Donald Trump was just hours from inauguration as the 45th president of the United States when a coalition of Democratic attorneys general went to court to defend EPA regulations limiting interstate air pollution.
It was a legal shot across the bow of the fossil fuel industry, and the start of a war of attrition the AGs waged throughout 2017 against the new administration and its coalition of red states and fossil fuel companies intent on weakening climate and other pollution rules.
The attorneys general filed a motion expressing support for the Environmental Protection Agency's Cross-State Air Pollution Update Rule, which required coal-fired power plants in 22 states to reduce smog pollution that blows into downwind states. The rule had been challenged by coal companies, power generating corporations and officials in five upwind states, including by Scott Pruitt, then attorney general of Oklahoma, who was Trump's choice to become head of the EPA.
Since that opening salvo, state attorneys general have filed nearly two dozen lawsuits—about two a month—against the federal government, seeking to uphold legal protections of the environment and climate.
The cases include:
- Jan. 23: Seven attorneys general went to court to oppose truck makers who were trying to block the EPA from cutting greenhouse gas emissions from new engines. The Democrats called the climate protections vital to their states.
- April 5: Sixteen attorneys general went to court to oppose the Trump administration's efforts to topple the Clean Power Plan, the mainstay of the Obama climate agenda.
- May 10: Four attorneys general filed a lawsuit in federal court to protect state residents from pollution generated by coal mining. The lawsuit challenges the U.S. Department of the Interior's decision to restart federal coal leasing on public land.
- June 20: Fourteen attorneys general filed a motion to intervene in a lawsuit against EPA Administrator Scott Pruitt's actions to halt regulation of methane leaks from new oil and gas operations. Methane is a potent short-lived climate pollutant that contributes significantly to global warming.
- Sept. 11: Five attorneys general filed a lawsuit against the U.S. Department of Transportation alleging it was illegally delaying automotive fuel efficiency standards, the most effective greenhouse gas limit ever imposed by the United States.
Air, Water and Science Itself Under Assault
The role of state attorneys general has never been more important, said Massachusetts Attorney General Maura Healey, a Democrat who has confronted the Trump administration eight times in court over environmental and climate issues.
"The air we breathe, the water we drink and science itself are under assault by the Trump administration," Healey said. "It's more important than ever that states take the lead in addressing the impact of climate change and hold the administration accountable for enforcing the laws that protect our residents and our planet."
With Republicans in control of the White House and Congress, the Democratic attorneys general are in the best position to push back, said David Hayes, the executive director of the State Energy & Environmental Impact Center at New York University School of Law.
"They are well positioned, with access to the courts, to ensure that whatever the government does, it is done in accordance with the rule of law," said Hayes, who served as the Interior Department's deputy secretary under both the Obama and Clinton administrations.
Hayes's organization is closely engaged in the fight, lending practical assistance and coordination as well as legal expertise. It has been tracking litigation and other actions outside of the courtroom since January. (Columbia University's Sabin Center for Climate Change Law also tracks climate-related litigation.)
GOP Used the Same Strategy to Fight Obama
Critics condemn these recent actions as policymaking through litigation—even though Republican AGs, like Pruitt, followed much the same practice during the Obama administration.
Maryland Attorney General Brian Frosh bristles at the criticism.
"We have a government that says climate change is a hoax, and not only are they ignoring it as an issue, they are going to make it worse," he said. "We're going to protect the environmental policies in place and make the administration follow the law."
Republican AGs similarly doggedly fought Obama administration environmental policies through the courts.
When Texas Gov. Greg Abbott was the state's attorney general, he was fond of saying: "I go into the office in the morning. I sue Barack Obama, and then I go home."
As attorney general of Oklahoma, Pruitt sued the EPA 13 times in an effort to overturn or stunt environmental regulations.
A Methane Fight, Led by the States
Although litigation can drag on for years, several of the multistate lawsuits have met with success.
One of the most recent victories came in October in response to a lawsuit filed by California Attorney General Xavier Becerra and New Mexico Attorney General Hector Balderas.
They sued to block the Interior Department's effort to delay compliance with rules curbing methane flaring at oil and gas drilling sites on public and tribal lands. The practice of burning off methane, a greenhouse gas more potentent than carbon dioxide, has been blamed for contributing to climate change.
Interior Department officials at the Bureau of Land Management argued that the environmental benefits were not worth the added expense to the oil and gas companies. But the judge ruled that the bureau acted illegally when it tried to indefinitely postpone the rule.
Despite losing in court, the Trump administration still suspended the rule on Dec. 8. That defiant action prompted Becerra and Balderas to file suit again, alleging the action was "arbitrary and capricious" and was contrary to BLM's responsibility ensure the safe and responsible development of oil and gas resources on public lands.
Jack Pitney, a professor of politics at Claremont McKenna College near Los Angeles, said the broad legal strategy being adopted by attorneys general illustrates their unique leverage.
Even though they may be part of the minority party, they can act independently without fear of being stymied by opponents across the political aisle, he said.
"There is nothing wrong with partisanship as long it promotes serious deliberations on issues," Pitney said.
Coming next: Exxon's war with New York's attorney general