States Explored Litigation to Challenge U.S. Policy on Climate Change

Source: By Timothy Puko, Wall Street Journal • Posted: Monday, November 30, 2020

Options included getting courts to require federal action to reduce emissions of greenhouse gases, documents show

A petroleum refinery in Norco, La., in 2019. Photo: Drew Angerer/Getty Images

WASHINGTON—Nearly two dozen Democratic-led states at odds with the Trump administration on climate-change policy joined forces last year to explore using the courts to secure federal mandates on greenhouse-gas emissions, according to records and interviews.

The coalition agreed to cooperate in planning litigation against the federal government and consulted with former Environmental Protection Agency officials as part of the discussions, according to documents reviewed by The Wall Street Journal and people involved in the effort.

The initiative lost momentum in recent months, some of these people said, amid fears of an uphill fight in federal court and because state leaders wanted to await results of the Nov. 3 election, which saw Democrat Joe Biden defeat President Trump. Some lawyers and people involved expect that these states are now more likely to focus on advancing their own policies rather than launching federal litigation.

Even so, the plans speak to how aggressive state governments have become in their efforts to sway Washington. Presidents have faced increasing opposition from state attorneys general from the opposite political party, and many expect Republican-led states to continue the trend with challenges to President-elect Biden’s agenda.


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The groundwork laid by the coalition of Democratic-led states could also come into play if Mr. Biden should fail to advance his platform aimed at slowing climate change.

“Climate change remains one of the greatest threats facing the people of our nation and around the world,” said New York Attorney General Letitia James. “If we are to address this challenge, then all options must be on the table. With that said, we have no plans at this time to bring litigation seeking to promote one particular approach.”

A White House spokesman said the Trump administration’s deregulation effortssupported economic growth without sacrificing environmental protection.

“Partisan Democrat attorneys general appear to want to use litigation to push their preferred policy agendas instead of protecting their citizens based on the rule of law and actual facts,” said the spokesman Judd Deere.

New York State Attorney General Letitia James at a news conference in August. Photo: Kathy Willens/Associated Press

Mr. Biden has promised to push power plants, auto makers, and oil and gas producers toward eliminating or vastly reducing greenhouse-gas emissions, but many of his policies could face resistance.

Environmental groups and, to a lesser degree, states, have sometimes filed lawsuits against friendly administrations, aiming to lock federal agencies into settlements.

“With this climate threat growing worse every day, we’ve had to spend years in court trying to force the federal government to do its job and regulate greenhouse-gas emissions,” said a spokeswoman for Massachusetts Attorney General Maura Healey.

The documents reviewed by the Journal, dating back to 2019, were obtained under open-records requests filed by Energy Policy Advocates, a nonprofit group that researches government lawsuits against the energy industry. The group says it receives funding from conservative groups but declined to identify specific donors, nor is it legally required to do so.

The records show that 21 states, including New York, California, Illinois and Massachusetts, were involved in the discussions, along with the District of Columbia. The Journal confirmed the discussions revealed in these documents with several people involved in or familiar with the states’ efforts.

“The plan appears to be for activists, attorneys general and bureaucrats to team up…to avoid democracy and political accountability for a major, costly economic restructuring,” said Rob Schilling, the group’s executive director.

One person familiar with the states’ efforts called them “academic discussions.” But even with the Trump administration leaving office, Mr. Schilling’s group said the states could use the tactics outlined in the documents to seek court rulings to mandate change from the Biden administration.

Jeffrey Wood, who oversaw environmental cases at the Justice Department early in the Trump administration, said such attempts face high barriers to success, in part because corporate opponents are on guard for settlements between federal agencies and outside parties such as states and environmental advocates.

“Blue states may be enticed…now that they have an ally in the White House, but the spotlight is on,” said Mr. Wood, now a partner at Baker Botts LLP. He added that conservative appointees by Mr. Trump in the federal judiciary have also raised the level of difficulty.

Democrat Joe Biden speaking about climate change in Wilmington, Del., in September. Photo: Drew Angerer/Getty Images

The documents show a coordinated research effort as part of a larger state-led endeavor to fight Trump administration environmental deregulation.

In the summer of 2019, documents obtained from New Mexico show, 21 states and D.C. signed a “common interest agreement” allowing them to share information and plan confidentially on climate litigation. The document’s title says it is to require federal action “to reduce or limit emissions of greenhouse gases that cause climate change,” and the participants joined it between June 25 and July 11.

Those states “anticipate participating as litigants or counsel for litigants in judicial or administrative actions under state or federal law, including but not limited to the Clean Air Act, to require the federal government and/or private parties to take action to reduce or limit the emissions,” the agreement says.

Other documents obtained from Michigan dated from July and August 2019 show that the coalition had created a working group devoted to “Climate Change — Affirm. Litigation,” or affirmative litigation. A spokeswoman for Michigan’s Attorney General’s Office confirmed their authenticity.

The legal initiative was led by lawyers from New York and Oregon, the documents show. They included Michael Myers, the New York attorney general’s senior counsel for air pollution and climate change litigation, and Steve Novick, a special assistant attorney general in Oregon.

A power plant in Cheshire, Ohio, in 2019. Photo: Getty Images

Oregon Justice Department officials declined to comment on the specific litigation effort. But they did release a response from Attorney General Ellen Rosenblum thanking other states for working together to fight Mr. Trump’s environmental rollbacks.

“The effort required to counter a constant barrage of illegal and wrongheaded executive actions has fostered a remarkable degree of cooperation among the states,” she said.

By the autumn, attorneys for the states began searching for former EPA officials. Emails released by New York show they consulted with John Bachmann, a science policy director on EPA’s air-quality staff who retired in 2007.

The state attorneys focused heavily on one of the most powerful sections of the Clean Air Act—rules for national ambient air-quality standards. Mr. Bachmann warned of challenges in defining what businesses might be subject to these regulations and potentially widespread inability to meet them.

“I continue to feel that new legislation requiring specific actions would be much better,” he wrote to Mr. Myers on Nov. 17, 2019, “yet I’m mindful of the obvious problem of how to get such legislation even with a new administration.”

Write to Timothy Puko at