Report

The Proof is in the Policies: 2021 Wins

An illustration depicting wind turbines, solar panels, and a costal road.

Exec­u­tive Summary

After four years of suing the Trump admin­is­tra­tion, in 2021, many dif­fer­ent coali­tions of state attor­neys gen­er­al (AGs) have kept up the pres­sure in court while also turn­ing to agency advo­ca­cy to push for strong and pro­tec­tive fed­er­al ener­gy and envi­ron­men­tal poli­cies. They are already mak­ing sig­nif­i­cant progress. Take state-lev­el water qual­i­ty stan­dards. These stan­dards pro­tect some of the country’s biggest rivers, beloved fish­ing waters in places like North Car­oli­na, and the Sier­ra Neva­da and Appalachia head­wa­ters. The stan­dards allow states to act quick­ly when a hog farm’s waste lagoon over­flows and to enforce state poli­cies when a dam is being re-licensed. And the stan­dards help con­trol sed­i­men­ta­tion and pro­tect threat­ened salmon, among many oth­er uses. But dur­ing the Trump admin­is­tra­tion, the states’ abil­i­ty to enforce their water qual­i­ty stan­dards was one of the many envi­ron­men­tal pro­tec­tions that were rolled back. After Pres­i­dent Biden’s inau­gu­ra­tion, the Envi­ron­men­tal Pro­tec­tion Agency (EPA) announced it was recon­sid­er­ing the roll­back, but the agency balked in court and resist­ed a court order vacat­ing it. A 21-state coali­tion was con­cerned that projects would be per­mit­ted while EPA recon­sid­ered, risk­ing irre­versible harm, and pushed for vacatur. This Octo­ber, a fed­er­al dis­trict court agreed with the coali­tion and vacat­ed the Trump-era rule over EPA’s oppo­si­tion. This was a win for clean water and all those who rely on it.

But that win was only one exam­ple among many. In 2021, beyond court, reg­u­la­to­ry process­es have been mov­ing fast, lead­ing to changes on many fronts, which are respon­sive to con­cerns expressed by AGs. Many advo­cates have con­tributed to bring­ing about these changes. AGs in par­tic­u­lar have played a key role in build­ing strong records while also push­ing for poli­cies that will address inequitable pol­lu­tion bur­dens. This report high­lights exam­ples of ener­gy and envi­ron­men­tal pol­i­cy gains in areas where mul­ti­ple AG coali­tions have been active, push­ing the fed­er­al gov­ern­ment to improve rules that have an impact on states and their peo­ple. It is far from a com­plete account of every sin­gle action and pol­i­cy shift. But these high­lights help make clear that pol­i­cy changes address­ing the con­cerns of many AGs have been occur­ring in many areas.

  • Cli­mate change: At EPA, after con­gres­sion­al advo­ca­cy and law­suits brought by a large coali­tion of AGs, there is a pro­pos­al to cut car­bon emis­sions from vehi­cles to the tune of 2,200 mil­lion met­ric tons and methane emis­sions to the tune of 2.7 mil­lion met­ric tons. Anoth­er pro­posed rule will remove 41 mil­lion tons of methane emis­sions from the oil and gas indus­try between 2023 and 2035, and a final rule will cut hydro­flu­o­ro­car­bons 85% by 2036.
  • Air pol­lu­tion: EPA in 2022 is required to approve or dis­ap­prove upwind states’ plans for tack­ling smog pol­lu­tion fol­low­ing a con­sent decree New York Attor­ney Gen­er­al Leti­tia James and oth­er down­wind states in the north­east nego­ti­at­ed. Once EPA acts on those plans, new lim­its in upwind states will help down­wind states hit their smog reduc­tion tar­gets. And, after pres­sure from a Cal­i­for­nia-led coali­tion, EPA is improv­ing its process for ana­lyz­ing restric­tions on par­tic­u­late mat­ter emissions.
  • Clean ener­gy: Mass­a­chu­setts Attor­ney Gen­er­al Mau­ra Healey pushed the Vine­yard Wind off­shore wind project to get back on track, which will in turn help meet the state’s clean ener­gy tar­gets start­ing in 2023. Mid-Atlantic AGs – Mary­land, Delaware, and New Jer­sey – worked to ensure capac­i­ty auc­tions are held under rules favor­able to states with clean ener­gy plans begin­ning in 2022.
  • Ener­gy effi­cien­cy: Coali­tions led by Cal­i­for­nia Attor­ney Gen­er­al Rob Bon­ta and New York Attor­ney Gen­er­al James sup­port­ed efforts to rein­state light­bulb effi­cien­cy stan­dards and the Depart­ment of Ener­gy’s Process Rule. Just the light­bulb rule will save the plan­et mil­lions of met­ric tons of green­house gas emis­sions and con­sumers bil­lions of dol­lars when the rules are final­ized in the com­ing year.
  • Fos­sil fuel infra­struc­ture: The Key­stone XL pipeline and the Jor­dan Cove Liq­ue­fied Nat­ur­al Gas export ter­mi­nal will not move for­ward due in part to oppo­si­tion to the fos­sil fuel projects led by the AGs of Cal­i­for­nia and Ore­gon, respectively.
  • Clean water: After court and reg­u­la­to­ry pres­sure from sev­er­al states, EPA is con­sid­er­ing an inter­pre­ta­tion of its Clean Water Act juris­dic­tion which will be more pro­tec­tive than a def­i­n­i­tion advanced by the pri­or admin­is­tra­tion. In addi­tion, after oppo­si­tion from AGs and oth­ers, EPA adjust­ed its inter­pre­ta­tion of ground­wa­ter pro­tec­tion under the Supreme Court’s Coun­ty of Maui v. Hawai’i Wildlife Fund case in a way that removed a harm­ful fac­tor adopt­ed under the pri­or admin­is­tra­tion. And AGs helped con­vince the Army Corps of Engi­neers to con­duct a full envi­ron­men­tal review of the pro­posed For­mosa petro­chem­i­cal plant under the Clean Water Act, which remains ongoing.
  • Pub­lic lands: The AGs of Cal­i­for­nia, New Mex­i­co, New York, and Wash­ing­ton suc­ceed­ed in con­vinc­ing the Depart­ment of the Inte­ri­or to lift an agency order that would have pro­hib­it­ed the Biden admin­is­tra­tion from paus­ing the fed­er­al coal leas­ing pro­gram. Also, fol­low­ing Wash­ing­ton Attor­ney Gen­er­al Bob Fer­gu­son and oth­er states fil­ing an ami­cus brief, Grand Stair­case-Escalante and Bears Ears Nation­al Mon­u­ments will not be shrunk as for­mer Pres­i­dent Trump announced.
  • Safe­ty and tox­i­cs: The New York AG and eight oth­ers fought first at EPA and then the courts to secure an order that requires EPA to issue – which it now has – a rule ban­ning the use of the harm­ful pes­ti­cide chlor­pyri­fos on food. Like­wise, Cal­i­for­nia and Mass­a­chu­setts teamed up to lead an 11-state coali­tion to obtain a set­tle­ment with EPA which requires the agency to adopt a final rule by Decem­ber 2022 to col­lect data on asbestos and asbestos-con­tain­ing articles.
  • Wildlife: Migra­to­ry birds will receive more pro­tec­tion under their name­sake statute, the Migra­to­ry Bird Treaty Act, than under the pre­vi­ous admin­is­tra­tion. The Depart­ment of the Inte­ri­or dropped an appeal of a deci­sion vacat­ing an unlaw­ful inter­pre­ta­tion of the Act and scrapped a sim­i­lar rule that allowed inci­den­tal tak­ing of pro­tect­ed birds, after a New York-led coali­tion chal­lenged both the unlaw­ful inter­pre­ta­tion and the
    Department’s new rule. And endan­gered species will be bet­ter pro­tect­ed under the Endan­gered Species Act after the AGs of Cal­i­for­nia and Mass­a­chu­setts chal­lenged in court two rules that weak­ened pro­tec­tions pro­vid­ed by the statute. Reg­u­la­tions to rescind the rules have been proposed.
  • Envi­ron­men­tal jus­tice and oth­er cross-cut­ting issues: AGs have raised impor­tant envi­ron­men­tal jus­tice impli­ca­tions in advo­cat­ing for stronger air and water pol­lu­tion con­trol rules. This spring, New York AG James and four oth­er AGs helped con­vince the Army Corps of Engi­neers to pre­pare a more detailed analy­sis of the envi­ron­men­tal impact of a pro­posed petro­chem­i­cal com­plex in Can­cer Alley, an area that is over 85% Black and suf­fers from a high rate of health chal­lenges. The new review remains pend­ing. Cross-cut­ting rules saw changes as well. After then-Cal­i­for­nia Attor­ney Gen­er­al Xavier Becer­ra led a 23-state law­suit suing the Coun­cil on Envi­ron­men­tal Qual­i­ty, the agency has unveiled a pro­pos­al to elim­i­nate some of the most harm­ful changes to the Nation­al Envi­ron­men­tal Pol­i­cy Act imple­ment­ing reg­u­la­tions that were con­tained in a July 2020 rule. The pro­pos­al would improve fed­er­al envi­ron­men­tal reviews. On anoth­er front, the so-called Secret Sci­ence Rule will no longer con­strain EPA as it seeks to pro­mul­gate reg­u­la­tions pro­tec­tive of human health and the envi­ron­ment in part because a New York-led coali­tion of states sued the agency to ditch the rule.

The fight for strong fed­er­al envi­ron­men­tal and ener­gy poli­cies con­tin­ues, even as the Biden admin­is­tra­tion has declined to pur­sue ambi­tious poli­cies on occa­sion. The avi­a­tion indus­try, which accounts for three per­cent of U.S. green­house gas emis­sions, is an exam­ple of this dynam­ic. In Jan­u­ary 2021, pri­or to the Biden inau­gu­ra­tion, EPA ignored con­cerns raised by AGs and final­ized a rule that does not require air­craft in devel­op­ment to low­er their emis­sions pro­file. Then-Cal­i­for­nia AG Becer­ra and 12 oth­er attor­neys gen­er­al filed a peti­tion for review chal­leng­ing the final rule. Despite a White House state­ment that the admin­is­tra­tion would seek ways to low­er green­house gas emis­sions from the indus­try, EPA recent­ly announced that it would not rewrite the Trump-era emis­sions rules. The law­suit will thus pro­ceed. Both in court and at agen­cies, states will con­tin­ue to push for strong envi­ron­men­tal protections.

As attor­neys gen­er­al, it’s our job to be on the front line – com­bat­ting the cli­mate cri­sis, pro­tect­ing our envi­ron­ment, and advanc­ing envi­ron­men­tal jus­tice. Dur­ing the Trump Admin­is­tra­tion, we worked togeth­er to stand up against efforts to gut crit­i­cal envi­ron­men­tal laws. Now, our job is to make sure that we restore these vital pro­tec­tions and pro­tect our most vul­ner­a­ble com­mu­ni­ties. We look for­ward to con­tin­u­ing to work with the Biden Admin­is­tra­tion to advance our clean ener­gy econ­o­my and to pre­serve the envi­ron­ment for our peo­ple and for future generations.”

– Mass­a­chu­setts Attor­ney Gen­er­al Mau­ra Healey

With a remark­able 83 per­cent win-rate over the Trump administration’s harm­ful and dan­ger­ous poli­cies against pub­lic health and the envi­ron­ment, attor­neys gen­er­al across the coun­try are on the front­lines pro­tect­ing our com­mu­ni­ties. From the air we breathe, to the water we drink, to the food we con­sume and more, we have been unwa­ver­ing in our fight to pro­tect and strength­en our nation’s health, safe­ty, and envi­ron­men­tal laws. I remain com­mit­ted to work­ing with my col­leagues through­out the nation to sup­port the safe­ty and well­be­ing of all our communities.”

– New York Attor­ney Gen­er­al Leti­tia James