John Cruden Interview 3

78
Oral History of John C. Cruden, Esq.
This interview was 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 on April 8, 2021, on Zoom. 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 Deputy Assistant Attorney General. They recommended me to79
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 a
significant announcement which would be in support of me, but also make80
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 before
Congress, Nancy Stoner, now the Executive Director of Potomac81
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 every
federal agency in courts in all states. About half of what the Division does82
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?
MR. CRUDEN: For the same reason that when teaching management to military
commanders, my counsel to them when they assumed a new command83
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 that she was the backbone of the administrative staff. We
developed a great relationship, and I always solicited her advice when84
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 the Department of Justice, with the highest morale, the most significant85
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 in
the early 1980s, in part because it was considered one of the most polluted86
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 which
included national wildlife refuges and national parks. Thousands of87
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 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 waste 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 had91
traditionally depended on fish from the waterways as part of its
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 Ninth 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, 7 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
7 United States v Fleet Factors Corp., 819 F. Supp. 1078 (S.D. Ga. 1983).92
auction off the equipment and clean up the site. When EPA inspected the
site, they found several hundred drums and numerous vats of CERCLA
hazardous 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?93
MR. CRUDEN: Yes. The case I argued in the 6 th Circuit was titled Production Plated
Plastics8 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,
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 1 st Circuit is also well known, United
States v. Charles George Trucking, Inc. 9 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
8 United States v. Production Plated Plastics, Inc., 61 F.3d 904 (6th Cir. 1995).
9 United States v. Charles George Trucking, Inc., 34 F.3d 1081 (1st Cir. 1994).94
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 government 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 all95
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 due
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 of96
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.
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 the97
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 General
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?98
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?
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. I99
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 we
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 coalfired 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 jump100
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 conduct
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 pollution101
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?
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.102
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 legal 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.103
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, 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?104
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.
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.105
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.
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 Peru106
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 for
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. EME107
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). 10
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
10 See John C. Cruden & Seth Gertz-Billingsley, Ranking the Court’s Top Cases,
ENVIRONMENTAL FORUM , November/December 2024, at 46. See Appendix 3.108
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 during “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.109
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 4justice 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 confusing
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 the110
Rapanos decision were ultimately the subject of a subsequent Supreme
Court decision in Sackett v. EPA. 11
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, 12
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 brief
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
11 Sackett v. Environmental Protection Agency, 598 U.S. 651 (2023).
12 Massachusetts v. Environmental Protection Agency, 415 F.3d 50 (D.C. Cir. 2005).111
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 Attorney
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 after112
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.
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?113
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., the 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 House114
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 D.C. 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 needed
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, a115
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 as
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 radiological116
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 with 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.117
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 under 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?
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 for118
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 EPA
proposed greenhouse gas emissions standards under the Clean Air Act.
These standards apply to passenger cars, light-duty trucks, and mediumduty 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.119
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 Obamaappointed 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 half
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?120
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 oppose
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 Washington121
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 humbling because there are so many gifted
people in the government. I have always been proud of the fact that I
received the 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.122
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 D.C. 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 D.C.
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, 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. I123
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 D.C. 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.