A Billion Dollar Award for Clean Air

David Martin: This is the good government show.

Nick McDaniel: I almost went to grad school for archeology, decided to go to law school instead.

The largest Clean Air Act civil penalty in the history of federal enforcement.

I like to think of the job of the environmental Enforcement section as really public health focused.

I think you don’t do this work if you don’t believe in your ability to make a difference and make things better.

People are doing this work because they really care about the mission. Whatever, whatever agency they’re at, they’re doing it because they care about the mission and belief in it.

David Martin: $1.675 million. That’s the largest penalty ever won by the U.S. government in violation of the Clean Air Act. Nick McDaniel, a Department of Justice attorney, led a team of engineers and lawyers to secure this massive settlement. And it’s a great, good government and action story. That’s today’s episode. Welcome to the Good Government show. I’m Dave Martin first. Right now, wherever you are, subscribe to our show and follow us on your favorite social media sites.

Now that you subscribe to Like Us and shares. Thanks. All right, back to our show. I attended the recent Fleming Awards in Washington, D.C., hosted by the National Academy of Public Administration and George Washington University. That’s where I met Nick McDaniel, who was an attorney with the U.S. Department of Justice. McDaniel and his team discovered that a diesel engine manufacturer created a defeat device to alter emission outputs.

That’s Clean Air Act violation. It was a lot of work, a lot of investigations and ultimately a landmark settlement. That’s good government at work. Another part of Nick McDaniel’s story is his work in government. Where he worked and what he did. Listen to what he says about the people he worked with, and you’ll hear why he’s no longer working for all of us in federal government.

People like Nick McDaniel work unheralded in government. When we lose people like them, we all lose. Listen to his story. So coming up, Fleming Award winner and former Justice Department attorney that McDaniel and the Good government show is sponsored by our. That’s o u r for our community. Get involved. We hear that all the time from government leaders.

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Once you wrap up this episode of the Good Government Show, give a listen to our friends over at Good News for lefties. This daily podcast highlights news stories that show there’s more good news out there. Other people in government are really trying to do the right thing. That’s good news for lefties. Listen, we’re listening now.

Welcome to the Good Government show I’m happy to have. That’s my guest, Nick McDaniel, who is one of the Fleming Award winners of the 76th Annual Fleming Awards. Congratulations on your award. Welcome to the show.

Nick McDaniel: Thanks.

David Martin: I we we were just. Before we turn the mics on, I’m going to have you introduce yourself, your titles. And where are you?

Nick McDaniel: There. Sure. Thank you. So I’m. I’m currently an attorney shareholder at the firm Babs Calland. I left the Department of Justice, earlier this year. Before, when I was at DOJ, I was a senior attorney in the environment Natural Resources division in the environmental enforcement section.

David Martin: And what does all that mean?

Nick McDaniel: Let’s start with the Environment Natural Resources Division at DOJ. The tagline for NRDC is we’re the nation’s environmental lawyer. Okay, so we are DOJ attorneys who, when something with the environment comes up and the United States needs an attorney, you need is the are the folks that handle it. So I was I was specifically in the enforcement section, which means I was doing civil environmental enforcement, oftentimes working with EPA.

So, when there’s some sort of compliance issue, noncompliance with the Clean Air Act and Water Act, some other pollution law or regulations, then, EPA engages in some enforcement or investigation, and then they bring in DOJ and, and we either litigate it or we work on some sort of settled resolution.

David Martin: And what got you interested in this line of work?

Nick McDaniel: Well.

David Martin: Funny story.

Nick McDaniel: Yeah. So I was an anthropology major in undergrad, and my focus was archeology. Of course, I almost went to grad school for archeology, decided to go to law school and said.

David Martin: Did you go out to do some digs? I did that.

Nick McDaniel: I would have liked to do that. So that was in great, like in a, in a, in a perfect world, you know, sliding Doors moment, maybe I’d be like on some dig site and go right now or in South America. But that didn’t happen. That’s not how I worked. I decided to go to law school instead. And, and then the the land use piece of it.

This is the real answer. And it is true. The archeology. I was very interested in archeology, but I was also interested in the land use issues that come up on on that side of things and historic preservation and environmental issues when it comes to development. And, and so that led me to focus more on environmental law, which I did in law school, and then and then followed that career path out of law school.

David Martin: So the reason why you’re here is because you were receiving a funding award for work you did in the Department of Justice, in environmental enforcement, as I understand it. And I’m going to have you explain it better. You won a the largest clean air settlement in the history of the U.S. government, the.

Nick McDaniel: Largest Clean Air Act civil penalty in the history of federal enforcement.

David Martin: Yeah. So what did what did your investigation discover? And what’s what’s the case?

Nick McDaniel: Sure. I’ll I’ll talk, as much as I can about it since this, since it is a case. Okay. You know, I worked on when I was at.

David Martin: DOJ, although you’re no longer at the.

Nick McDaniel: I no longer at DOJ, but I still have to be careful about.

David Martin: To.

Nick McDaniel: Privilege and confidentiality. Sure. Settlement, confidential communications and all that before though I, I do. So I’m getting this award. It’s really great. I’m really proud about it and really proud of the work that I did. It also is a little bit uncomfortable sometimes because you get asked questions like, like you asked about, like, tell me about your investigation.

Yes. And the real answer is this was a massive team of of people from EPA and DOJ working on this. And I was a piece of it. And I, you know, and proud of the work that I did. And I was an important piece of it. But I, I, you know, I want to specifically call out, Randy Stone, who was another DOJ attorney who retired this past year.

Okay, who was, a mentor for me throughout the course of my career at DOJ and, and also was a real big driver in the comments case, too. So, all right, with that, with that caveat that I was a piece this big. Teach.

David Martin: Yes.

Nick McDaniel: Proud of what I did, but lots of other people did amazing work on it. I’ll talk a little bit more about it. So so, EPA has, a lot of regulations and that deal with mobile source emissions. So I’ll try to talk at most basic, basic level I can police vehicles, obviously, and that stuff from the tailpipe.

EPA has standards that those engines have to meet in terms of, emissions. In terms of nitrogen oxides. So NOx. So that’s the big one. That’s the one that mattered for the comments case. So EPA regulates NOx out of the tailpipe. There have been over the course of the last decade or longer, enforcement actions against engine manufacturers who have, skirted certification requirements for engine emissions.

So when a new engine is going on the market for a model year or whatever, they have to get certified by EPA, and that means you get it goes through a testing process where they have to look at what’s coming out the tailpipe, make sure the pollution is at levels that it’s supposed to be at.

David Martin: And you’re learning all this on the fly.

Nick McDaniel: All on the fly. And I’m not an expert in it, and I’m not an expert in, like, any of this stuff. But when you’re when you’re a lawyer, you have to.

David Martin: Please tell me you takes a metro every day to work. You don’t even own a car.

Nick McDaniel: Right? I know I have a plug in hybrid. Plug in hybrid. So there. But there have been problems in the past with engines that, have, something called defeat devices in them. And that means that they function a certain way during EPA’s certification process for the engines. But then when you get out in the real world and they’re driving up and down hills and they’re towing, towing other stuff, they’re doing other things, they function very differently.

And so they’re they’re they’re pollution control during the test is one way, and they’re pollution control outside of the test is is another way. And that’s a problem. So, EPA has identified that. And there have been other enforcement actions against engine manufacturers before. Volkswagen was one of the first ones and and one of the biggest. Right. And and I worked on, a case against, Cummins.

Cummins makes diesel engines that go on a lot of different things. This case involved almost a million, engines that went in Dodge, 2530 500 Ram.

David Martin: Trucks, 2535. And these are the big trucks that the cities use.

Nick McDaniel: They’re the they’re the big trucks. They’re not you’re not they’re not your semis. Right. But they’re your they’re your big trucks.

David Martin: Bigger than pick up.

Nick McDaniel: Haul trailers. They’re bigger than your standard pickup truck okay. And so there are almost a million there are ultimately implicated in this enforcement action. So EPA identified a problem potential defeat device in the software, the way the software works. So EPA started that investigation at some point, kicked it over to the DOJ to bring in enforcement action. And so we had to get under the hood, so to speak, I guess, and figure out what the problem was with, with these engines, what what’s going on in the software that’s, causing these problems and that counts as this defeat device, which is not allowed.

David Martin: Answer as much of this as you can. Are you finding bad faith? Are you finding mistakes?

Nick McDaniel: I can answer very little of that. What I would say. Let me let me answer.

David Martin: Let me answer there.

Nick McDaniel: Let me answer in a very lawyer way.

David Martin: Which is. All right, go ahead.

Nick McDaniel: Which is, in, I’ve worked on a lot of different cases, but the DOJ, I would say more often than not, you are finding not necessarily bad faith. Not necessarily. How I describe it is, mustache twirling villains. Okay, more often than not, that’s not what you’re finding. But, but what you are finding is, is sloppiness or lack of focus on compliance, lack of commitment to maintaining compliance.

And those things, those things add up to just to a situation where you have serious, serious noncompliance issues that have to be addressed.

David Martin: $1.6 billion was paid to the government in in penalties. This is a this is the biggest ever. This is a huge case.

Nick McDaniel: It’s a very big number. It’s a very big number.

David Martin: What does that say that number.

Nick McDaniel: So well I would say that it signals how important deterrence is. Probably this is the way to think about it. And I think you can look at how these cases have progressed since Volkswagen. There have been others since then. A few years ago during even during the first Trump administration, there was an enforcement action against Daimler, Mercedes.

And I think that penalty, it was several hundred hundreds of millions of dollars. And so you’ve seen, a progression of, larger and larger numbers that get to be that way because deterrence is important. And the industry needs to know that compliance is important.

David Martin: What’s important about the work that you did for the government to secure this payout?

Nick McDaniel: So here’s what I’m most proud of when it comes to this case. I think because it’s true that compliance with the law is important. And, you know, I’m proud of the work we did to ensure future compliance for for this defendant and for, you know, the next defendant that might come down the line that needs to know about the deterrence factor of what we were looking at.

But what what we did as part of the settlement as well, was require mitigation projects to mitigate the excess emissions that happened, over the course of the decade, almost a decade that these engines were on the road. So what that means is we worked with scientists who could estimate the excess emissions, the excess NOx emissions, and also take one little bit of a step back.

NOx is coming out of these tailpipes. Why does that matter? NOx is bad because it mixes with VOCs and other things in the air, and then it forms ozone or smog. So think about before EPA started regulating vehicle emissions, you know, decades ago, and how bad of a problem smog was in certain areas. NOx is a part of that.

So NOx is a big piece of that. So that’s that’s why we care about it in the first place.

David Martin: If you if you hadn’t you know, if these I think what what are they called deceit devices weren’t there and this was just left unchecked. What would happen.

Nick McDaniel: Well as the defeat, if the defeat devices weren’t there, then we wouldn’t have a compliance issue.

David Martin: But but I mean, what would that mean to the environment?

Nick McDaniel: If the defeat devices weren’t there, the emissions would be lower. So I guess that’s the that’s the point. If okay, if there weren’t if there weren’t defeat devices, emissions at the tailpipe, not NOx emissions would be lower. And that’s what we looked at. So that’s what we looked at as part of our, investigation and part of our negotiations in the case is we looked at, okay, in an alternative reality where there was compliance, where we didn’t have a compliance issue.

Yeah. What would the NOx emissions have been then? Then they would have been lower. Okay. What were they in the real world? When we did have a compliance issue and they were, we’re higher. Now let’s figure out what that difference is. Like what what how many tons of excess NOx emissions, happened in this case because of, of the noncompliance.

And so we got we looked at that, we figured out what we thought that number was, and then the settlement requires, locomotive projects that reduce NOx emissions from locomotives. So, as part of the settlement, Cummins will replace engines from old locomotives that are high NOx emitting engines and put in more efficient and lower emitting engines. And they’ll also do some electrification and other things and, switch yards, which will reduce emissions and switch yards.

And that’s also important because, switch sides are where, you know, all your trains come together and you’re loading and unloading things and often in industrial areas, often in, poorer areas as well. And, and so it was important to, require some of these projects to reduce, reduce emissions and switch yards because you could really have, a direct benefit and lower pollution in areas that are overburdened by pollution already and, and disadvantaged in other ways.

And so that was an important part of the settlement and something that I’m very proud of.

David Martin: How cleaner have you made the air?

Nick McDaniel: Some so I, I a little bit it goes back a little bit to the, to what I tried to say at the beginning, which is I, I’m a, I’m a piece, a piece of this. Lots of other people are still at DOJ. My former colleagues are still at DOJ. And the environmental enforcement section, doing this work, doing amazing work, finding it hard to do some of this work.

And I’m very proud of making an impact, in cases that I did, I think I, I think I did make a real tangible impact. I have other cases that I’m, I’m proud of, too. I like to think of the job of the environmental enforcement section as really public health focused. Okay. You know, environments in the, in the name, and we do care about impacts the environment, obviously, but lots of times what that really means is, improving people’s public health outcomes, because if you have in this case, if you have smog being created, that’s going to cause more asthma and give people respiratory problems.

If you have, a sewer system that’s out of compliance and discharging raw sewage to the streets or to the to the waterways, that’s going to cause health impacts for for people and children who, come in contact with the raw sewage. And so what you’re motivated by in, in doing that work is really a big part of as improving public health outcomes.

And so I have I have many cases that are much, much smaller cases. They don’t have a big, a big number that start with a B, okay.

David Martin: That, that, that, but it’s incremental. I mean, every little.

Nick McDaniel: Thing, every little helps, right? Every little thing helps. And and some of the most rewarding cases that I worked on are, you know, smaller scale cases, but cases that you can when you’re done with it, you can really see, okay, those illegal discharges are no longer happening. The people that might have been in danger from those illegal discharges are now in less danger from that.

The the excess LED emissions from this facility are now lower. The the the kids in the community who have had been exposed and maybe have high light exposure or have a little bit less exposure.

David Martin: What motivates you and your team to do this? You know, working in government, especially now, can’t be easy. You know what keeps you going?

Nick McDaniel: I think you don’t do this work if you don’t believe in your ability to make a difference and make things better, I, I think that if you talk to, I’ll just I’ll just focus on the environment, natural resources, division, where I came from. If you just talk to all the attorneys and NRDC, I think every single one would say they believe they’re making a difference.

And that’s what, you know, gets them out of bed in the morning and gets them to the office. And at a place like you ND you get to work on really high impact stuff and high profile stuff. So there’s really no other place, when it comes to environmental law in the public service, that I think you get to really make a difference.

Good to help people work on high impact stuff, really challenging stuff. And with incredible attorneys.

David Martin: All right. That was the easy part okay. Are you ready for the hard.

Nick McDaniel: Let’s do it. You.

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After you get done with this episode, hear more good government stories with our friends at How to Really Run a City for mayors. Kasim Reed of Atlanta and Michael Nutter, a Philadelphia, and their co-host, journalist and author Larry Platt talk with guests and other mayors about how to really get stuff done in cities around the nation. Check them out where you’re listening now or through their nonprofit news site, The Philadelphia Citizen.

Dot org slash podcasts. All right. Nick McDaniel, former attorney with the Department of Justice. Environmental enforcement, I think you said 11 years, justice.

Nick McDaniel: 11 years.

David Martin: 11 years is justice. What’s good? Government define it.

Nick McDaniel: So I can’t speak to the politics and policy making side. So I’m gonna I’m gonna I hope this isn’t too it’s.

David Martin: Standing on world stage. Well that’s fine. Yeah.

Nick McDaniel: I’m, I’m I’m gonna it’s be a slight cop out, but not a. Where do you.

David Martin: Where do you stood in court. You said, you know, I represent the government.

Nick McDaniel: Exactly. Yes. That’s true, that’s true. Right. I think good government from the perspective of a former, you know, DOJ attorney, I, I’d answer it from the perspective of a government worker who I think is doing like the the day to day work of government. And I think, I think it’s about problem solving first and foremost. And within whatever your role is, it’s identifying problems that you think you can make better and have a solution to you.

And and sometimes working on very long term projects to get to the finish line on on those problems, but always keeping in mind throughout that work, what is the actual solution that you’re trying to get to, and how are you going to get to where to improve people’s people’s lives? Hopefully. And I would also say part of that is, expertise.

When I was at DOJ, I’m relying on subject matter experts at EPA, at the Interior Department, scientists, technical experts, chemists, health experts. They’re really the ones who have to drive what the solution is going to be. And, and so you really need to empower that the people that are the subject matter experts to get to the finish line, which is solving whatever problem you’re looking at at the time.

David Martin: So instead of a machete in one hand, chasing through the jungles at a vineyard, so what drew you to public service? And and who inspires you?

Nick McDaniel: So I, I did decide to go to law school instead of grad school for archeology. All right? I was a kid from Kentucky who had the opportunity to go to an Ivy, the law school, and I felt really lucky to have that opportunity. I’m really privileged to have that opportunity, and I felt that if I didn’t do something with it that tried to make an impact and make make a difference, that I would be really squandering that opportunity.

So, you know, that’s that’s how I felt when I did.

David Martin: You obviously yourself in public service, did you always I.

Nick McDaniel: Don’t know if I thought about it. I don’t know if I thought about it. I, you know, I, I think it was around that time of coming out of college and going to law school that I did. I even got to the point where I could think big enough picture about where I saw myself and what I was going to do, but I knew I wanted to, to do something where I could make an impact.

I thought felt like I had the opportunity to do that. I had an externship with the Department of Justice when I was in law school, and I worked with Addie Fisk and Don Frankel, two amazing DOJ attorneys, when I was in law school. And I was sold, I thought that that seemed like the right, the right place to be.

Amazing attorneys. I you know, I’m repeating myself a little bit, but amazing attorneys doing great work, high impact stuff and improving people’s lives. And so that’s really, that’s that’s where I set my focus and, and that’s where I was able to get to.

David Martin: You’ve talked about, you know, the the huge team behind you that helped you, win a Fleming Award. What would you like people to know about the people who are in government? People who aren’t in government? What do they know about the people who work in government? Your colleagues?

Nick McDaniel: Yeah, I would like people to know that people are doing this work because they really care about the mission. Whatever, whatever agency they’re at, they’re doing it because they care about the mission and believe in it. It’s not pointy headed bureaucrats pushing paper around and waiting to to clock out. At the end of the day, it’s people who really are passionate about the work that they’re doing.

And I think that there’s been a loss of faith in institutions and a loss of faith in some of the government work that’s being done. And I would want people to know that the the actual real life people that are doing this work care so much about the work they’re doing.

David Martin: What was the best part about being a enforcement officer and lawyer in the Department of Justice in the environmental area.

Nick McDaniel: Besides the great people I worked with, that’s that’s number one, great, great colleagues. I really enjoy the science part of it. And like pretending that I can’t, pretending that I can know.

David Martin: Pretending to be a scientist, attending it.

Nick McDaniel: Pretending to be a science scientist, you know, not really, but kind of, so when we would when we would go on facility visits to go to the steel facility or the coking plant, and, you know, you talk to the engineers and you talk to the EPA scientists about what’s going on. I really love that part of it.

And part of your job as an attorney is to try and digest that and understand it and then, be able to relay it in a way that’s understandable to the, to the public or to the court if you’re in court. So that was always fun for me to get into the hood. All right. And try to understand the science and engineering.

David Martin: What do you do for fun?

Nick McDaniel: I grow bonsai trees. That’s one thing that I do know. Yeah. Grew bonsai trees. So. So where did you.

David Martin: See that come. Yeah, we’re.

Nick McDaniel: Here in DC, DC has, a beautiful arboretum and also has an incredible bonsai exhibit that’s part of the arboretum. And so when I, when I moved here 11 years ago, at some point I visited it. They they captured my imagination a little bit. And, and so I’ve, I’ve grown trees and, that’s been a hobby of mine for 6 or 7 years during the pandemic.

It kind of it exploded and got a little bit out of hand. I’ll probably have to do any trees at this point, but I like the I like the horticulture aspect of it. Okay.

David Martin: I like to go back to the science.

Nick McDaniel: Yeah, I guess so. All right, I guess so.

David Martin: I usually ask this question of bears, but I’ll ask you anyway. You were here in D.C., you grew up in Kentucky. If we were going to go out somewhere, where do we go? What do we have? What’s your what’s your, what’s your favorite bill from your home or now that you’re here in Washington?

Nick McDaniel: Oh my gosh. Yes, yes, yes. Okay, I gotta I.

David Martin: Love.

Nick McDaniel: This one. Yeah. Oh, yeah. They have one handy. Sure. Have an answer. Ready to go? Yeah. I have to think about it. I think there’s a great ramen spot here in D.C.. Pancit and King. Phantom King is a great ramen spot. Robin. Okay. Yeah. And they do. They do, chicken ramen, like, they do other stuff too, but they do a lot of chicken and and chicken ramen.

Great spot. By, our old offices at DOJ back 8 or 9 years ago. But, that was a spot we always like to frequent.

David Martin: Looking at DOJ, what do you think the most impactful thing that you did was it’s a good government show. So it was like that. Yeah. Good government ideas.

Nick McDaniel: I am really proud of some of the sewer enforcement work that I did personally, and that my group, at DOJ did as a whole.

David Martin: Do you know how many mayors have talked to me about sanitation? It’s so important. Yes.

Nick McDaniel: I, my son and I.

David Martin: Didn’t get the big roll out of the big opening for that.

Nick McDaniel: Exactly. You know, my my son and wife make fun of me because we’ll be somewhere. And just having small talk with someone, and I’ll be talking about sewer systems because I, I think it’s fascinating and it’s super, super important for people’s lives. I mean, it’s, it’s just one of the things that impacts people directly. And so there have been a lot of enforcement work by DOJ and EPA to improve sewer systems, improve their functioning, limit raw sewage impacts, limit discharges to rivers.

It can really revitalize, communities. You know, you can have the recreation and river locks that, take a lot of communities want to have. And then just, from a health perspective, it really improves people’s lives, too. So I’m really proud of some of that work.

David Martin: Nick McDaniel, the former U.S. Department of Justice, Environment and Natural Resources Division, environmental enforcement, congratulations on your Fleming Award. Thank you for, thanks for coming on the show and talking to us and giving us a little insight into what people at DOJ do.

Nick McDaniel: Thanks for having me.

David Martin: Thank you. I want to hear more about good government. Check out another show I host leading Iowa good Government in Iowa cities. I host the show with Brad Cavanaugh, mayor of Dubuque, Iowa, and the immediate past president of the Iowa League of Cities. Together, we talk to leaders in Iowa cities. We talk about what works and what good government looks like in Iowa.

Join us right here. We listening now that’s leading Iowa. Good government in Iowa. Cities.

I hope you heard this direct from Nick McDaniel’s mouth, but it’s worth repeating, he said, and I quote, I want people to know that the actual real life people who are doing this work cares so much about the work they’re doing. And, quote, that is public service. When I talk with elected leaders, other people who work in government, often without the news headlines or the big bonus dollars, that’s the mindset that shines through in every story we tell.

As you heard, those are the people he worked with, and that’s what drove him to make the air cleaner and improve all our lives. That’s what we want from our public servants, because ultimately that’s good government. Nick McDaniel, unfortunately, is a former attorney with the U.S. Department of Justice in the Environmental and Natural Resources Division. Now he’s working at a private law firm.

When we lose people like Nick and government, we all do smart, dedicated, hardworking people who see government service not as a paycheck, but really as a colleague, as a mission. Don’t take it from me. Take it from the funding awards. Well, that’s our show. Thanks for listening. Please tell all your friends about good government and our show. Don’t forget to review us and check out our website.

Good Government show.com for extras. Help us keep telling stories of good government in action everywhere. Join us again for another episode right here. I’m Dave Martin and this is the Good Government show.

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**This transcription was created using digital tools and has not been edited by a live person. We apologize for any discrepancies or errors.