New wave of Democratic attorneys general vow to fight Trump’s energy agenda

Source: By Josh Siegel, Washington Examiner • Posted: Thursday, November 15, 2018

Democrats claimed a majority of state attorneys general offices in the midterm elections, a victory that will bolster an already aggressive effort by progressive lawyers to combat President Trump’s deregulatory agenda, particularly his plans for energy policy.

Incoming Democratic attorneys general in Colorado, Michigan, Nevada, and Wisconsin promised in their campaigns to protect their state’s air and water from what they view as irresponsible and illegal actions by the Trump administration to roll back President Barack Obama’s agenda to mitigate climate change.

With the elections of those four, Democrats will occupy 27 of the nation’s 51 attorney general offices next year.

“We are excited to work with these four new state attorneys general, and we hope they will join our coalition of states who have been challenging the Trump administration’s destructive energy and climate policies,” Oregon Attorney General Ellen Rosenblum, who also co-chairs the Democratic Attorneys General Association, told the Washington Examiner.

Democratic attorneys general have been active in the courts, suing the Trump administration for actions including delaying the Waters of the United States rule, moving to weaken Obama-era fuel efficiency rules for cars, missing a deadline to implement standards for controlling smog-forming pollution, and suspending a requirement that states track on-road greenhouse gas emissions.

The effort resembles a similar pushback by leading Republican attorneys general who coalesced to challenge the Obama administration’s use of executive action related to energy and environment, immigration, healthcare, and more.

“The role of state attorneys general of both parties has really been elevated,” said Lizzie Ulmer, communications director of the Democratic Attorneys General Association. “People and policymakers understand the power of the office better than years past.”

Republicans argue the Democratic push has gone too far, with attorneys general trying to defend what they consider to be the Obama administration’s expansive view of regulation.

“We have not seen such a bright line difference in approach to the office as we do now between Republican AGs and Democratic AGs,” said Zack Roday, spokesman for the Republican Attorney Generals Association. “Democratic AGs are tripping over themselves in endless litigation and renting out their badges to liberal billionaires.”

The State Energy & Environment Impact Center, a coalition launched in August 2017 to assist state attorneys general contesting Trump’s deregulatory agenda, says attorneys general have filed 38 lawsuitsagainst the administration on energy and environmental issues as of Oct. 5. Most of these have been over the Trump administration’s early efforts to delay or suspend rules that had been completed at the end of the Obama administration.

Some of them have already been successful, with judges finding the Trump administration has not always followed proper legal procedures and laws to unwind regulations, and has failed to justify its actions with science-based facts, as required by the Administrative Procedures Act.

After those setbacks, agencies such as the EPA and Interior Department have pivoted to proposing narrower replacement rules to replace the Obama ones, setting up a new stage for legal battles.

Phil Weiser, the winning Democratic attorney general candidate in Colorado, said he’s eager to join the fight when he takes office in January.

“Clean air and water, and protecting public lands, are part of our ethos as Coloradans, and were an important part of our campaign,” Weiser told the Washington Examinerin an interview. “Those issues were part of my path to victory. There is a critical nexus of issues we care about in Colorado to unlawful actions being taken at the federal level that go against that.”

Weiser defeated Republican George Brauchler, filling an open seat vacated by Colorado’s current GOP Attorney General Cynthia Coffman, who chose not to run for a second term.

Coffman frequently joined multistate lawsuits against Obama administration environmental actions, including challenging its Clean Power Plan intended to curb carbon emissions from coal plants. Coffman often fought with Colorado’s Democratic Gov. John Hickenlooper, who supported the Clean Power Plan and Obama’s broader agenda to reduce planet-warming greenhouse gas emissions.

Weiser said he wants to bring more unity to Colorado, a leading oil- and gas-producing state that also has some of the strongest environmental regulations in the country.

“Our attorney general was not representing Coloradans on these issues,” Weiser said. “A lot of her actions were political stunts. I thought that really need to change.”

Weiser, a 50-year-old first-time political officer holder, once clerked for Supreme Court Justice Ruth Bader Ginsburg, and formerly worked in the Obama White House on technology and innovation issues, although he was not involved with the president’s climate change agenda.

Now in a position to defend Obama’s regulatory initiatives, Weiser said plans to target at least four Trump administration actions.

These include opposing Trump’s effort to weaken Obama’s two signature climate change regulations: his strict fuel efficiency standards for cars and light trucks, which were set to steadily rise through 2026, and the Clean Power Plan.

Trump has proposed freezing the fuel efficiency rules, in a manner that critics say would not meaningfully fulfill the EPA’s legal requirement to regulate greenhouse gas emissions. Colorado, under Coffman’s leadership, was not among the 18 states that sued the EPA in May for rejecting Obama’s car rules. But Weiser called Trump’s rollback “unlawful” and said he would also defend Colorado’s right to set its efficiency rules after the administration proposed revoking a waiver that California has, and other states follow, allowing it to set stricter standards.

Weiser said he would fight an EPA proposal to replace the Clean Power Plan with a modest measure designed to encourage coal plants to invest in efficiency upgrades that would allow them to burn less pollution — and exist longer — in a way that opponents say could actually increase carbon emissions.

“Regulatory agencies don’t get to make decisions willy-nilly,” Weiser said. “They are subject to the rule of law, and have to justify their actions. If not, they get overturned. Many of these actions look arbitrary and capricious.”

In addition, Weiser vowed to contest the Trump administration’s proposed softening of an EPA rule targeting methane leaks from oil and gas drillers and fracking operations. He said that issue is “personal” to him because Colorado implemented the nation’s first, and toughest, restrictions on methane emissions, a model that the Obama administration followed in crafting its nationwide regulation.

And he promised to join ongoing legal challenges to the Trump administration’s decision to shrink the Bears Ears national monument in neighboring Utah.

Weiser defended his approach, contending that an inactive Congress has enabled the executive branch to act inappropriately.

“I hope and pray we get to a place where Congress can act in a more functional fashion on a bipartisan basis to promote good governance and the rule of law,” he said. “In the absence of that, that has created a vacuum where state attorneys general have become more important. We have an obligation to protect the rule of law.”