State AGs Leading the Way in Advocating for Clean Energy, Climate and Environmental Protections

From the introduction to a session featuring State Attorneys General Eric Schneiderman (New York), Lisa Madigan (Illinois), and Brian Frosh (Maryland), at a conference sponsored by the Institute for Public Integrity at the NYU School of Law, September 26, 2017.

State Attorneys General have traditionally played an important role in addressing health and environmental issues arising in their states, as well as issues affecting regional and national policy.

On the health side of the equation, for example, it was Attorneys General from nearly all of the states, acting in concert, that helped to bring home tobacco reform in the 1990s. AGs sued the tobacco industry for recovery of tobacco-related health-care costs and, in a multistate settlement, they received more than $200 billion dollars in monetary relief from the industry for such costs, along with agreements to curtail or cease tobacco marketing practices.

Likewise, in more recent years, State Attorneys General have been at the forefront of climate change advocacy. It was state AGs that turned to the Supreme Court — in Massachusetts v. EPA and its progeny, including Connecticut v. American Electric Power — to obtain judicial confirmation of Clean Air Act jurisdictional coverage for greenhouse gas emissions.

And, even more recently, with the change in Administrations in Washington, State AGs have been particularly active in promoting clean efficiency and clean energy, forthrightly addressing climate change causes and impacts, and defending environmental protections.

David J. Hayes moderates a conversation with State Attorneys General Eric Schneiderman (New York), Lisa Madigan (Illinois), and Brian Frosh (Maryland), at a conference sponsored by the Institute for Public Integrity at the NYU School of Law, September 26, 2017.

They are fighting, for example, against rollbacks of Clean Water Act regulations, coal industry carbon emissions, oil and gas methane emissions, and efforts to go around Congress and unilaterally lift Antiquities Act protections on some of our most spectacular national monuments.

State Attorneys General are fighting not just for the environmental values that we cherish, but for application of the rule of law, and its reliance on facts, science, public input, and reasoned decision-making.

Time and again, the Administration has announced abrupt reversals of important regulations that were built a strong public record backed by extensive analysis and public input. It typically has offered little or no justification for its reversals, except for vague protestations of costs to regulated companies, while remaining silent on the quantified benefits of the decisions.

I offer two quick examples.

First, California’s and New Mexico’s Attorneys General have challenged the attempt to wipe out regulations that cure abusive practices that coal and oil and gas companies employed to avoid paying royalties associated with the extraction of public resources. The General Accountability Office and others had documented the abuses, which amounted to tens of millions of dollars in lost revenues due to American taxpayers, and state coffers.

The Trump Administration has offered no alternative rules that will stop these documented royalty payment abuses. It simply wants to return to the status quo ante, and ignore the extensive public rulemaking record that undergirds the reforms that are now in place. This is not how the law works.

Likewise, President Trump summarily deep-sixed the Federal Flood Standard, which determines how federal FEMA funds will be spent when rebuilding infrastructure after major flood events. Based on the lessons of Hurricane Sandy and the latest climate science, the Flood Standard had been upgraded to account for higher potential sea rise and storm surge events.

Without any explanation and two weeks before Hurricane Harvey hit Houston, the President rejected the upgraded Flood Standard, opening the door to the possibility that billions of federal FEMA dollars will be spent reconstructing infrastructure that cannot handle the higher flood risks that are accompanying climate change.

It is this type of serious threat to clean energy, climate change and environmental values, combined with the impermissible shortcuts that the Administration has been taking to push a one-sided agenda, that prompted a number of State Attorneys General to come together with Bloomberg Philanthropies and the NYU School of Law to form the State Energy & Environmental Impact Center.

As explained on the State Energy & Environmental Impact Center’s website, the State Impact Center supports State Attorneys General, on a non-partisan basis, who are advancing progressive legal and policy positions on clean energy, climate and environmental matters. More specifically, the State Impact Center will be working with State AGs in a number of ways, including:

· Providing direct legal assistance through our Center to interested AGs on specific administrative, judicial or legislative matters involving clean energy, climate change, and environmental interests of regional and national significance.

· Working with interested AGs to identify and hire NYU Law Fellows who will serve as special assistant AGs in state AG offices, focusing on clean energy, climate, and environmental matters.

· Helping to coordinate efforts across multiple state AG offices and with other parties that may be aligned with their interests, including identifying and coordinating outside lawyers who are interested in working on matters with AGs on a pro bono basis.

· Serving as a centralized source of information for ongoing attorneys general initiatives and — through our in-house communications resources — helping to enhance the public’s understanding of the importance of the clean energy, climate change, and environmental matters that AGs are pursuing.

· Leverage strategic communications to lift up the work of state AGs and shine a light on the seemingly mundane yet critical actions taken — or not taken — by the Administration that undermine environmental protections and renewable energy and contribute to climate change.

The State Energy & Environmental Impact Center is beginning to staff up. In recent weeks, Liz Klein has come on board as the Deputy Director, along with Chris Moyer, the Center’s Communications Director. In the coming weeks, we expect to provide opportunities for State AGs to hire at least 12 NYU Law Fellows as Special Assistant Attorneys General who will work in their offices on clean energy, climate and environmental matters.

Ricky Revesz, the Dean Emeritus at the NYU School of Law, and the Director of NYU Law’s Institute for Policy Integrity chairs the State Impact Center’s distinguished Advisory Council. Two former State Attorneys General serve on the Advisory Council: Anne Milgram, the former AG of New Jersey, who now teaches here at NYU; and Bruce Babbitt, the former AG of Arizona, who later served as Governor of Arizona and Secretary of the US Department of the Interior. Dan Firger, the environmental program officer at Bloomberg Philanthropies and I round out the Advisory Council.

State Attorneys General already have successfully turned away some of the Administration’s most egregious efforts to roll back clean energy, climate, and environmental protections. The new State Impact Center looks forward to working with State AGs to continue to advance progressive clean energy, climate and environmental policies in the months and years to come, using administrative, judicial and legislative processes that are embedded in our system of laws.