By Ellen M. Gilmer and Emily C. Dooley | May 20, 2021
Democratic attorneys general are playing an aggressive part in environmental fights even after their splashy role as Trump administration adversaries has ended and Republican-led states step in as top challengers of federal policy.
California’s new attorney general is expanding the agency’s environmental justice bureau while Connecticut is pursuing a high-stakes climate case against Exxon Mobil Corp. Democratic AGs in New York, Maryland, Minnesota, Washington, and other states are doing similar work.
“Nobody’s going to be sitting back twiddling their thumbs because a person from their political party is in power,” said Jones Day’s Courtney Lyons Snyder, administrative partner for the firm’s state AGs practice. “They’re now going to look at, what are my priorities and what can I do now that I have freed up resources.”
Democratic attorneys general say they’re prepared to push back if the Biden administration falls short or federal agencies bend to outside pressure from conservatives or industry representatives. Democrats currently serve as top lawyers for 24 states and the District of Columbia, the same number as in 2020.
Many attorneys general are emphasizing their in-state work while they continue to advocate at the federal level.
“For the last four years under the Trump administration we were defending California’s people and the state and our natural resources from a full-on frontal assault from Washington,” state Attorney General Rob Bonta (D) said in an interview. “And it took a lot of air out of the room in terms of what the environmental work could be at the time.”
It was necessary work, but the situation has changed, and “we will not be having the same fights,” he added.
Bonta took over as California AG after Xavier Becerra became Health and Human Services secretary under Biden. One of Bonta’s first actions was to expand the agency’s focus on policing polluters. The environmental justice bureau, first launched under Becerra, will increase its roster of attorneys from seven to 11, allowing it to expand oversight and enforcement work.
Connecticut Attorney General William Tong (D), another persistent foe of the Trump administration, said his office is “pedal to the metal” on environmental work, including the effort to uncover decades’ worth of documents from Exxon, he said.
New Jersey Attorney General Gurbir Grewal (D) has teamed up with state environmental regulators to build “one of the strongest environmental enforcement and environmental justice programs in the country,” a spokesman said. Since taking office in 2018, Grewal has led a series of major enforcement actions focused on environmental justice.
Helping Biden “undo the damage of the Trump administration” is a key priority for Massachusetts Attorney General Maura Healey (D), who said in an interview she would also focus on implementing the president’s $2 trillion infrastructure plan locally.
Supporting Biden Policies
Democratic attorneys general aren’t expected to sue the Biden administration as often as they did Trump, but they’ll still play an important role as intervenors in many big cases—just as they did to defend Obama-era rules, including the EPA’s Clean Power Plan and Clean Water Rule.
“I think we know that Republican AGs are going to act on behalf of the coal industry and will be challenging President Biden’s agenda, and we’re going to be there, in court, working alongside DOJ and others to defend the administration’s important efforts to protect our climate,” Healey said.
New York, likewise, will “continue to support the new administration” as it pursues climate and environmental justice policies, New York Attorney General Letitia James (D), whose office was among the most prolific litigators during the Trump era, said in a statement to Bloomberg Law.
“Several red state AGs are likely to be more effective in opposition, as blue state AGs will merely ‘me too’ what the Biden administration is doing,” Western Energy Alliance president Kathleen Sgamma said in an email. “The flip side was true during the Trump administration.”
State-federal collaboration on enforcement issues Democrats prioritize, including the environment, is also likely to increase as state officials will “have allies throughout the Biden administration,” said Lori Kalani, co-chair of the state AGs practice at Cozen O’Connor.
Partnering with a friendly administration appeals to Democratic AGs on two fronts, Marquette University professor Paul Nolette said: It allows them to advanced shared policy goals, and it helps them maintain a prominent national profile.
“You still get a lot of that federal attention even though they’re not the ones launching the lawsuits,” he said.
Democratic attorneys general won’t always be aligned with the Biden administration, especially as federal agencies face pressure to water down environmental proposals at the behest of industry interests, Tong said.
“So that’s why it’s not like, ‘Oh great, we have President Biden, everything’s all set, everybody can go home,’” he said. State AGs’ job is to advocate for their states, “not to advance the interests of the federal government or President Biden,” he added.
State attorneys general have a critical role to play regardless of whether their opposing party is in the White House, said Greenberg Traurig LLP’s Paul M. Seby, an industry lawyer who often represents North Dakota in environmental cases.
“It’s regrettable that sometimes things are characterized as red versus blue and that the AGs are more active when a president of another party is in office,” Seby said. “I don’t think that’s the right way to look at it. Advocates who care enough to be involved in agency rulemakings and and judicial review of them do so with more fundamental and sincere concerns.”
Healey of Massachusetts said her office is ready to push back on Biden policies if needed.
“Could there come a time where we feel we need to push the administration more on something or take issue or challenge something they’re doing? That that could happen,” she said. “But I’ll say at the outset that it is very heartening to see where the Biden-Harris administration has been to date in terms of laying out its agenda.”
READ MORE ON NEWS.BLOOMBERGLAW.COM