Air Date: Week of December 12, 2014

Oklahoma Attorney General Scott Pruitt has been particularly active suing in federal government over environmental regulations (Photo: ok.gov)

State Attorneys General didn’t used to be big players in national policy-making, but that’s changed in recent years. Now Republican AGs allied with fossil fuel companies are challenging federal environmental regulations in court. Marquette University political scientist Paul Nolette discusses this development with host Steve Curwood and explains why it raises concerns about conflicts of interest, democratic process and protection for the environment.

Transcript

CURWOOD: From the Jennifer and Ted Stanley Studios in Boston and PRI, this is Living on Earth. I’m Steve Curwood. According to the US Constitution, Congress makes the laws, the President implements them and the Supreme Court rules on violations and disputes. But with Congress and the Presidency stuck in gridlock, more and more the courts are forced to re-interpret old laws to address new challenges.

There’s been no major national environmental legislation passed since 1990, and litigation is taking over, with state attorneys general playing a powerful role. When the Bush Administration failed to address global warming, in 2005 the Attorneys General of 12 states, led by Democrats in Massachusetts along with environmental groups, sued and won. The Supreme Court ordered the EPA to regulate non-toxic CO2 as a pollutant, based on the Clean Air Act of 1970, which was largely aimed at poisonous smog. Now, key Republican AGs are joining forces with the fossil fuel industry to roll back some Obama administration regulations, especially regarding power plant emissions. Copious campaign contributions from this industry prompted a recent story in the New York Times that raises questions of conflicts of interest.

Paul Nolette is a lawyer who teaches political science at Marquette University and the author of a forthcoming book called “Federalism on Trial: State Attorneys General and National Policy Making in Contemporary America”.

NOLETTE: Republican AGs in general, but particularly led by Oklahoma’s Scott Pruitt and Texas's Greg Abbott, have brought numerous lawsuits to challenge individual pieces of the Obama Administration’s EPA regulatory program. Virtually all environmental rules, whether they deal with climate change, or mercury, or a variety of other issues, water pollution, AGs have been there, and they have challenged the Obama administration. I don't know exactly what Greg Abbott in Texas, what his count is up to, but I know it's well into the dozens in terms of the number of lawsuits that he's brought to challenge the Obama administration. A couple years ago, he described his role as AG as, "I wake up. I sue the Obama administration. I go home," and I think that that's been a pretty accurate encapsulation of what's going on.

CURWOOD: Now, remind us about the traditional role of the state attorney general.

NOLETTE: So, traditionally AG's really focused much more on the state level. They would perhaps most commonly be defending the state against lawsuits brought against it. But what's happened and what's changed over the last couple decades in particular and escalating even more so in the last few years, is that AGs have gone beyond this traditional role and been much more aggressive in going on the offense in bringing lawsuits, both against corporations and against the federal government.

CURWOOD: Now, in terms of the environment, as I understand it, attorneys general got really involved in a case known as Massachusetts versus EPA, the litigation that wound up in the Supreme Court saying, yes, the EPA can regulate CO2, the global warming gas, as a pollutant, and it's, of course, the force behind the current fight over regulating power plants.

NOLETTE: Yes, that's exactly correct. Massachusetts v. EPA, not only was it perhaps the most important case in environmental law, it really marked a crucial victory for the AGs that has sparked a backlash among anti-regulatory forces. And so a lot of what you see with Republican AGs bringing lawsuits against the Obama administration, not all of them, but many of that has come about because of fallout from Massachusetts v. EPA in the new climate rules from the Obama administration.

CURWOOD: Interestingly, the Massachusetts v. EPA case joined state attorneys general with environmental organizations like NRDC, the Sierra Club, and such. Today, we're talking about conservative Republican attorneys general joining with energy producers who have an interest in the regulation. What's the difference here in your view?

NOLETTE: Well, I think one way of looking at it is to say that it's really the the other side of the same coin. During the George W. Bush administration, when the EPA was essentially not taking the actions it needed on climate change and other issues, Democratic AG's took full advantage of that, and as you mentioned, allied with various interest groups like the Sierra Club to bring lawsuits. And so what we see now is Republicans saying, if you're going to play at that game, so are we, and with others with interests in blocking the types of regulations that the Obama administration has been promulgating.

Now that being said, I do think these industry AG relationships do raise an additional issue, and a problematic one, in that many of these industries have also been big-time campaign donors to AGs and so it raises the prospect at least of a sort of quid pro quo going on here in terms of, "Hey, if you send in these donations, then that's going to affect my enforcement strategy". And that is quite problematic.

CURWOOD: So how much fossil fuel money in particular is influencing of these attorneys general elections do you think?

NOLETTE: Well, it's hard to say because a lot of it is dark money where it's hard to know precise figures about how much money is in the system, how much is going to party organizations like the Republican AG organization or the Democrats, and also it's difficult to know who the actual funders are. I mean, what I can say is that it we're talking millions of dollars, whereas before AG offices were really considered pretty sleepy positions on the state level that a lot of people ignored including lobbyists, but that's certainly not the case anymore.

CURWOOD: Remind us why an attorney general being in a case gives added leverage to say a private interest, an energy company.

NOLETTE: Well, it's interesting. One of the big holdings in Massachusetts v. EPA beyond its importance for climate change specifically was that it announced a new standard to get into court for states. As the court put it, states should be offered special solicitude when the court is analyzing whether they have a claim that they can press in court. And so what that means, the bottom line is, that states probably have an easier time getting to court than a lot of industry groups, so allying with the states makes it easier to get into court. It also helps to bring a greater level of legitimacy to lawsuits, I think. You know, if it's Corporation A bringing a lawsuit against the Obama administration, it's easier to dismiss that and, say, well they're just suing in their self-interest or something. But by bringing in AGs into the process, you can say, oh, we have this coalition of 20 some odd states and this is really about fundamental constitutional issues like federalism. And so it brings a certain level of legitimacy that might not be there if was just a industry-only suit.

CURWOOD: So, how important is the Supreme Court case allowing corporations to make pretty much unlimited donations to politicians, a case called Citizens United. How important is that to this most recent development?

NOLETTE: It's important. It's very important actually, because a lot of these donations that are going to, say, the Republican or Democratic AG organizations are unlimited in nature, are dark money, so it's hard to know, it's been really impossible to know where the money is actually coming from, and the Citizens United campaign finance regime has helped allow that to happen. I think a lot of the emphasis at first, and a lot of the analysis of Citizens United and campaign finance, has been focused on the federal level and the impact there, but I think you see with state AGs that the impact really does trickle down to the state level very much so, and again, money is going to flow where the power is and as AGs get more power they're also seeing more money flow in terms of lobbying donations.

CURWOOD: Understanding that it's hard to trace where contributions come from, in your view, which side do you think is getting more money? The more liberal, often more Democratic side or the more conservative, usually Republican side?

NOLETTE: I think right now the Republican side is getting more money. Their national organization, the Republican AG Association, has been a lot more active in trying to get Republicans elected, in negotiating which way that Republican AG should go in terms of policymaking and also raising money.

CURWOOD: To what extent do you think the situation now is that if these attorneys general are getting significant contributions from these industries that actually they're acting in their own personal self-interest when they go into court with these companies as well as ostensibly for the citizens in their state.

NOLETTE: Right, I mean I don't want to speculate too much and say, “oh there's certainly a big link between the money coming in and the AG actions that are going out”, but it certainly raises some real questions, and I think one of my big concerns is that so much of this has been completely under the radar. You know, I think the New York Times story really helped to bring out some of the issues that are going on, but a lot of these collaborations are simply not in public at all. And so it's hard to know how much of an impact this money and this lobbying is having.

CURWOOD: For many years we've had a fairly dysfunctional Congress. To what extent is this coalition of attorneys general pushing back on federal regulation, stepping into a void that’s been left by the ability to get legislation through on Capitol Hill?

NOLETTE: I think you have your finger right on it. Given the fact that there's been a long history in the last several years of mostly divided government, all throughout American history when you see those sorts of dynamics happening on the federal level, a lot of policies been pushed to the states. So that particular aspect of it isn't a new development, that's something that's been true in American federalism for quite some time. But what is new is that state AGs are playing the major national role that they are now. So I think you're exactly right to say that the dysfunction, and I think it's fair to call it a dysfunction on the federal level, is one of the major reasons why AGs have been able to step up and say, “well if Congress isn't going to do it, we are”.

CURWOOD: How healthy for our democracy is this development, and if you think it's not so healthy, how would you unwind it?

NOLETTE: It's a good question, and it's a big one. I do think it's unhealthy in a large part because as AGs have gotten more involved in national policy, they have had much more of an influence over it, not just in environmental policy where it's been big, but consumer protection, antitrust, healthcare, all of these different issues. And because it is so removed from the public eye, it's hard to know whether this policy that AGs are making are really advancing the public interest, whether the policies that are coming out of it are a good thing, and really who's even driving the process. So it raises a lot of concerns about democratic policymaking.

In terms of what to do about it, I think some of the things that should be considered are laws that encourage more transparency of AG activities. In a number of states, quite remarkably, lobbying rules apply only to legislators and the governor, but not to other state offices including the AG's office. So a lot of the disclosure requirements that apply to these other state-level actors don't apply to AGs, and that's something that probably needs to change. But I will say that there's so many incentives for AGs to take an activist role now that it's going to be hard to unwind, I think, so we might have to focus on things like disclosure and transparency to really know what's going on.

CURWOOD: Paul Nolette is a political science professor at Marquette University. His forthcoming book is called “Federalism on Trial: State Attorneys General and National Policy Making in Contemporary America”. Thanks for taking the time with us today, Professor.

NOLETTE: Thanks so much for having me, Steve.

 

Links

Read the New York Times investigation into the AG energy alliance

Documents from the New York Times’ investigation

Paul Nolette teaches Political Science at Marquette University