State Attorneys General Act as Checks and Balances on Federal Environmental Rollbacks

Posted on April 26, 2018 by Lemuel M. Srolovic

Three priorities of the Trump Administration are driving an effort to roll back federal environmental laws and regulations on an unprecedented scale. First, the President ordered executive agencies to rescind two existing regulations for every new one promulgated. At the end of 2017, environmental rollbacks won first prize, with EPA reporting 16 final deregulatory actions and the Department of the Interior reporting 12. Second, the administration has pursued a goal of energy dominance by the United States, with fossil fuel energy at the top of the list. This priority led the Secretary of Energy to issue an order directing the Federal Energy Regulatory Commission to adopt a tariff subsidizing the generation of electric power with coal. Third, the administration seems determined to reverse, to the extent possible, the regulations adopted by the Obama Administration, which was active in the environmental protection arena. While the Clean Power Plan and the Clean Water Rule are the marquee targets, many other rules have been delayed, suspended, and placed under reconsideration.

State attorneys general have a long history of pushing and pulling the federal government on environmental protection under law where federal regulation is needed to protect their citizens and the environment. Climate change, interstate air pollution, interstate water pollution, and energy efficiency standards for electrical equipment and appliances are primary areas for legal actions by state attorneys general against the federal government to hold it accountable for fulfilling its statutory duties to protect human health and the environment.

Now, in this period of federal environmental rollbacks, state attorneys general are performing a different function as well. As the federal government seemingly pursues a race to the bottom on environmental protection, state attorneys general are bringing legal actions to operate as checks and balances on federal environmental rollbacks. The list is long, and includes:

  • Opposing the repeal of the Clean Power Plan;
  • Challenging the suspension of the Clean Water Rule;
  • Challenging EPA’s delay of implementing the 2015 national ambient air quality standard for ozone;
  • Challenging EPA’s decision to allow tolerances on food for the neurotoxic pesticide chlorpyrifos to remain in effect;
  • Challenging the Department of Energy’s delay of national energy efficiency standards for ceiling fans, portable air conditioners, commercial boilers, air compressors, and backup power supply equipment;
  • Challenging the National Highway and Traffic Safety Administration’s delay of a rule adjusting for inflation the penalties levied on car manufacturers who violate the national corporate average fuel economy (CAFE) standards;
  • Challenging EPA’s delay of a rule requiring new oil and gas development sources to limit their emissions of methane and other pollutants; and
  • Challenging the Department of the Interior’s delay of a rule to augment federal royalty payments and to prevent waste of oil and gas extracted from federal lands. These and other actions by state attorneys general are discussed in more depth in a recent report for the NYU School of Law’s State Energy & Environmental Impact Center, State Attorneys General: 13 Months of Critical Actions (Feb. 2018).

A number of these actions already have been successful. The D.C. Circuit summarily vacated EPA’s 90-day stay of compliance deadlines in the Clean Air Act rule requiring new oil and gas facilities to limit emissions of methane and other pollutants, in Clean Air Council v. Pruitt, 862 F.3d 1 (D.C. Cir. 2017). The day after the attorneys general filed an action challenging EPA’s 1-year delay of ozone non-attainment designations, the agency reversed course and withdrew the delay. Similarly, the Department of Energy released the national energy efficiency standards for ceiling fans a few weeks after attorneys general took legal action in the U.S. Court of Appeals for the Second Circuit, and subsequently, a federal district court in California ruled that the Department had acted unlawfully by not publishing final efficiency standards for the additional categories of electric equipment challenged by the attorneys general.

Many of the attorneys’ general actions remain pending in the courts. Others likely will be filed. Whatever the ultimate outcome in any particular matter, these legal actions by state attorneys general collectively will operate as checks and balances on the Trump Administration’s efforts to roll back federal laws and regulations protecting public health and the environment.