ATTORNEYS GENERAL DON’T SHY AWAY FROM PARTISAN COURT FIGHTS
nomenon, according to some who served in more amicable days. “Up until 1999, the attorneys general were very nonpartisan,” said Grant Woods, a former Arizona attorney general and a Republican. For instance, Republicans and Democrats in the 1990s teamed up to sue the tobacco industry over the health effects of its products and the burdens cigarette smoking placed on state Medicaid budgets.
Woods recalled that, when pursuing such cases with fellow state attorneys general, he was not even sure of some colleagues’ party affiliations. “Today everyone has it branded on their forehead, like a scarlet letter,” he said.
The attorneys general fighting the Trump administration have a backer in Michael R. Bloomberg, the billionaire former mayor of New York. Bloomberg has contributed $6 million to cover the salaries of university law fellows willing to work for states on lawsuits, investigations, public records requests and other measures to oppose the administration’s environmental policies.
Republicans also got a helping hand when fighting environmental rules during the Obama administration. Republican attorneys general who challenged Obama’s policies together took in about $16 million in campaign contributions from energy companies in 2014. And Robert E. Murray, the CEO of Murray Energy, coordinated a lawsuit with 29 mostly Republican-led states against the Clean Power Plan, Obama’s signature effort to curb greenhouse-gas emissions from coal-fired power plants.
Gary Broadbent, a lawyer for Murray, said the coal executive had incurred significant legal expenses of his own but did not pay legal fees on behalf of states.
Legal battles have long been a path to stardom for politically ambitious attorneys general from both parties. Scott Pruitt, who now leads the Environmental Protection Agency, made a name for himself in conservative circles for suing the EPA when he was attorney general of Oklahoma. Eric T. Schneiderman, the attorney general of New York, has raised his profile by battling Trump over everything from immigration to birth control.
Democratic state attorneys have worked together to fight the administration’s rollback of school lending laws, to defend the Affordable Care Act and to stop the construction of a border wall. But the most consistent victories have been on the environment, and the attorneys say that more actions are on the way.
“The law is our friend in all this,” said David Hayes, who runs the State Energy & Environmental Impact Center, a progressive group based out of New York University School of Law that coordinates state actions and manages the funding for legal fellows. Invitations to apply for center-funded staff were sent to all 50 states, he said, although only Democrats have accepted.
The Trump administration has announced plans to turn back nearly 70 Obama-era environmental Grant Woods, a former Arizona attorney general and a Republican regulations. Many are the same ones that Pruitt and other Republicans earlier fought to block with their own court actions.
Pruitt and his colleagues had some success, most prominently when the Supreme Court put the brakes on the Clean Power Plan. Patrick Morrissey, the West Virginia attorney general, takes pride in the fact that he helped lead the coalition of state attorneys who blocked the plan.
“Who would have thunk that little old West Virginia” would end up leading such a coalition, he said, “on some of the most important regulatory fights of our day?” Describing it as a victory over regulatory overreach, he said: “That was President Obama’s top domestic initiative, and we stopped it in its tracks.”
Morrissey noted that attorneys general still collaborate on some issues in a bipartisan way, citing in particular their work to sue opioid manufacturers. He is critical, though, of the current crop of Democrats’ lawsuits.
“This seems like pure politics on the other side,” he said. “The attorney general doesn’t get to challenge things that he just doesn’t like.”
Woods disagreed with the notion that Republicans were judicious in picking their fights. “That’s just not the case,” he said. “Scott Pruitt, he filed suits against the EPA every five minutes.” Several Democrats also noted that Gov. Greg Abbott of Texas, in his tenure as the state’s attorney general, often used some version of this line to joke about his daily routine: “I go into the office, I sue the federal government and I go home.”
The Trump administration’s approach to eliminating regulations it considers burdensome tends to be more chaotic and less orderly than in earlier administrations. Democratic attorneys have tried to use that to their advantage when filing lawsuits by focusing on procedural violations under the Administrative Procedures Act, a dry area of jurisprudence that governs agency rule-making.
So far, federal courts have found five times that the Trump administration violated the Administrative Procedures Act by skipping steps when it tried to delay environmental rules that had already taken effect. Administrative procedures “was not my favorite class in law school,” joked Karl A. Racine, the attorney general for the District of Columbia. But now it’s at the core of his effort to fight the Trump administration.
Critics of the lawsuits by Democrats — like David B. Rivkin Jr., an attorney with the law firm Bakerhostetler who helped Republicans fight the Clean Power Plan case — dismissed the Democrats’ early victories as “sausage making” because they were based on procedural missteps as opposed to the substance of the regulations. “It doesn’t tell you anything about what’s going to be decided at the end of the day,” he said.
But Maura Healey, the attorney general of Massachusetts, said following the proper rule-making procedures was important because doing so prevents arbitrary or capricious regulation. “I don’t care what party you’re a part of,” she said. Doing otherwise “flouts the law.”
Officials at the EPA and Energy Department did not respond to requests for comment.
An Interior Department spokeswoman referred questions about the agency’s legal strategy to the Justice Department. Wyn Hornbuckle, a Justice Department spokesman, said in a statement that lawsuits from coalitions of state attorneys general “are nothing new.”
Hornbuckle pointed to Republican legal victories against the Obama administration, such as the case against the Clean Power Plan, and said, “The Justice Department will continue to defend the rightful prerogative of federal agencies to appropriately review and reconsider the costs and benefits of regulations adopted in previous administrations. This includes defending agency decisions to place implementation of existing regulations on hold while they are under review.”
ome Trump supporters (as well as a few critics) say that what appears to be haste or carelessness on the part of the administration might actually be strategy. With each major announcement of a rule rollback, the Trump administration reinforces its message that it is cutting regulatory burdens on industry — a message that resonates with its donors and voters. Even if courts later find against the administration, that message was already sent.
As agencies bring on more political appointees with significant regulatory experience, the administration is expected to become more careful in the way it rewrites or eliminates regulations. Attorneys fighting the administration said they were not concerned by that and were eager to have an open debate about why they believe clean air and water regulations must be maintained. “We welcome their seemingly gradual embracement of the process because we’d love to fight about what the data shows,” Racine said.
Could the days of widespread bipartisanship return? Woods said it was useless to ask the question, and he made his case by drawing a comparison with the intrusion of technology in our lives. “I yearn for the days when you weren’t tied to your cellphone,” he said. “It was a lot simpler, and a lot more pure.” But, he added: “Those days are over.”
“Scott Pruitt, he filed suits against the EPA every five minutes.”