Las Vegas Review-Journal

ATTORNEYS GENERAL DON’T SHY AWAY FROM PARTISAN COURT FIGHTS

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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.”

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