Republican AGs linked arms to fight Biden energy agenda

President Joe Biden’s effort to tackle climate change across government agencies was met by well-organized, litigious foes: Republican state attorneys general.

The AGs coordinated legal strategies to fight energy and climate policies in federal courts where conservative judges were almost guaranteed to see a case and through direct engagement with federal agencies, according to emails among state officials obtained by POLITICO’s E&E News.

In one instance, a state official wrote that she had spoken with a Republican on the Federal Energy Regulatory Commission about a contentious natural gas emissions policy.

The review of thousands of pages of 2022 correspondence shows that the chief legal officers in two dozen states — often led by Texas and Louisiana AGs — formed a united front against Biden administration regulation. As Biden’s agenda took shape, the states planned challenges to auto emissions standards and a Department of Energy appliance efficiency rule.

The coordination extended to personnel decisions, such as the appointment of a climate risk officer at the Office of the Comptroller, as well as executive orders on extreme heat and offshore wind.

The AGs also weighed in at critical junctures at FERC, an independent agency with a central role in managing a shift to a lower-carbon electric grid.

During a two-year-long rulemaking, the AGs made clear they opposed any rule requiring regional grid planning, attacking FERC’s proposal as an effort to force utility customers in red states to pay for power lines needed to achieve blue state clean energy goals.

In an email from the office of Texas Attorney General Ken Paxton to state officials across the country, an assistant solicitor general said a letter opposing the FERC proposal was part of a broader political goal.

“This comment is a part of our larger, combined efforts to oppose the Biden Administration’s climate change agenda,” Ryan Baasch, with the Texas AG’s office, wrote in a September 2022 email to legal officials from other red states.

“Like many of the other actions we have challenged,” Baasch continued, “the agency here is seeking to use its regulatory authority in a novel way to increase national use of renewable energy resources.”

To be sure, there’s nothing new about multistate challenges to federal regulation. A decade ago, Republican attorneys general came together to stop the Obama-era EPA from enacting a plan to regulate power plant carbon emissions. And Democratic AGs have sued both Republican and Democratic administrations they saw as failing to enforce public health and environmental rules. During Donald Trump’s term, litigation was a regular response to federal agency action.

Under Biden, Republican AGs have taken litigation a step further, using the power of their offices and the backing of corporate interests to pressure agencies inside and outside of court.

One example is a Securities and Exchange Commission shareholder disclosure rule on climate risks. The rule, long sought by climate policy activists, requires companies to disclose how they are affected by rising temperatures and the steps taken to emit less carbon pollution.

Shortly after the SEC finalized the rule in March, nearly every Republican-controlled states and multiple business groups sued, prompting the SEC to press pause. The states had been crafting strategies on how to attack the rule in the spring of 2022, the emails show.

Staking out ‘go-to’ courts

FERC adopted its transmission rule in May. It now faces litigation in the 4th U.S. Circuit Court of Appeals.

In court, critics are arguing the rule forces a shift away from fossil fuels and exceeds FERC’s legal authority. Supporters say the U.S. needs more transmission lines to meet climate goals set by states, electric utilities and the federal government, experts say.

Richard Glick, who was FERC chair when the rule was first conceived, said the email out of the Texas attorney general’s office that lumped the FERC initiative in with every other partisan climate issue suggested a “knee-jerk reaction” to any policy seen as benefiting clean energy. FERC’s transmission rule, Glick said, was not influenced by White House officials.

“They didn’t necessarily care about specific proposals, but more that anything they associated with Biden and climate change they wanted to stop,” Glick, a Democrat who left FERC in January 2023, said in an interview after viewing the emails.

Baasch, the Texas assistant solicitor general, did not respond to a request for comment.

The state attorneys general have drawn on legal theories adopted by the Supreme Court’s conservative wing. And the emails show the offices coordinated to identify and then file suits in courts seen as sympathetic to their causes.

In one email, Arizona’s former solicitor general, Beau Roysden, asked other states if they would like to join a lawsuit against a new energy efficiency rule. The Energy Department rule would require manufacturers to make more efficient dishwashers, clothes washers and dryers. According to the Biden administration, the rule would slash consumer energy bills and cut carbon emissions.

But Roysden wrote in his March 4, 2022, email that consumers had voiced support for the Trump administration’s looser standards. Still, Arizona needed a co-counsel to file its lawsuit in a “favorable” venue, he wrote.

“We welcome all interested, but particularly need a state in a favorable circuit court,” Roysden wrote.

Roysden, who is no longer with the Arizona Attorney General’s Office, said he had no comment on the issues discussed in his email.

Louisiana ultimately became co-counsel in the energy efficiency standards lawsuit, which was brought in the 5th U.S. Circuit Court of Appeals. That court has an outsize number of judges appointed by Republican presidents, and it ended up revoking the Biden administration’s standards in January.

Based in New Orleans, the 5th Circuit is “a favorite go-to for conservative litigants,” said Paul Nolette, an associate political science professor at Marquette University. “It is generally considered the most conservative court, both because of the number of GOP appointees,” he said, “and because the GOP appointees are particularly conservative.”

He added, “That’s a big reason why Texas and Louisiana lead so many of these multistate [lawsuits].”

Suing in a specific court based on judges’ political leanings is referred to as “venue shopping.” The practice is not unusual among lawyers, but it is unusually explicit in the emails among public officials, said William Buzbee, a law professor at Georgetown University.

“This is not a new consideration for lawyers, but these materials confirm how much state AG actions are driven by politics and the hunt for similarly politically aligned and sympathetic courts,” Buzbee said.

The venue for states’ lawsuits was also discussed in emails about a pair of FERC natural gas pipeline policy changes issued in early 2022. They were meant to ensure permitting accounted for greenhouse gases and other environmental concerns stemming from large, multistate pipelines.

Weeks after FERC issued the new policies, Louisiana Attorney General Liz Murrill informed legal officials from approximately two dozen other states that Louisiana was gearing up to sue.

Murrill, who was Louisiana’s solicitor general in 2022, wrote that the policies on the environmental effects of pipelines could harm gas production and reduce tax revenue for states. She also said that more information would be helpful to ensure the courts would consider their case.

“We do have to show we are ‘aggrieved’ so we want to make sure the record at the agency level shows we are,” Murrill wrote March 15, 2022.

Louisiana planned to sue in the Western District of Louisiana’s Lake Charles Division, which has “a large amount of LNG and pipeline related oil and gas operations,” Murrill wrote on March 7. She did not respond to an interview request.

And she expected that Judge James Cain Jr., appointed by former President Donald Trump in 2019, would hear a case brought by the state. His courtroom has become the preferred venue for Louisiana’s lawsuits against energy and environmental regulations. Appeals of decisions issued by the court are heard by the 5th Circuit.

She noted that Cain in 2022 blocked EPA’s use of the social cost of carbon, a metric for quantifying the economic harms of planet-warming emissions.

That March, FERC reacted swiftly to pressure from pipeline companies, lawmakers and the Republican AGs. Within weeks of unveiling their policy change, the commission put the new policy on hold. Since then, the agency has continued to rely on an internal permitting framework dating back to 1999, which does not mention greenhouse gases.

FERC “folded pretty fast,” amid backlash that turned the policies into “drafts,” Murrill wrote in an April 19, 2022 follow-up email.

She also shared that former FERC Commissioner James Danly, a Republican who opposed the gas pipeline policies, had been in touch. “I also received a personal call from Commissioner Danley. Our engagement appears to make an impact so that was good to hear,” Murrill wrote.

Danly left the commission in late 2023 and is now a partner at the law firm Skadden, Arps, Slate, Meagher & Flom. He did not respond to a request for comment.

Tyson Slocum, director of the energy program at the consumer advocacy group Public Citizen, said Danly might have been “encouraging” the state officials on their legal challenges, which could raise ethical questions.

FERC commissioners are not barred from communicating with outside entities about new rules, said agency spokesperson Mary O’Driscoll. “Procedural” inquiries and discussions about generic policies are also allowed, O’Driscoll said.

While Danly might not have broken agency rules, it is “unusual” for a commissioner to coordinate with groups trying to thwart FERC policies, said Ari Peskoe, director of the Electricity Law Initiative at Harvard University.

“This is, explicitly, a political operation to oppose what they see as Biden’s climate agenda,” Peskoe said. “It does seem unusual to me for a FERC commissioner to be so acting against the commission itself.”

Drawing from blue states’ playbooks

The state attorneys’ emails point to a feedback loop among red states and select courts that are receptive to their arguments.

As certain courts have become more willing to strike down regulations, the states, in turn, have been more frequent and “aggressive” in their lawsuits, said Buzbee of Georgetown University.

“What’s really changed is that very little or much less goes unchallenged these days,” Buzbee said. “If [the states] are successful, they may result in important environmental and consumer risk regulations getting stayed or rejected, and there can be real human costs.”

Even so, the legal strategy is similar to what blue states did under the Trump administration.

During Trump’s presidency, Democratic states filed “way more lawsuits” against the federal government than states had done in the past, Marquette’s Nolette said. Typically, the states were fighting to protect environmental regulations that Trump was trying to weaken.

“The Democratic AGs in the Trump administration just sued through the roof,” Nolette said. “It was not even close to the quantity from previous times.”

Red states also opposed rules during the Obama administration, such as the Clean Power Plan. The rule was meant to regulate carbon emissions from power plants. The Supreme Court ultimately struck it down in 2022.

“State AGs have been involved in environmental litigation for some time in organizing comments and briefs,” Peskoe said in an email. “Perhaps there has been an expansion in scope of AG interest (more federal agencies, not just EPA) due to the increasing politicization of climate and energy issues.”

Still, the recent string of challenges comes at the same time as new legal theories from the Supreme Court are also hobbling regulations. This year, the high court did away with a longstanding practice of deferring to federal agencies in disputes over regulations. Agencies had long relied on the tool, known as the Chevron doctrine, to defend environmental rules.

Another new legal weapon for states is the major questions doctrine, which the Supreme Court began using in 2022 and cited when killing the Clean Power Plan. The legal theory holds that agencies cannot act on questions of “major” policy significance without explicit direction from Congress. The states refer to it several times in the emails.

For example, months after the Clean Power Plan decision, Texas and 14 other states cited the doctrine in suing to stop new greenhouse gas emissions standards for cars. According to the states, the EPA standards would force a shift toward electric vehicles, put pressure on the electric grid and benefit Chinese companies.

Michael Williams, then-deputy solicitor general of West Virginia, summed up their critiques in a Nov. 4, 2022, email to fellow state attorneys. West Virginia did not file the lawsuit, but led a multi-state brief in support of it.

“The Final Rule touches on many of the usual issues that I know are important to your States: agency power, the present administration’s attack on traditional energy, concern about Chinese ascendancy, and more,” wrote Williams, who is now solicitor general of the state and did not respond to an interview request. “We therefore hope you’ll join us.”

EPA has said that the standards would improve public health, protect communities from excessive pollution and reduce carbon emissions from cars, a leading source of planet-warming gases in the U.S.

Slocum, of Public Citizen, said the states’ efforts to oppose regulations should raise questions about how attorneys general use public resources.

In all but seven states, AGs are elected by constituents, rather than appointed by governors or other officials. In every state, they serve as the chief legal officer to promote and protect the public interest.

“My question is, how many taxpayer-funded staff hours did the AGs spend on these pretty clearly political crusades,” Slocum said.

“Do the taxpayers of their state hold these efforts as a top priority,” he said, “or have the GOP AGs just been using their public offices as a de facto partisan law firm?”