King and Jacobs of E&E News reported that the WH's aggressive deregulatory agenda has run full-speed into a blockade set by Democratic attorneys general. Led by New York and California, the states have challenged virtually every effort by EPA and other agencies to walk back Obama-era rules like the Clean Power Plan and Clean Water Rule.
The States are Winning
Republican attorneys general similarly sued over many rules that came out of Obama's EPA. But the Democrats have filed significantly more lawsuits, and they have been more successful — winning 80% of the cases thus far, according to an analysis of the challenges, which often take years to work their way through the courts. The cases often draw the support of 15 to 20 Democratically led states, and they are typically helmed by New York Attorney General Letitia James and California Attorney General Xavier Becerra. Becerra said there are differences between the current strategy and what Republicans did during the Obama administration.
"Part of it has nothing to do with California or Democratic AGs," he told E&E News. "It has to do with an administration hellbent on taking us back to the 20th century." The states' "strongest allies," Becerra said, are "facts, science and the law."
The second difference: "We're winning, and we are winning at a much better clip than Republican AGs ever did under President Obama." Becerra has sued the administration 81 times on a wide range of issues, including immigration and health care. But more than half of the lawsuits have challenged environment and energy policies. James, who took office last year, has also spearheaded many multistate lawsuits and has pressed EPA to act on smog-forming pollution that crosses state lines.
"I am offended by the regressive policies of this administration — policies that threaten the air that we breathe, the water that all of us enjoy," James said in an interview. Multistate lawsuits launched by Democratic attorneys general have seen an 80% win rate against that previous president's administration in court, according to data compiled by Paul Nolette, an associate professor at Marquette University.
They have notched wins on issues including regulating methane emissions from landfills, ozone air standards, and key water and endangered species regulations. But they don't always succeed; the states were rebuffed in a challenge to that previous president's 2017 "two for one" executive order that required two regulations to be nixed for every new one issued (E&E News PM, Dec. 20, 2019).
States and environmental groups also lost their challenge to EPA's initial decision to revise the Obama-era car rules, but they are regrouping for a lawsuit over the subsequent rollback (Greenwire, Oct. 25, 2019). By comparison, Republican attorneys general — often led by Texas — won about 60% of their cases against the Obama administration, said Nolette, the author of "Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America." "AGs win a lot," he said. "They win more than they lose."
One reason for that success, Nolette said, is that states can band together to pick the most favorable forums for their lawsuits. The most popular venues: the U.S. District Court for the Northern District of California and the U.S. District Court for the Southern District of New York. Those benches generally remain friendly to environmental claims — even after three years' worth of judicial appointments by that previous president, Nolette said.
Others noted that while Obama was far to the left on certain issues — such as regulating methane and carbon dioxide — he wasn't as extreme as that previous president's administration has been with its deregulatory agenda. "The difference here is that the previous president's administration has been very, very aggressive not only in what it rolls back, but how much it has rolled back," said Mark Ryan, a former Clean Water Act attorney in EPA's Region 10.
"There is a lot more low-hanging fruit," he said.
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