Scarcely any political question arises in the United States that is not resolved,
sooner or later, is a judicial question.
----Alexis de Tocqueville
From Mother Earth's perspective, the most important ballots cast on November 6th could be in the 30 contests for state attorney general (AG). The role played by AGs in the nation's transition to a low-carbon economy is easily ignored in the heat of this year's Congressional elections. Over the past decade or more, however, it has mostly been the states' AG's who have made the difference between implementation and litigation of the environmental regulations flowing out of Washington.
AG's are important not only for who they are but for whom they might become. Today's attorney general may be tomorrow's governor, congressman, senator or administrator of the US Environmental Protection Agency.
Scott Pruitt's election as Oklahoma's top attorney led to his becoming Trump's trusted regulatory hatchet-man. Pruitt earned his conservative creds by suing the Obama admin-istration at least 14 times over environmental issues alone. Recognized as environment's public enmity number one, Trump saw Pruitt as the ideal candidate to take control of the Agency both would prefer to live without. Evidence of the faith Der Donald placed in Pruitt was the length of time it took the president to "accept his resignation," considering the mounting ethics charges. A courtesy Trump was unwilling to accord HHS Secretary, Tom Price.
Pruitt's successor as Oklahoma's Attorney General, Mike Hunter, is one of the AGs on November's ballots. Hunter has made clear to voters his position on the environment and his accomplishments since being appointed by the governor to fill Pruitt's unexpired term. In support of his candidacy Hunter wrote in a recent Journal-Record article:
• …it is vital the [petroleum] industry have an advocate in the public sector to push back on burdensome overreach and unnecessary regulations. Our office is unapologetic in serving in this capacity….
• We have been…against private special interest groups…urging courts to expand federal environmental regulatory control of groundwater.
• We have supported reform efforts by the new administration…including supporting a delay of costly methane regulations while they are reconsidered and urging repeal of the Obama administration's unlawful attempt to restructure the energy economy, the Clean Power Plan.
• And we are currently fighting against a group of left-wing states and cities that have tried to sue energy companies over climate change, claiming they should pay billions for the hypothetical future costs of global warming. We have asked the courts to throw these harassing lawsuits out. (emphasis added)
Hunter leads his Democratic challenger Mark Myles by nearly 20 points in a recent News9 poll of likely voters.
Every state has an attorney general. Most are elected although a few are appointed by the governor or the legislature. Currently, the partisan divide is 27 Republicans, 23 Democrats and one independent (DC). Thirty attorneys general are up for election in November. The November election holds the possibility of 12 to 19 new AGs being elected. (see Figure 1[i])
It will mark the largest turnover since 2010 when 14 new candidates were voted into office. According to the firm Cozen O'Connor the breakdown of races is as follows:
Whatever the outcome of the November Congressional elections, Trump and his merry cabal of climate-science deniers will continue their ineluctable journey to deregulate the nation's environment through its executive powers. Standing between the Administration and nature will be a cadre of state attorneys general convinced that climate change threatens the health, safety, and security of their state's citizens and the nation.
Just as the Clean Power Plan (CPP) was challenged in court by 27 AGs from largely red states whose political and economic interests coincide with the interests of fossil fuel companies; Trump's Affordable Clean Energy (ACE) act will face opposition from largely blue states whose political and economic interests coincide with 21st century clean energy technologies and the need to slow Earth's warming.
As I have written before the courts are becoming the preferred go-to venues for climate-defenders—a trend contributed to by state attorneys general. According to Vermont's Attorney General, TJ Donovan, the acceleration of actions by attorneys general is…in response to what's happening [in Washington], where Congress, the executive branch, and environmental agencies have largely been abdicating responsibility or not enforcing their own laws. The powers and tools have always been here [in the states], but you are seeing them used in an unprecedented way and, frankly, in a much more public way.
Attorneys general often serve the function of a lightning rod for others in the sense that they are frequently joined in their lawsuits by various individuals and organizations. West Virginia along with 25 other states challenged The numbers of participants referred to are from the consolidated cases challenging the CPP and captioned as West Virginia v EPA title.
Briefs in support of West Virginia's challenge were filed by nearly 200 members of Congress, 166 state and local chambers of commerce, and other business associations, several conservative legal foundations, e.g., Texas Public Policy Foundation, electric utilities, e.g., Municipal Electric Authority of Georgia, former public utilities commissioners and groups representing women, minorities, seniors and taxpayers. (For additional information on the case seehttps://fas.org/sgp/crs/misc/R44480.pdf)
The defendant EPA in the case was not without its supporters. Intervenors in favor of the CPP included 18 states, the District of Columbia, the cities of Boulder (CO), Chicago, New York, Philadelphia and South Miami. Others included Calpine Corp., City of Austin (d/b/a Austin Energy), City of Los Angeles (Department of Water and Power), City of Seattle (City Light Department), National Grid Generation, , N.Y. Power Authority, Pacific Gas & Electric Company, Sacramento Municipal Utility District, and Southern California Edison.
Also defending the CPP as friends (amicus) were two former EPA administrators, i.e., William Ruckelshaus and William Reilly, former Secretaries of State Albright and Panetta, a coalition of medical groups, scientists, grid experts, labor groups, e.g., Service Employees International Union (SEIU), faith-based organizations and business groups and individual corporations, e.g., US Black Chamber of Commerce, Google and Apple. The National League of Cities, US Conference of Mayors, 54 individual cities and localities, and members of Congress rounded out the field of supporters.[i]
There are both political and procedural reasons for the central role that state AGs are playing on the national climate stage, as well as within their own jurisdictional borders. Before plaintiffs can pursue their claim in court, they must meet threshold standing requirements. The rules of standing require a plaintiff to have suffered an actual injury or harm, traceable to the actions of the defendant, and capable of redress by the court.
No matter how noble the cause, a generalized claim does not meet the requirement of a concrete and particularized injury. For this reason, environmental non-governmental organizations (ENGOs), e.g., the Natural Resources Defense Council (NRDC), often join with local organizations in bringing suit. The landmark case of Massachusetts v EPA established more than the authority of EPA to regulate harmful greenhouse gas (GHG) emissions under the Clean Air Act. It established the state's right to stand in court without meeting all the usual standards for redressability and immediacy.
From the majority's opinion:
Because Congress has ordered EPA to protect Massachusetts (among others) by prescribing applicable standards and has given Massachusetts a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious, petitioners' submissions as they pertain to Massachusetts have satisfied the most demanding standards of the adversarial process. EPA's steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both "actual" and "imminent," and there is a "substantial likelihood that the judicial relief requested" will prompt EPA to take steps to reduce that risk. (emphasis added)
A state's nearly presumptive right of standing in climate cases involving federal regulation—or lack of—opens the door to other participants whether as named litigants or friends (amicus). Standing can take a substantial amount of time to establish to the court's satisfaction and presents an on-going potential weakness in a case. In Juliana v US, for example, the government's first challenge was to the youth's standing to sue. That was in 2015 when the case was first filed. Up to a few months ago, the government was still raising the standing issue in an effort to have the case dismissed.
The hyper-partisanship that mars the political process in Washington, and many state capitals is equally apparent within the ranks of state attorneys general. The division influences which side of the climate argument an AG is likely to reside. In general, Republican AGs side with deniers, while the Democrats side with the defenders. It is noted that this is not always the case. Kentucky, for example, joined with West Virginia in the CPP case. At the time Andy Beshear, a Democrat, was Kentucky's AG. I would venture that whoever may be chosen to serve out the term of West Virginia's current AG, who is running as the Republican candidate against Democratic Senator Manchin, will be a leading member of the AGs climate-deniers' club.
The ferocious opposition of AG climate-deniers and defenders is something of a microcosm of the larger battle between most Republicans and Democrats—voters and officeholders alike. The fight is far from friendly.
New York City (NYC) sought unsuccessfully to have a federal judge order five of the biggest oil companies—BP, Chevron, ConocoPhillips, ExxonMobil, and Royal Dutch Shell—to compensate the city for the cost of mitigating the effects of global warming. The New York case is similar to other suits by cities, counties, and states around the nation. The theory behind the litigation is basically the same used successfully against tobacco companies. The local jurisdictions are claiming that the oil companies were well aware of the negative consequences of burning fossil fuels and chose to sell them anyway.
Fifteen Republican state attorneys general filed an amicus brief in support of the oil companies' motion for summary dismissal. Indiana Attorney General Curtis Hill led the opposing AGs the states signing the brief were Alabama, Arkansas, Colorado, Georgia, Kansas, Louisiana, Nebraska, Oklahoma, South Carolina, Texas, Utah, West Virginia, Wisconsin, and Wyoming. The same group filed a nearly identical brief in April, urging a U.S. district court judge in California to dismiss climate liability suits by the cities of San Francisco and Oakland.
In his dismissal of the NYC suit Judge John Keenan wrote:
Climate change is a fact of life, as is not contested by Defendants. But the serious problems caused thereby are not for the judiciary to ameliorate. Global warming and solutions must be addressed by the two other branches of government.
A similar suit in the federal court in California ended much the same way, however, not before the judge in the case ordered the litigants to conduct a two-hour briefing on the causes and consequences of climate change. In the course of the briefing, the defendant oil companies agreed with mainstream science that Earth's warming is mostly a product of human activity and the release of GHGs when burning fossil fuels.
The tension between AG denier and defender groups can get more than a bit heated—often ending in threats. In response to the damage suits against oil companies, 13 Republican AGs signed on to and sent a letter to their Democratic counterparts urging them to stop using their law enforcement powers against fossil fuel companies. Which was reported by the Washington Times--If Democratic attorneys general can pursue climate change skeptics for fraud, then also at risk of prosecution are climate alarmists whose predictions of global doom have failed to materialize. (emphasis added)
If Pruitt was the litigation leader during the Obama administration, Xavier Becerra, California's AG running for re-election in November, has a claim on the title in the Trump era. California and friends have taken The Big D to court on environmental matters 23 times and so far, has claimed 14 victories. The biggest showdown is yet to come. As one may imagine, California was not thrilled about the decision to freeze auto mileage/emission standards at the 2020 level of 37 mpg rather than at the 54.5 mpg by 2025 level agreed to by the auto companies during the Obama administration.
Pouring salt in the wound, Trump and company announced their intention NOT to grant California the usual waiver allowing the State to establish stricter mileage standards than the feds. There has only been one other time since the standards became law that California was not granted the waiver. President G.W. Bush refused the waiver towards the end of his administration, but the decision was quickly overturned by President Obama.
An announcement at the Global Climate Action Summit held this September in San Francisco has also not set well with may Republican AGs. Nine of the U.S.'s most respected law firms announced a groundbreaking initiative to deliver free legal services worth $15 million by 2020 to advance sustainability across the globe. The first-of-its-kind initiative, Lawyers for a Sustainable Economy, offers pro bono legal assistance to entrepreneurs and community-based non-profits taking on critical sustainability challenges across multiple economic sectors, in energy, transportation, and land use.
The announced initiative, along with the Bloomberg Philanthropies funding of legal fellows, has been attacked by right-wing organizations like the Competitive Enterprise Institute and reported in the Daily Caller:
[such efforts should be labeled as] "law enforcement for hire" because it allows political donors to pay for state prosecutors "in the service of an ideological, left-wing, climate policy agenda."
"It represents private interests commandeering the state's police powers to target opponents of their policy agenda and to hijack the justice system as a way to overturn the democratic process's rejection of a political agenda…
The Daily Caller and others have failed to comment much on the contributions made by the Koch Brothers and other right-wing groups to organizations like the Free Market Environmental Law Clinic at George Mason University[ii] (aka the George Mason Environmental Law Clinic), the Energy and Environment Legal Institute and other climate-deniers that have asked to join in the suits brought by various Republican AG offices.
I remind readers what TJ Donovan attributed the growing involvement of state attorneys general in setting the national climate agenda:
The acceleration of actions by attorneys general is…in response to what's happening [in Washington], where Congress, the executive branch, and environmental agencies have largely been abdicating responsibility or not enforcing their own laws. The powers and tools have always been here [in the states], but you are seeing them used in an unprecedented way and, frankly, in a much more public way.
My message to all climate-defenders is simple—pay attention to the AGs and other down-ballot candidates on your November ballots and be sure to vote.
[i] The numbers of participants referred to are from the consolidated cases challenging the CPP and captioned as West Virginia v EPA title.
[ii] George Mason University as received more in funding from the Koch Brothers than any other academic institution, with the GMU and GMU Foundation alone having received over $70 million from Koch-connected foundations since 1986. Charles Koch sits on the board of directors of the Mercatus Center
Lead image: https://unsplash.com/photos/BALZ8uogVjs
[i] For an interactive map go to https://stateagelections.com)
Joel B. Stronberg
Joel Stronberg, Esq., of The JBS Group is a veteran clean energy policy analyst with over 30 years’ experience, based in Washington, DC.