John Cruden Interview 4

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Oral History of John C. Cruden, Esq.
This interview was conducted on behalf of the Oral History Project of The Historical
Society 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, on Zoom. 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
Katherine 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 government
ethical rules applied to me and limited what I could do to support my
election.125
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 D.C. 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 Performance Tires”
highlighting what we did for the poor and disadvantaged (labeled the
Access to Justice Commission, government pro bono program, and senior126
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 D.C. Bar Washington Lawyer
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. D.C. 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-InChief of the Environmental Law Journal for Tulane Law School and
brought him to Bar meetings to brief us on what was happening on the
ground. We then dedicated the D.C. Bar’s annual conference to the127
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 make
a real difference. I had the advantage of being at the Department of128
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 D.C. Bar Washington
Lawyer 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?
MR. CRUDEN: As we were getting the government pro bono program off the ground, I
knew we needed positive, well-publicized examples of senior government129
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 Court update at Harvard he told this story to the
students. They loved it! It was also another step in my goal to make it130
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. 13
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.
13 John C. Cruden, Promoting Pro Bono Service by Government Lawyers, 53 FED. LAW . 30
(Nov/Dec 2006).131
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 D.C. 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 improve132
low-income residents’ access to the civil justice system. Former D.C. 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 Pro133
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.134
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 annual135
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.136
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 Peter Hsiao—to put on a very popular trial practice
demonstration. We used the afternoon to demonstrate trial practice issues137
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 attorneys, 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 meetings138
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?139
MR. CRUDEN: April 10, 2010, is etched in my mind, as that was the day of the explosion
on the oil rig BP/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 from140
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 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 weekly141
with 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 wellrespected jurist, as the presiding judge. The U.S. filed its complaint in142
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 the143
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 Jacobson, 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?144
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-145
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,146
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 Dominican 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 on147
Environment and Development held in Johannesburg, South Africa. ELI
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, Frances
Beinicke; David Sive, who was one of the first environmental advocates148
and a prolific writer and professor; Congressman John Dingell, long time
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?149
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 be150
willing to meet with him or her 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, I151
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 Yates152
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?153
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
central 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 and154
moved with me. She 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 were155
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’Rourke 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 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 from London to156
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 reinitiate 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, Lois157
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 us that 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.158
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,159
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.160
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 Barbier, 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. The161
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.
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. 14
Finally, in 2024 the Louisiana restoration task force invited folks who
played key roles in the settlement, including Judge Barbier, 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.
14 John C. Cruden, Steve O’Rourke & Sarah D Himmelhoch, The Deepwater Horizon Oil Spill
Litigation: Proof of Concept for the Manual for Complex Litigation and the 2015
Amendments to the Federal Rules of Civil Procedure: Authors: 6 M ICH. J. ENVTL. & ADMIN.
L. 65 (2016).162
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 violations
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, an163
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 filed
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 Breyer 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.164
MS. SCARROW: How did the case come to be heard in San Francisco?
MR. CRUDEN: Like in the BP/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.
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 Mueller 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. In165
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 established
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.166
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 claims for customs fraud. In addition,
the EPA agreement required injunctive relief to prevent future 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,167
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 VW
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. 7,168
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?
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 15 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. 16
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.
15 S TATE ENERGY & ENVIRONMENTAL IMPACT C ENTER , LOOKING B ACK TO M OVE FORWARD :
R ESOLVING HEALTH & ENVIRONMENTAL C RISES ((New York University School of Law
2020). See Chapter 8: John C. Cruden & Joshua H. Van Eaton, The Volkswagen ‘Dieselgate’
Clean Air Act Settlement.
16 John C. Cruden, Bethany Engel, Nigel Cooney & Joshua Van Eaton, DIESELGATE: How the
Investigation, Prosecution, and Settlement of Volkswagen’s Emissions Cheating Scandal
Illustrates the Need for Robust Environmental Enforcement, 36 V A. ENVTL. L.J. 118 (2018).169
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 the
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, in170
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 cases
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. We171
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:
BP/Deepwater Horizon 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,172
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,
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 everyone173
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 wellfunctioning 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 people
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 of174
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, including 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.175
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.
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).176
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 came
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.177
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 the 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 justice178
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?
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 the179
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. 17 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.
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
17 Guidelines for Joint State/Federal Civil Environmental Enforcement Litigation (January 2017).180
“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.