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AGs vs. Utilities

State attorneys general target energy policy issues.

Fortnightly Magazine - June 2009

the federal government over its storage of nuclear waste near the Columbia River.

State Pressure on Federal Agencies

In addition to bringing lawsuits and initiating investigations against private parties, AGs are influencing national environmental policy by submitting comments in certain regulatory actions and even suing federal agencies in order to achieve their objectives. The EPA has been the subject of several of these efforts. In Massachusetts v. EPA , 12 states sought judicial review of the EPA decision not to regulate greenhouse-gas emissions. The U.S. Supreme Court determined that because states are responsible for the health, welfare, and economic interests of their citizens and resources, they have special standing to litigate climate change issues. 7 Since the decision in this case, California and other states have tried to require the EPA to issue such emissions standards. While these efforts largely were unsuccessful during the Bush Administration, AGs more recently have urged the Obama Administration to give states and AGs a role in the EPA’s formulation of regulations for greenhouse-gas emissions, specifically requesting that any new federal law in this area not preempt existing, potentially stricter, state laws. 8

AGs also have asserted their special standing to bring other lawsuits against the EPA.

• Last year, 16 states sued the EPA 9 to compel it to grant California’s petition for a waiver under the Clean Air Act, allowing California to mandate a thirty-percent decrease in greenhouse-gas emissions from cars by 2016, compared to federal standards requiring substantially smaller decreases by 2020. 10 The AGs achieved partial success in January 2009, when one of the Obama Administration’s first acts was to order the EPA to immediately review and make a decision regarding California’s petition.

• Moreover, although California’s waiver, if granted, would apply only to car emissions, states also are asking the EPA to regulate, or allow states to regulate, greenhouse gases from ships, aircraft, farm, industrial and construction equipment, and petroleum refineries.

• Seventeen other AGs have petitioned the EPA to mandate that older power plants must install modern air pollution controls to decrease their emissions if they plan to increase generation capacity.

• AGs also have pressured the EPA on what they perceive as insufficient regulation of more traditional pollutants. In November 2007, 13 AGs claimed the EPA’s new regulations regarding what companies must report about toxic chemicals they use, store, and release into the environment were too weak, and sued to force their withdrawal.

• In February 2008, 17 AGs sued the EPA to compel the withdrawal of loose reporting guidelines for regulating pollutants from coal-fired plants.

• The North Carolina AG sued to compel the EPA to order the reduction of emissions from out-of-state power plants; the EPA recently announced it will reconsider its initial denial of North Carolina’s request.

Other federal agencies drawing AG attention include the Securities and Exchange Commission (SEC) and the Federal Trade Commission (FTC). The SEC has been subject to AG-led lobbying efforts designed to pressure corporations to adopt aggressive climate-change policies. In 2007, the New York AG, along with officials from other states, petitioned