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Biden’s Environmental Agenda in Bull’s-Eye for Red State AGs

March 25, 2021, 8:46 AM

Environmental policy has emerged as a primary target for conservative attorneys general looking to keep the Biden agenda in check, the latest battleground in a long-running conflict over the scope of federal regulation.

Republican-led states have filed a half-dozen lawsuits against the administration so far, with the three biggest actions focused on the White House’s energy and climate policies.

Legal observers say the new administration isn’t likely to repeat the types of regulatory missteps that earned early legal rebukes for Trump-era policies. But Biden’s ambitious policy goals on climate change and environmental justice could nonetheless provide ample legal fodder for challenges.

The latest of those cases arose Wednesday as Louisiana and 12 other states sued the Biden administration over a federal oil and gas leasing pause, while Wyoming filed its own case. Earlier in the month, Texas led a 21-state coalition in a challenge to President Joe Biden’s decision to block the Keystone XL pipeline, and Missouri and 11 others sued over the administration’s reworked metric for climate impacts. Those are the first multistate coalition lawsuits filed against Biden.

“This is a strong indicator that we will see aggressive litigation from Republican AGs challenging the Biden administration’s climate and air regulations,” said Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program.

Republican attorneys general have promised as much, saying energy and environmental issues are top priorities as they challenge what they see as executive overreach from the Biden team in a number of areas, including immigration and pandemic relief.

Georgia Attorney General Chris Carr, chairman of the Republican Attorneys General Association, told Bloomberg Law he’s prepared to push back on the administration “using environmental causes as political symbolism and not recognizing the real-world impacts that they have.”

Biden’s day-one decision to scrap a key permit for Keystone XL is a prime example, he said. Georgia signed on to last week’s pipeline lawsuit saying Biden exceeded his authority.

‘Doesn’t Bode Well’

The early focus from Republican attorneys general on environmental policy tracks with state officials’ longtime involvement in those issues, said Marquette University professor Paul Nolette, who studies state AGs.

The Clean Air Act and other anti-pollution statutes have interstate “conflict that was built into the system,” he said, fueling multistate lawsuits going back to the Reagan administration.

Democratic attorneys general were especially active on pollution and energy issues during the Trump administration. Out of a record 157 multistate lawsuits challenging federal policies, about half focused on environmental issues and resulted in repeated victories for states, according to Nolette’s data.

States fighting the Biden administration might not see the same level of success, as many of the early wins against Trump were attributed to rushed agency efforts to sideline Obama-era policies.

“It’s not clear right now that the Biden administration is going to cut corners in the same way,” said Bethany Davis Noll, executive director of New York University’s State Energy & Environmental Impact Center. The center has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

Republican state officials aren’t necessarily looking to match their Democratic counterparts on the volume of cases filed, Carr said, but “we’re not going to hesitate when something is legally or constitutionally wrong.”

Montana Attorney General Austin Knudsen, a Republican who took office in January, said Biden’s early flurry of executive actions on Keystone XL and climate change suggest Montana will have a busy few years litigating federal natural resources policies—a critical issue for a state rich in coal, oil, and gas.

“When he does stuff like this on day one, it doesn’t bode well,” Knudsen said in an interview.

Future Battles

But state AGs’ most significant legal work against the new administration likely will come later in Biden’s presidency, as the Environmental Protection Agency, Interior Department, and other agencies revamp Trump-era regulations or issue new ones.

Top targets include the EPA’s future efforts to reduce greenhouse gas emissions from the power and transportation sectors, as well as the agency’s approach to Clean Water Act jurisdiction.

“I expect we’ll see heated battles by the red-state AGs to most of the environmental initiatives that the Biden administration intends to undertake,” said Crowell & Moring LLP attorney Thomas A. Lorenzen, a former Justice Department lawyer.

Republican attorneys general have a history of collaboration to guide their work, said Hunton Andrews Kurth lawyer Matthew Z. Leopold, a former Florida Department of Environmental Protection lawyer who often partnered with the state AG’s office in that role.

During the Obama years, Republican AGs launched coordinated attacks that blocked the Bureau of Land Management’s hydraulic fracturing rule, stalled the EPA’s water jurisdiction interpretation in some states, and forced the EPA to study the costs of its mercury and air toxics standards for power plants. Their biggest victory came in 2016, when the U.S. Supreme Court froze the EPA’s Clean Power Plan after more than two dozen states challenged it.

“It was really important to make sure that everyone spoke with one voice,” said Troutman Pepper lawyer Misha Tseytlin, who was Wisconsin’s solicitor general from 2015 to 2018 and helped challenge the EPA climate rule.

An array of factors, including legal strategy and judges, will affect Republican AGs’ success against the Biden agenda. But what may matter most is the substance of the new administration’s actions, Case Western Reserve University law professor Jonathan H. Adler said.

Federal officials will have to balance their desire for bold environmental action against the reality that many courts are skeptical of any novel use of an agency’s authority, he said.

“A lot really depends,” Adler said, “on how much the Biden administration thinks about and accounts for the legal vulnerabilities of different sorts of strategies.”

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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