Attorney General Merrick Garland has not heeded calls for the Justice Department to investigate energy companies for misleading cities and communities about negative environmental impacts.
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The last time she ran for president, Kamala Harris gave a 16-minute interview with then-Mother Jones reporter Rebecca Leber about her vision for tackling the climate crisis. Harris brought evident comfort and energy to the topic, but most striking was the framing to which she returned again and again: corporate accountability.
“It’s about having the conviction to take these guys into court and to hold them accountable, and not backing down, and not backing down because of the pressure,” Harris told Leber. And shortly thereafter: “When you talk about the power of the prosecutor, I have always felt strongly that the role should be to go after … these powerful interests that are creating incredible harm in our communities, and without consequence creating that harm. And let’s get them not only in the pocketbook, but, you know, let’s make sure that there are severe and serious penalties for their behaviors.”
This is a career prosecutor talking, and a review of Kamala Harris’s six years as California’s attorney general confirms that she has an extensive record of prosecuting environmental harms to undergird her familiarity with this approach. But what makes this angle particularly noteworthy is that corporate accountability has not been, in fact, a strong suit of the Biden administration’s approach to climate change.
President Biden has overseen landmark climate legislation, which stimulated hundreds of billions of dollars in clean-energy investment in the last two years, as well as painstaking efforts from agencies to undo many of the Trump administration’s rollbacks and in many cases replace them with stronger safeguards. Biden has also overseen record highs in oil and gas extraction, atmospheric carbon levels, and global temperatures; 85 separate weather and climate disasters that cost over a billion dollars each; and a continued geopolitics of energy that preserves the United States as an obstacle to negotiating a just transition on a global scale.
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On top of that, Biden has not overseen any sort of renaissance in environmental enforcement. In 2022, the Justice Department voiced a commitment to bring environmental crime prosecutions back up to Obama-era levels, but not to exceed them, though Barack Obama brought fewer such cases than his predecessor, George W. Bush.
According to data analyzed by the Transactional Records Access Clearinghouse at Syracuse University in April 2024, environmental prosecutions at the Justice Department are still down from 2019 levels. In 2019, under would-be insurrectionist Jeffrey Clark’s leadership, the Justice Department’s environmental division secured $3.3 billion in injunctive relief, $325 million in civil penalties, and nearly $87 million in criminal penalties. By comparison, in 2023, the division secured $2.3 billion in injunctive relief and $129 million in civil penalties. (In early 2024, though, the division did secure its single-largest civil penalty ever, $1.675 billion, from Cummins, Inc., for installing cheat devices in its vehicles to circumvent emissions tests.)
Broadly speaking, white-collar criminal prosecutions under Biden have continued their decades-long bipartisan decline. As my colleagues Andrea Beaty and Emma Marsano have previously written for the Prospect, Deputy Attorney General Lisa Monaco, who oversees the DOJ’s approach to white-collar crime, shares Garland’s “tentative approach to values-driven enforcement priorities.” Meanwhile, the energetic efforts of Jonathan Kanter’s Antitrust Division demonstrate the power the rest of the Justice Department could wield if it took defending the public interest against corporate exploitation seriously.
The unapologetic pursuit of polluter accountability could be one of the most substantive areas of departure for a Kamala Harris presidency.
On the environmental front, it took Biden’s Justice Department years to reverse course on the Trump-era amicus briefs filed on the side of oil and gas companies against cities and states around the country that continue to seek accountability for decades of concerted misinformation. Activists and members of Congress alike have been calling on the federal DOJ for nearly a decade to investigate Big Oil’s lies, but Attorney General Merrick Garland has refused to even publicly acknowledge these requests. Yet we have Kamala Harris on record saying, “I think that everyone who was a part of misinforming the public, misleading the public, and false advertising should be held accountable.”
In 2019, Harris joined other senators in filing an impassioned amicus brief siding with California municipalities in a Ninth Circuit case where Trump’s Justice Department was backing the oil company defendants. The senators wrote that they “have watched from the front row” as fossil fuel corporations have “squelched climate action in Congress, at executive agencies, and at international fora,” and that, “when viewed from the perspective of Defendants’ actions in the halls of Congress and the Executive, it becomes apparent that Defendants’ real position is that no one should address climate change, the cataclysmic effects it is already having, and particularly the real injuries that Defendants have proximately caused.”
The unapologetic pursuit of polluter accountability could be one of the most substantive areas of departure for a Kamala Harris presidency, if it remains the lens through which she sees the climate fight. But that would require Kamala Harris to appoint an attorney general with an energetic prosecutorial temperament, and none of Merrick Garland’s timid institutionalism.
Kamala Harris’s Track Record on Environmental Enforcement
As California attorney general, Kamala Harris brought lawsuits against corporations whose negligence contributed to environmental calamities, including an explosion at a Santa Clara wastewater facility that seriously injured several people, a methane leak in Aliso Canyon that sickened and displaced residents, and a pipeline rupture that spilled 140,000 gallons of heavy crude oil across land and ocean in Santa Barbara County.
Harris brought a first-of-its-kind greenwashing claim against plastic bottle companies in 2011 to enforce a novel California advertising law. Her office secured minor fees and more significant injunctive relief requiring the companies to retract their false biodegradability and recyclability claims, notify their customers that claiming plastic is biodegradable is illegal in California, and include such notice on relevant web pages. (Notably, Harris’s case relied in part on the Federal Trade Commission’s definition of environmental marketing claims as published in their Green Guides, which are years overdue for an update. Harris’s familiarity with the FTC’s underutilized powers may augur well for Lina Khan’s chances of securing renomination as chair.)
Harris brought and settled a case against the ports of Los Angeles and Long Beach in 2011 to reduce their diesel emissions and do more to inform the public about the significant levels of cancer-causing chemicals released by diesel engine exhaust. She sued Phillips 66 and ConocoPhillips and BP and ARCO for failing to properly maintain underground storage tanks containing hazardous materials, imperiling California’s groundwater. She prosecuted AT&T and Comcast for improperly disposing of hazardous waste.
In Harris’s most high-profile polluter accountability case, she took on Volkswagen. In 2016, Harris worked alongside the federal government to prosecute Volkswagen under the Clean Air Act for installing cheat devices in diesel-powered vehicles to conceal that they emitted up to 40 times more hazardous nitrogen oxides than is legal. California had the largest number of affected customers of any state, and received $1.18 billion of the landmark $14.7 billion secured in the initial settlement, including hundreds of millions earmarked for environmental mitigation and zero-emissions vehicle development. Harris also initiated a civil lawsuit against Volkswagen under California state law, which secured an additional $86 million in civil penalties and strict injunctive terms.
A pioneering Justice Department would take the big-ticket cases of Harris’s AG tenure as a high floor to surpass, not the high-water mark of climate accountability. That means making cases like the landmark Volkswagen settlement the priority, not the anomaly. There are real capacity limitations to suing massive corporations with their deep bench of lawyers, to be sure, but that hasn’t stopped Kanter’s Antitrust Division from taking on not one but several Big Tech companies in the last couple of years, along with Ticketmaster and most recently RealPage, the algorithmic price-fixing tool used in rental housing markets. And a president can also make funding for such enforcement work a priority in budgets and fiscal negotiations.
Despite the Biden administration’s professed “whole of government” approach to climate action, the Justice Department has largely remained on the sidelines these last few years, as if deliberate corporate malfeasance were not at the heart of climate inaction. There is no reason why Harris, if president, should feel moved to preserve Merrick Garland’s make-no-waves approach to litigating on behalf of the United States.
As Harris said in her last campaign cycle, the Department of Justice has a job to do on climate change and it’s this: “making sure that these families will not have to fight alone.” If Harris becomes president, her choice of leadership for the Justice Department will be a key signal about how seriously she takes bringing that energizing idea she once professed to fruition.
