1. Eight AGs Sue Interior Department Over Rollback of Migratory Bird Protections
New York Attorney General Barbara Underwood led a coalition of eight state attorneys general in filing suit against the Interior Department over the Trump Administration’s decision to roll back protections provided to wildlife under the Migratory Bird Treaty Act (MBTA). The AGs’ suit challenges the Interior Department’s reversal of its long-standing legal position that companies are liable under the MBTA for activities that recklessly cause bird deaths.
The century old MBTA has been credited with saving multiple bird species from extinction. The MBTA unequivocally states that persons may not “pursue, hunt, take, capture, [or] kill” any migratory bird “by any means or in any manner” without a valid permit. For many decades, the government has consistently held that this broad “take” provision covers activities that recklessly cause preventable bird deaths, even when the companies did not take the action for the purpose of killing birds. As a result, wind energy companies, oil companies, and utilities whose operations can cause migratory bird deaths have been prosecuted under the Act when they failed to take reasonable steps to reduce or eliminate unintended, “incidental” killings.
The Trump Administration’s new interpretation of the act would no longer hold energy companies accountable for avoidable migratory bird killings. Now, only when companies take affirmative actions that are intended to kill or maim birds will they be held liable. By converting a strict liability statute to one that turns on corporate intent, the Administration is letting companies completely off the hook for engaging in activities that they know will kill birds, and removing any incentive to prevent or reduce avoidable killings.
“In yet another giveaway to special interests at the expense of our states, the Trump administration has gutted the Migratory Bird Treaty Act – eliminating longstanding prohibitions on injuring or killing over 300 species of migratory birds that provide critical ecological, scientific, and economic value to New York,” said Attorney General Underwood. “Our coalition will fight to reverse this reckless and illegal action – just as we have successfully beaten back so many of the Trump administration’s destructive policies.”
Attorneys General of California, Illinois, Maryland, Massachusetts, New Jersey, New Mexico and Oregon joined New York in filing the lawsuit.
2. California Attorney General Xavier Becerra Announces “Lawyers for A Sustainable Economy” Initiative at the Global Climate Action Summit
California AG Xavier Becerra, joined by five additional state attorneys general, announced a “Lawyers for a Sustainable Economy” (LSE) initiative at the Global Climate Action Summit that was held in San Francisco from September 12-14. Nine of the U.S.’s largest and most respected law firms are founding members of the LSE effort. Together, the firms have committed to provide $15 million dollars in pro-bono legal services to “entrepreneurs and community-based non-profits [who are] taking on key sustainability challenges across multiple economic sectors, in energy, transportation, and land use.”
David Hayes, Executive Director of the State Energy & Environmental Impact Center, played a central role working with the Global Climate Action Summit staff in recruiting the law firms that are participating in the initiative, and in securing the assistance of Stanford Law School and Stanford’s Precourt Institute for Energy to provide clearinghouse services for the LSE initiative.
Attorneys General of Connecticut, Massachusetts, New York, and Washington, D.C. joined AG Becerra in issuing the statement of support.
3. AGs Oppose EPA’s Proposal to Roll Back Vehicle Emissions Standards, Revoke California’s Clean Air Act Waiver
State attorneys general continued their active opposition to the Trump Administration’s proposal to weaken fuel efficiency standards and revoke California’s waiver under the Clean Air Act to set its vehicle emissions standards. The “Safer Affordable Fuel Efficient (SAFE) Vehicles” proposed rule would freeze fuel efficiency standards for passenger cars and light trucks for model years 2021 to 2026, costing consumers as much as $200 billionin higher gas costs and resulting in an additional 16 to 37 million metric tons of carbon pollution.
On August 2, a coalition of 20 AGs led by Massachusetts Attorney General Maura Healey issued a joint statement indicating the AGs’ intention to sue if the EPA finalizes the proposed rule. "The EPA is once again canceling environmental protections, putting the health of every American at risk and costing all of us hundreds of billions more at the pump," saidAG Healey.
On August 27, a coalition of 18 AGs sent a letter to the EPA and the National Highway Traffic Safety Administration demanding additional public hearings and requesting an extension to the proposed rule’s public comment period.
In a press call coordinated by The Better World Group on September 21, California Attorney General Xavier Becerra and Maryland Attorney General Brian Frosh again criticized the EPA’s proposed rule, raising concerns about its effects on public health and the environment for their respective states and their citizens. “For most people, devastating hurricanes like Florence or wildfires and mudslides as we’ve experienced in California, the flooding and the drought; those things ruin lives, they’ve ruined businesses, and they’ve ruined communities,” saidAG Becerra.
Attorney General Frosh reiterated the AGs’ demand for additional hearings, calling the Administration’s proposal to hold just three hearings for a rule that would affect 113 million Americans “simply inadequate.” Attorney General Frosh went on to firmly state his intention of bringing the Administration to court if the EPA moves forward with the proposed rule, noting that the states “have clear legal grounds for overturning the EPA's decision based on the Administration's failure to comply with basic regulatory precedent.”
During the proposed rule’s first public hearing in Fresno, California on September 24, Attorney General Becerra noted that 26 percent of children living in the San Joaquin Valley suffer from asthma and reiterated the danger the proposed rule poses for air quality standards and public health. “California hasn’t been shy about taking action against any backsliding on clean air,” AG Becerra said. “The facts, science, and rule of law are on our side. Our 14 victories in court rulings from our 24 environmental lawsuits to date against the federal government speak to that.”
4. Coalition of 10 AGs Denounce Trump Administration’s Plan to Dismantle the Endangered Species Act
A coalition of 10 state attorneys general led by Massachusetts Attorney General Maura Healey and California Attorney General Xavier Becerra raised strong objections to the Trump Administration’s plan to dismantle critical species protections under the Endangered Species Act (ESA) in a comment letter sent to the Interior and Commerce Departments on September 24.
The AGs’ letter responded to a highly controversial set of proposed rules announced by the Trump Administration in July. If finalized, the proposed rules would severely weaken protections for species that are currently threatened or endangered and make it harder for new species to gain protections under the law. “These proposed rules put rare plants and animals at greater risk of extinction, imperiling natural habitats and local tourism economies across the country,” AG Healeysaid. “We urge the Administration to withdraw these misguided proposals.”
Among the more concerning proposed changes are provisions that would inject economic impact analysis into the scientific process for determining whether a species is threatened or endangered. There would also be new limitations on the U.S. Fish and Wildlife Services’ and the National Oceanic and Atmospheric Administration’s (NOAA) ability to list species as threatened if climate change is the primary threat facing a species; an erosion of protections for species managed by the Fish and Wildlife Service; and limitations to future federal interagency consultation on issues related to species threatened by climate change.
In their comment letter, the AGs noted that the proposed rules do not pass muster under several statutes – using economic analyses in listing decisions is expressly prohibited by Section 4 of the ESA, and the proposed rules violate the National Environmental Policy Act due to the Administration’s failure to study their “devastating” environmental impacts. “The Trump Administration’s proposal would risk bringing critical wildlife closer to extinction. We must voice strong opposition to this regressive and short-sighted proposal,” saidAttorney General Becerra.
Attorneys General of Maryland, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and the District of Columbia joined Massachusetts and California in submitting the comments.
5. California and New Mexico Sue Trump Administration Over Repeal of the Methane Waste Prevention Rule
California Attorney General Xavier Becerra and New Mexico Attorney General Hector Balderas filed suit against the Trump Administration on September 18 over the Administration’s decision to dismantle the Obama-era Waste Prevention Rule. In their lawsuit, the attorneys general called the Waste Prevention Rule “a commonsense measure” that would “reduce the enormous waste of natural gas on public lands that results from venting, flaring, and equipment leaks.” The AGs also noted that the Administration’s rollback of the rule comes in the wake of its attempt to “illegally delay and suspend its implementation.”
“With this attempt to axe the Waste Prevention Rule, the Trump Administration risks the air our children breathe and at taxpayers’ expense,” saidAttorney General Becerra. “We’ve sued the Administration before over the illegal delay and suspension of this rule and will continue doing everything in our power to hold them accountable for the sake of our people and planet.”
6. Oregon's Low Carbon Fuel Standard Win
On September 7, the U.S. Court of Appeals for the Ninth Circuit upheld a district court decision that had confirmed the legality of the Oregon Environmental Quality Commission’s 2015 Low Carbon Fuel Standard (LCFS), a measure that will lower greenhouse gas emissions in the state. The Ninth Circuit’s ruling is a major win for Oregon Attorney General Ellen Rosenblum, who successfully defended the rule against challenges from the oil, gas and trucking industries. The LCFS is intended to reduce emissions in Oregon from transportation fuels to at least ten percent lower than 2010 levels, and the rule is designed to achieve these savings by 2025.
