The Proof is in the Policies: 2021 Wins

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.