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Legally Speaking
July 2018
1. 16 AGs Get Major Win as EPA Backs Down Over Glider Truck Rule
California Attorney General Xavier Becerra led a coalition of 16 attorneys general in a lawsuit against the U.S. Environmental Protection Agency (EPA) over the agency's attempt to suspend enforcement of its 2016 Glider Rule. The rule applies to "glider" trucks, or newly manufactured heavy-duty freight trucks that use refurbished engines built before 2010.

Truck engines built before 2010 are exempt from current fuel efficiency standards, making glider trucks some of the dirtiest, most polluting trucks on the road. According to EPA's own research, glider trucks produce as much as 55 times more nitrogen dioxide as trucks adhering to current fuel efficiency standards. The agency's decision not to enforce rules limiting the number of new glider trucks each year was widely criticized as a giveaway to industry. 

Less than one week after the AGs filed their lawsuit, EPA's acting administrator Andrew Wheeler announced that the agency would withdraw the "no action assurance" the agency had provided glider truck manufacturers on the last day of Scott Pruitt's scandal-plagued tenure. EPA's retreat came in the face of mounting pressure from AGs across the country, who had also written a letter to Wheeler six days before filing suit, and environmental groups, which had won an emergency stay in the U.S. Court of Appeals for the D.C. Circuit on July 18.  


In addition to California, Attorneys General of Delaware, Illinois, Maine, Maryland, Massachusetts, New Jersey, New York, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia joined the suit against the EPA.

This is only the latest major environmental victory for State AGs, who have collectively taken more than 118 actions defending and promoting clean energy, climate and environmental laws and policies since January 19, 2017.


 
2. Eight AGs Submit Comments Demanding Stronger Economic and Environmental Reviews for New Gas Pipelines
Massachusetts Attorney General Maura Healey led eight AGs in submitting comments objecting to the Federal Energy Regulatory Commission’s (FERC) cramped processes for confirming the “need” for new gas pipelines, which the AGs argue makes it too easy for private gas pipelines companies to exercise eminent domain authority. The AGs also asked FERC to strengthen its evaluation process for additional economic and environmental issues associated with gas pipeline proposals.
 
The AGs joined a diverse range of elected officials, experts and environmental groups in calling for FERC to fully evaluate regional power needs. They argued that the Commission should  consider renewable energy and other alternatives for meeting regional electricity needs, and that applications filed by corporate “affiliates” of utilities should be subject to greater scrutiny before FERC approves new gas pipelines. 
 
The AGs also raised separate concerns over the scope of the Commission’s environmental reviews for new gas pipelines, including the Commission’s failure to evaluate greenhouse gas emissions and related climate impacts associated with new pipeline construction.
 

In separately filed commentsNew York Attorney General Barbara Underwood added objections regarding FERC’s frequent practice of approving new pipelines before states have the opportunity to complete their own reviews of environmental impacts. 
 
Think Progress highlighted the role of State AGs in the fight for a better pipeline review process in an extensive article reviewing comments submitted to FERC. 
3. Attorneys General Ask the Supreme Court to Overturn Lower Court Ruling on HFCs
Hydroflourocarbons (HFCs) are among the most common substitutes for chlorofluorocarbons, the ozone depleting chemicals originally used for air conditioning, refrigerators and a range of other industrial and commercial purposes. While HFCs do not damage the earth’s ozone layer, they are a major contributor to climate change; scientists have confirmed that HFCs are thousands of times more potent greenhouse gases than carbon dioxide. 
 
In August of 2017 a divided Court of Appeals for the D.C. Circuit ruled that the EPA does not have authority under the Clean Air Act to prohibit the use of HFCs, reversing decades of Agency rulemaking and throwing future implementation of the law into question.  
 
On July 27 a coalition of 18 AGs, led by Massachusetts Attorney General Maura Healey filed an amicus brief requesting that the Supreme Court reverse the lower court’s decision. The AGs joined environmentalists and leading manufacturers like Honeywell International in asking the court to allow the EPA to continue regulating HFCs, recognizing the high social and environmental costs associated with our continued reliance on a chemical that is so destabilizing for the climate.
 
“Leading manufacturers have already adopted higher standards that protect the ozone layer, and now the EPA wants to pull the rug out from under them to reward companies that damage the planet with dangerous chemicals,” said AG Healey.


In addition to Massachusetts, Attorneys General of Connecticut, Delaware, Hawai’i, Illinois, Iowa, Maine, Maryland, Minnesota, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Vermont, Virginia, Washington, and the District of Columbia joined in filing the brief.
 
4. Two Attorneys General Provided Testimony in Open Hearing Over EPA's Use of Scientific Data
New York Attorney General Barbara Underwood and District of Columbia Attorney General Karl Racine provided testimony in an open hearing on EPA's proposed "Strengthening Transparency in Regulatory Science" rule on July 17. The rule would prohibit the EPA from considering scientific research based on data that is not publicly available in future regulations, which the rule's many critics argue would bar the EPA from considering the best available science. Both AGs offered testimony that was sharply critical of the EPA's approach. 

Speaking on behalf of District of Columbia Attorney General Karl Racine was Special Assistant Attorney General Sarah Kogel-Smucker. In her testimony Kogel-Smucker called the proposed rule "a solution in search of a problem," arguing that a large volume of peer-reviewed scientific research uses confidential data to protect the private health information of research participants.

Kogel-Smucker raised concerns that disallowing the EPA from considering scientific research on these grounds would violate several statutes, and would prevent the EPA from developing the regulations needed to protect the public health and welfare of D.C. residents, including the city's estimated 10,415 children that suffer from asthma. Kogel-Smucker listed the Clean Air Act, Clean Water Act, Safe Drinking Water Act, and the Toxic Substances Control act as examples of current laws the proposed rule would violate. 

Speaking on behalf of New York Attorney General Barbara Underwood was Jodi Field, Chief Scientist for the Environmental Protection Bureau in the Office of the New York State Attorney General. Field called the proposed rule "vague, poorly reasoned, deeply flawed" and in violation of  the EPA's legal requirements. Field went on to argue that EPA is basing its proposed rule on "bad science [owing] to its total absence of independent scientific input." 
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