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How the Biden Administration is Shaping State AG Enforcement Efforts

This piece is part of our Stu­dent Blog Series, fea­tur­ing posts on cli­mate, clean ener­gy, and envi­ron­men­tal issues from the State Impact Center’s legal interns and oth­er stu­dents work­ing with the Center.

In the ear­ly months of the Biden admin­is­tra­tion, there was excite­ment and spec­u­la­tion about how state attor­neys gen­er­al would engage with and react to the new administration’s envi­ron­men­tal poli­cies. Now, eigh­teen months into Biden’s pres­i­den­cy, there is enough data to con­firm that there has been a sig­nif­i­cant shift with­in state AG’s envi­ron­men­tal work. 

Accord­ing to our AG Actions Data­base, which tracks state AG actions that work to advance clean ener­gy, cli­mate, and envi­ron­men­tal laws and poli­cies, there were 153 actions in fed­er­al lit­i­ga­tion dur­ing the Trump admin­is­tra­tion, most of which involved chal­lenges to Trump-era rules and roll­backs.1 Six of these actions involved state AGs sup­port­ing a fed­er­al agency. In the same peri­od, there were 53 non-fed­er­al lit­i­ga­tion actions. Since Biden’s inau­gu­ra­tion, there have been 10 fed­er­al lit­i­ga­tion AG actions and 109 non-fed­er­al actions. The num­ber of non-fed­er­al lit­i­ga­tion actions from the last eigh­teen months (Jan­u­ary 20, 2021 – June 30, 2022) is over twice as many from the entire Trump peri­od. Because the AG Actions Data­base main­ly col­lects infor­ma­tion from pub­licly avail­able sources, there are cer­tain­ly many enforce­ment actions not cap­tured in the data­base. Nev­er­the­less, the com­par­a­tive rise in state actions with­in the data­base is still strik­ing.2It may be attrib­ut­able to a com­bi­na­tion of freed up resources, a shift in the tools state AGs use to advo­cate, and an increas­ing focus on envi­ron­men­tal justice.

Many state AGs took on the role of fight­ing the Trump administration’s harm­ful envi­ron­men­tal rules and roll­backs between 2017 and 2021. Cal­i­for­nia AG Rob Bon­ta stat­ed that the Trump admin­is­tra­tion felt like a full-on frontal assault from Wash­ing­ton” and took a lot of air out of the room in terms of what the envi­ron­men­tal work could be at the time.” With the Biden admin­is­tra­tion being proac­tive in restor­ing and pro­gress­ing with envi­ron­men­tal poli­cies, state AGs aren’t focused on hold­ing the line and can devote resources to expand­ed work in their states.

A con­tribut­ing fac­tor to this shift could be that state AGs are advo­cat­ing more through com­ments to the Biden admin­is­tra­tion instead of lit­i­ga­tion. Accord­ing to the data­base, there were 125 com­ment let­ters focused on advanc­ing clean ener­gy, cli­mate and envi­ron­men­tal laws dur­ing the Trump admin­is­tra­tion. In the first 18 months of Biden’s pres­i­den­cy, there have already been 72 com­ment let­ters, sug­gest­ing that com­ments dur­ing the Biden admin­is­tra­tion will out­num­ber those dur­ing Trump’s pres­i­den­cy by the end of 2024. Fur­ther­more, state AGs have been engag­ing with a broad­er array of agen­cies than before. Dur­ing the Biden admin­is­tra­tion, AGs have so far sub­mit­ted com­ments urg­ing agen­cies such as the Depart­ment of Labor, the Secu­ri­ties and Exchange Com­mis­sion, and the Food and Drug Admin­is­tra­tion to con­sid­er cli­mate change, clean ener­gy, and tox­i­c­i­ty while con­duct­ing rule-making. 

Anoth­er trend is the growth in envi­ron­men­tal jus­tice lit­i­ga­tion. This lit­i­ga­tion has been a grow­ing area of state AG work. States such as Cal­i­for­nia and New Jer­sey have been expand­ing their envi­ron­men­tal jus­tice work for years. In 2018, Cal­i­for­nia and New Jer­sey both cre­at­ed envi­ron­men­tal jus­tice units with­in the AG’s office. Now, Wash­ing­ton and New Mex­i­co AGs are devel­op­ing envi­ron­men­tal jus­tice ini­tia­tives as well. The AG Actions Data­base includes 13 state-lev­el lit­i­ga­tion actions relat­ed to envi­ron­men­tal jus­tice since Biden’s inau­gu­ra­tion, includ­ing an action that encom­pass­es sev­en envi­ron­men­tal jus­tice law­suits brought by the New Jer­sey AG in Octo­ber 2021. At the same time, Biden’s com­mit­ment to envi­ron­men­tal jus­tice may be gal­va­niz­ing more efforts in the field. He cre­at­ed the first ever White House Envi­ron­men­tal Jus­tice Advi­so­ry Coun­cil and includ­ed envi­ron­men­tal jus­tice issues in the Justice40 ini­tia­tive, which aims to deliv­er 40 per­cent of ben­e­fits from fed­er­al invest­ments to dis­ad­van­taged communities. 

Some state AGs are urg­ing the Biden admin­is­tra­tion to go fur­ther with envi­ron­men­tal jus­tice by push­ing to include con­sid­er­a­tions relat­ed to envi­ron­men­tal jus­tice con­cerns in envi­ron­men­tal impact state­ments. For exam­ple, in May 2021, New York AG Leti­tia James led a coali­tion of five states in sub­mit­ting com­ments to the Army Corps of Engi­neers, urg­ing the Corps to ana­lyze envi­ron­men­tal jus­tice impacts as part of its envi­ron­men­tal impact state­ment. This exam­ple also indi­cates that state AGs are not shy­ing away from push­ing the Biden admin­is­tra­tion on envi­ron­men­tal con­cerns. There are already sev­er­al chal­lenges to Biden-era rules, as well as Trump-era rules that the Biden admin­is­tra­tion is plan­ning to con­tin­ue. In 2021, Mass­a­chu­setts AG Mau­ra Healey empha­sized that her office was open to push­ing back on Biden’s rules. For exam­ple, in Feb­ru­ary of this year, Mass­a­chu­setts joined a Cal­i­for­nia-led coali­tion chal­leng­ing Biden’s con­tin­u­ance of a Trump-era rule involv­ing green­house gas emis­sion stan­dards for air­planes and air­plane engines. This is yet anoth­er sign that AGs won’t over­look the Biden administration’s actions sim­ply because it is work­ing to enhance poli­cies relat­ed to clean ener­gy and cli­mate change. Instead, state AGs are eval­u­at­ing Biden’s poli­cies, sup­port­ing the poli­cies that war­rant sup­port and chal­leng­ing those that fail to pro­mote clean ener­gy and address cli­mate change.

  1. The Center’s AG Actions Data­base tracks actions of region­al and nation­al sig­nif­i­cance tak­en by state attor­neys gen­er­al to advance clean ener­gy, cli­mate, and envi­ron­men­tal laws and poli­cies. While the Cen­ter strives to be thor­ough in record­ing state actions in the data­base, we can­not guar­an­tee that every action is rep­re­sent­ed here. Fur­ther­more, there may be more than one action in a sin­gu­lar case. For exam­ple, there may be one AG action in the data­base detail­ing a coali­tion of states fil­ing an ami­cus brief for a case, and anoth­er action for a state fil­ing a sep­a­rate ami­cus brief in the same case.
  2. The Cen­ter relies pri­mar­i­ly on AG press releas­es and pub­lic­i­ty to gath­er actions for the data­base.