Since the inauguration of President Donald Trump, the fight for stricter environmental regulation has largely been pushed to state courts. Even as environmentalists are looking for ways to have judges enact regulation of fossil fuels and carbon emissions, other states are pushing back, as was seen last week, when attorneys general from 15 states filed an amicus brief in favor of dismissing a case against oil companies in California. Speaking at a private briefing in Washington on Thursday, several of the attorneys general who filed the brief spoke out about their activism, stressing the need to defend judicial federalism in environmental policy. Attempts by environmentalists to strengthen environmental regulations through the court system have been particularly onerous for American manufacturers.
At the roundtable discussion, Jay Timmons, president and CEO of the National Association of Manufacturers, explained how the group was born out of a sense of dissatisfaction that “plaintiffs lawyers and headline seeking politicians [are] teaming up against manufacturers and trying to score a payday.”
He continued: “Frivilous lawsuits waste taxpayer dollars and jackpot justice systems are a threat to manufacturing workers that could hurt all sizes and sectors of the economy.”
Each of the attorneys general present at the roundtable had signed an amicus curiae brief last week urging California courts to drop a lawsuit on behalf of Oakland and San Fransisco against fossil fuel companies.
For manufactures, recent attempts to sue fossil fuel companies by states and cities like San Francisco and Boulder, CO for damages related to fossil fuel use are deeply worrying. At the heart of the debate was a difference of understanding in where environmental policy should be developed. According to the attorneys general, all of whom signed the brief supported fossil fuel companies, recent lawsuits brought by environmentalists were concerning because they were an attempt to force changes in environmental policy through the court system.
“The courts are no place for determining national environmental policy,” said South Carolina Attorney General Alan Wilson.
“In this particular case I believe this is the wrong way to do the wrong thing,” he continued.
Wilson, along with Mike Hunter, the attorney general of Oklahoma, and Leslie Rutledge, attorney general of Arkansas, stressed that he supported reasonable environmental regulation. For all of the attorneys general, however, the process by which these regulations took shape was of critical importance.
“This is legislation, it needs to be in the legislature and in Congress,” said Hunter.
Throughout the series of talks, it was repeatedly emphasized that regulation through lawsuits and court decisions creates problems for American business, especially manufacturers. When discussing environmental regulation, all of the attorneys general agreed that these laws were necessary and beneficial, while stressing that businesses needed an opportunity to be consulted about the regulatory process.
“[Previously] the pattern was the sue and settle, with activists suing the regulators to try to get them to do something more onerous than in many cases what was even being considered,” said Timmons, who added that this approach left no means for businesses to push for predictability or accountability. The resulting uncertainty in environmental regulation resulted in costs in jobs, as well as investment and job and wage increases, he continued.
American manufacturing accounts for about one-third of the country’s energy use, meaning that even small changes in state or local regulation can have significant effects. For example, in Arkansas, one of the states which signed the amicus curiae brief in California, 12.5 percent of state employment is related to the energy industry. Although states have the ability to determine their own environmental regulation and policies, if taken too far, lawsuits in one state can have adverse effects on employment in other states.
“Ignoring the impact on the economy is typical for those on the left,” said Hunter. “As far as I am concerned it is environmental McCarthyism.”
Timmons also cast doubt on the motives of the attorneys helping the California cities to bring their cases to trial, pointing out that the lawyers stood to take home 23 percent of any money won in the lawsuit. All of the attorneys general were unhappy that national policy should be determined under these sort of circumstances.
“If there is going to be a national policy, it should come about through national debate in a transparent form,” said Hunter.
Leslie Rutledge, the attorney General of Arkansas, agreed, adding that she and others supported effective environmental regulation. The difference, she said, was how these regulations came about. Regulation without an opportunity for businesses and other stakeholders to have a voice was a problem.
Meanwhile, the lawsuit, which began in January, continues, with several energy companies arguing with the cities of Oakland and San Francisco about legal details.
