, Carter, and Reagan “taking note of” or “in light of” the War Powers Resolution, but never
actually accepting the Resolution’s requirements or restrictions.
In his recount of the aborted Iran rescue attempt, Mr. Turner
concludes that President Carter violated both the spirit and the
letter of the War Powers Resolution.20 If anything, the author is
too gentle in his analysis. President Carter formally notified Congress of the mission to rescue the hostages only after it had been
launched, had failed, and had been aborted. While I believe it
would have been absolutely defensible to state simply that the War
Powers Resolution could not be constitutionally applied to that
rescue, 21 it required an incredible slight of hand for President
Carter to say that he could have achieved any form of meaningful
consultation with Congress after he had inserted the rescue force
but before they had mounted their attack on the embassy.2
Mr. Turner’s description of President Reagan’s decision not to
apply the War Powers Resolution to the use of U.S. advisors in El
Salvador is the best I have read on this still controversial subject.
Although there have been other events in which the President has
not applied the Resolution, and Congress has objected, the use of
U.S. forces in El Salvador and the continuing political controversy
20. Id. at 71.
21. A serious and probably unconstitutional omission in the War Powers Resolution is
that it does not give the President authority to evacuate or protect American citizens
abroad. See Cruden, supra note 5, at 78-79. It is interesting to note that the “War Powers
Act of 1983,” introduced by Senators Cranston, Eagleton, and Stennis, generously adds to
the President’s constitutional powers the power “under proper circumstance3, to rescue en-
dangered citizens of the United States in foreign countries.” S. 1906, 98th Cong., 1st Sess.,
129 Cong. Rec. 13,245-46 (1983). This proposed legislation curiously defines four “recognized
powers of the President,” then limits those same powers and purports to grant them to the
President as emergency authority. It eliminates the current consultation provisions, but retains the reporting requirements. It eliminates the legislative veto, narrows the reporting
requirements, and reduces the maximum time from 90 to 30 days for armed forces committed into hostilities without congressional approval Finally, it requires that no funds be ex-
pended for any use of force not provided for by the Act. After 10 years of thought, this is an
almost embarrassing attempt to correct the sins of the 1973 War Powers Resolution. It
maintains the worst and eliminates some of the better provisions of the 1973 Resolution.
Under its terms, President Kennedy would have been prohibited from using U.S. forces in
the Cuban Missile Crisis.
22. See R. Turner, supra note 3, at 70.
1984]VIRGINIA JOURNAL OF INTERNATIONAL LAW
that decision precipitated is by far the most important. It is the
Administration’s strongly held position that the War Powers Resolution does not apply to the assignment of approximately fifty advisors to train Salvadoran forces. As Mr. Turner succinctly states,
“[i]n an environment where an automatic rifle is the standard
weapon no rational soldier armed only with a handgun [as the advisors are] would consider himself ‘equipped for combat’ within
the meaning of that term.”2 s Thus, Mr. Turner concludes, the Ad-
ministration is correct in not apply the Resolution. I agree. One of
the most frequent criticisms of the War Powers Resolution is that
it places the emphasis on procedural issues, such as whether an
advisor is “equipped for combat,” thereby obscuring the substantive issue. El Salvador is such an example; Mr. Turner recalls the
scandal that erupted when three U.S. soldiers were seen carrying
M-16 rifles in violation of their orders to have only personal
sidearms.2 4 For Congress to scrutinize such detail, or for the President to have to take such actions to avoid the Resolution’s restrictions, should be unacceptable to everyone concerned. On this critical point, Mr. Turner and I are in agreement.
Mr. Turner makes another very incisive comment about the El
Salvador debate: he observes that the existence of the War Powers
Resolution may have actually impeded executive-legislative discussion on the question of introducing advisors into El Salvador. 2
The Administration may, he postulates, have foregone extensive
consultation with Congress, lest such actions be used as indication
that the War Powers Resolution should be applied.
From Mr. Turner’s excellent analysis and summary of events in
chapter 2, one central theme comes across loud and clear: at no
time during the period 1973-1982 did any President, despite enormous pressures, actually agree to be bound by any of the limits of
the War Powers Resolution, specifically report in accordance with
its terms, or expressly admit its constitutional validity. It is as if
the Resolution cast a shadow of limited dimensions, which each
President has taken great pains to narrow, without ever acknowledging the source of the shadow.
Chapter 3 of the book explores the constitutionality, wisdom,
and effectiveness of the War Powers Resolution in theory and in
23. Id. at 77.
24. Id. at 134 n.14.
25. Id. at 77.
[Vol. 24:2BOOK REvmws
practice. Mr. Turner raises a number of serious constitutional
problems with the statute, including the three fold limitations on
when the President can use U.S. forces, the sixty-ninety day limitation on any unapproved commitment of forces into hostilities,
and the existence of a legislative veto. 6
Regarding the wisdom of the War Powers Resolution, Mr. Turner points out a number of reasons why the Resolution could be
dangerous in practice. The time limitations on the President, he
states, might encourage a President to escalate conflict so as to
gain a quick victory and void the time limitations. Alternatively,
the enemy may become more steadfast, hoping to last beyond the
ninety day deadline.2
Finally, Mr. Turner evaluates the Resolution, noting, as many
others have, that it would not have prevented Vietnam, and may
actually encourage executive-congressional confrontations.” While
acknowledging this, Mr. Turner makes a strong argument for better executive-congressional cooperation. The power of the purse is
the most cited and in fact the most potent weapon in the congressional arsenal to deter or even stop unwanted action. To accomplish better executive-congressional cooperation, Mr. Turner advocates more formal and informal contacts between the White House
and Congress. There is little question, to my mind, that private
discussions can accomplish far more than formal hearings, where
posturing for the press and future elections may obscure the issues
and prevent consensus. Given the fishbowl atmosphere of much of
our executive-congressional relationship, it is unrealistic to expect
open, candid discussions of mutual problems in a public forum.
The book clearly advocates a working executive-congressional relationship characterized by mutual respect and a high degree of
specialized, current knowledge. In support of this position, Mr.
Turner cites favorably Alexander Hamilton’s famous statement
that “no doubtful authority ought to be exercised by the President”2 9 while simultaneously pointing to the late Senator Arthur
H. Vandenberg as one who espoused the classic bipartisanship in
foreign relations.”0 This, of course, is the ideal; the reality is not
quite so clear or attainable. While Mr. Turner advocates a “full
26. Id. at 107-08.
27. Id. at 110-11.
28. Id. at 114.
29. Letter from Alexander Hamilton to James McHenry (May 17, 1798).
30. M. Turner, supra note 3, at 117.
1984]VIRGINIA JOURNAL OF INTERNATIONAL LAW
partnership” between a fully informed and responsible legislature
and a prudent executive, he recognizes that this is a distant goal. It
is the congressional forte to act as a deliberative, not decisive body.
Congressional actions are built upon consensus, which results in
agreement on the lowest common denominator, thereby diffusing
responsibility in the broadest possible way. Mr. Turner recognizes
this and chastises Congress in his closing pages for taking actions
inimical to our foreign policy interests in Vietnam, Korea, El Salvador, and elsewhere. He concludes that the War Powers Resolution should be repealed. 1
Because Mr. Turner’s book was written in January 1983, he did
not have the benefit of reviewing the critical events of 1983, the
most important year in the checkered history of the War Powers
Resolution. First, the U.S. Supreme Court’s decision in Immigration and Naturalization Service v. Chadha3 2 clearly rendered at
least a portion of the Resolution unconstitutional, and raised questions about the continuing propriety of the entire statute. Second,
Mr. Turner’s analysis of U.S. involvement in Lebanon was completed before the dramatically increased hostilities, the great September 1983 debates, and the legislative compromise that resulted.3 3 Finally, in November 1983 the President’s use of force in
Grenada stimulated renewed debate on the unilateral war-making
authority of the President and the restraints, if any, presented by
the War Powers Resolution. It is particularly useful to briefly examine these events in light of Mr. Turner’s book.
In one of its most far reaching opinions, the Supreme Court in
Chadha not only found unconstitutional the one-house veto of the
Immigration and Nationality Act, but also sounded “the death
knell for nearly 200 other statutory provisions in which Congress
has reserved a ‘legislative veto.’ “34 While the legislative veto portion of the War Powers Resolution has not been tested in the
courts, it is clear that the provision is now unconstitutional. In
fact, there is some speculation that the legislative veto provision in
the War Powers Resolution is so inexorably intertwined with the
statute that it is not severable, thereby making the entire statute
unconstitutional. 5 The Administration’s position, however, is more
31. Id. at 133.
32. 103 S. Ct. 2764 (1983).
33. Multinational Force in Lebanon Resolution, Pub. L. No. 98-119, 97 Stat. 805 (1983).
34. 103 S. Ct. at 2792 (White, J., dissenting).
35. See U.S. Supreme Court Decision Concerning the Legislative Veto: Hearings Before
[Vol. 24:2BOOK REVIEWS
narrow. In congressional testimony, the Deputy Attorney General
said that the Chadha decision “does not affect any of the procedural mechanisms contained in the War Powers Resolution other
than the procedure specified in § 5(c) [the legislative veto].” 3 Nevertheless, the Resolution was rendered a severe, if not mortal,
wound when coupled with its other provisions that many already
find uncontitutional.
While Chadhabrought the War Powers Resolution into the judicial arena, and reduced its legal effect, events in Lebanon placed
the Resolution in the political arena and increased its importance.
Mr. Turner ended his second chapter by discussing U.S. involvement in Lebanon. Mr. Turner thoroughly reviews what I call Lebanon I, the limited introduction of 800 U.S. Marines in August 1982
as part of a four-nation peace-keeping force designed to supervise
the peaceful departure of PLO forces from Lebanon.3 7 Although
the President reported this commitment of forces “consistent with
the War Powers Resolution,” he made it clear that hostilities were
not expected, thereby avoiding the Resolution’s time limitations
and consultation requirements. Since the Marines were withdrawn
seventeen days later without casualties, the report was accurate at
that time. However, Lebanon 11, the second commitment of U.S.
forces to Lebanon following the massacre at the Palestinian refugee camps and assassination of President-elect Bashir Gemayel,
had only started when Mr. Turner completed his book and deserves separate consideration.3 8
On September 29, 1982, at the request of the Lebanon governthe Comm. on Foreign Affairs, 98th Cong., 1st Sess. 16-17 (1983) (statement of Stanley M.
Brand, General Counsel to the Clerk of the House of Representatives).
There is also a growing body of opinion that would extend the Chadha rational to other
parts of the Resolution. For instance, Professor John Norton Moore has commented that:
The thrust of Chadha raises serious questions as to the termination provision,
central to the resolution, that would require termination of involvement in hostilities, or even imminent involvement in hostilities, after 60 days, unle:s authorized by the Congress. If it is unconstitutional for Congress to seek to act by
simple majority vote of both Houses, does this not raise, at least, serious questions about a procedure that purports to terminate the commitment of forces
abroad by congressional silence.
Wall St. J., Oct. 27, 1983, at 30, col. 3.
36. U.S. Supreme Court Decision Concerning the Legislative Veto: Hearings Before the
Comm. on Foreign Affairs, 98th Cong., 1st Sess. 63 (1983) (statement of Edward C.
Schmults, Deputy Attorney General).
37. R.Turner, supra note 3, at 81-90.
38. Mr. Turner does a commendable job reviewing Lebanon activities in 1982. See id. at
82-91.
1984]VIRGINIA JOURNAL OF INTERNATIONAL LAW
ment, over 1,200 U.S. Marines arrived in Beirut and took positions
at the airport. The President again submitted a war powers report
to Congress, similar to the Lebanon I report, emphasizing that
“there is no intention or expectation that U.S. Armed Forces will
become involved in hostilities. 3 9 Although there was considerable
congressional displeasure with the lack of consultation, the commitment of forces, and the report rendered, criticism did not crystalize until a year later, well after Mr. Turner’s book was completed. Events in Lebanon rapidly moved from a temporary calm
to crisis as the Syrian-backed P.L.O. remnants and Druze forces,
bolstered by the Soviet bloc and radical Arab support, initiated
new hostilities. By September 1983, U.S. forces, assisted by air and
naval power, were having to defend themselves vigorously and were
suffering mounting casualties in the process. On September 12,
1983, Senator Mathas introduced a resolution to trigger the procedures of the War Powers Resolution. 40 In a widely publicized compromise between President Reagan and House Speaker Thomas P.
O’Neill, Jr., Congress granted the President eighteen months additional time, while the President agreed to limit the committed
forces and implicitly conceded that the War Powers Resolution’s
restrictive provisions applied beginning August 29, 1983, when the
first two Marines were killed by hostile fire. 41 This compromise,
while sidestepping an inopportune constitutional confrontation,
was enormously significant: it marked the first time that Congress
affirmatively acted to invoke the War Powers Resolution and limit
the President in any fashion. It was not, however, the last time
Congress so acted; less than a month later the Grenada operation
precipitated another congressional war powers debate.
In October 1983, President Reagan acted swiftly to protect endangered U.S. citizens living and attending school in Grenada. The
murder of Prime Mininister Maurice Bishop and the ensuing domestic turmoil endangered American medical students stranded on
the island. On October 25, 1983, U.S. military forces were introduced to rescue the U.S. citizens and established order. While a
subsequent bipartisan congressional delegation largely supported
39. N.Y. Times, Sept. 30, 1983, at A12, col. 1. See R. Turner, supra note 3, at 84.
40. Multinational Force in Lebanon Resolution, S.J. Res. 159, 98th Cong., 1st Sess., 129
Cong. Rec. S11,989 (daily ed. Sept. 12, 1983) (statement of Sen. Mathias).
41. See supra note 33. In signing the Resolution, President Reagan expressed strong reservations with portions of the text, but praised the bipartisan approach that led to its pas.
sage. N.Y. Times, Oct. 13, 1983, at A7, col. 1.
[Vol. 24:2BOOK REVIEWS
the President’s decision, the House voted overwhelmingly to apply
the War Powers Resolution to the hostilities. 42 Later, however, the
Republican Senate leadership deflated the move and the bill was
defeated.’3 In any event, the President withdrew all combat troops
by December 23, 1983, thereby avoiding any question of time limitations on his authority.
As Mr. Turner acknowledged during his last pages, the final
chapter has not been written. While presumptous of me to posit
what Mr. Turner’s thoughts would be on these recent events, I am
convinced that he would have grave reservations about the use of
the War Powers Resolution in both Lebanon and Grenada. First,
the November 1983 compromise which purports to give the President eighteen months of free time in Lebanon before he must either withdraw troops or seek congressional authority is unprecedented. Not only does it place military hostilities, always a
dangerous, volatile, and unpredictable activity, on some accountant-like timetable, but it limits the committed forces and publishes
those limitations for all the world to see. The tragedy of the 241
marines killed in their barracks, while unrelated to this controversy, is a clear indication of the danger of setting artifical limits
on force commitments overseas and our inability to foresee in advance the vagaries of combat. Congress, on the other hand, cannot
seriously be faulted for attempting to invoke the War Powers Resolution in Grenada. At least one of the President’s two-fold justification for the invasion – rescuing American citizens and restoring
lawful control over the island – falls within the Resolution’s
prohibitions and limitations.” Unfortunately, Congress has never
taken any action to clarify the War Powers Resolution’s offensive
portions, to resolve its conflicting language, or to withdraw its unconstitutional portions. Accordingly, the mere act of attempting to
apply the Resolution is probably horatory, and is avoided entirely
if the President withdraws forces in any reasonable period of time.
I believe Mr. Turner would agree. His book certaily raises the is42. H.J. Res. 402, 98th Cong., 1st Sess., 129 Cong. Rec. H8933 (daily ed. Nov. 1, 1983). A
similar provision was successfully added to a pending bill in the Senate. Amendment No.
2462, 98th Cong., 1st Sess., 129 Cong. Rec. S14,877 (daily ed. Oct. 28, 1983). This bill, however, was defeated in the Senate. H.J. Res. 308, 98th Cong., 1st Sess., 129 Cong. Rec.
S15,076 (daily ed. Oct. 31, 1983).
43. See supra note 42.
44. For a brief, but illuminating, debate of this issue between Professor John Norton
Moore and Frederick S. Tipson, see At Issue: The War Powers Resolution, A.BMA. J., Mar.
1984, at 10.
1984]526 VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 24:2
sues necessary to resolve these problems.
In summary, this book could not have been written at a more
propitious moment. Although the book predates many of the important events of 1983 – including Chadha, Lebanon, and Grenada – it accurately forecasts the exact problems we are facing
today. This book should be a catalyst for debate and change, a
springboard for decision. War-making is too awesome a responsibility for one person alone to decide, too complex for a committee
to run, too dangerous for a single statute to govern, and too appalling to be subjected to partisan politics.THE NEW YORK ARBITRATION CONVENTION OF 1958: TowARDs A
UNIFORM JUDICIAL INTERPRETATION. By Albert Jan van den Berg.
Deventer/Netherlands: Kluwer Law and Taxation Publishers,
1981, xv, 466 pp.
Reviewed by THOMAS E. CAPsBoNNEu*
Arbitration is unquestionably vital to the fabric of international
trade.’ Its adjudicatory features respond well to the special dispute
resolution needs of international commercial agreements-including the need for geographically-neutral fora, expert
adjudicators, flexibility as to procedure, and choice as to the law
governing the merits. 2 In many national legal systems, contemporary judicial rulings and legislative enactments have fostered and
continue to support a growing international consensus on arbitration. The Scherk v. Alberto-Culver3 opinion and the 1970 Arbitration Act 4 in the United States, the 1979 Arbitration Act 5 in the
United Kingdom, and the Gosset v. Frres Carapelli and GNMTC
v. Gbtaverken7 decisions-and the Decrees of May 14, 19808 and
May 12,4-9819 in France amply illustrate this trend. In further testimony to the growing consensus, international organizations during the last several decades have introduced and promoted several
conventions on arbitration.r0 Of these, the 1958 New York Conven-
*Associate Professor of Law, Tulane University School of Law.
1. See, e.g., Kerr, International Arbitration v. Litigation, 1980 J. Bus. L 164.
2. See, eg., de Vries, International Commercial Arbitration: A Contractual Substitute For
National Courts, 57 Tul. L. Rev. 42 (1982).
3. Scherk v. Alberto-Culver, 417 U.S. 506, reh’g denied, 419 U.S. 885 (1974).
4. 9 U.S.C. §§ 201-08 (1976).
5. Arbitration Act, 1979, ch. 42.
6. Judgment of May 7, 1963, Cour de Cassation, 1963 D.Jur. 545.
7. Judgment of Feb. 21, 1980, Cour d’appel, 1980 D.S. Jur. 568.
8. Decree No. 80-354 of May 14, 1980, [1980] J.O. 1238.
9. Decree No. 81-500 of May 12, 1981, [19811 J.O. 1398.
10. These include principally the 1923 Geneva Protocol on Arbitration Clauses, Sept. 24,VIRGINIA JOURNAL OF INTERNATIONAL LAW
tion on the Recognition and Enforcement of Foreign Arbitral
Awards” is the most significant. The Convention was intended to
be the universal charter on international arbitration; 2 it has been
ratified by fifty-seven states, including the United States, the Soviet Union, England, and France. 13 The provisions of the Convention, therefore, are controlling in many, if not most, national enforcement proceedings concerning foreign arbitral awards.
Given the stature of the Convention, there was a need for a thorough and systematic interpretative study of its implementation by
national courts.14 Albert Jan van Berg’s The New York Arbitration
Convention of 1958 fills this gap in the literature admirably well.
The principal inquiry of the volume addresses the question of
whether the provisions of the Convention have received a “uniform
interpretation” at the hands of national courts in the signatory
states. In pursuing this assessment, van den Berg identifies not
only those issues of interpretation which have arisen in actual litigation, but also those which may arise from the language of the
Convention in the future. The author divides his study into three
main subject areas: the Convention’s scope of application, the enforcement of the arbitration agreement, and the enforcement of
the arbitral award.
The analytical approach that van den Berg devised for this
study is itself worthy of comment. He combines rigorous reading of
the Convention’s provisions with probing commentary and analysis
of the substance of national court opinions-principally, decisions
from the courts in England, France, Germany, Holland, Italy, and
the United States. To some extent, the approach reflects the author’s own “transnational” legal education; it marries well the European doctrinal commentary with the American case law analysis.
In fact, one might speculate that such an approach, grounded as it
is in a comparative law technique which attempts to accommodate
the essential differences between common law and civil law systems, adumbrates the basic features of an appropriate methodol-
1923, 27 L.N.T.S. 158 (1924), and the Convention on the Execution of Foreign Arbitral
Awards, Sept. 26, 1927, 92 L.N.T.S. 302 (1929-30).
11. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10,
1958, 21 U.S.T. 2517, T.I.A.S. No. 6997, 330 U.N.T.S. 38.
12. Id., art. 7(2).
13. See U.S. Dep’t of State, Treaties in Force – A List of Treaties and Other International
Agreements of the United States 201-02 (1983).
14. See also G. Gaja, New York Convention (1978-80).
[Vol. 24:2BOOK REVIEWs
ogy by which to study and evaluate transnational legal developments.
The knowledge, analysis, and insight which this book provides
on the New York Convention and its contemporary judicial implementation are indispensable to any serious student of international
commercial arbitration. Van den Berg is thoroughly expert in his
treatment of the various issues. At every stage of the study, the
analysis of the Convention is informed by a wealth of information
regarding its legislative history. For example, in discussing why the
Convention does not define its scope of application in regard to the
enforcement of arbitration agreements, the author states:
Originally, it was the intention to leave the provisions
concerning the formal validity of the arbitration agreement and the obligatory referral to arbitration to a separate Protocol. At the end of the New York Convention of
1958, it was realized that this was not desirable. Article H
was drafted in a race against time, with, as a consequence, the omission of an indication as to which arbitration agreements the Convention would apply. 5
Such information fixes the language of the Convention in an objective historical base and, as a practical matter, should be exceedingly useful to the future interpretation of its provisions by national courts.
A critical discussion of the issues to which the language of the
Convention gives rise supplements the reference to the legislative
history. When applicable, this discussion is followed by an appraisal of how various national courts have responded to these issues in their decisional law. In addition, the author’s efforts to interpret the provisions of the Convention as an organic whole never
undermine his practical orientation nor his objective to provide a
comprehensive analysis of a uniform framework for the application
and implementation of the Convention. Throughout the volume,
there is a rich vein of comparative law references, and the author’s
in-depth understanding of the various national laws of arbitration
is indeed impressive. Also, where relevant, van den Berg usefully
and very competently compares the provisions of the New York
Convention to its analogues, such as the 1961 European Conven-
15. A. van den Berg, The New York Arbitration Convention of 1958: Towards A Uniform
Judicial Interpretation 56 (1981).
1984]VIRGINIA JOURNAL OF INTERNATIONAL LAW
tion16 and the ICSID Convention. 17 This part of the analysis allows
the author to establish the specificity of the 1958 Convention as an
international document.
There is room for disagreement with at least one of the author’s
basic views, although this statement in no way dims the achievements and the immense contributions of the volume. Van den
Berg’s treatment of the concept of “a-national” awards is characteristically rigorous, albeit at times difficult to follow. He makes
the appropriate distinction between a “de-nationalized” and an
“internationalized” arbitration, stating that the former-unlike the
latter-is conceived of as completely detached from the procedural
and substantive law of any national legal system:
A “de-nationized” arbitration must be clearly distinguished from an arbitration which is “internationalized”
within the limits imposed by a national arbitration law
… .Such “internationalization” can be effectuated only
to the extent that the mandatory provisions of the applicable arbitration law are not violated. In fact, when reference is made to “international commercial arbitration,” it
is in the sense of an arbitration “internationalized”
within the limits of an applicable national arbitration
law, that this term is commonly used. The difference
from the exceptional “de-nationalized” arbitration is that
this concept relates to an arbitration which is conducted
in disregard of any arbitration law, including its
mandatory provisions. 8
While the author finds the concepts of “de-nationalized” arbitration and “a-national” awards to be “attractive and deserv[ing of]
more support then [sic] it has received so far,”‘ 9 he feels that entering into an agreement for “de-nationalized” arbitration is “full
of legal pitfalls” since there is an “insufficient legal basis” and a
lack of judicial recognition of such a process.2 0
In regard to the critical question of whether the New York Con16. Final Act of the Special Meeting of Plenipotentiaries for the Purpose of Negotiating
and Signing a European Convention on International Commercial Arbitration, Apr. 21,
1961, 484 U.N.T.S. 349.
17. Convention on the Settlement of Investment Disputes Between States and Nationals
of Other States, Mar. 18, 1965, 17 U.S.T. 1270, T.I.A.S. No. 6090, 575 U.N.T.S. 159.
18. A. van den Berg, supra note 15, at p. 31.
19. Id. at 33.
20. Id. at 33.
[Vol. 24:2BoOK REVIEWS
vention can apply to the recognition and enforcement of “a-national” awards, van den Berg concludes that the Convention’s legislative history, system, and text appear to lead to a negative
conclusion. 21 His arguments on this score are detailed, comprehensive, and quite convincing. Such a restrictive position, however, is
inevitable in light of van den Berg’s meticulous knowledge of the
Convention’s legislative history and his deliberate avoidance of
“overly sophisticated” 22 and “more theoretical interpretations 23
which might apply to the development of international commercial
arbitration. By its significance, the issue merits a more balanced
and imaginative presentation-one which at least gives some
weight to the creative potential of the Convention and detaches it
somewhat from its literal language and the exact appraisal of its
legislative history.
In keeping with this attitude and rightly believing that “the
Convention effectively derives its authority from the national
courts,” ’24 the author is extremely skeptical about the more radical
but innovative judicial rulings concerning international awards.
Van den Berg criticizes severely the Paris Court of Appeal’s reasoning and result in the now celebrated GNMTC v. Gotaverken25
case. There, the court dismissed a party’s motion for setting aside
an award, reasoning that French law did not apply to the award
since the arbitration which gave rise to it was governed by the ICC
rules, specifically Article IEof those rules. Article HEexcludes the
application of a national law of arbitration. Moreover, neither the
parties nor the arbitrators had designated French law as governing,
and Paris had been selected as the forum of arbitration solely because of its neutral status. As the author points out, prominent
French commentators maintain that the court’s decision was based
upon the court’s recognition of the arbitration as a “de-nationalized” arbitration.26
According to van den Berg, the court’s view is “erroneous” and
“demonstrate[s] to what unsatisfactory results the concept of ‘denationalized’ arbitration may lead. ‘ 27 He further contends:
21. Id. at 34.
22. Id. at 5.
23. Id. at 5.
24. Id. at 5.
25. Judgment of Feb. 21, 1980, Cour d’appel, 1980 D.S. Jur. 568.
26. A. van den Berg, supra note 15, at 31 n.51.
27. Id. at 31.
1984]VIRGINIA JOURNAL OF INTERNATIONAL LAW
Assuming that GNMTC has a justified interest in the
setting aside of the award, where could it now initiate
such action? There would be no other law than French
arbitration law which could have governed this arbitration as the arbitration took place in Paris and the award
was made in that city. In my opinion, the decision of the
Court of Appeal of Paris is tantamount to a denial of
justice.28
Although there is some support in the literature for van den
Berg’s assessment, 29 his view of the Gbtaverken opinion is rather
narrow. To be properly understood, Gbtaverken should be integrated into the basic context of the French decisional law on international commercial arbitration. The tenor of that jurisprudence
has been consistently liberal and creative; it also has been supportive of the elimination of national legal restrictions on the international arbitral process. Rather than focusing exclusively upon the
immediate practical consequences of the decision, Gdtaverken
should be gauged in a more theoretical and speculative light. In
general terms, the French court’s position may indicate that the
New York Convention (although it was not directly involved here)
has international implications which transcend the exactitude of
its legislative history, that the Convention should be made to respond to international commercial developments not contemplated
by its drafters. More importantly, the result in Gbtaverken may
herald the need for a new international agreement in this area. In
any event, rather than “a denial of justice,” Gbtaverken should be
seen as another step (taken again by the French courts) toward
elaborating a system of “truly international” arbitration as contemplated by the United States Supreme Court in Scherk v. Alberto-CulverY’
Certain structural aspects of the volume also merit some negative observations. The reading of the book is a fairly arduous task.
The organization of the materials is complex and difficult to follow;
headings and sub-headings are altogether too numerous, and transitions from one section to another usually are either awkward or
cumbersome and sometimes non-existent. Rather than organizing
28. Id.
29. See, e.g., Paulsson, Arbitration Unbound: Award Detached from the Law of its Country of Origin, 30 Int’l & Comp. L.Q. 358 (1981).
30. 417 U.S. at 515.
[Vol. 24:21984] BOOK REvIEws 533
the entire book into three chapters, the author could have used
more chapter divisions and less organization within the various
chapters to achieve fluidity and better readability. Also, while
some allowance should be made for the fact that the author is not
a native speaker of English, his language and syntax are rather
awkward, stiff, and ponderous. These stylistic features make an already highly technical discussion even more difficult to follow.
In the final analysis, van den Berg’s volume-despite minor stylistic and structural imperfections-is a most welcome and remarkable piece of scholarship. His exhaustive analysis of the New York
Convention is an important and needed contribution to the growing body of legal literature on international commercial
arbitration.9PRINCIPLES OF THE CONFLICT OF LAWS, NATIONAL AND
INTERNATIONAL. By K. Lipstein. The Hague: Martinus Nijhoff
Publishers, 1981, xii, 144 pp.
Reviewed by PETER HERZOG*
K. Lipstein’s Principles of the Conflict of Laws, National and
Internationalis a revised version of the author’s “General Course”
on Private International Law taught at the Hague Academy of International Law in 1972.1 As the author indicates in his Preface, a
few additions and modifications have been made, but the substance of the work has not been changed. Thus, though a fair number of U.S. Supreme Court cases concerning constitutional limitations on state choice of law rules are cited, one obviously would
look in vain for a discussion of Nevada v. Hall 2 or Allstate Insurance Co. v. Hague.3 Reference works bited that concern other
countries also are generally limited to those available at the time of
Professor Lipstein’s Hague lectures.’
In addition to the Preface and Conclusion, the work contains
three parts. Part I, entitled, “The Nature and Function of Private
International Law,” is by far the longest, taking up some 45 pages,
compared with 18 for Part H and 22 for Part IMl. It attempts to
provide a panorama of the historical development of choice of law
theory. It deals with its beginnings in the Middle Ages, discusses
the writings of the statutists, the subsequent French and Dutch
schools and their impact in England and the early United States,
*Crandall Melvin Professor of Law, Syracuse University.
1. See K Lipstein, The General Principles of Private International Law, 135 Recuel des
cours 97 (1972).
2. 440 U.S. 410 (1979).
3. 449 U.S. 302 (1981).
4. For instance, the bibliography refers to the 5th edition, published in 1970, of the standard French conflict of laws text, H. Batiffol & P. Lagarde, Droit international priv~e (5th
ed. 1970); the most recent edition is the seventh (voL 1, 1981; vol. 2, 1983).VIRGINIA JOURNAL OF INTERNATIONAL LAW
the theories of Waechter and Savigny in Germany, and also pays
considerable attention to the “conflicts revolution” in the United
States. In this connection, the author refers in particular to Cavers,
Currie, and Ehrenzweig, though curiously not to the Restatement
(Second) 5 nor to Leflar’s Treatise,6 though both were available in
1972. In spite of his rather extensive treatment of the American
experience, Professor Lipstein expresses some doubts as to its relevance for other countries; because of the overriding influence of the
U.S. Constitution and also because of the similar common-law
background of almost all the states of the United States, he feels
that the scope of conflicts problems arising here is narrower than
in other countries and also that significant developments are heavily concentrated in the torts and contracts areas. It may be
doubted whether that contention is entirely correct. While this reviewer has never taken a numerical count of conflict of laws cases,
his impression on the basis of annually surveying the New York
cases over a period of two decades is that problems in the areas of
decedent estate and family law tend to outnumber those arising in
torts and contracts. Furthermore, in New York, at least, some of
the groundbreaking cases have involved international, not interstate, conflicts. 7
Part II of the work deals with the relationship between public
and private international law. It is the author’s contention that in
the absence of a treaty, these two fields are quite independent
from each other. Choice of law decisions made by international
tribunals do not necessarily bind national courts.
In Part III, the author discusses some of the perennial problems
of choice of law, including in particular the distinction between
true choice of law rules and so-called “self-limiting substantive
rules.”‘ The author considers the latter relevant primarily for pub5. Restatement (Second) of Conflict of Laws (1969).
6. R. Leflar, American Conflicts Laws (1st ed. 1967; 3d ed. 1977).
7. See, e.g., Auten v. Auten, 308 N.Y. 155, 124 N.E.2d 99 (1954) (contracts-England);
Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963)
(torts-Canada); Wyatt v. Fulrath, 16 N.Y.2d 169, 211 N.E.2d 637, 264 N.Y.S.2d 233 (1965)
(matrimonial property-Spain); In re Estate of Renard, 56 N.Y.2d 973, 439 N.E.2d 341, 453
N.Y.S.2d 625 (1982) (succession-France).
8. The topic has been discussed by Professor Lipstein elsewhere. See, e.g., Lipstein, Inherent Limitations in Statutes and the Conflict of Laws, 26 Int’l & Comp. L.Q. 884 (1977).
For one of the relatively few American discussions of the topic, see Danson, Territorially
Limited Statutes and the Choice of Law Process, 1 Harv. J. Legis. 115 (1964). The basic
French source is P. Francescakis, La thorie du renvoi et les conflicts de systhmes en droit
international priv6 (1958); see also Francescakis, Quelques pr~cisions sur les “lois
[Vol. 24:2BOOK REVIEWS
lic law matters. The author’s overall approach is rule-oriented, but
at the same time he rejects Beale’s vested rights dogmas. This
leads him to suggest a “functional” utilization of the various tools
of the conflicts lawyer. As to characterization, for instance, he feels
that the basic categories used in conflicts must be interpreted
within the overall context of the forum’s domestic law. When foreign law is to be subsumed under one of these categories, the function rather than the wording of the foreign rule must be considered. Thus, to decide whether a foreign limitation period is a
matter of substance or procedure, one should look to the purpose
of the applicable foreign rule; in other words, the question must
be, is it intended to achieve goals similar to those of the domestic
limitation statute. A similar emphasis on function appears in his
discussion of some of the other staple problems of traditional
choice of law, such as renvoi, public policy, and the “preliminary
question.” In this discussion, the author uses a comparative approach, drawing in particular on the law of the United Kingdom,
the United States, Germany, and, to a lesser extent, on the law of a
number of other countries.
One may ask what purpose a book such as Professor Lipstein’s
serves. It clearly does not attempt to provide up-to-date information about conflict of laws rules in effect in any particular country;
given the rapid changes that occur throughout that field, a largescale rewriting of Professor Lipstein’s original Hague lectures
would have been required. The large number of legal systems upon
which the author draws within the confines of a rather short volume shows that he had another goal in mind: to inquire into the
existence of basic trends more or less independent of time and
place. At first sight, that purpose seems at odds with his contention, for which he would encounter fairly general agreement, that
except to the extent choice of law rules are imposed on the component units of a federation or similar structure by a higher authority,9 they are peculiar to each nation or state, and not a form of
d’application immediate” et leurs rapports avec les r~gles de conflits de lois, 55 Revue cri-
tique de droit international privb 1 (1966). For an article mentioning numerous German
sources on the same topic, see Coester, Die Berucksichtigung fremden zingenden Rechtes
neben dem Vertragsstatut, 1983 Zeitschr. f. vergL Rechtswissenschaft 1 (1983).
9. The main higher authority discussed by Professor Lipstein is the U.S. Constitution.
See supra notes 2-3 and accompanying text. On related issues within the context of the
European Economic Community, see 1 H. Smit and P. Herzog, The Law of the European
Economic Community § 7.07 (1976).
1984]VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 24:2
“superlaw” 10 binding on them.
Professor Lipstein does, in effect, contend that certain approaches to the solution of choice of law problems have reappeared
repeatedly in the course of history, albeit often in altered form.
Thus, he draws a parallel between the statutists’ attempt to derive
the nature of a statute as “real” or “personal” and Brainerd Cur-
rie’s admonition that problems as to the spatial scope of a legal
rule, just as any other problems as to its coverage, must be resolved by a process of construction and interpretation of the rule
itself.” Parallels also are drawn between attempts in the 12th century in parts of Northern France and the Netherlands to tie legal
problems to a particular legal system indirectly by way of jurisdictional rules, and the much later theories of Waechter and
Ehrenzweig.12 Similar comments could be made about the vested
rights theory”3 and others.
A lesson one can draw from Professor Lipstein’s book is that
some modern theories are not necessarily quite as original as may
be supposed. The authors of a widely used conflicts casebook express some doubts in their historical introduction as to how useful
it will be to students and other users of the book.1 4 A reader of
Professor Lipstein’s book would surely conclude that such expressions of doubt are altogether too modest, and that history can
10. For an early use of the expression, see A. Ehrenzweig, Conflict of Laws 3 (1962).
11. K. Lipstein, Principles of the Conflict of Laws, National and International 29, 37, 38
(1981). “It is impossible to obtain guidance from the nature, and still less from the wording,
of a statute or rule of law as to the extent to which it must be applied in space.” Id. at 11.
Professor Lipstein doubts the utility of one of Professor Currie’s main contributions to conflicts theory, the concept of “false conflict.” He feels that in cases involving “false conflicts,”
parties are not likely to invoke the law that would create such a “false conflict.” Id. at 37.
This view may be due to a failure to distinguish between situations in which there is no
conflict (as happens when the laws of all concerned jurisdictions are identical) and false
conflicts which occur when, under standard conflicts methodology, a conflicts problem exists, but it is eventually determined that application of one of the laws which may be applicable under standard conflicts rules is not required in order to effectuate its purposes. See
Babcock, 12 N.Y.2d 473.
12. K. Lipstein, supra note 11, at 5, 20, 21, 30-32. Professor Lipstein makes only a passing
reference to one of Professor Ehrenzweig’s major contributions, the idea that, in spite of the
problems created by “vested rights dogmatics,” certain “true rules” have been developed by
the courts which can be ascertained if one disregards much of the language in the opinions
and studies actual solutions instead. A. Ehrenzweig, supra note 10, at 353. It is interesting to
note that Ehrenzweig, too, draws a parallel between Currie and the views of the early statutists. See id. at 349.
13. K. Lipstein, supra note 11, at 22, 23 (mentioning in particular Dicey, but stating that
the theory could be traced back to the post-glossators), 24-27.
14. W. Reese & M. Rosenberg, Cases and Materials on Conflict of Laws 4 (7th ed. 1978).BOOK REviEws
teach lessons in the conflicts area as well, not the least of which
may well be that excessive pride in the originality of one’s own
ideas is not warranted.
Professor Lipstein clearly favors the use of rules in conflict of
laws situations, but he couples this with a critique of the theoretical soundness of an approach based on vested rights.15 Indeed, as
noted above, he considers a functional approach useful to some extent and recognizes the existence, in cases with public law implications, of “spatially conditioned internal rules.” The territorial applicability of such rules must be determined on the basis of their
content.16 That approach, however, is not altogether different from
Currie’s, though Currie did intend his methodology to be generally
applicable, whereas Lipstein would, as noted, recognize “spatially
conditioned internal rules” only in limited situations.
Some disagreement may be warranted as to certain positions of
Professor Lipstein; however, his somewhat eclectic approach
clearly has merit. The debate over conflicts methodology in the
United States has, at times, tended to become excessively dogmatic,17 though the courts have generally been less insistent than
some legal authors that any one approach is appropriate in all instances.18 As Professor Lipstein implies, various methods have
their place in conflicts thinking, depending on the context. A
search for “governmental interests,” or, to be more precise, for the
intended territorial scope of a rule, makes sense in the case of a
recent enactment which has a regulatory purpose, whether framed
in public or private law terms. It may thus be appropriate to read a
territorial limitation into a fairly new statute regulating business
brokers and imposing a requirement of written form for their contracts.’ 9 Quite a different problem arises, however, in connection
15. K. Lipstein, supra note 11, at 24, 25.
16. Id. at 93, 99-102.
17. Compare Kanowitz, Comparative Impairment and Better Law: Grand Illusions in the
Conflict of Laws, 30 Hastings L.J. 255 (1978) (Currie’s governmental interest analysis in its
unadulterated form is the only road to salvation) with Rosenberg, The Comeback of Choiceof-Law Rules, 81 Colum. L. Rev. 946 (1981) (critique of that approach).
18. For a very cautious approach, see Sexton v. Ryder Truck Rental, Inc., 413 Mich. 406,
320 N.W.2d 843 (1982). Professor Leflar has noted the courts’ reluctance to commit themselves to any one methodology. Leflar, Choice of Law- A Well Watered Plateau, 41 L &
Contemp. Probs. 10 (1977).
19. On that reasoning, Intercontinental Planning, Ltd. v. Daystrom, Inc., 24 N.Y.2d 372,
248 N.E.2d 576, 300 N.Y.S.2d 817 (1969) was correctly decided. A fortiori, there is reason to
put decisive emphasis on the inherent territorial scope of a legal rule if that territorial scope
is clearly expressed in the rule. No great reference to traditional choice of law rules, the
1984]VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 24:2
with rules of older vintage, whose origin is often obscure. That is
exemplified by Professor Currie’s laborious and not altogether convincing explanation of the purpose behind the Wisconsin statute
involved in the famous Hughes v. Fetter” case, which required
him to trace a Wisconsin statute through Illinois to Ohio.21 Given
the limitations on judicial time, such endeavors would, in an actual
litigation, be beyond the resources of most courts. In that situation, traditional choice of law rules, such as the principle of party
autonomy in the case of business contracts, 2 make sense.23 Rules,
as Professor Lipstein would agree, are not necessarily tied to a
vested rights analysis. Furthermore, if formulated with some circumspection, they can be made to serve the basic policy considerations underlying the various substantive fields of law to which they
are related. 4 Also, while conflicts of laws is viewed very largely as a
field almost exclusively ruled by the common law,23 in instances in
which the need for legal certainty predominates over the need for
finely tuned ex post facto justice of an individualized nature, as is
true in the context of estate planning, the enactment of statutes-and their observance by the courts-may well be the most
principle of validation, or other conflicts approaches should be necessary if a French na-
tional, who is a resident and domiciliary of New York, refuses to perform a contract under
which he has agreed to invest in a business firm in the United States on the pretext that
French exchange control regulations restrict investments by French nationals in business in
other countries, since French exchange control rules, by their own terms, apply to all residents of France, regardless of nationality, but not to non-residents (though they may be
French). Decree No. 67-78 of January 27, 1967, as amended by Decree No. 69-264 of March
21, 1969, art. 3, reprinted in Relations Financieres avec l’Etranger 6 (Journal Official Brochure No. 1412, 1983). For a definition of the term “resident” in this context, see the Arretb
of August 9, 1973, modified by a subsequent one of March 24, 1982, art. 1, id. at 19, 20. This
would thus be the clearest case of a “false conflict”; under Currie’s methodology and by
common sense, any further inquiry is obviously unnecessary once the limited scope of the
French law has been noted.
20. 341 U.S. 609 (1951).
21. Currie & Schreter, Unconstitutional Discrimination in the Conflict of Laws: Equal
Protection, 28 U. Chi. L. Rev. 1 (1960).
22. See, e.g., U.C.C. § 1-105 (1978); Restatement (Second) of Conflict of Laws § 187
(1971).
23. It is worthy of note that the Convention on the Law Applicable to Contract Obligations, opened for signature June 19, 1980, 23 O.J. Eur. Comm. (No. L 266) 1 (1980) adopts a
somewhat similar approach. It contains a number of choice of law “rules,” but its Article
Seven permits resort to a kind of governmental interest analysis in certain cases. See generally Lagarde, The European Convention on the Law Applicable in Contractual Obligations:
An Apologia, 22 Va. J. Int’l L. 91 (1981).
24. See Audit, A Continental Lawyer Looks at Contemporary American Choice-of-Law
Principles, 27 Am. J. Comp. L. 589, 595-98 (1979).
25. Leflar, The Nature of Conflicts Law, 81 Colum. L. Rev. 1080, 1080 (1981).BOOK REVIEWS
adequate solution. 26 The replacement of conflicts rules generally by
substantive rules specially created for interstate or international
situations would appear to be neither feasible nor generally desirable. In a few instances, however, such substantive rules rather than
a conflicts approach are clearly necessary. That appears to be the
case where the rules of two jurisdictions require coordination and
where an attempt to choose between such rules (as in connection
with some procedural problems) can only lead to a standoff.27
The most appropriate solution to legal problems involving more
than one state or country, in other words, is likely to become apparent only if one focuses on a methodology suited to the particular problem at hand, a methodology that may well not be suited to
the resolution of other issues. Professor Lipstein’s work would
seem to show that the search for single touchstone has never been
fruitful, even in the past.
26. E.g., N.Y. Estates Powers & Trusts Law § 3-5.1(h) (McKinney 1981). Compare In re
Estate of Clark, 21 N.Y.2d 478, 236 N.E.2d 152, 288 N.YS.2d 993 (1968) (where the statute
was not given effect in New York based on a strained interpretation of statutory language)
with In re Estate of Renard, 56 N.Y.2d 973, 439 N.E.2d 341, 453 N.YS.2d 625 (1982) (where
the New York law was correctly applied).
27. See generally von Mehren, Choice of Law and the Problem of Justice, 41 L. & Contemp. Probs. 27 (1977). As to some of the problems engendered by undue insistence on
application of the forum’s law instead of an attention to a coordination of systems, see
Herzog, The 1980 French Law on Documents and Information, 75 Am. J. Int’l L. 382 (1981).
The use of “special rules” may also be warranted where, as often in international trade,
there is a need for a standardization of transactions involving many countries. See generally
E6rsi, Apropos the 1980 Vienna Convention on Contracts for the International Sale of
Goods, 31 Am. J. Comp. L. 333 (1983) (comment on the drafting of the Convention); United
Nations Convention on Contracts for the International Sale of Goods, opened for signature
Apr. 11, 1980, reprinted in 19 LL.M. 671 (1980).
1984]4 6 | ENVIRONMENTAL FORUMReprinted by permission from Environmental Forum® , November/December 2024.
© 2024, Environmental Law Institute ® , Washington, D.C. www.eli.org.
In Federalist No. 78, Alexander Hamilton
described the judiciary of the proposed
U.S. government as the “least dangerous”
of the three branches. Events of the past
few years might have Hamilton reconsider his famous position, as the Supreme
Court has consistently appeared in the
press for controversial society- and governmentshaping opinions.
Whole cottage industries dedicate themselves to
finding the Greatest of All Time in virtually every
endeavor, from NFL quarterbacks and NBA guards
to fashion designers and artists. Academics have
their own such lists, with annual examinations of
the greatest presidents, economics policies, and,
yes, Supreme Court holdings.
While we enjoy reading all the lists, the Supreme
Court has a special place in our hearts. Inconspicuously positioned off the National Mall, the Court
often operates in the background of the frantic
D.C. political hullabaloo. But from the beginning
of our constitutional republic, the high court has
punched above its weight. Never afraid of reminding the country of its jurisdictional superpowers,
the Court has given the last word on some of our
most important national issues, from abortion
rights to gay marriage to health care availability.
That is particularly evident in the world of environmental law, as the Supreme Curt sought to interpret the explosion of statutes passed in the 1970s
and 1980s. Those cases largely still govern most of
the environmental realm today. Guided by rules of
statutory interpretation, and no shortage of policy
persuasions, the Court directed the development
of law and established both opportunities and setbacks along the winding road toward sustainability.
Many scholars have addressed the question of
identifying the most significant of the Supreme
Court’s environmental decisions. In a series of articles in the Environmental Forum, for instance,
Professors J.B. Ruhl and James Salzman identified
what they called “American Idols” by polling professionals in 2001, 2009, and 2019. Their results
were presented in a chart of the most important 10
decisions. Interestingly, but perhaps unsurprisingly,
the top result changed each time they conducted
the poll. TVA v. Hill headed the chart in 2001, but
Massachusetts v. EPA took the spotlight in 2009.
Completely expectedly, Chevron v. NRDC stole the
hearts of voters and swept the 2019 competition.
While we completely laud Professors Ruhl and
Salzman for their fascinating polling data, their lists
TESTIMONY
Ranking
the Court’s
Top Cases
In the box score on page 49, we present
the heavy hitters—the most influential
environmental decisions by the nine
justices, ranked by how often courts
cited the cases in later holdings
John Cruden is a principal
at Beveridge & Diamond.
Seth Gertz-Billingsley
is a third-year student at Harvard
Law SchoolN OV E M B E R / D E C E M B E R 2 0 2 4 | 4 7Reprinted by permission from Environmental Forum® , November/December 2024.
© 2024, Environmental Law Institute ® , Washington, D.C. www.eli.org.4 8 | ENVIRONMENTAL FORUMReprinted by permission from Environmental Forum® , November/December 2024.
© 2024, Environmental Law Institute ® , Washington, D.C. www.eli.org.
are a little bit like a beauty pageant, voting for the
most likeable. We decided to flip in at least a flavor of objectivity, beginning with the premise that
the most important decisions would be those that
lower courts most relied on, as of (Month) 2024.
Our strategy at the start seemed simple enough—
we intended to take each case and track its citing
references using Westlaw and Lexis, to observe its
life over time. We anticipated that cases with higher
citing references would have a greater impact than
cases with fewer citations. But we quickly encountered some challenges. Some cases, like Lujan v. Defenders of Wildlife, undoubtedly changed litigation
strategy. Counsel would not advise wasting resources just to have a case thrown out for standing, but
that would also mean numerous cases that could
be never were. We also found that some cases were
coopted by other fields of law—criminal, administrative, etc.—and therefore had ghost citations that
had nothing to do with our core subject. Finally,
several cases had tens of thousands of cites, enough
to keep a team of dedicated research assistants busy
for semester after semester. Slowly, our research
methods changed. In the end, we settled on total
citations, ghosts and all, divided by years since the
decision dropped. That ratio would give the average citations per year—not unlike a Major League
batting average.
Our final list is composed of those environmental cases which had the most significant impact on
the law as judged by how many courts, Supreme
or otherwise, employed them in decisions. We then
simply ranked the decisions by that average to produce a top-10 list—our Heavy Hitters.
A brief note on some other methods we considered. Initially, we anticipated employing the headnotes feature on Westlaw and Lexis. We thought
that filtering for only those cases which cited the
environmental headnotes of the case would allow
us to find cases that only sat within the environmental law space. This method had several critical
flaws. For one, it relied on a surprisingly ineffective
system. The headnotes themselves often both overand under-include relevant citing sources. Certain
environmental headnotes, like the cases themselves,
were also adopted by other fields of law. Additionally, some critical environmental holdings, especially in older cases, either were incorrectly headnoted
or lumped into other headnotes. As a result, the
search programs would say these cases received only
a handful of citations, even though this was simply
not true.
Abandoning the headnotes, we considered keyword searches in the lists of citing references, but we
ran into similar problems. Nonetheless, it is worth
noting that, with some exceptions, our efforts to
sort by headnote or keyword largely tracked the total citations. With the notable exceptions of Winter
and Lujan, our Heaviest Hitters generally made the
cut whether we used either methodology, though
the list would change order somewhat. This generally makes sense, as the cases above (again excluding
Winter and Lujan, as well as Chevron) tended not
to stray too far from the environmental fold. But
uncertainties in our results led us to keep the methodology and scope described above.
Our list shares a lot with the list composed by
Professors Ruhl and Salzman. Winter, Lujan, Chevron, Massachusetts, Penn Central, Sierra Club v. Morton, UARG, and Whitman appear in both our lists.
The one case that made our cut and not the Professors’ is Bestfoods.
This of course creates just a bit of confusion. After all, we based our results solely on citations, and
the professors used qualitative methods to arrive at
their conclusions. So what is with the overlap? The
correct answer is the simplest: Important cases get
cited more frequently.
Maybe a more important question is what cases
that made the cut for the professors didn’t stick
around on ours. Looking at the 2019 survey, Rapanos, TVA v. Hill, and Overton Park didn’t pull
through. On our master list, TVA v. Hill came in
12th, with 37 cites a year, Rapanos placed 15th,
with 26 cites a year, and Overton Park landed
in 21st, with only 16 cites per year. These cases
didn’t do too terribly, and if we had knocked out
the Winter, Lujan, Chevron outliers for their ghost
citations, TVA v. Hill would have kept its spot on
the list.
At risk of sacrificing our quantitative impartiality, we do have our own views as to why these top
10 cases were cited so much. Environmental law
often drives watershed changes in administrative
law. The recent FDA v. All for Hippocratic Medicine
case provides a good example. In that decision, the
Supreme Court found the doctors challenging the
abortion pill lacked Article III standing. The case
relies heavily on Lujan, Summers v. Earth Island
Institute, and other environmental cases not for
their environmental implications, but their standing doctrines. As Hippocratic Medicine illustrates,
some key environmental cases wear multiple hats.
We call these cases “dual hatted,” meaning that they
could be cited for both environmental and administrative law reasons.1 Winter v. NRDC (2008) is a National Environmental Policy Act case that primarily considers the impact of sonar on marine mammals—but it has had an outsized impact for its straightforward presentation of the
standard of law on preliminary injunctions.
Total Cites 21,832; Average Per Year 1,365
2 Lujan v. Defenders of Wildlife (1992), a
case about the Endangered Species Act, remains the quintessential case on standing.
Justice Antonin Scalia wrote that the plaintiffs
lacked standing under Article III of the Constitution, because they based their claims on speculative environmental harms rather than “actual or
imminent invasion of a legally protected interest.”
TC 35,308; APY 1,103
3 Chevron v. NRDC (1984), which just entered oblivion, was not—despite what many
commentators have suggested—the most
cited case of all time, and the Supreme Court has
not cited it since 2016, according to Loper Bright,
the case that supplants it. But it still made it into
the top echelon. TC 18,640; APY 466
4 Massachusetts v. EPA (2007) is, of course,
the ultimate environmental decision. However, it is also the case to be cited by a state
seeking standing, by giving states “special solicitude” to “protect[] [their] quasi-sovereign interests.”
TC 1,302: APY 77
5 United States v. Bestfoods (1998) is one
of the dual-hatted cases. It is first and foremost a Superfund decision on the liability
of parent’s corporations. However, its corporate
law discussion is relevant beyond the 1980 Comprehensive Environmental Response, Compensation, and Liability Act into other areas of law.
TC 1,797; APY 69 (tie)
5 Penn Central v. City of New York (1978)
said a city can restrict alteration and development of historical sites without causing a taking. This landmark decision established the now
famous Penn Central test for compensation for a
regulatory taking with three factors: “economic impact of the regulation on the claimant”; the extent
to which the regulation interferes with “distinct investment-backed expectations”; and the character of
the government action. TC: 3,171; APY 69 (tie)
7 Sierra Club v. Morton (1972) held that the
club lacked standing to sue under the Administrative Procedure Act because it failed
to show that any of its members had suffered or
would suffer injury as a result of the defendants’ actions. Justice Potter Stewart wrote the opinion for
the 4-3 majority, in which the Court held that, in
order to have standing to sue under the APA, the
plaintiffs must demonstrate they had directly suffered an injury as a result of the actions that led to
the suit. TC 3,193; APY 61
8 Sackett v. EPA (2023), a new decision,
made the list because it received so many citations within the first year after releasing.
That is due, in no small way, to how extensive the
controversy on “waters of the United States” under
the jurisdiction of the Clean Water Act is right now.
However, because Sackett now determines CWA jurisdiction, it is likely to remain an often-cited decision.
TC 51: APY 51
9 UARG v. EPA (2014). Justice Scalia delivered the opinion of the court considering
the regulation of greenhouse gases from
stationary sources under the Clean Air Act, holding that EPA reasonably interpreted the act to require sources that would need permits based on
their emission of conventional pollutants to comply with Best Achievable Control Technology but
lacked authority to “tailor” the act’s numerical
thresholds to accommodate its greenhouse-gasinclusive interpretation of the permitting triggers.
TC 501; APY 50 (tie)
9 Whitman v. American Trucking (2001),
another dual-hatted decision, and also written by Justice Scalia, held that the Clean
Air Act properly delegated legislative power to
EPA, and that the agency could not consider
implementation costs in setting primary and secondary National Ambient Air Quality Standards.
The Court also found EPA’s implementation of
the NAAQS was unreasonable. This case, however, is most often cited for its ruling on the allegation of illegal delegation of legislative authority
and the inability to consider costs in this instance.
TC 1,151; APY 50 (tie)
Top Environmental Heavy Hitters, Ranked by Average Citations Per Year
N OV E M B E R / D E C E M B E R 2 0 2 4 | 4 91
JOHN C. CRUDEN
1900 N Street, NW, Suite 100
Washington, D.C. 20036
Tel: (202) 789-6018
jcruden@bdlaw.com
CURRENT EMPLOYMENT:
PRINCIPAL, BEVERIDGE & DIAMOND, P.C., 2018-PRESENT
• Provides strategic and litigation advice on national and international environmental law
issues to a diverse array of clients, including major corporations and governmental entities.
Serves as expert witness on United States law in complex national and international cases.
ADJUNCT PROFESSOR, GEORGE WASHINGTON UNIVERSITY, 2021-PRESENT
• Teach master’s Class on Environmental Law and Policy
PREVIOUS EMPLOYMENT:
PRESIDENT, AMERICAN COLLEGE OF ENVIRONMENTAL LAWYERS, 2017-2018
• Elected President of over 250-member organization of leading private, academic, NGO,
and state and federal environmental practitioners in the United States. Non-partisan
organizations provide education, pro bono assistance and research on environmental
matters. Also served as President of ACOEL Foundation 2018-2019.
ASSISTANT ATTORNEY GENERAL, ENVIRONMENT AND NATURAL RESOURCES DIVISION, U.S.
DEPARTMENT OF JUSTICE, 2015-2017
• Presidentially appointed, Senate-confirmed (Dec 2014) – Leader of DOJ Environment and
Natural Resources Division (ENRD) supervising approximately 650 individuals, a budget
of over $150 million, and several thousand federal cases on behalf of nearly every federal
agency. Responsible for all environmental litigation in United States for and against the
federal government. Personally, led the settlement negotiations to resolve the
BP/Deepwater Horizon and Volkswagen civil enforcement cases, both of which resulted
in settlements of over $20 billion, the largest of their type in U.S. history. Expanded
Division responsibility to include worker safety in the U.S. and animal welfare. Served as
co-chair of the President’s Task force on Illegal Wildlife Trafficking and led the U.S.
delegations to International Conferences in Botswana, Africa and Hanoi, Vietnam.
PRESIDENT, ENVIRONMENTAL LAW INSTITUTE, 2011-2014
• Leader of organization dedicated to creating “a healthy environment, prosperous economies,
and vibrant communities founded on the rule of law”. Since 1969, ELI has played a pivotal
role in shaping the fields of environmental law, policy, and management, domestically and
abroad. ELI is an internationally recognized, non-partisan research and education center
working to strengthen environmental protection by improving law and governance2
worldwide. ELI also publishes the Environmental Law Reporter and the Forum Magazine.
While ELI led NGO participation in UN Rio plus 20 Conference, led judicial training
effort, increased donor support, created ELI Leadership Council.
DEPUTY ASSISTANT ATTORNEY GENERAL, ACTING ASSISTANT ATTORNEY GENERAL,
ENVIRONMENT AND NATURAL RESOURCES DIVISION, U.S. DEPARTMENT OF JUSTICE, 1995-
2011
• Senior career official responsible for management, training and supervision within
ENRD. ENRD was responsible for over 7000 cases, utilizing approximately 650 people
(440 attorneys) located in Washington DC and six field offices with a budget of $130
million. Specifically responsible for overseeing all environmental enforcement brought
by the Environmental Enforcement Section and all actions against the United States
litigated by the Environmental Defense Section. Worked with all major agencies of the
federal government and litigated in every court of appeals in the nation. Personally
litigated and led settlement negotiations in numerous environmental cases. On behalf of
the State Department, trained judges in Mexico and worked with federal and states judges
in South America. Led DOJ delegations to international environmental conferences
concerning environmental enforcement. Conducted a number of press conferences and
testified multiple times before both House and Senate. In 2009 and 2010, ENRD was
ranked first in the annual survey of “The Best Places to Work in the Federal
Government.”
CHIEF, ENVIRONMENTAL ENFORCEMENT SECTION, U.S. DEPARTMENT OF JUSTICE,
ENVIRONMENT AND NATURAL RESOURCES DIVISION, 1991-1995
• Supervised 260 people (including 155 attorneys) with nation-wide responsibility for
enforcing federal environmental statutes across the United States. Worked extensively with
U.S. Attorneys and state officials. Argued cases and negotiated major settlements resolving
major environmental cases. Led Administration legislative task force on natural resource
damages.
CHIEF LEGISLATIVE COUNSEL, DEPARTMENT OF THE ARMY, 1988-1991
• Served as Senior Counsel for all legislative matters and congressional activities for the
Department of the Army, including meeting with Members of Congress on a routine basis,
overseeing all legislative initiatives, supervising all oversight hearings, meetings, and
traveling with Members of Congress.
SPECIAL COUNSEL TO THE ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, U.S.
DEPARTMENT OF JUSTICE, 1987-1988
• Litigated high visibility cases in federal District Courts and Courts of Appeal. Represented
Department of Justice in Presidential Initiative to eliminate illegal drugs in the workplace.
Appeared on TV and a number of radio shows. Briefed President Reagan.
STAFF JUDGE ADVOCATE, U.S. ARMY EUROPE, FRANKFURT, GERMANY, 1985-19873
• Senior military attorney responsible for all legal matters in central Europe jurisdiction,
including international negotiations, criminal matters, and civil litigation issues.
Supervised office of 60 people (including 35 attorneys) with branch offices in four
locations in Germany.
CHIEF, ADMINISTRATIVE AND CIVIL LAW DIVISION, THE JUDGE ADVOCATE GENERAL’S
SCHOOL, CHARLOTTESVILLE, VIRGINIA, 1982-1985
• Led legal division responsible for instructing on all civil law subjects, including
environmental subjects, to senior military and civilian attorneys from all services, including
a year-long LLM equivalent program. Personally taught management and federal civil
procedure subjects. Personally trained new Army general officers about rule of law and
legal responsibilities. Wrote “Environmental Law and National Security” for University of
Virginia Law School textbook. Provided legal instruction to new Army battalion and
brigade commanders.
GENERAL COUNSEL, DEFENSE NUCLEAR AGENCY, WASHINGTON, D.C., 1980-1981
• Senior attorney for a DOD agency. Responsible for all agency legal matters including
federal contracts, litigation, administrative law, and national and international
environmental issues.
TRIAL ATTORNEY, LITIGATION DIVISION, DEPARTMENT OF THE ARMY AND OFFICE OF
GENERAL COUNSEL, DEPARTMENT OF DEFENSE, 1978-1980
• Litigated high visibility civil law matters on behalf of the Army.
CHIEF, LITIGATION BRANCH, U.S. ARMY EUROPE, 1976-1978
• Supervised office of 30 individuals responsible for civil litigation matters and intelligence
oversight in Europe.
TRIAL ATTORNEY (PROSECUTOR AND DEFENSE COUNSEL), GERMANY, 1975-1976
• Criminal prosecutor and defense counsel in Germany; numerous bench and jury trials
AIRBORNE, RANGER, AND SPECIAL FORCES ASSIGNMENTS IN GERMANY AND VIETNAM, 1969-
1971
EDUCATION
• Command and General Staff College, Fort Leavenworth, Kansas 1982
• Graduate Class, The Judge Advocate Generals School, Charlottesville, VA
1975, Selected as Outstanding Graduate, Outstanding Thesis
• University of Virginia, Woodrow Wilson School, Charlottesville, VA 1975
Government and Foreign Affairs Master’s Degree with Honors; Thesis: The War Making
Process4
• Santa Clara Law School, California J.D., 1974
Summa Cum Laude; Managing Editor, Law Review
• United States Military Academy, West Point, B.S. 1968
Chair, XIX Student Conference on United States Affairs
PROFESSIONAL ACTIVITIES
• Served on the Biden Transition team, 2020-21.
• Served as adjunct professor to George Washington University, 2020-present.
• Served as Elected Member of the Board of Governors of American Bar Association,
2020-2024
• District of Columbia Bar (2d largest Bar in the Nation)
− Elected, Board of Governors, 2001-04
− Elected, President-Elect and President, 2004-06
− Immediate Past President, 2006-07
− Chair, Dues Reform Committee, 2007-09
• American Bar Association, Section on Environment, Energy, and Resources
− Council Member, 2003-2007
− Vice Chair, 2007-2008
− Chair Elect, 2008-2009
− Chair, 2009-2010
− Immediate Past Chair, Chair Nominating Committee, 2010-2011
• American Bar Association, House of Delegates
− District of Columbia Representative (elected in 2007 and 2010)
• National Conference of Bar Presidents
− Member, 2004-2010
− Governing Council, Chair Diversity Committee, 2006-2010
• Member, Standing Committee on Pro Bono Legal Services
− U.S. Court of Appeals for the District of Columbia (appointed by Chief Judge),
2006-2010
• District of Columbia Bar Foundation
− Board of Governors, Chair of Governance Committee, 2008-2014
• Special Olympics Swim Coach, 2001-present
• American Bar Foundation, Fellow, 2009-present
• Member, Administrative Conference of the United States, 2013-20145
• Council on Strategic Risk, Board of Governors, 2022-Present
• Advisory Council and Lecturer, National Judicial College, 2022-
present
• Advisory Council, EARTHX TV, 2022-present
PROFESSIONAL DESIGNATIONS
• Who’s Who in America
• Who’s Who in the East
• Who’s Who in American Law
• Who’s Who in American Politics
• Best 500 Lawyers in America, Leading Lawyers in America, Law Dragon
• American College of Environmental Lawyers
AWARDS AND DECORATIONS
• District of Columbia Bar Association, Outstanding Government Lawyer
• ABA Section of Environment, Energy, and Natural Resources, Outstanding
Government Lawyer
• University of California Berkley Law School, Distinguished Environment Award
• Muskie-Chaffee Award, US Department of Justice
• Presidential Rank Award, President Barack H. Obama
• Presidential Rank Award, President George W. Bush
• President Rank Award, President William J. Clinton
• Santa Clara Law School, Distinguished Alumni Award
• American Bar Association. Mary K Lawton Award, Outstanding Government Attorney
• Federal Bar Association, Younger Award
• EPA Medal Award (for Court of Appeals argument)
• West Point Society of the District of Columbia, Distinguished Graduate Award
• Judge Advocate Generals Association, Lifetime Achievement Award
• Military Awards, including:
− Bronze Star
− Legion of Merit
− Defense Meritorious Service Medal
− Vietnamese Cross of Gallantry with Silver Star
− Air Medal with Oak Leaf Cluster
Airborne, Ranger, and Special Forces Designations6
• Outstanding Graduate, JAG School Graduate Class
• Fairfax County Volunteer of the Year Award (for work with mentally impaired young
people)
• Eagle Scout
• DC Bar Annual Pro Bono Award has been named the John C. Cruden Award
TEACHING, LECTURING AND WRITING
Presented the annual environmental lecture to Indiana Law School, Maryland Law School,
Columbia law school, and Maine law school. Will give annual lecture to Vanderbilt Law School
in 2025.
Lectured at over 20 law schools on environmental subjects.
Co-authored 3 books on environmental law subjects.
Published over 15 law review articles, and over 20 magazine articles on environmental
subjects.iv
Schedule A
Tape recordings, digital recordings, transcripts, computer diskettes, and DVDs resulting from six
interviews of John Cruden on the following dates:
Interview No. 1 November 20, 2019 1-39
Interview No. 2, February 25, 2020 40-77
Interview No. 3, April 8, 2021 78-122
Interview No. 4, August 30, 2021 123-178
Interview No. 5, November 14, 2022 179-194
Interview No. 6, January 5, 2022 195-229
Voice recordings of the six interviews are on one DVD.Tracy Hauser Scarrow
Biographical Sketch
Tracy Hauser Scarrow has been the Special Assistant to Chief Judge Srinivasan since he
assumed the position in February 2020. Prior to that Ms. Scarrow worked as the Special
Assistant to then-Chief Judge Garland from February 2013 until February 2020, then-Chief
Judge Sentelle from February 2008 until February 2013, then-Chief Judge Ginsburg from July
2001 until February 2008, and then-Chief Judge Edwards from February 2000 until July 2001.
She also served in the Circuit Executive’s Office on special detail as the Acting Deputy Circuit
Executive from August 1998 until August 1999. Ms. Scarrow began her employment at the court
in 1993 in the Legal Division where she worked as a staff attorney. Prior to joining the D.C.
Circuit, she clerked for then-Chief Judge Loren Smith at the U.S. Court of Federal Claims. Ms.
Scarrow received her J.D. from the Washington College of Law, The American University, in
1992 and her B.A. from the University of Vermont in 1989.